United States v. Ba

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4775

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WALTER BABB, a/k/a B, a/k/a Brian, a/k/a WB,

Defendant - Appellant.

No. 07-4776

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES MOORE, a/k/a Duffy, a/k/a Fat James,

Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:04-cr-00190-AMD)

Argued: January 28, 2010 Decided: March 15, 2010

Before TRAXLER, Chief Judge, and KING and GREGORY, Circuit
Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Chief Judge Traxler and Judge King joined.

ARGUED: Joseph Murtha, MILLER, MURTHA & PSORAS, LLC,
Lutherville, Maryland; William Collins Brennan, Jr., BRENNAN,
SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants.
John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: William A.
Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt,
Maryland, for Appellant Walter Babb. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
GREGORY, Circuit Judge:

James Moore and Walter Babb were convicted in the United

States District Court for the District of Maryland for their

participation in a large drug conspiracy which involved the use

of firearms. On appeal, they jointly argue that the district

court erred in refusing to give multiple conspiracies and

reasonable doubt instructions, the District of Maryland was not

the proper venue for the prosecution of one of the firearms

offenses, and the district court should have conducted voir dire

to determine whether jurors had been intimidated by spectator

conduct. 1 Because we find none of petitioners’ arguments

persuasive, we affirm both Babb and Moore’s convictions in their

entirety.

1
James Moore sought, and we granted, permission to file a
pro se supplemental brief after this case was calendared for
oral argument. In it he raises arguments concerning speedy
trial, double jeopardy, and failure to indict on conduct used as
other acts evidence at sentencing. Because settled circuit
precedent controls on these issues, see United States v. Keith,
42 F.3d 234, 238-39 (4th Cir. 1994) (holding that where a
defendant acquiesces in a continuance, that time is excluded
from the speedy trial calculation), United States v. Camps, 32
F.3d 102, 106 (4th Cir. 1994) (holding that multiple sentences
for offenses under 18 U.S.C. § 924(c) are appropriate when
multiple, separate acts of firearm use have occurred even if
they are related to the same underlying offense), and United
States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009) (citing
United States v. Watts, 519 U.S. 148, 157 (1997)) (holding that
uncharged conduct may be considered at sentencing when that
conduct is proven by a preponderance of the evidence)
respectively, we decline to address these issues further and
find the district court did not err on those grounds.

3
 I.

During the mid-1990s, Richard Jackson (“Jackson”) began

selling cocaine in the Danville, Virginia area. Beginning in

1999 or 2000, Willie Robinson (“Robinson”), a friend of

Jackson’s from when they both lived in New Rochelle, New York

but who now resided in Danville, began buying cocaine from

Robinson. Jackson sold the cocaine to Robinson in powder form

and then taught Robinson how to “cook” it into crack for sale.

By January 2003, Robinson was buying approximately one kilogram

of cocaine per week from Jackson.

Jackson met Walter Babb (“Babb”) in 1996 or 1997 in North

Carolina. Babb purchased cocaine from Jackson from 1996 until

Babb was incarcerated. When he was released in 2000, Jackson

again became his supplier. In the spring of 2002, Babb

regularly bought several ounces of crack from Jackson a couple

times a week for his own distribution. Adrian Williamson

(“Williamson”) then sold the crack for Babb. Babb continued to

buy from Jackson until Jackson was arrested for drug trafficking

offenses in January 2003. At that time, Babb owed Jackson about

$12,000 for crack sold on consignment, and Jackson, from jail,

arranged for Robinson to collect payment from Babb. Even though

Jackson had been a source of their cocaine, Babb and Williamson

continued to distribute crack in the Greensboro area after

Jackson’s arrest.

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 Walter Moore (“Moore”) was also from New Rochelle and was

involved in drug trafficking with Robinson before Robinson moved

to North Carolina. When Moore subsequently moved to Andrews,

South Carolina, he contacted Robinson again, offering to connect

him with a source for cheaper cocaine so that Robinson could

continue his drug trafficking operations after Jackson’s arrest.

