PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-5289
MARC ANTHONY JEFFERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Glen E. Conrad, District Judge.
(5:04-cr-30042-gec)
Argued: March 27, 2009
Decided: June 17, 2009
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Niemeyer and Judge Duncan joined.
Judge Niemeyer wrote a separate concurring opinion.
COUNSEL
ARGUED: Katherine A. Warren, WHEAT & WU, Washing-
ton, D.C., for Appellant. Jean Barrett Hudson, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Judith L. Wheat, Shanlon
2 UNITED STATES v. JEFFERS
Wu, WHEAT & WU, Washington, D.C., for Appellant. Julia
C. Dudley, Acting United States Attorney, Roanoke, Virginia,
for Appellee.
OPINION
KING, Circuit Judge:
Defendant Marc Anthony Jeffers was convicted in the
Western District of Virginia of conspiring to distribute 50
grams or more of a mixture or substance containing cocaine
base, in contravention of 21 U.S.C. § 846 (the "conspiracy
offense"), and of using or carrying a firearm during and in
relation to a drug trafficking crime, and of possessing a fire-
arm in furtherance of that crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (the "firearm offense"). Jeffers appeals his
convictions and sentence, and we have grouped his multiple
appellate contentions (several of which were not preserved) as
follows: (1) the district court deprived him of due process by
conducting proceedings off the record; (2) the evidence fails
to support his conviction on the firearm offense; (3) the jury
instructions were erroneous in various respects; (4) the court
committed two sentencing errors; and (5) the prosecution
failed to comply with its discovery obligations. As explained
below, we reject each of his contentions and affirm.
I.
A.
Jeffers’s convictions arise from his participation in an ille-
gal drug enterprise, which operated out of an old motel in
Luray, Virginia, that had been converted into apartments
("Shriver’s Motel"). After receiving information that cocaine
base ("crack cocaine" or "crack") and cocaine were being sold
at Shriver’s Motel, the Luray Police and the Page County
UNITED STATES v. JEFFERS 3
Sheriff investigated, conducting surveillance activities and
making more than thirty controlled drug buys in the month of
January 2002. The investigation revealed that large quantities
of crack were being sold and distributed there. On February
2, 2002, the authorities executed search warrants at Shriver’s
Motel and arrested four suspects in the illicit enterprise: Brian
Carter, James Jackson, Shannon Johnson, and William
"Bobby" Pettis. Jeffers was indicted over two years later, on
June 16, 2004, and he was arrested on November 29, 2004.
B.
On September 22, 2006, following a three-day jury trial,
Jeffers was convicted on two of the five counts levied against
him in a sixteen-count indictment (the "Indictment").1 Only
the two counts of conviction — Counts One and Fourteen —
were submitted for jury determination. Count One alleged the
conspiracy offense, that in or around August 1999 and there-
after, Jeffers had conspired with others to distribute 50 grams
or more of a substance containing cocaine base. Count Four-
teen charged Jeffers with the firearm offense, that he had used
or carried a firearm during and in relation to the drug traffick-
ing crime charged in Count One, and had possessed a firearm
in furtherance of that crime.
In its case-in-chief and on rebuttal, the prosecution pre-
sented approximately sixteen witnesses. These witnesses
included two local officers involved in the surveillance of
Shriver’s Motel (Dwight Farmer and John Kibler); three fed-
eral officers involved in Jeffers’s arrest (Jeremy Hanaker,
Brian Sheppard, and William Metcalf); two confidential infor-
mants (Jason Giles and Nathan Strickler); and seven cooperat-
ing coconspirators (Carter, Jackson, Johnson, Joby Chu, John
Lewis, Lenotto Mewborn, and Adrian Wigington). In his
1
The Indictment charged Jeffers with five counts: Counts One, Two,
Three, Four, and Fourteen. On September 21, 2006, the district court
granted judgment of acquittal to Jeffers on Counts Two, Three, and Four.
4 UNITED STATES v. JEFFERS
defense, Jeffers called eight witnesses, who generally testified
about his participation in work and social events in Washing-
ton, D.C. — about ninety miles from Luray — between
August 1999 and February 2002, the timeframe of the con-
spiracy. Following the jury’s guilty verdict, on September 29,
2006, Jeffers filed a motion for a new trial, as well as a
motion for judgment of acquittal on the firearm offense.
Jeffers’s sentencing hearing was conducted in the district
court on December 4, 2006, and William Good, the probation
officer who had prepared Jeffers’s presentence investigation
report (the "PSR"), testified. Relying on the trial evidence,
Good provided the court with testimony that Jeffers was
responsible for more than 1.5 kilograms of crack, and empha-
sized that his estimate was a "very conservative amount." J.A.
