United States v. Shenika Graves

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4179

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHENIKA GRAVES, a/k/a Shenika Nicole Graves,

Defendant - Appellant.

No. 12-4209

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LOXLY JOHNSON, a/k/a Desmond Williams,

Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:10-cr-00799-WDQ-3; 1:10-cr-00799-WDQ-1)

Argued: September 18, 2013 Decided: November 6, 2013

Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.

ARGUED: Howard Margulies, Columbia, Maryland, for Appellant
Shenika Graves. Gary Allen Ticknor, Columbia, Maryland, for
Appellant Loxly Johnson. Joshua L. Kaul, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Philip S. Jackson,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Following a jury trial, Appellants, Loxly Johnson (Johnson)

and Shenika Graves (Graves), were convicted of conspiracy to

import one kilogram or more of heroin and 500 grams or more of

cocaine, 21 U.S.C. §§ 960(a)(1) and 963, pursuant to a one-count

superseding indictment returned on January 4, 2011 by a federal

grand jury sitting in the District of Maryland. The district

court sentenced Graves to a term of twelve months and one day of

imprisonment, and Johnson to 240 months’ imprisonment. On

appeal, Appellants raise a host of challenges to their

respective convictions. We affirm.

I

Johnson and Graves first challenge the district court’s

denial of their respective motions to suppress. When

considering the denial of a motion to suppress, our review of

the district court’s factual findings is for clear error and our

review of its legal conclusions is de novo. United States v.

Lewis, 606 F.3d 193, 197 (4th Cir. 2010). Because the district

court denied the Appellants’ respective motions below, we

construe the evidence in the light most favorable to the

government. United States v. Branch, 537 F.3d 328, 337 (4th

Cir. 2008).

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 The district court held a suppression hearing for the

Appellants on December 6, 2011. The credible evidence

introduced at that hearing demonstrated as follows.

On December 17, 2010, a ship security officer for the Royal

Caribbean M/V Enchantment of the Seas told United States

Immigration and Customs Enforcement (ICE) agents that Gavin

Excell (Excell) and other crew members might be smuggling

narcotics on the ship. The next day, agents of the ICE Homeland

Security Investigations (HSI) Seaport Group coordinated with

Customs and Border Protection to inspect the ship’s crew members

when they arrived in Baltimore, Maryland.

At about 9:00 a.m. on December 18, 2010, the crew of the

Enchantment of the Seas was allowed to disembark. Searching

Excell, agents found three packages: one wrapped in duct tape in

his pants and two molded to fit into his shoes. The package in

his pants contained about 700 grams of heroin. The packages in

his shoes contained a total of about 300 grams of cocaine.

After he was arrested and waived his Miranda 1 rights, Excell

stated that he had picked up the drugs in Jamaica or the

Dominican Republic with fellow crew members John Swart Garth

(Garth) and an individual he knew as Kishurn, later identified

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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as Kishurn Neptune (Neptune), and he was to deliver them to

someone called “Tony” at a nearby Wal–Mart. 2 Excell indicated

that “Tony’s” cell phone number was 757–236–6211. At some point

while Excell was in custody, he received a call from cell phone

number 757–576–2843, which was linked in a national database to

Latoya Johnson. 3 The 757 area code is for Norfolk, Virginia.

Ronald Copeland (Detective Copeland), a detective with the

Baltimore City Police Department and an ICE Task Force Officer,

went to the Wal–Mart parking lot and found a black GMC Envoy

(the Envoy) with Virginia plates. The Envoy was the only

vehicle in the parking lot with Virginia plates. A check of the

license plates revealed that the Envoy was registered to Latoya

Johnson. A male, later identified as Johnson, and a female,

later identified as Graves, were seen inside the Envoy.

At about 10:15 a.m., another male, later identified as

Garth, walked up to the driver’s window of the Envoy, spoke with

the driver for a moment, then walked around to the rear

passenger door, opened it, and entered the vehicle. Detective

Copeland saw Garth, sitting in the back seat, bend his torso

2
Excell, Garth, and Neptune were also charged in the one-
count superseding indictment alleging a conspiracy to import
heroin and cocaine. They pleaded guilty prior to Johnson and
Graves’s trial.
3
Latoya Johnson is Johnson’s daughter.