To this end, Moore traveled to El Paso, Texas in August of 2003.

While there, he attempted to get a friend he met in jail, Rey

Sanchez (“Sanchez”), to give him several kilograms of cocaine on

consignment. However, Sanchez refused to front any drugs, and

Moore returned home after a week. During this time, Moore made

several telephone calls from Sanchez’s body shop in El Paso to

his longtime girlfriend, Davita Bush (“Bush”), the records of

which were admitted at trial.

In October 2003, Moore again attempted to secure cocaine

from Mexico and traveled to El Paso for three weeks. This time

he went with Robinson to broker a deal between Robinson and

Sanchez, though Moore complained to Bush during a phone call

that Robinson was being greedy. Babb also accompanied them, and

sent money via Western Union to Bush, the record of which was

admitted at trial. While Babb was in Mexico, Porsha Harper

(“Harper”), one of his girlfriends, looked after his apartment.

Harper met Babb in 2001 in Greensboro, and they had an on-again-

off-again relationship. In October 2003, Babb called her and

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asked her to check on his house and do his laundry while he was

away, which she did. In late October when Moore, Babb and

Robinson returned to Greensboro, Moore stayed with Babb in his

apartment. That was the first time Harper met Moore, and they

became friends.

On November 5, 2003, Moore asked Harper if she would drive

him to New York, and she agreed. Very early the next morning,

Moore and Babb arrived at Harper’s house driving a Dodge

Intrepid. Harper had seen the Intrepid before and knew that

Babb used in his drug business, so she asked Babb if there were

drugs in the car. He said no. Babb also told her that

something had come up and that he was no longer going to be

going on the trip to New York. Harper then left with Moore and

drove for several hours until they entered Maryland, then Moore

took over driving. During the drive, Moore told her that he was

the “connect” on a drug deal with Babb in Mexico. He also told

her there was $300,000 in the car.

At approximately 10:28 a.m. that day, Moore and Harper were

stopped by Trooper Cameron, a Maryland State Police Officer, for

a speeding violation while traveling on Interstate 95. Moore

was unable to produce any identification or a driver’s license,

and he and Harper gave conflicting stories. Trooper Cameron

noticed that the trunk of the car was riding low and asked

Harper about it. She stated the trunk was full of clothing and

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offered to show him. Harper got the keys from inside the car,

walked to the trunk, and opened it. Trooper Cameron and the

backup officers he had called saw two dead bodies wrapped in

blankets and garbage bags laying in the trunk. Harper

immediately noticed that the blankets the bodies were wrapped in

were the same blankets she had previously laundered at Babb’s

house.

Harper and Moore were arrested. Moore waived his Miranda

rights and spoke with police. He told them he was running drugs

for Rey Sanchez and that he had hundreds of thousands of dollars

in the car. He denied knowledge of the bodies. The victims

were identified as Robinson and Alexandria Withers, another

participant in the drug conspiracy. Both had been shot multiple

times at close range. Upon forensic examination, Moore’s

fingerprints were on the garbage bags the victims were wrapped

in. 2

After Moore was arrested, Babb spoke with Bush via

telephone and started sending her significant amounts of money

via Western Union. Bush in turn arranged three-way phone calls

between Moore in jail and Babb. During these calls, Moore and

Babb arranged for payments to Bush, as well as for her to come

2
There was myriad other evidence concerning the murders
presented at trial that is not pertinent for the questions
before this Court.

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to Greensboro to get drugs for sale from Babb. She traveled to

Greensboro in early 2004 and received 200 grams of crack cocaine

from Babb. In another visit she received crack and cocaine

powder. Bush was arrested on July 14, 2004, for her involvement

in the drug trafficking scheme.

On June 9, 2004, a search warrant was executed on Babb’s

former apartment, which was uninhabited after he had moved out.