891.2 In imposing Jeffers’s sentence, the court stated that it
was predicating its drug quantity finding on Good’s testimony
and, "more importantly, based on the Court’s recollection
from the evidence that was adduced at trial." Id. at 909. The
court found that "the evidence clearly supports by a prepon-
derance of the evidence [Jeffers’s] responsibility for at least
one-and-a-half kilograms of crack cocaine." Id. At the conclu-
sion of the hearing, the court sentenced Jeffers to 324 months
on the conspiracy offense and 60 months on the firearm
offense, to run consecutively.3 The court also imposed a
$25,000 fine and a $200 special assessment. On December 8,
2006, the court denied Jeffers’s motions for a new trial and
judgment of acquittal, and entered final judgment. On March
12, 2008, the court reduced Jeffers’s sentence on Count One
from 324 months to 262 months, because of retroactive
amendments to the Sentencing Guidelines for crack cocaine
convictions.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
3
The district court also sentenced Jeffers to five years of supervised
release to each of Counts One and Fourteen, to run concurrently.
UNITED STATES v. JEFFERS 5
Jeffers filed a timely notice of appeal on December 20,
2006. We possess jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.
II.
Jeffers’s contentions on appeal are, for our analysis,
grouped into five categories. First, Jeffers maintains that the
district court deprived him of due process by conducting some
of the trial proceedings off the record. Second, Jeffers con-
tests the firearm offense conviction, asserting insufficiency of
the evidence. Third, he challenges the jury instructions on
multiple grounds. Fourth, Jeffers contends that the court com-
mitted two sentencing errors. Finally, he asserts that the pros-
ecution engaged in misconduct related to its discovery
obligations. We assess and dispose of these contentions in
turn.
A.
We first address Jeffers’s assertion that he "has been preju-
diced and deprived of his constitutional rights to due process"
because certain proceedings in the district court were not tran-
scribed by a court reporter. Br. of Appellant 30. In particular,
Jeffers contends that the conduct of the charge conference
"off the record" denied him a verbatim account of his law-
yers’ objections to the jury instructions.4 In support of this
contention, Jeffers relies on the Court Reporter Act, which
mandates that "all proceedings in criminal cases had in open
court" be recorded. 28 U.S.C. § 753(b). He contends that
"‘[r]esponsibility to ensure compliance with § 753(b) lies with
4
Pertinent to these proceedings, the lack of a complete record of the dis-
trict court proceedings impacts our standard of review. Where there is no
record of Jeffers’s objection to a particular jury instruction, we must
review that instruction for plain error. In the face of a recorded objection
to an instruction, however, our review is for harmless error. See United
States v. Foster, 507 F.3d 233, 249 (4th Cir. 2007).
6 UNITED STATES v. JEFFERS
the court, not the reporter or the parties’ and failure to record
proceedings constitutes judicial error." Br. of Appellant 27
(quoting United States v. Simpson, 214 F. App’x 311, 313
(4th Cir. 2007)(unpublished)). We review de novo a constitu-
tional challenge predicated on a district court’s alleged non-
compliance with the Court Reporter Act. See United States v.
Brown, 202 F.3d 691, 696 (4th Cir. 2000).
It is clear that "a criminal defendant has a right to a mean-
ingful appeal based on a complete transcript." Brown, 202
F.3d at 696 (internal quotation marks omitted). And a trial
court’s practice of conducting off-the-record charge confer-
ences complicates our review process. In the end, however,
counsel were responsible for placing their objections on the
record at the earliest opportunity, and Jeffers is not entitled to
rely on the court’s alleged failure to comply with the Court
Reporter Act.
Pertinent to this issue, the Seventh Circuit has explained
that the Court Reporter Act "does not require the conference
on jury instructions to be held in open court." United States
v. Murphy, 768 F.2d 1518, 1535 (7th Cir. 1985). And the First
Circuit has observed that "[w]hether or not an off-the-record
conference occurs, counsel remains obligated . . . to put
requests for instructions and objections on the record." United
States v. O’Dell, 390 F.3d 145, 152 (1st Cir. 2004). In O’Dell,
Judge Boudin emphasized that "counsel would be well
advised to insist upon putting fully on the record any request
or objection sought to be preserved on appeal." Id. at 152 n.5.
In this situation, there is no indication that Jeffers’s lawyers
were unable to object to the instructions in a timely fashion.
Indeed, on the final day of trial, defense counsel objected to
the instructions on four separate occasions. Then, following
the charge to the jury, the court requested Jeffers’s counsel to
restate their objections to the instructions, advising them,
"Tell me if you are satisfied with what I ultimately gave, if
you want to preserve it for appeal." J.A. 742. After some dis-
UNITED STATES v. JEFFERS 7
cussion, one of Jeffers’s lawyers responded, "The Court
addressed our concerns . . . . We have no other objections,
Your Honor." Id. In this circumstance, we reject Jeffers’s con-
tention that the lack of a transcript of the charge conference
and other proceedings violated his due process rights.5
B.
We next address Jeffers’s contention that the trial evidence
was insufficient to convict him on the firearm offense. In
assessing a challenge to the sufficiency of evidence, we view
the evidence in the light most favorable to the prosecution and
decide whether "substantial evidence" supports the verdict.
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
Substantial evidence, we have explained, is "evidence that a
reasonable finder of fact could accept as adequate and suffi-
cient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt." Id. (internal quotation marks omitted). In
reviewing the sufficiency of the evidence, we are not entitled
to assess witness credibility, and we assume that the jury
resolved any conflicting evidence in the prosecution’s favor.
