UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4985
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARNOLDO AVITA GAMBOA, a/k/a Angel Martinez, a/k/a Tony,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:08-cr-00151-2)
Submitted: October 26, 2010 Decided: March 8, 2011
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arnoldo Avita Gamboa appeals his convictions and the
mandatory life sentence imposed after a jury convicted him of
conspiracy to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2006), and conspiracy to launder
money, in violation of 18 U.S.C. § 1956(h) (2006). On appeal,
Gamboa contends that the district court abused its discretion in
seating a juror, that the court violated his due process rights
by failing to sequester witnesses, that trial counsel rendered
ineffective assistance, that the evidence was insufficient to
sustain his conviction on the cocaine conspiracy charge, that
the Government failed to prove beyond a reasonable doubt the
prior convictions used to enhance his sentence, and that his
sentence violates the Eighth Amendment. Finding no reversible
error, we affirm.
Gamboa first contends that the district court should
have dismissed a juror for cause because she had read two
newspaper articles about Gamboa’s co-defendant. However, the
juror stated that she had not formed an opinion as to Gamboa’s
guilt and she did not think that the content of the newspaper
articles would affect her ability to decide the case in
accordance with the law and on the basis of the evidence
presented at trial. Generally, a challenge for cause is
“limited to situations where actual bias is shown.” United
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States v. Turner, 389 F.3d 111, 117 (4th Cir. 2004) (internal
quotation marks omitted). It is within the trial judge’s
discretion to assess the credibility of a potential juror’s
statements about a lack of bias or prejudice. See United States
v. Thompson, 774 F.2d 1065, 1068 (4th Cir. 1984). Upon review,
we conclude that the district court did not abuse its discretion
in seating the juror over Gamboa’s objection. See Poynter ex
rel. Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989) (“A
trial judge has very broad discretion in deciding whether to
excuse a juror for cause and his decision will not be overturned
except for manifest abuse of that discretion.”).
Gamboa next contends that the district court deprived
him of due process by failing to sua sponte sequester the
Government’s witnesses. Under Federal Rule of Evidence 615, the
district court either may sua sponte, or upon a party’s motion
shall, sequester witnesses to prevent them from hearing other
witnesses’ testimony. “The purpose of the exclusion rule is
. . . to prevent the possibility of one witness shaping his
testimony to match that given by other witnesses at the trial. .
. .” United States v. Leggett, 326 F.2d 613, 613 (4th Cir.
1964). As such, a trial court’s decision as to the need for
sequestration of witnesses will not be held erroneous absent a
showing of prejudice arising from the presence of witnesses
during the trial. See United States v. Harris, 409 F.2d 77, 81
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(4th Cir. 1969). Here, Gamboa has failed to establish the
prejudice resulting from the trial court’s decision not to
sequester witnesses, and our review of the record leads us to
conclude that the district court did not abuse its discretion in
failing to do so sua sponte. Id.
In a related argument, Gamboa contends that trial
counsel was ineffective for failing to move for the
sequestration of the witnesses. “A defendant can raise the
claim of ineffective assistance of counsel . . . on direct
appeal if and only if it conclusively appears from the record
that his counsel did not provide effective assistance. . . .”
United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).
In the instant matter, even if we assume arguendo that the
representation provided by Gamboa’s trial counsel fell below an
objective standard of reasonableness, Gamboa has failed to show
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 694
(1984). Because the record does not conclusively demonstrate
that counsel was ineffective for failing to move for the
sequestration of the witnesses, we decline to consider Gamboa’s
claim on direct appeal.
Gamboa also argues that the evidence was insufficient
to convict him of the cocaine conspiracy charge, relying
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substantially on the facts that he was never found in possession
of cocaine and the witnesses against him were convicted felons.
“A defendant challenging the sufficiency of the evidence to
support his conviction bears a heavy burden.” United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation
marks omitted). A jury’s verdict “must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); see United States v. Perkins, 470 F.3d 150, 160
(4th Cir. 2006) (defining substantial evidence). We consider
both circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the government’s favor. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).
To prove conspiracy with intent to distribute cocaine,
“the government was required to establish (1) an agreement to
. . . distribute cocaine . . . existed between two or more
persons; (2) [the defendant] knew of the conspiracy; and
(3) [the defendant] knowingly and voluntarily became part of the
conspiracy.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008). At trial, Gamboa’s alleged co-conspirator testified that
she and Gamboa worked together for years to distribute cocaine,
described the methods they used to accomplish distribution, and
named several people to whom they delivered cocaine. We have
held that “uncorroborated testimony of an accomplice may be
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sufficient to sustain a conviction.” United States v. Manbeck,
744 F.2d 360, 392 (4th Cir. 1984); see United States v. Wilson,
118 F.3d 228, 234 (4th Cir. 1997) (“We may not weigh the
evidence or review the credibility of the witnesses [because]
[t]hose functions are reserved for the jury.”) (internal
citation omitted). Furthermore, several other witnesses
testified about their dealings with Gamboa in a manner that
corroborated many details of his co-conspirator’s testimony. As
such, we conclude that the evidence was sufficient to support
the jury’s verdict beyond a reasonable doubt on the cocaine
conspiracy charge.
Gamboa asserts that the Government failed to prove
beyond a reasonable doubt the prior convictions used to enhance
his sentence. A person convicted of a drug conspiracy after two
or more prior felony drug convictions faces a mandatory life
sentence. 21 U.S.C. § 841(b)(1)(A) (West 1999 & Supp. 2010); 21
U.S.C. § 846. Prior to such enhancement, the government must
file an information listing the prior convictions on which it
seeks to rely. 21 U.S.C. § 851(a)(1) (2006). If the defendant
denies the prior convictions, the government must prove any
issue of fact beyond a reasonable doubt. 21 U.S.C. § 851(b),
(c) (2006); United States v. Kellam, 568 F.3d 125, 145 (4th
Cir.), cert. denied, 130 S. Ct. 657 (2009). We have reviewed
the Government’s evidence submitted at sentencing, which
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included three certified judgments against one Arnoldo Avitia,
fingerprint records correlating to these convictions (one of
which listed “Gamboa” as an alias of Arnoldo Avitia), and the
testimony of a fingerprint expert indicating that the
fingerprint records matched Gamboa’s fingerprints. We conclude
that the district court did not clearly err in finding that the
Government proved Gamboa’s three prior felony drug convictions
beyond a reasonable doubt. See Kellam, 568 F.3d at 143 (stating
standard of review).
Finally, Gamboa argues that his life sentence is
cruel, unusual, and disproportionate to the offense, in
violation of the Eighth Amendment. However, these arguments are
foreclosed by our prior decision in United States v. Kratsas, 45
F.3d 63, 65-68 (4th Cir. 1995).
Accordingly, we affirm the district court’s judgment
and deny Gamboa’s motion to file a pro se supplemental brief.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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