The police found evidence of bloodstains on the carpet and

elsewhere in the apartment. On August 17, 2004, Babb was

arrested in Greensboro. His current residence was searched, and

two assault rifles were recovered from a crawl space in the

ceiling right next to the door. A Taurus forty-five caliber

handgun was recovered from the insulation, and other guns were

found in a bag in the attic.

Babb and Moore were charged in the District of Maryland in

a seven-count indictment with: Count One conspiracy to possess

with intent to distribute five kilograms or more of cocaine base

in violation of 21 U.S.C. § 841(a)(1); Count Two conspiracy to

carry and use firearms during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(o); Count

Three knowingly carrying and discharging a firearm against

Willie Robinson in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c); Count Four knowingly using and

discharging a firearm against Alexandria Withers in relation to

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a drug trafficking crime in violation of 18 U.S.C. § 924(c);

Count Five causing the death of Willie Robinson by discharging a

firearm during a drug trafficking crime in violation of 18

U.S.C. § 924(i); Count Six causing the death of Alexandria

Withers by discharging a firearm during a drug trafficking crime

in violation of 18 U.S.C. § 924(i); and Count Seven knowingly

possessing firearms in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c).

At trial, the United States dismissed Counts Five and Six

of the indictment at the close of evidence. The jury found

Moore guilty of Counts One, Two, Three, Four and Seven. He was

sentenced to life on Count One, 240 months on Count Two, 120

months on Count Three, 120 months on Count Four, and 300 months

on Count Seven. The jury failed to reach a verdict on Counts

Three and Four as to Babb, and convicted him of Counts One, Two

and Seven. Babb was sentenced to life on Count One, twenty

years on Count Two, and sixty months on Count Seven. This

appeal followed.

II.

On appeal, Babb and Moore raise questions concerning the

jury instructions given at trial, venue, and jury intimidation.

We address each of these issues in turn.

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 A.

A district court’s denial of a requested jury instruction

is reviewed by this Court for abuse of discretion. United

States v. Romer, 148 F.3d 359, 367 (4th Cir. 1996). Babb and

Moore argue that the district court erred in failing to give

both a multiple conspiracies instruction and a reasonable doubt

instruction. We disagree.

1.

Babb and Moore first argue that the district court erred in

failing to give a multiple conspiracies instruction when they

requested it. They contend that there was no overarching

conspiracy between them, just individual drug conspiracies, and

even if they did conspire together, the evidence supports a

finding that the conspiracy began in October 2003, and not

earlier as charged. However, sufficient evidence exists to

demonstrate that their drug trafficking activities were related

and, thus a multiple conspiracies instruction was not warranted.

A district court need not instruct on multiple conspiracies

each time a defendant requests it. Rather, “[a] court need only

instruct on multiple conspiracies if such an instruction is

supported by the facts.” United States v. Mills, 995 F.2d 480,

485 (4th Cir. 1993). Thus, “[a] multiple conspiracy instruction

is not required unless the proof at trial demonstrates that

appellants were involved only in ‘separate conspiracies

10
unrelated to the overall conspiracy charged in the indictment.’”

United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)

(quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333

(5th Cir. 1994)). Furthermore, even if one overarching

conspiracy is not apparent, failure to give a multiple

conspiracies instruction is reversible error only when it causes

substantial prejudice to the defendant. United States v.

Tipton, 90 F.3d 861, 883 (4th Cir. 1996). To find such

prejudice, “the evidence of multiple conspiracies [must have

been] so strong in relation to that of a single conspiracy that

the jury probably would have acquitted on the conspiracy count

had it been given a cautionary multiple-conspiracy instruction.”

Id.

This Circuit has addressed several other large drug

conspiracies where both the participants and the level of their

involvement evolved during the time charged. In United States

v. Tipton, 90 F.3d 861 (4th Cir. 1996), the drug conspiracy

charged began in New York and moved to Richmond. As a

consequence, the leadership changed over time, and new

participants entered and left the conspiracy. The Court held

that no multiple conspiracy instruction was due in that case,

even for the participant who joined shortly before the

conspiracy was interrupted by arrests, because the evidence

11
demonstrated one enduring conspiracy dedicated to distributing

drugs. Id. at 882-83.