See United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007).
Count Fourteen charged that Jeffers "did use or carry a fire-
arm during and in relation to a drug trafficking crime, and did
possess a firearm in furtherance of a drug trafficking crime,"
specifically, the conspiracy offense in Count One. J.A. 19. In
order to convict Jeffers on Count Fourteen, the prosecution
was obliged to prove beyond a reasonable doubt that Jeffers
(1) used, carried, or possessed a firearm (2) in furtherance of
a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). We
5
Jeffers also identifies other trial proceedings and rulings that were not
transcribed, but he fails to present any appellate challenges regarding
those rulings. See Brown, 202 F.3d at 696 ("[T]o obtain a new trial . . .
the defendant must show that the transcript errors specifically prejudiced
his ability to perfect an appeal.").
8 UNITED STATES v. JEFFERS
have defined the phrase "in furtherance of" as "[t]he act of
furthering, advancing, or helping forward"; thus, "§ 924(c)
requires the government to present evidence indicating that
the possession of a firearm furthered, advanced, or helped for-
ward a drug trafficking crime." United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002) (internal quotation marks omit-
ted). Of importance, we observed in Lomax that, among "the
numerous ways in which a firearm might further or advance
drug trafficking . . . . a gun could provide a defense against
someone trying to steal drugs or drug profits, or it might
lessen the chance that a robbery would even be attempted."
Id.
At trial, the evidence linked Jeffers to multiple firearms
during the course of the conspiracy offense. Chu testified that
he had supplied firearms to members of the conspiracy,
including a MAC-11 machine gun and a 9 mm pistol to Jef-
fers. Wigington and Mewborn each testified that Jeffers had
carried a firearm to prevent being robbed. Wigington stated
that Jeffers indicated that, "if somebody was trying to rob
him, he would shoot them." J.A. 89. Mewborn testified that
Jeffers suggested that he kept firearms to guard against
would-be robbers, and had, at least once, bragged about
shooting someone. Jeffers also made it known to his cocon-
spirators that he possessed numerous firearms, apparently to
prevent robberies. Mewborn had seen Jeffers with a 9 mm and
a MAC-11, and Jackson had seen Jeffers with a .45 caliber
pistol. Johnson recounted a trip to Washington, D.C., when
Jeffers entered his mother’s residence and came out with a
black semiautomatic pistol. Additionally, Wigington, Mew-
born, Jackson, and Johnson recalled Jeffers displaying guns to
others. Wigington testified that Jeffers had shown him a black
pistol with gold trim while they were at Jeffers’s mother’s res-
idence, and that Jeffers would sometimes pull the pistol out
of his pants "just to show it" to him. Id. at 87.
Assessed in the light most favorable to the prosecution,
there was substantial evidence that Jeffers used, carried, or
UNITED STATES v. JEFFERS 9
possessed a firearm in furtherance of the conspiracy offense
charged in Count One. A reasonable trier of fact was entitled
to find Jeffers guilty of the firearm offense, and we reject this
aspect of Jeffers’s appeal.6
C.
Next, we assess Jeffers’s contention that the trial court
erred in multiple respects in its instructions to the jury. First,
Jeffers presents two challenges with respect to the instructions
on the firearm offense, and we readily reject them.7 He also
presents challenges concerning the conspiracy offense: that
the court erred in instructing the jury on a single-conspiracy
theory, to the exclusion of a multiple-conspiracy theory; that
the court erred in permitting the jury to infer that Jeffers har-
6
Jeffers also contends that the trial evidence on the firearm offense is
distinguishable from our precedent concerning § 924(c) because "no guns
or drugs were ever seized from Mr. Jeffers." Br. of Appellant 36. We
reject this contention because a firearm need not be seized to sustain a
§ 924(c) conviction. See United States v. Jones, 907 F.2d 456, 460 (4th
Cir. 1990).
7
With respect to the firearm offense, Jeffers asserts that the trial court
failed to instruct the jury that unanimity was required as to the actual fire-
arm that Jeffers had used, carried, or possessed in furtherance of the con-
spiracy offense. This contention is foreclosed, however, by our recent
decision in United States v. Perry, 560 F.3d 246, 257 (4th Cir. 2009)
(explaining that "where the charge involves multiple firearms, jury una-
nimity with respect to the particular firearm used or possessed . . . is gen-
erally not required for a § 924(c) conviction"). Jeffers also contends that
the trial court should have instructed the jury that it had to find that Jeffers
"actively employed" the firearm "during and in relation to the commission
of [the conspiracy] offense" to convict him on Count Fourteen. Br. of
Appellant 24. As Jeffers correctly states, in Bailey v. United States, the
Supreme Court recognized that § 924(c)(1) — as then written — required
"active employment." 516 U.S. 137, 150 (1995). Importantly, however,
Bailey did not address the "possesses" prong, which was thereafter added
to § 924(c). See Lomax, 293 F.3d at 703 (explaining that Congress
amended § 924(c) "in the wake of . . . Bailey"). Under the current version
of § 924(c), an "active employment" instruction is not required, and the
court properly instructed the jury on the elements of the firearm offense.
