United States v. Ashley

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4015
VAN CLEVE ASHLEY, a/k/a Q,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:06-cr-00034-MJG-1)

Argued: March 25, 2010

Decided: June 1, 2010

Before WILKINSON and MOTZ, Circuit Judges, and
Joseph R. GOODWIN, Chief United States District Judge
for the Southern District of West Virginia,
sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz and Judge Goodwin joined.

COUNSEL

ARGUED: Andrew Howard Baida, ROSENBERG, MAR-
TIN, GREENBERG, LLP, Baltimore, Maryland, for Appel-
2 UNITED STATES v. ASHLEY
lant. Christopher John Romano, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Bal-
timore, Maryland, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Van Cleve Ashley was indicted on three federal charges in
connection with his efforts to have a government informant
and witness murdered. A jury convicted him on all three
counts and he now appeals from two of those convictions.
Because each of Ashley’s claims on appeal is without merit,
we affirm his convictions.

I.

Ashley’s convictions arise out of the attempted murder of
one Thomas Dixon, a drug dealer turned government infor-
mant. Ashley’s role was essentially that of a broker, orches-
trating a deal between Frank Caruso, a drug dealer whose
arrest Dixon had facilitated, and Ramaine "Ra-Ra" York, who
was hired to kill Dixon.

The story begins on November 14, 2000, with the arrest of
Dixon by members of a federal drug task force working in the
Baltimore area. Dixon was carrying more than a million dol-
lars’ worth of ecstasy pills. Faced with serious penalties, he
immediately agreed to cooperate with federal investigators.
The very day of his arrest, Dixon let the government record
telephone conversations between him and Caruso, his sup-
plier. Caruso later testified that he came to suspect Dixon was
working with investigators during the calls and that his suspi-
cions were confirmed the next day when he learned of
Dixon’s arrest. His intuitions notwithstanding, Caruso was
arrested on federal drug charges in June 2001.
 UNITED STATES v. ASHLEY 3
Caruso thereafter hired an attorney who, as it happened,
also represented Ashley. Caruso would later testify that he
met Ashley for the first time at their attorney’s office when
Ashley overheard Caruso complaining about Dixon. Ashley
approached Caruso, saying that he might know someone with
connections to Dixon. Caruso responded that he "would love
to be able to discredit, you know, dismantle a witness against
me. He’s out there selling drugs and living a normal life."
Ashley reiterated that he might know someone who could
help. Following this initial encounter, Caruso and Ashley had
several subsequent discussions and became, as Caruso put it,
"friendly."

At some point during a meeting at their attorney’s office,
Caruso provided Ashley the file kept on his case. It is unclear
whether this occurred before or after Caruso had received dis-
covery from the government, which definitively revealed
Dixon’s role in bringing about his arrest. Caruso also gave
Ashley a picture of Dixon, directions to Dixon’s home, and a
Glock 9mm semiautomatic handgun. In early 2002, Ashley
met with York, a long-time associate, telling him that Caruso
"had a problem down in Baltimore." On February 24, 2002,
York travelled to Baltimore, found Dixon in front of his
home, and shot him about six times. Dixon was hospitalized
for several months and underwent more than sixty operations
but miraculously survived the attack, albeit with permanently
debilitating injuries. For these efforts, Caruso paid Ashley
$10,000, half of which Ashley passed on to York.

The scheme eventually came to light, and Caruso was
charged with retaliating against a federal informant under 18
U.S.C. § 1513(a)(1), while York was charged with conspiracy
to retaliate. Both pled guilty. In January 2006, a federal grand
jury indicted Ashley on three counts. Count One charged Ash-
ley with conspiring to kill a witness in order to prevent his
attendance in court proceedings, in violation of 18 U.S.C.
§§ 1512(a)(1)(A) and (k). Count Two charged Ashley with
conspiring to kill an informant in retaliation for providing
4 UNITED STATES v. ASHLEY
information to a law enforcement officer, in violation of 18
U.S.C. §§ 1513(a)(1)(B) and (e). Count Three charged Ashley
with the firearms offense set forth in 18 U.S.C. § 924(c).

Ashley was convicted on all three counts. He does not
appeal his witness tampering conviction, but he does appeal
his conviction on the retaliation and firearms charges, claim-
ing insufficient evidence on Count Two and a constructive
amendment of the indictment on Count Three.

II.