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forward and reach toward the floorboard. According to Detective

Copeland, Garth appeared to be “messing with his shoes or

something.” After a few minutes, Garth exited the Envoy and

walked into the Wal–Mart. Later, he left the Wal–Mart and

boarded a van used by cruise ship crew members to return to the

ship.

At about 10:45 a.m., Johnson left the Envoy, entered the

Wal–Mart, and was followed ten minutes later by Graves. Over

the next hour, Johnson and Graves stayed inside the Wal–Mart,

periodically scanning the parking lot from the entrance to the

store. Graves once returned to the Envoy, sat in the driver’s

seat for about fifteen to twenty minutes, and then walked back

to the Wal–Mart.

At about 11:30 a.m., Graves returned to the Envoy and moved

it to another part of the parking lot while talking on her cell

phone. Law enforcement officers saw Neptune wearing a Royal

Caribbean jacket in the Wal–Mart parking lot. He walked around

Detective Copeland’s unmarked patrol car and stared directly at

him. Detective Copeland understood him to be conducting

counter-surveillance. Soon after, Detective Copeland saw

Neptune, Graves, and possibly Johnson standing with their backs

to each other for several minutes just outside the entrance to

the Wal–Mart.

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 At about 12:30 p.m., Excell made two controlled calls to

“Tony.” The first call, to 757-236-6211, went to voicemail.

The second call, to 757-576-2843, “Tony” answered. Excell told

him that he had been delayed by an immigration check, but that

he could be at the Wal–Mart in fifteen minutes. “Tony”

responded that he was at the Wal–Mart, but he had to leave and

could not accept drugs there because the area was “hot.” “Tony”

said he would call Excell back.

A few minutes later, Johnson left the Wal–Mart, got into

the Envoy, and drove to a nearby gas station, with the law

enforcement officers following the Envoy to such station. At

this time, Graves was in the foyer of the Wal-Mart. Johnson

stayed in the Envoy at the gas station for about five to ten

minutes, then drove north on Hanover Street. He held his cell

phone to his ear as he drove. At the same time, Excell, who was

in an unmarked patrol car, received a call.

Law enforcement officers stopped the Envoy a few blocks

later. Johnson was ordered out of the Envoy and handcuffed. At

the time, Johnson had a cell phone to his ear, which was seized. 4

HSI Special Agent Roger Cochran (Special Agent Cochran) examined

the call log to Johnson’s cell phone and discovered that, at

4
The cell phone number of the cell phone seized from
Johnson was 757-576-2843. The cell phone corresponding to cell
phone number 757-236-6211 was never recovered.

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12:36 p.m. that day, Johnson’s cell phone had received a call

from “Shp-Gavn,” cell phone number 757-576-0399, a cell phone

number that Special Agent Cochran recognized as Excell’s cell

phone number. Johnson initially consented to a search of the

Envoy, but soon said the vehicle was not his and revoked his

consent.

A Baltimore City Police Department canine sniffed the Envoy

with negative results. Law enforcement officers then searched

the Envoy, finding $8,000 in cash under the lining of a child

safety seat in the backseat.

Meanwhile, two HSI Special Agents, Alex Feres (Special

Agent Feres) and Harry Freeman (Special Agent Freeman), and

Detective Copeland, approached Graves in the Wal–Mart foyer and

identified themselves. Special Agent Feres asked Graves if she

would speak to them “in private.” Graves agreed and walked with

the law enforcement officers to Special Agent Freeman’s unmarked

patrol car. Prior to getting into Special Agent Freeman’s

patrol car, Graves was told she was not under arrest, she did

not have to engage in the conversation if she did not want to do

so, and she could “stop the conversation.” The law enforcement

officers were not wearing bullet-proof vests or showing their

weapons, and they did not touch Graves. Special Agent Feres

asked for Graves’s consent to quickly look through her Wal–Mart

bag and purse to check for weapons. Special Agent Freeman then

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checked these items, removing only Graves’s wallet to look for

identification.

Once in the patrol car, Graves indicated that she had come

to Baltimore from Virginia that morning with Johnson, a drug

trafficker, to meet someone from a cruise ship. Graves said

that an unknown man had entered the Envoy earlier that day and

had given them three packages in return for $4,000 and that the

“stuff” was in her purse. Graves began to cry as she was

arrested. Special Agent Feres read Graves her Miranda warnings

after she stopped crying, about ten minutes later. She waived

her rights orally and in writing. The law enforcement officers

searched her purse after the arrest and found three duct-taped

packages, similar to the ones Excell had, containing about 700

grams of heroin and 300 grams of cocaine.