10 UNITED STATES v. JEFFERS
bored consciousness of guilt because he sought to conceal
himself after he was indicted; and that the court committed
what is commonly called "Collins error" in its instructions on
the conspiracy offense. We address in turn the various conten-
tions of instructional error with respect to the conspiracy
offense.
A trial court’s jury instructions are reviewed for abuse of
discretion. See United States v. Singh, 518 F.3d 236, 249 (4th
Cir. 2008). Of course, an error of law constitutes an abuse of
discretion. See United States v. Basham, 561 F.3d 302, 326
(4th Cir. 2009). In assessing the propriety of instructions, we
will not reverse a conviction so long as the instructions, taken
as a whole, adequately state the controlling legal principles.
See United States v. Bolden, 325 F.3d 471, 486 (4th Cir.
2003).
1.
Jeffers maintains that — based on the evidence — the dis-
trict court should have given the jury a multiple-conspiracy,
as opposed to a single-conspiracy, instruction on Count One.
More specifically, Jeffers claims that with a single conspiracy
charged in Count One, and only multiple conspiracies shown
by the trial evidence, the instructions created a prejudicial
variance. Jeffers concedes, however, that he did not present
this contention to the trial court, and that it is subject to plain
error review only. To show plain error, Jeffers must identify
an error that is plain and that substantially affects his rights.
See United States v. Olano, 507 U.S. 725, 732 (1993).
We have heretofore explained that "[a] single conspiracy
exists, when the conspiracy had the same objective, it had the
same goal, the same nature, the same geographic spread, the
same results, and the same product." United States v. Johnson,
54 F.3d 1150, 1154 (4th Cir. 1995) (internal quotation marks
omitted). Error will be found in a conspiracy instruction "if
the proof of multiple conspiracies was likely to have confused
UNITED STATES v. JEFFERS 11
the jury into imputing guilt to [the defendant] as a member of
one conspiracy because of the illegal activity of members of
the other conspiracy." United States v. Roberts, 262 F.3d 286,
294 (4th Cir. 2001).
The trial evidence overwhelmingly proved the existence of
a crack cocaine distribution conspiracy operating out of
Shriver’s Motel and showed Jeffers’s substantial role in it.
Jackson, Carter, and Giles recalled sales of crack cocaine that
occurred around the clock at Shriver’s Motel. Wigington,
Mewborn, and Johnson described Jeffers as the "biggest"
dealer at Shriver’s Motel, and Carter said that Jeffers was one
of the top three drug dealers operating there. The jury also
heard testimony that Jeffers had recruited others to sell crack.
Johnson testified that Jeffers sold the highest quality crack,
that he gave the best value for the money, and that there were
times when other drug dealers at Shriver’s Motel depended on
Jeffers to supply them with drugs. Following his arrest, Jef-
fers bragged to Lewis that if Lewis sold cocaine in northwest
Washington or northern Virginia, it was probably Jeffers’s prod-
uct.8 Jeffers also admitted to Lewis that he had purchased
cocaine in Florida for a good price.
Several witnesses provided corroborating testimony about
Jeffers’s identity and his involvement in the conspiracy.
Arrington, Mewborn, Carter, Johnson, and Giles knew Jeffers
by the same nickname, "Face." Witnesses confirmed that Jef-
fers drove one or more Cadillac automobiles during the con-
spiracy, and others stated that he was known to ride a
distinctive motorcycle. Jackson observed Jeffers take paper
bags of drugs from under his motorcycle seat more than five
times. Wigington, Jackson, and Newborn testified that Jeffers
"cooked" cocaine into crack, and Wigington testified that Jef-
fers taught him how to cook crack. Other witnesses confirmed
8
Cocaine, sometimes also called powder cocaine, is the substance from
which crack cocaine is made, and its possession and distribution was thus
relevant to the conspiracy offense in Count One.
12 UNITED STATES v. JEFFERS
that Jeffers routinely "fronted" crack to other dealers, result-
ing in debts being owed to him. Wigington, Jackson, and
Johnson made trips to Washington, D.C., with Jeffers to get
drugs. Jeffers, in addition to residing at Shriver’s Motel,
sometimes stayed at a local residence in Luray, which had
been rented by Pettis, another dealer at Shriver’s. At that resi-
dence, Jeffers was seen counting shoe boxes containing thou-
sands of dollars in cash obtained from drug sales. Wigington,
Jackson, Mewborn, and Carter described Jeffers’s distinctive
manner of packing cocaine in large red pellets, and Jeffers
confirmed to one witness that the drugs had been smuggled
inside the body of a female conspirator. Other witnesses testi-
fied that Jeffers told them that he travelled internationally to
obtain cocaine. Wigington, Jackson, Chu, Mewborn, and Car-
ter saw Jeffers possess one to five ounces of cocaine. Indeed,
Jackson testified that Jeffers "[n]ever ran out" of cocaine to
sell. J.A. 158.