We begin with Ashley’s sufficiency of the evidence claim
on Count Two. His task here is a daunting one. In assessing
a sufficiency challenge, a reviewing court must uphold a
jury’s verdict "if there is substantial evidence, taking the view
most favorable to the Government, to support it." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
"[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a con-
clusion of a defendant’s guilt beyond a reasonable doubt." Id.
A defendant bringing a sufficiency challenge bears "a heavy
burden." United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.
1995). The government must be given the benefit of every
reasonable inference. Id. Reversal for insufficient evidence is
reserved for "the rare case where the prosecution’s failure is
clear." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997) (citation and internal quotation marks omitted).

Count Two charged Ashley with conspiring to violate 18
U.S.C. § 1513(a)(1)(B), which punishes anyone who "kills or
attempts to kill another person with intent to retaliate against
any person for . . . providing to a law enforcement officer any
information relating to the commission . . . of a Federal
offense." 18 U.S.C. § 1513(a)(1)(B). The term "law enforce-
ment officer" refers to federal officers. 18 U.S.C.
§ 1515(a)(4). Ashley argues that the government failed to pro-
duce evidence that he had the requisite state of mind to sus-
 UNITED STATES v. ASHLEY 5
tain a conviction under the provision. See United States v.
Feola, 420 U.S. 671, 686 (1975). He asserts there was no evi-
dence he knew Caruso’s purpose in having Dixon killed was
to retaliate against Dixon for giving information to law
enforcement. More specifically, he claims there was no evi-
dence he even knew Dixon was a government informant and
that, even if there was, there was no indication he knew the
law enforcement officers to whom Dixon had provided infor-
mation were federal officers.1

Ashley makes much of the fact that the government failed
to establish whether Caruso had already received discovery
from the government at the time he gave Ashley his case file.
But this is a red herring. There was ample evidence that
Caruso knew Dixon had provided information to federal
agents even before discovery took place. Caruso testified that
he "had a very good feeling" that Dixon had been cooperating
within a day of Dixon’s having been arrested. According to
Caruso, after Dixon’s arrest "there were several phone calls
made to me from Tom Dixon from a, I guess it would be, an
FBI phone, and he tried to draw me out to say certain things
on the phone."

This statement would have allowed the jury to conclude not
only that Caruso suspected Dixon was cooperating but that
Caruso suspected he was cooperating in a federal investiga-
tion, especially since Caruso was later arrested on federal
charges. Nor was there anything unreasonable in inferring that
Caruso’s file, assembled in connection with his upcoming
federal prosecution, reflected his view of the sources and ori-
gins of his predicament, including its federal aspects. We also
reject Ashley’s claim that the government was required to
offer direct evidence that Ashley read the file. It seems
1
We shall assume for purposes of argument that Ashley is correct that
Section 1513 requires that a defendant know that the officer with whom
an informant is communicating is a federal one. See United States v. Den-
ham, 663 F.Supp.2d 561, 566-71 (E.D. Ky. 2009).
6 UNITED STATES v. ASHLEY
entirely reasonable to suppose that he was given the file so
that he could read it and that he naturally did so. After all,
Ashley was provided the case file after he had volunteered to
Caruso that he could help.

If the case file weren’t enough, these inferences find sup-
port from other evidence in the record. Both Caruso and York
testified that they had pled guilty to federal retaliation
charges. Since Ashley was the link between them, the jury
could reason that he shared their state of mind. Caruso told
Ashley he wanted to "dismantle a witness against me. He’s
out there selling drugs and living a normal life." A jury could
infer that Caruso was upset that Dixon was "leading a normal
life" because Dixon had traded information in exchange for
his liberty. Caruso also testified that he had not one, but a
number of conversations with Ashley about the matter and
that "we became friendly," making it all the more likely Ash-
ley understood exactly what the planned assassination of
Dixon was all about. Moreover, Caruso did not give Ashley
a picture of Dixon, directions to his home, and a semiauto-
matic handgun in order to foster amicable relations between
the two. As Caruso testified, he gave Ashley the gun "[t]o do
whatever he had to do to help me with my case."