Similarly in United States v. Banks, 10 F.3d 1044 (4th Cir.

1993), the coconspirators charged were cocaine suppliers and

distributors in the Tidewater Virginia area. Even though the

dealers were actually in competition with one another, this

Court held they were all properly joined in one conspiracy

because they had the same goal of creating a large cocaine

market in the area. Id. at 1054. The Court further held that

“one may be a member of a conspiracy without knowing its full

scope, or all its members, and without taking part in the full

range of its activities or over the whole period of its

existence.” Id.

These cases show that drug conspiracies, though they may

have shifting membership, are one unit of prosecution when they

have a common unifying goal. The evidence presented in this

case demonstrates a single drug conspiracy during the time

charged in the indictment. At the time the indictment charged

as the beginning of the conspiracy, there was a well-established

conspiracy involving Jackson, Robinson, Babb and Williamson.

Jackson would sell powder cocaine to Robinson who would then

cook it into crack. Babb would buy crack from Jackson, and then

Williamson would sell it. This pattern of the conspiracy

continued until Jackson was arrested in January 2003. At that

12
time, Babb repaid the debt he owed to Jackson by giving it to

Robinson. Babb and Williamson then continued their distribution

activities. Meanwhile, Robinson reestablished contact with an

old friend from New York, Moore, who promised to help him secure

a replacement, cheaper source for cocaine. As a result, Moore

traveled twice to El Paso, once alone and once with Babb and

Robinson, in order to secure the cocaine. Moore was arrested on

November 6, 2003 after Robinson was murdered, but he continued

communicating with Babb and Bush to arrange for funds

originating from the drug conspiracy to be transferred to Bush

and for her to receive cocaine for sale. Bush was arrested in

July of 2004, and finally Babb was arrested in August of 2004.

Several firearms and a drug scale were found at his house.

Given the evidence enumerated above, there was sufficient

evidence for a reasonable jury to determine that there was one

continuous conspiracy. Williamson and Babb continued their

distribution activities after Jackson’s arrest, while Robinson

and Moore planned to secure another source of cocaine. That

they shared the same goal is manifested by their joint trip to

El Paso with the purpose of securing cocaine from Sanchez.

Therefore, the evidence does not compel the conclusion that

there were two separate conspiracies. Moore and Babb thus

cannot demonstrate that the jury would have acquitted as to the

conspiracy count if they had been given the cautionary multiple

13
conspiracies instruction, and we find no prejudice to the

defendants and hold that the district court did not abuse its

discretion denying such an instruction.

2.

With regard to the question of whether a reasonable doubt

instruction was required when requested by the defendants, this

Court is bound by both Supreme Court and Circuit precedent

directly contrary to the appellants’ contention. This Court

held in United States v. Oriakhi, that no reasonable doubt

instruction is constitutionally required, unless the jury

requests it. 57 F.3d 1290, 1300 (4th Cir. 1995). Further, the

Supreme Court held in Victor v. Nebraska that “the Constitution

neither prohibits trial courts from defining reasonable doubt

nor requires them to do so as a matter of course.” 511 U.S. 1,

5 (1994). There has been no subsequent decision which would

lead this Court to rethink its precedent that “the words ‘beyond

a reasonable doubt’ have the meaning generally understood for

them and that further efforts to restate their meaning with

different words tend either to alter or to obfuscate that

meaning.” Oriakhi, 57 F.3d at 1300.

B.

The second issue Moore and Babb raise on appeal concerns

venue. As venue is a legal question, this Court reviews the

decision of the district court de novo. United States v.

14
Wilson, 262 F.3d 305, 320 (4th Cir. 2001). Moore and Babb argue

that venue for the 924(c) offense charged in Count Seven was

improper in the District of Maryland because the conspiracy had

ceased at the time the firearms were seized from Babb’s home,

and thus no element of those offenses occurred in Maryland.