On the evidence, the district court thus did not err in
instructing the jury on the single-conspiracy alleged in Count
One. The fact that Jeffers may have competed with some of
his coconspirators did not defeat the prosecution’s theory that
they were all members of a single conspiracy. Additionally,
the evidence showed that the multiple drug dealers at
Shriver’s Motel engaged in "a consistent series of smaller
transactions," which comprised a single conspiracy. See
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)
(internal quotation marks omitted). As we observed in Banks,
a drug conspiracy may "result[ ] in only a loosely-knit associ-
ation of members linked only by their mutual interest in sus-
taining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market." Id. As
such, there was no instructional error — much less plain error
— made by the trial court in this respect.
2.
Jeffers next contends that the district court erroneously
instructed the jury that it was entitled to infer consciousness
UNITED STATES v. JEFFERS 13
of guilt if it found that Jeffers had sought to conceal his iden-
tity after learning of the Indictment. In this respect, Jeffers
asserts that the court’s concealment instruction was not ade-
quately supported by the evidence. Again, however, Jeffers
also failed to object to the concealment instruction, and we
review this contention for plain error only.
We have recognized that, "in appropriate circumstances, a
consciousness of guilt may be deduced from evidence of
flight and that a jury’s finding of guilt may be supported by
consciousness of guilt." United States v. Obi, 239 F.3d 662,
665 (4th Cir. 2001). In order to do so, however, a jury must
"be able, from the evidence, to link such flight to conscious-
ness of guilt of the crime for which the defendant is charged,"
and the prosecution must offer "evidence supporting all the
inferences in the causative chain between flight and guilt." Id.
"To establish this causal chain," we have emphasized, "there
must be evidence that the defendant fled or attempted to flee
and that supports inferences that (1) the defendant’s flight was
the product of consciousness of guilt, and (2) his conscious-
ness of guilt was in relation to the crime with which he was
ultimately charged and on which the evidence is offered." Id.
at 665-66.
At trial, the prosecution presented evidence that Jeffers had
concealed himself from the authorities following the unseal-
ing of the Indictment on September 16, 2004:
• A deputy U.S. Marshal testified that when Jeffers
was arrested, he was riding in a car and misled
the arresting officers as to his true identity. Jef-
fers presented the Marshal with a credit card
bearing the name "Anthony Jones," and main-
tained that he was Anthony Jones for one or two
minutes before acknowledging his true identity.
• Jeffers’s mother stated that she had "stopped see-
ing him in the way that" she used to after federal
14 UNITED STATES v. JEFFERS
agents came to her home looking for Jeffers in
November 2004. J.A. 614.
• Jeffers’s neighbor admitted not seeing Jeffers
"[f]or the past year and a half or two years," dat-
ing back to the unsealing of the Indictment. J.A.
624.
• Jeffers maintains that this evidence was inade-
quate to support a concealment finding, and that
the court’s concealment instruction constitutes
reversible error.
On this record, however, sufficient evidence existed to sup-
port a jury finding that Jeffers sought to conceal himself after
he was indicted, that his efforts at concealment resulted from
his consciousness of guilt, and that such consciousness of
guilt related to the crimes with which he was charged. We
thus reject Jeffers’s contention that the trial court’s instruction
on concealment was plainly erroneous.
3.
Next, Jeffers maintains that, with respect to the conspiracy
offense, the trial court failed to instruct the jury that it had to
determine the quantity of cocaine base attributable to him.
This error, he asserts, requires that his sentence on the con-
spiracy offense be vacated.
In United States v. Collins, in 2005, we held that, in order
to properly apply the sentencing provisions of § 841(b)(1) in
a § 846 drug conspiracy prosecution, the jury must determine
that the threshold drug quantity was reasonably foreseeable to
the defendant. See 415 F.3d 304, 314 (4th Cir. 2005). In this
prosecution, the district court instructed the jury that it had to
find that "the object of the unlawful plan was to distribute or
possess with intent to distribute at least 50 grams of a sub-
stance containing a detectable amount of cocaine base." J.A.
UNITED STATES v. JEFFERS 15
758. The court instructed that, "once it has been shown that
a conspiracy exists, the evidence need only establish, beyond
a reasonable doubt, a slight connection between the defendant
and the conspiracy to support conviction." Id. Finally, the ver-
dict form asked the jury, "Do you find the defendant . . .