Graves received several phone calls while she was with the

law enforcement officers. Following her arrest, Special Agent

Feres asked if she could answer them, and when she said yes, he

told her to answer. The first call was from a person in

Virginia, stating that he was worried “about Johnson’s status.”

The second call was from a person apparently using an overseas

phone, asking Graves if she had “the stuff.” She told the

caller she had it, but was stuck at the Wal–Mart. The person on

the other end of the call said that he would have someone pick

her up.

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 A

Johnson contends that the law enforcement officers lacked

probable cause to arrest him, search his cell phone, and search

the Envoy. We disagree.

The Fourth Amendment provides in relevant part that the

people are “to be secure in their persons . . . against

unreasonable searches and seizures . . . and no Warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. Under

the Fourth Amendment, if supported by probable cause, an officer

may make a warrantless arrest of an individual in a public

place. Maryland v. Pringle, 540 U.S. 366, 370 (2003).

“Probable cause” sufficient to justify an arrest requires “facts

and circumstances within the officer’s knowledge that are

sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the

suspect has committed, is committing, or is about to commit an

offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).

Determining whether an officer has probable cause involves

an inquiry into the totality of the circumstances. Pringle, 540

U.S. at 371. This inquiry does not involve the application of a

precise legal formula or test but the commonsense and streetwise

assessment of the factual circumstances. Id. at 370-71. The

Court in Pringle emphasized that the probable-cause standard is

“a practical, nontechnical conception that deals with the

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factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.” Id. at

370 (citations and internal quotation marks omitted). In

assessing the totality of the circumstances, it is appropriate

to consider an officer’s practical experience and the inferences

the officer may draw from that experience. Ornelas v. United

States, 517 U.S. 690, 700 (1996).

In this case, there was probable cause to arrest Johnson.

When Johnson was arrested, the officers knew that Excell, who

had been caught with about one kilogram of drugs on his person,

was planning to deliver the drugs to a man called “Tony” in the

Wal–Mart parking lot and claimed that other crew members were

making similar deliveries. One of the contact numbers for

“Tony” was a Norfolk, Virginia cell phone number registered to a

Latoya Johnson. The Envoy, the only vehicle in the Wal-Mart

parking lot with Virginia license plates, was also registered to

Latoya Johnson. Johnson and Graves had been sitting in the

Envoy in the Wal–Mart parking lot or looking at the parking lot

from the store for almost two hours at about the time Excell was

to deliver the drugs. While they were in the Envoy, an unknown

man, who later got into a cruise ship van, entered the Envoy for

a few moments bent over as if to remove something from his

shoes, and then quickly left the vehicle. Shortly thereafter,

Graves moved the Envoy to another part of the parking lot.

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Neptune, wearing Royal Caribbean apparel, conducted counter-

surveillance on the parking lot and was seen standing next to

Johnson and Graves at the Wal–Mart entrance. On the heels of

this activity, “Tony” told Excell that he was leaving the Wal–

Mart, and Johnson drove away from the parking lot. Johnson

drove to a gas station, but never bought gas or used the

convenience store. All of these facts provided the law

enforcement officers the necessary probable cause to arrest

Johnson. Because Johnson’s arrest was lawful, the seizure and

search of his cell phone was lawful as well. See United States

v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that

officers may seize cell phones incident to an arrest and

retrieve text messages and other information without a search

warrant).

Turning to Johnson’s challenge to the search of the Envoy,

that search was valid under the automobile exception to the

warrant requirement because the government had probable cause to

believe the Envoy contained drugs. See United States v. Ross,

456 U.S. 798, 825 (1982) (noting that a warrant is unnecessary

for an automobile search supported by probable cause); United

States v. Dickey-Bey, 393 F.3d 449, 456 (4th Cir. 2004) (same).

In addition to the evidence set forth above that provided

probable cause to arrest Johnson, the law enforcement officers

knew from Johnson’s cell phone call log that he had just

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received a call from Excell. The totality of the circumstances

amply support the conclusion that there was probable cause to

search the Envoy. Id.