This claim relates to their unsuccessful multiple conspiracies

argument above and is similarly unavailing.

1.

Article III of the Constitution provides, as is relevant

here, that “[t]he Trial of all Crimes . . . shall be held in the

State where the said Crimes shall have been committed.” U.S.

Const. art. III, § 2, cl. 3. The Sixth Amendment reinforces

this command, stating that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by

an impartial jury of the State and district wherein the crime

shall have been committed.” U.S. Const. amend. VI; see Fed. R.

Crim. P. 18 (“Unless a statute or these rules permit otherwise,

the government must prosecute an offense in a district where the

offense was committed.”). When multiple counts are alleged in

an indictment, venue must be proper on each count. See United

States v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000). Venue on a

count is proper only in a district in which an essential conduct

element of the offense took place. Id. at 309. The burden is on

the government to prove venue by a preponderance of the

15
evidence. See United States v. Barsanti, 943 F.2d 428, 434 (4th

Cir. 1991).

For episodic crimes, venue is proper in the district where

an essential element of the crime occurred. In continuing

crimes, such as conspiracy, venue is proper in the location of

any of the criminal acts. United States v. Rodriguez-Moreno,

526 U.S. 275, 279, 282 (1999). Further, in continuing offenses

that are based upon some underlying criminal offense, venue for

the continuing offense is proper in any district where venue

lies for the underlying offense. United States v. Robinson, 275

F.3d 371, 379 (4th Cir. 2001). In Robinson, this Court held

that where the defendant was charged with a violation of 18

U.S.C. § 924(j) (causing the death of a person during and in

relation to a crime of violence) he could be charged in any

district in which the underlying offense, a violation of 18

U.S.C. § 924(c), could have been prosecuted. Id. at 378.

Additionally, and most important for this case, in Rodriguez-

Moreno, the Supreme Court held that for charges of a violation

of 18 U.S.C. § 924(c), venue for the weapons charge is proper

anywhere the underlying crime of violence or drug crime could be

prosecuted. 526 U.S. at 281-82.

2.

Thus, whether venue was proper for the section 924(c)

violation charged in Count Seven depends on whether an overt act

16
occurred in Maryland. Babb and Moore argue that the conspiracy

had been terminated by the arrests of Moore, Babb, and Bush at

the time the weapons were seized. However, because there was no

termination of the conspiracy and an overt act occurred in

Maryland, venue was proper there.

A conspiracy is not terminated merely because its

participants are arrested. United States v. Urrego-Linares, 879

F.2d 1234, 1240 (4th Cir. 1989). Even if substantial time has

passed between the formation of the conspiracy and the last

overt act, the conspiracy has not necessarily ended. Joyner v.

United States, 547 F.2d 1199, 1203 (4th Cir. 1977) (holding that

the end of a conspiracy must be “affirmatively shown”).

Instead, the defendant bears the burden to show that the

conspiracy terminated when “the former coconspirator acted to

defeat or disavow the purposes of the conspiracy.” United

States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986). Mere

withdrawal is not enough.

Here, even though Bush had been arrested a month before the

weapons were seized and there was no evidence of contact between

Babb and Moore, the conspiracy had not terminated. The weapons

and drug scale found inside Babb’s home are evidence that the

conspiracy was ongoing, with Babb as its source outside of jail.

The defendants presented no evidence which suggests termination

other than the arrests, and there was no evidence of disavowal.

17
Therefore, there was sufficient evidence for the jury to

conclude that the possession of the weapons was in furtherance

of the drug trafficking conspiracy.

The conspiracy also had an overt act in the District of

Maryland, which Babb and Moore concede in their brief. They

acknowledge that venue was proper in Maryland for the

substantive drug traffic charge in Count One. Venue was proper

in Maryland because an overt act of the drug conspiracy, the

carrying of money and bodies into the state on Interstate 95,

occurred there. Therefore, under Robinson and Rodriguez-Moreno,

venue for the section 924(c) counts is proper as well because

those charges could be brought in any district in which the

underlying drug offense had venue.