We note too that the district court clearly pointed out the
difference between tampering with witnesses and retaliation
against informants in its instructions to the jury, telling it that
"in the one case, the allegation is the intent of the conspiracy
was to prevent testimony," while in the other, "the intent of
the conspiracy is to retaliate for having provided informa-
tion." The district court also drew attention to the federal
dimension of the charge, instructing the jury that to find Ash-
ley guilty, it must determine that Ashley acted "with specific
intent to retaliate against Mr. Dixon for providing to law
enforcement officers information about the criminal activities
of Fred Caruso in the case of U.S. v. Fred Caruso," which it
had described a moment earlier as "an official federal pro-
ceeding."
 UNITED STATES v. ASHLEY 7
We are mindful that retaliation against informants and wit-
ness tampering are distinct offenses. While the difference
between them should not be blurred, the two offenses are
often related. Providing information and serving as a witness
often go hand-in-hand, and the proof used to support a con-
viction on one offense will frequently underlie a conviction
on another, notwithstanding the differences between the two
statutes. In United States v. Brown, 937 F.2d 32, 37 (2d Cir.
1991), for instance, the court rejected the defendant’s sugges-
tion that his threat to "erase" an informant demonstrated only
an intent to prevent a witness from testifying and not to retali-
ate against an individual for having informed against him. Id.
at 37. The same holds for the desire to "dismantle" Dixon.

In short, the evidence here satisfied constitutional require-
ments. Ashley’s argument seems premised on the view that
juries cannot draw reasonable inferences, but that is precisely
what juries are empanelled to do. Though a jury may not con-
vict on the basis of "rank speculation," it is entitled to deduce
and to infer. Goldsmith v. Witkowski, 981 F.2d 697, 703 (4th
Cir. 1992). Our system of lay juries is designed to allow
jurors to draw upon common experience and to rely upon rea-
sonable intuitions, and it is not the province of an appellate
court to undermine these virtues by picking apart a properly
instructed verdict. "[W]hile it is important that we not permit
a verdict based solely on the piling of inference upon infer-
ence, it is also imperative that we not rend the fabric of evi-
dence and examine each shred in isolation." United States v.
Johnson, 903 F.2d 1084, 1087 (7th Cir. 1990) (upholding
retaliation conviction under § 1513(a)).

Here the "fabric of the evidence" supports the jury’s deci-
sion. Given the contacts between Caruso and Ashley, it seems
entirely reasonable to posit that Ashley knew exactly what
Caruso was willing to pay for and precisely what Caruso
wanted done. Retaliation against informants, like witness tam-
pering, strikes at the heart of our criminal justice system. It
not only disrupts the peace of the community but threatens the
8 UNITED STATES v. ASHLEY
very instruments by which that peace is maintained. Direct
evidence of retaliatory intent is "usually unavailable" to pros-
ecuting attorneys. Id. But "[i]n a case of witness retaliation,
the government need not adduce direct evidence of Appel-
lant’s knowledge of a witness’s informant status in order for
the jury to infer his intent to retaliate." Brown, 937 F.2d at 36.
In prior retaliation prosecutions, we have not required the
government to produce a "smoking gun" that explicitly
reveals the contents of defendant’s mind, see United States v.
Cofield, 11 F.3d 413, 419-20 (4th Cir. 1993), and we decline
to do so today.

III.

We turn now to Ashley’s contention that the grand jury’s
charge on Count Three, which charged Ashley with violating
18 U.S.C. § 924(c), was constructively amended.2 The indict-
ment alleged that Ashley:

during and in relation to crimes of violence for
which he may be prosecuted in a court of the United
States, to wit: Conspiracy to Tamper With A Wit-
ness and Conspiracy To Retaliate Against A Wit-
ness, as set forth in Counts One and Two of this
Indictment, which are incorporated herein by refer-
ence, did knowingly possess and discharge a firearm
in furtherance of said crimes of violence.

It also cited 18 U.S.C. § 2, which provides generally for aid-
ing and abetting liability.
2
Section 924(c) punishes "any person who, during and in relation to any
crime of violence or drug trafficking crime . . . for which the person may
be prosecuted in a court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm." 18 U.S.C.
§ 924(c)(1)(A). It includes a minimum sentence of five years, which
increases to ten years "if the firearm is discharged." 18 U.S.C.
§§ 924(c)(1)(A)(i), (iii).
 UNITED STATES v. ASHLEY 9
In instructing the jury on Count Three, the district court
omitted any reference to the indictment’s "during and in rela-
tion to" language, telling the jury it could convict Ashley for
"possessing a firearm in furtherance of" a crime of violence,
which meant having "held a pistol and intentionally shot"
Dixon "to carry out the objectives" of the crimes charged in
the other counts of the indictment. It also instructed that if
York violated Section 924(c), the jury could convict Ashley
of that offense either under an aiding and abetting theory or
under the doctrine of vicarious co-conspirator liability estab-
lished in Pinkerton v. United States, 328 U.S. 640 (1946). The
government essentially repeated these theories in its closing
argument.