guilty beyond a reasonable doubt of knowingly conspiring to
distribute or possess with the intent to distribute more than
fifty (50) grams of a mixture or substance containing cocaine
base?" Id. at 753. Thus, because there was no instruction
requiring a jury determination of the quantity of cocaine base
reasonably foreseeable to Jeffers, Collins error was commit-
ted. Notably, however, Jeffers did not preserve an objection
on the Collins issue, and we review this contention for plain
error only.9
In order to obtain relief under plain error review, Jeffers
must show that an error occurred, that the error was plain, and
that it affected his substantial rights. See Olano, 507 U.S. at
732. Even if he makes such a showing, however, we can
decline to correct the error unless it "seriously affected the
fairness, integrity, or public reputation of judicial proceed-
ings." See United States v. Harris, 498 F.3d 278, 292-93 (4th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has recognized that, where the evidence against a
defendant is "overwhelming and essentially uncontroverted,"
a plain error does not "seriously affect the fairness, integrity,
or public reputation of judicial proceedings," and a reviewing
court can choose not to recognize it. United States v. Cotton,
535 U.S. 625, 632-33 (2002). In United States v. Foster, we
further explained that if the evidence "overwhelmingly estab-
lishe[s]" that the defendant was personally responsible for the
threshold quantity of drugs, and if his trial assertions "primar-
ily focused on whether he committed the offenses and not on
9
Jeffers contends in his appellate brief that he preserved the error
because he objected at sentencing. Because this objection was made in a
tardy fashion, however, it was insufficient to preserve the Collins issue.
16 UNITED STATES v. JEFFERS
the drug quantities reasonably foreseeable to him," we may
decline to recognize a plain Collins error. See 507 F.3d at 252.
In this situation, the trial court’s instructions on the Count
One conspiracy offense constituted plain error. See Foster,
507 F.3d at 251-52.10 We are nevertheless satisfied that the
Count One conviction should be upheld because the Collins
error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See id. Overwhelming evi-
dence established that Jeffers was personally responsible for
the conspiracy’s distribution of 50 grams or more of crack.
The jury heard evidence that Jeffers was the biggest dealer at
Shriver’s Motel; he had recruited and schooled multiple crack
dealers and directed others to sell crack; Jeffers replenished
the supplies of other dealers; he fronted crack to others; and
he travelled internationally to obtain cocaine supplies. Indeed,
five witnesses saw Jeffers with one to five ounces of cocaine
(28 to 140 grams), and one witness stated that Jeffers "never
ran out" of cocaine to sell. Additionally, Jeffers’s trial asser-
tions primarily focused on the issue of his guilt, rather than on
drug quantity. Jeffers has thus failed to show that his sentence
of 262 months on the conspiracy offense seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings, and we are satisfied to reject his contention in this
regard.
D.
We next assess Jeffers’s contentions of sentencing error.
First, Jeffers asserts that the court erred in attributing 1.5 kilo-
grams of cocaine base to him for sentencing purposes. Sec-
ond, he maintains that the court contravened his Fifth
Amendment rights in imposing a $25,000 fine. As explained
below, we reject these contentions as well.
10
Jeffers’s rights were substantially affected by the Collins error
because he was sentenced to 264 months imprisonment, 24 months greater
than the maximum of 240 months that he could have received under
§ 841(b)(1)(C).
UNITED STATES v. JEFFERS 17
1.
A sentencing court is obliged to make factual determina-
tions by a preponderance of the evidence. See United States
v. Brika, 487 F.3d 450, 459 (4th Cir. 2007). We review such
a court’s findings of fact for clear error, reversing such find-
ings only if we are "left with the definite and firm conviction
that a mistake has been committed." United States v. Harvey,
532 F.3d 326, 336 (4th Cir. 2008) (internal quotation marks
omitted).
Put simply, the district court did not clearly err in finding
Jeffers responsible for more than 1.5 kilograms of crack. At
trial, multiple witnesses testified about Jeffers’s drug distribu-
tion business in the Luray area. Witnesses testified that the
illicit drug operations at Shriver’s Motel were carried on
around the clock, and Jeffers was described as the biggest
dealer there. Wigington had dealt drugs with Jeffers from the
late 1990s until 2002, when Shriver’s Motel was raided. Wig-
ington could readily obtain "anywhere from four to five
ounces, or maybe more" of crack cocaine from Jeffers, who
would even then have a large supply of crack remaining. J.A.
74. Wigington "couldn’t even put a number to how many
times" he bought cocaine from Jeffers. Id. at 77. He testified
that he owed Jeffers "maybe [$]10,000, maybe more" for
cocaine, and that the price for an ounce of cocaine was $1100.
Id. at 79. Indeed, Wigington had seen Jeffers counting shoe-
boxes full of cash. Beginning in early 2000, Jackson bought
from a half-ounce to an ounce of crack from Jeffers on a
weekly basis. He had seen Jeffers take cocaine from one-
ounce pellets and cook crack approximately ten times. Jack-
son personally witnessed Jeffers selling crack in Luray on
almost a daily basis. Finally, Mewborn and Carter regularly
bought crack from Jeffers and saw him with several ounces of
cocaine.
Because of the overwhelming evidence of the quantities of
crack and powder cocaine that were bought from Jeffers and
18 UNITED STATES v. JEFFERS
that he had possessed, the district court did not clearly err in
finding that Jeffers was responsible for over 1.5 kilograms of
crack. We thus reject this sentencing contention.
2.
We next address Jeffers’s contention that the district court
erred in imposing a $25,000 fine, because, he asserts, the fine
was imposed as retribution for the exercise of his Fifth
Amendment right against self-incrimination. A sentencing
court should not utilize a defendant’s invocation of the Fifth
Amendment as negative evidence to penalize him at sentenc-
ing. See Mitchell v. United States, 526 U.S. 314, 327 (1999).