C.

Finally, for the first time on appeal, Babb and Moore argue

that the district court erred in failing to voir dire the jury

concerning possible juror intimidation. As they did not object

at trial, this Court reviews the district court’s actions for

plain error. Fed. R. Crim. P. 52(b). In order to prevail under

plain error review, a petitioner must demonstrate that: (1) an

error occurred; (2) the error was plain; and (3) the error

affected his substantial rights. United States v. Olano, 507

U.S. 725, 732 (1993). If these three elements are met, this

Court may exercise its discretion to notice error only if the

18
error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation

marks and citations omitted); see also United States v. Hughes,

401 F.3d 540, 555 (4th Cir. 2005).

1.

The defendant’s right to a fair trial by an impartial jury

free from the potentially prejudicial influence of third parties

includes the right to have a jury free from contact by third

parties. Mattox v. United States, 146 U.S. 140, 150 (1892)

(“Private communications, possibly prejudicial, between jurors

and third persons, or witnesses, or the officer in charge, are

absolutely forbidden, and invalidate the verdict, at least

unless their harmlessness is made to appear.”). There is a

presumption of prejudice to the defendant when there is “any

private communication, contact, or tampering, directly or

indirectly with a juror during trial about the matter pending

before the jury.” Remmer v. United States, 347 U.S. 227, 229

(1954). However, this presumption only arises when the

defendant establishes that extra-judicial contacts occurred

which cast doubt on the validity of the jury’s verdict.

Stockton v. Virginia, 852 F.2d 740, 747 (4th Cir. 1988). The

only case where this prejudice was said to arise because of

intimidation in the courtroom was in the Ninth Circuit’s

decision in United States v. Rutherford, 371 F.3d 634 (9th Cir.

19
2004). The court held that when the intimidation inside the

courtroom was coming from the government, there was a

presumption of prejudice due to the “heightened concern that the

jurors will not ‘feel free to exercise [their] functions’ with

the Government ‘looking over [their] shoulder[s].’” Id. at 643

(quoting Remmer, 347 U.S. at 229).

Further, even if improper influence is suggested, there is

no requirement that the court conduct individualized voir dire

each time. The Seventh Circuit has held that individual

questioning, which may tend to unsettle the jury, is only

warranted in cases where there is a strong indication of bias or

irregularity. United States v. Stafford, 136 F.3d 1109, 1112-13

(7th Cir. 1998.)

2.

In this case, the conduct complained of was not mentioned

by defense counsel, but rather the district court, and as a

result this Court has very little information on what the

improper influence could have been. The evidence of any bias

comes in the form of this brief statement by the district judge

outside of the presence of the jury and spectators:

Be seated. Counsel, there have been some regular
attendees at this trial who I take it are family
members, acquaintances of one or both of the
defendants. It would appear that perhaps jurors
believe too much attention is being paid to them.
It’s a rather unusual circumstance, but I’ve heard it
before. Obviously, it’s not unusual for participants

20
 in a trial to watch the jury, but we want to be sure
that the jury is not made uncomfortable.

So if I’m correct that the regular attendees have been
members of the family or friends of the defendants, I
would appreciate counsel commenting to them when and
as appropriate that we don’t want to make the jurors
uncomfortable, and what’s actually a lot more
interesting about a trial is what goes on in the well
of the court and from the witness stand as opposed to
the jury. So I share that with you just so you can
convey the court’s mild concern that the jurors not be
made uncomfortable. It’s nothing more than that.
Okay?

J.A. 915-16. There was no evidence that the judge had been

notified by the jury that they were uncomfortable or whether he

noticed it on his own.

On this evidence alone, the defendant has certainly not

carried his burden of showing that the jury was improperly

influenced, much less that the influence was so serious that it

required individual voir dire by the judge.

III.

For the foregoing reasons, both Babb and Moore’s

convictions are

AFFIRMED.

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