A.

Ashley first argues that his indictment was constructively
amended when, in describing Count Three to the jury, the dis-
trict court and the government omitted the indictment’s "dur-
ing and in relation to" language. "When the government,
through its presentation of evidence or its argument, or the
district court, through its instructions to the jury, or both,
broadens the bases for conviction beyond those charged in the
indictment, a constructive amendment—sometimes referred to
as a fatal variance—occurs." United States v. Malloy, 568
F.3d 166, 178 (4th Cir. 2009). To constitute a constructive
amendment, the variance must in essence "change the ele-
ments of the offense charged, such that the defendant is actu-
ally convicted of a crime other than that charged in the
indictment." Id. Any other variance "does not violate a defen-
dant’s constitutional rights unless it prejudices the defendant
either by surprising him at trial and hindering the preparation
of his defense, or by exposing him to the danger of a second
prosecution for the same offense." Id.

As Ashley acknowledges, Section 924(c) has two separate
prongs: a defendant can be convicted if he "uses or carries"
a firearm "during and in relation to" a crime of violence or if
10 UNITED STATES v. ASHLEY
he "possesses" a firearm "in furtherance of" a crime of vio-
lence. Either one is sufficient to allow a conviction. 18 U.S.C.
§ 924(c)(1)(A). Since "during and in relation to" is not an ele-
ment of the "possesses" version of the offense with which
Ashley was charged, it was simply surplusage and could be
omitted by the district court in its instructions. See Malloy,
568 F.3d at 178 (no constructive amendment where indict-
ment’s use of "knowingly" omitted from jury instructions
since knowledge was not element of charged offense).

Ashley argues, however, that presence of the word "dis-
charge" in the indictment indicates he was charged with vio-
lating the "uses-or-carries" version of the offense as well as
the "possesses" version. It seems more likely, however, that
the indictment was simply referring to the enhanced sentence
provided under the statute in cases where a firearm is "dis-
charged." 18 U.S.C. § 924(c)(1)(A)(iii). At any rate, Ashley’s
claim would fail even if he were correct that the indictment
charged both versions of Section 924(c). "Where an indict-
ment charges several offenses, or the commission of one
offense in several ways, the withdrawal from the jury’s con-
sideration of one offense or one alleged method of commit-
ting it does not constitute a forbidden amendment of the
indictment." United States v. Miller, 471 U.S. 130, 145
(1985).

Ashley’s argument is evidently based on the idea that leav-
ing out the "during and in relation to" language "broaden[ed]"
the bases upon which the jury could convict him, Malloy, 568
F.3d at 178, because it meant that there was one less thing the
government had to prove. But Ashley misconstrues what
impermissible broadening of an indictment is about. Broaden-
ing means instructing the jury that it may find the defendant
guilty on the basis of elements that were not set forth in the
grand jury’s indictment—a different version of the offense
charged or a different offense altogether. See Miller, 471 U.S.
at 145. "[A]ctual additions" to an indictment are forbidden, id.
at 144, but here there was only a subtraction, and a jury can
 UNITED STATES v. ASHLEY 11
be instructed on any "lesser included offense" whose elements
were all contained within the grand jury’s charge. See United
States v. Brooks, 524 F.3d 549, 555 n.9 (4th Cir. 2008).

Nor can we perceive any problem of fair notice. The dis-
tinction between "during and in relation to" and "in further-
ance of" is "a subtle one," to say the least. H.R. Rep. No. 105-
344, at 11 (1997); see also United States v. Avery, 295 F.3d
1158, 1174 (10th Cir. 2002) (difference is "only slight");
United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001)
(difference "somewhat elusive"). But if anything, according to
the drafters of the provision, "‘in furtherance of’ is a slightly
higher standard, and encompasses the ‘during and in relation
to’ language." H.R. Rep. No. 105-344, at 11; see also United
States v. Lomax, 293 F.3d 701, 704-05 (4th Cir. 2002). So it
would hardly have made any sense for Ashley to base his
defense on defeating the "during and in relation to" portion of
his indictment, and not surprisingly, there is no indication he
attempted to do so. In short, the district court neither commit-
ted a fatal variance or prejudiced the defendant in its presenta-
tion to the petit jury of Count Three.