In order to find that a court so erred, however, the record must
reflect that the court "actually relied" on the defendant’s
refusal to disclose information in imposing punishment. Blair
v. United States, 665 F.2d 500, 508 (4th Cir. 1981).
At sentencing, Jeffers’s lawyer represented to the district
court that her client did not intend to divulge his financial
assets to the probation officer, for fear that doing so could
incriminate him and thus hamper his chances for a successful
appeal. In response, the court stated that "the inference should
be drawn against Mr. Jeffers because of this in terms of sen-
tencing." J.A. 913. It then found "that the guidelines recom-
mend to the Court a fine of 25,000 to four million dollars." Id.
at 915.
Notwithstanding the sentencing court’s statement that an
inference should be drawn against Jeffers for his refusal to
divulge financial information, the record does not show that
the court actually relied on this fact in deciding to impose the
fine. To the contrary, the court imposed the minimum fine
called for by the Sentencing Guidelines. And when the court
explained its decision on the fine, it did not mention Jeffers’s
refusal to submit financial information. Rather, the court
determined that Jeffers was capable of paying the fine, noting
his regular employment during the conspiracy. Because there
UNITED STATES v. JEFFERS 19
is no showing that the court treated Jeffers’s refusal as "nega-
tive evidence" and actually relied on it in deciding to impose
the minimum fine of $25,000, we reject his contention on this
point.
E.
Finally, we turn to Jeffers’s contention that the prosecution
failed to comply with its discovery obligations, under both
Rule 16 of the Federal Rules of Criminal Procedure and
Brady v. Maryland, 373 U.S. 83 (1963). As explained below,
although we hardly approve of the handling of such discov-
ery, we nonetheless reject this contention.
1.
Rule 16(a)(1)(E) mandates that, "[u]pon a defendant’s
request, the government must permit the defendant to inspect
and to copy or photograph" certain specified materials. Jeffers
claims that, in response to his Rule 16 request, the prosecution
prepared a binder that "containing all information regarding
the numerous controlled buys that make up the heart of the
Government’s evidence in this case." Br. of Appellant 54. The
prosecution, however, refused to provide a copy of the bind-
er’s contents to Jeffers’s lawyers, notwithstanding repeated
requests. Instead, Jeffers was merely allowed to have his law-
yers inspect the binder’s contents and, even then, the lawyers
had to conduct their inspection in the United States Attorney’s
office. The prosecution maintains, in response, that it had an
"open file" policy with respect to Rule 16, but "[i]n recogni-
tion of the sensitive nature of many of these documents,"
would not allow all documents to be copied. Br. of Appellee
69. According to the prosecution, it utilized a "case-by-case"
method, under which it was willing to consider Jeffers’s
request to copy specific documents. Id.
Put simply, the prosecution failed to comply with its obli-
gations under Rule 16. The Rule’s mandatory language is
20 UNITED STATES v. JEFFERS
unambiguous; the prosecution "must permit the defendant to
inspect and to copy." Fed. R. Crim. P. 16(a)(1)(A) (emphasis
added). Such a failure to comply with Rule 16 was unwar-
ranted and inconsistent with the obligations of the United
States Attorney.11 Nevertheless, Jeffers has failed to identify
how he was prejudiced by the prosecution’s failure to comply
with its discovery obligations. We are, in these circumstances,
unable to conclude that the outcome of Jeffers’s trial would
have been different had the prosecutors acted properly. As a
result, we are unable to provide any relief on this claim.
2.
Finally, Jeffers asserts that his convictions must be vacated
because the prosecution also failed to fulfill its discovery obli-
gations under Brady. On the second day of the prosecution’s
case-in-chief, Giles, a confidential informant, testified about
multiple controlled drug buys at Shriver’s Motel, and said that
he had purchased drugs from Jeffers. Giles also revealed that,
following each controlled buy, he was debriefed by the police
and that those conversations were recorded. During Giles’s
testimony, one of Jeffers’s lawyers advised the court that she
had not been provided with any such tapes in discovery, and
requested that they be provided to the defense. That evening,
the prosecution produced thirty-six such tape recordings that
Jeffers’s lawyers were allowed to hear, but only in the pres-
11
We expect prosecutors to conform their conduct to their responsibili-
ties. As Justice Sutherland appropriately observed many years ago:
The United States Attorney is the representative not of an ordi-
nary party to a controversy, but of a sovereign whose obligation
to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be done . . . . He
may prosecute with earnestness and vigor — indeed, he should
do so. But, while he may strike hard blows, he is not at liberty
to strike foul ones.
Berger v. United States, 295 U.S. 78, 88 (1935).
UNITED STATES v. JEFFERS 21
ence of the prosecutors. After listening to the tapes, the
defense lawyers decided that the tapes were exculpatory and
impeaching, in that Jeffers was never mentioned in any of
them, by name or description.
The next day, Jeffers’s lawyers sought to strike Giles’s tes-
timony, asserting that the prosecution had contravened its
Brady obligations by not disclosing that the tapes of Giles’s
debriefings failed to refer to or incriminate Jeffers, and there-
fore constituted exculpatory and impeachment materials. In
response, the prosecution asserted that the binders that the
prosecution had allowed the defense to inspect in pretrial pro-
ceedings contained reports discussing the tape recordings. The
prosecution then suggested that the tapes be played for the
jury, and the trial court and Jeffers agreed. Upon redirect
examination of Giles, the prosecution sought to refresh
Giles’s memory by playing three of the tapes for him. When
Giles was asked whether the person he had bought drugs from
was in the courtroom, he responded, "He is not." J.A. 560. As
a result, the court granted judgment of acquittal to Jeffers on
Counts Two, Three, and Four of the Indictment, which
charged § 841(a)(1) distribution offenses.
In order to establish a Brady violation, Jeffers is obliged to
show that the non-disclosed evidence was (1) favorable to
him, (2) that it was material to his defense, and (3) that the
prosecution possessed it and failed to timely disclose it to Jef-
fers. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir.
2001). Evidence will be deemed "favorable" if it is either
exculpatory or if it can be used as impeachment evidence. See
United States v. Bagley, 473 U.S. 667, 676 (1985). Such evi-
dence is properly considered as "material" if there is a "rea-
sonable probability" that its timely disclosure would have
produced a different result. See id. at 682. A "reasonable
probability" exists if the failure to make such a disclosure
"undermines confidence in the outcome of the trial." Id. at
678. As we have explained, however, "where exculpatory
information is not only available to the defendant but also lies
22 UNITED STATES v. JEFFERS
in a source where a reasonable defendant would have looked,
a defendant is not entitled to the benefit of the Brady doc-
trine." United States v. Wilson, 901 F.2d 378, 381 (4th Cir.
1990). Additionally, there is no Brady violation if the defense
is aware of the evidence in time to reasonably and effectively
use it at trial. See United States v. Smith Grading & Paving,
Inc., 760 F.2d 527, 532 (4th Cir. 1985).
Notwithstanding the trial court’s award of judgments of
acquittal on Counts Two, Three, and Four, Jeffers contends
that he is entitled to have his two convictions vacated,
because the prosecution failed to timely disclose the audi-
otapes. Such relief is warranted, he maintains, because
"[i]ncurable prejudice resulted, not only from Giles being
allowed to testify as to what amounted to irrelevant prejudi-
cial testimony about narcotics activities unrelated to [Jeffers,]
but incurable prejudice also resulted from the Government’s
untimely disclosure of the briefing tapes." Br. of Appellant
53. Giles was one of the final witnesses called by the prosecu-
tion, and several of the earlier witnesses had claimed to be
Jeffers’s coconspirators. Jeffers maintains that, if he had been
made aware of the exculpatory tapes in a timely fashion, he
could have used them to impeach other prosecution witnesses.
Thus, he insists, "[t]he failure of the Government to produce
the exculpatory evidence . . . constitutes reversible error
because . . . the timely production of this evidence would have
affected the outcome of the trial." Id. The prosecution
responds that it acted properly for three reasons. First, Jeffers
received the tapes in time to use them at trial; second, the
tapes were used at trial and played to the jury; and third, Jef-
fers was on notice that the tapes existed prior to trial. Thus,
the prosecution argues, Jeffers "is not entitled to the benefit
of the Brady doctrine." Id. at 65.
In this situation, Jeffers is not entitled to relief under Brady
because he is unable to show how the undisclosed evidence
was either favorable or material with respect to the two counts
of conviction. Regardless of whether the tapes were men-
UNITED STATES v. JEFFERS 23
tioned in the materials shown to the defense prior to trial,
there is no indication that their disclosure would have made
any difference in the trial, beyond discrediting Giles’s testi-
mony. Furthermore, given the overwhelming evidence of Jef-
fers’s role in the conspiracy offense, coupled with the fact that
the jury heard the tapes, there is no indication that the prose-
cution’s unnecessarily tardy disclosures "undermines confi-
dence in the outcome in the trial." Bagley, 473 U.S. at 678.
In these circumstances, we also reject Jeffers’s Brady claim.
III.
Pursuant to the foregoing, we reject each of Jeffers’s con-
tentions and affirm his convictions and sentences.
AFFIRMED
NIEMEYER, Circuit Judge, concurring:
I concur in the court’s opinion. I add, however, my continu-
ing objection to our application of United States v. Collins,
415 F.3d 304 (4th Cir. 2005), which remains inconsistent with
well-established conspiracy law, as defined by 21 U.S.C.
§ 846 and governing Supreme Court decisions, such as United
States v. Shabani, 513 U.S. 10, 13-14 (1994). See United
States v. Brooks, 524 F.3d 549, 565-79 (4th Cir. 2008) (Nie-
meyer, J., dissenting). Our court should have seized this
opportunity to correct the problem, although, I suspect, it will
have to be the Supreme Court and not our court that does so.