B.

Ashley also objects to the jury’s being told it could find
Ashley guilty on Count Three not only if he aided and abetted
York’s violation of Section 924(c), but also by virtue of the
doctrine of vicarious liability set forth in Pinkerton v. United
States, 328 U.S. 640, 647 (1946). The Pinkerton doctrine
makes a person liable for substantive offenses committed by
a co-conspirator when their commission is reasonably fore-
seeable and in furtherance of the conspiracy. See United
States v. Singh, 518 F.3d 236, 253 (4th Cir. 2008). Because
we hold that an indictment need not set forth vicarious co-
conspirator liability, it was not error for the district court to
instruct the jury on this theory.

It is settled that vicarious liability predicated on having
aided or abetted the crimes of another need not be charged in
12 UNITED STATES v. ASHLEY
an indictment. See United States v. Wills, 346 F.3d 476, 495
(4th Cir. 2003). The reason for this rule is that aiding and
abetting simply describes the way in which a defendant’s con-
duct resulted in the violation of a particular law. The federal
criminal statute dealing with the subject speaks simply of
agency and causation principles, providing that a person is
punishable "as a principal" if he "aids, abets, counsels, com-
mands, induces or procures" the commission of a federal
offense or "willfully causes" another to do an act that would
be criminal if he performed it himself. 18 U.S.C. § 2. Because
the aiding and abetting provision does not set forth an essen-
tial element of the offense with which the defendant is
charged or itself create a separate offense, aiding and abetting
liability need not be charged in an indictment. See United
States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987).

These same principles hold true in the case of vicarious co-
conspirator liability. The Pinkerton doctrine is distinct from
the substantive offense of conspiracy, which makes the very
act of conspiring criminal. See 18 U.S.C. § 371. Instead, the
Pinkerton doctrine is a means of apportioning criminal
responsibility for the commission of substantive offenses.
Pinkerton, 328 U.S. at 643-47. It provides that a person can
commit an offense not only by engaging in the forbidden con-
duct himself but also by participating in a conspiracy that
leads a confederate to engage in that conduct. As the Pinker-
ton Court explained, "so long as the partnership in crime con-
tinues, the partners act for each other in carrying it forward."
Id. at 646. By joining the conspiracy, "[e]ach conspirator
instigated the commission of the crime." Id. at 647. In other
words, Pinkerton liability, like aiding and abetting liability,
rests on notions of agency and causation. As the Court recog-
nized, "[t]he rule which holds responsible one who counsels,
procures, or commands another to commit a crime is founded
on the same principle." Id. at 647.

Since the same reasons that make it unnecessary to charge
aiding and abetting liability in an indictment underlie vicari-
 UNITED STATES v. ASHLEY 13
ous co-conspirator liability, we hold that a district court does
not constructively amend an indictment by giving a Pinkerton
instruction when Pinkerton liability has not been charged by
the grand jury. This has been the unanimous view of the cir-
cuit courts which have addressed this issue. See United States
v. Zackery, 494 F.3d 644, 647-49 (8th Cir. 2007); United
States v. Budd, 496 F.3d 517, 527-28 (6th Cir. 2007); United
States v. Creech, 408 F.3d 264, 273 (5th Cir. 2005); United
States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001); United
States v. Macey, 8 F.3d 462, 468 (7th Cir. 1993); United
States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990); United
States v. Jackson, 627 F.2d 1198, 1216-17 (D.C. Cir. 1980);
United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975);
United States v. Roselli, 432 F.2d 879, 895 (9th Cir. 1970).
Accordingly, the district court’s instruction did not construc-
tively amend Ashley’s indictment.

Nor was this instruction in any way prejudicial. Ashley
argues that, since conspiracy liability was explicitly set forth
in the other counts of his indictment, the government was
obliged to charge it in Count Three. This is backwards at best.
The very fact that Counts One and Two charged Ashley with
conspiracy offenses should have made it the more obvious
that co-conspirator liability was a possibility, especially when
the conspiracy charges served as the predicate offenses in
Count Three and were incorporated by reference. Certainly
there could be no danger of unfair surprise. Malloy, 568 F.3d
at 179.

IV.

For the foregoing reasons, we reject each of Ashley’s
claims. The judgment is hereby

AFFIRMED.