B

For her part, Graves argues that the district court erred

when it refused to suppress certain statements she made to the

law enforcement officers. According to Graves, the law

enforcement officers procured these statements in violation of

Miranda.

“Statements obtained from [a] defendant during custodial

interrogation are presumptively compelled,” in violation of the

Fifth Amendment, unless the government shows “that law

enforcement officers (1) adequately informed the defendant of

her Miranda rights and (2) obtained a waiver of those rights.”

United States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005)

(footnote omitted). To determine whether a defendant was in

custody for Miranda purposes, courts are to determine “first,

what were the circumstances surrounding the interrogation; and

second, given those circumstances, would a reasonable person

have felt he or she was not at liberty to terminate the

interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112

(1995) (footnote omitted). In other words, “[a]n individual is

in custody when, under the totality of the circumstances, a

suspect’s freedom from action is curtailed to a degree

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associated with formal arrest.” United States v. Colonna, 511

F.3d 431, 435 (4th Cir. 2007) (citation and internal quotation

marks omitted). In conducting the custody inquiry, it is

important to remember that “[a]ny interview of one suspected of

a crime by a police officer will have coercive aspects to it,

simply by virtue of the fact that the police officer is part of

a law enforcement system which may ultimately cause the suspect

to be charged with a crime.” Oregon v. Mathiason, 429 U.S. 492,

495 (1977) (per curiam).

In support of her argument, Graves seems to emphasize that

she was questioned in a patrol car by three law enforcement

officers and the law enforcement officers were vigorously

pursuing a drug investigation. However, the Supreme Court has

made clear that neither the location nor the purpose of the

interview is dispositive of whether a suspect is in custody.

See Yarborough v. Alvarado, 541 U.S. 652, 656-66 (2004)

(upholding state court determination that the respondent, a

juvenile, was not in custody during his two-hour interview,

despite the fact that he was dropped off at the police station

by his parents at police request and was not told that he was

free to leave); Stansbury v. California, 511 U.S. 318, 325

(1994) (holding that a clear statement by a police officer that

the person being questioned is a suspect does not alone

determine custody, but is only “one among many factors” that

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bear on an assessment of whether a reasonable person would feel

free to depart); California v. Beheler, 463 U.S. 1121, 1125

(1983) (“But we have explicitly recognized that Miranda warnings

are not required simply because the questioning takes place in

the station house, or because the questioned person is one whom

the police suspect.”) (citation and internal quotation marks

omitted); Mathiason, 429 U.S. at 495 (holding that Miranda

warnings are not required when a suspect voluntarily accompanies

the police to the police station, answers questions, and then is

allowed to leave). Moreover, the number of law enforcement

officers present here, three, does not bolster Graves’s

argument. See, e.g., United States v. Nishnianidze, 342 F.3d 6,

12–14 (1st Cir. 2003) (holding no custody despite the presence

of three law enforcement officers); United States v. Quinn, 815

F.2d 153, 157-61 (1st Cir. 1987) (holding no custody despite the

presence of five officers).

In our view, Graves was not in custody so as to trigger the

Miranda requirements. Special Agent Feres asked Graves if she

would speak to the law enforcement officers “in private.” Prior

to getting into Special Agent Freeman’s patrol car, Graves was

told that she was not under arrest, she did not have to answer

questions if she did not want to do so, and she could “stop the

conversation.” Cf. Colonna, 511 F.3d at 435 (holding that

informing a suspect that he was not under arrest was a factor in

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assessing the totality of the circumstances). The law

enforcement officers did not wear bullet-proof vests, show their

weapons, or touch Graves. Cf. United States v. Street, 472 F.3d

1298, 1309 (11th Cir. 2006) (noting that “whether the officers

brandished weapons, touched the suspect, or used language or a

tone that indicated that compliance with the officers could be

compelled” were factors in the custody analysis) (citation and

internal quotation marks omitted). Under the totality of the

circumstances, a reasonable person in Graves’s shoes would have

felt that she was at liberty to terminate the questioning at any

time and leave. Keohane, 516 U.S. at 112. 5

5
Graves also argues that, even assuming she was not in
custody for Miranda purposes, her statements to the law
enforcement officers were inadmissible because they were
procured in violation of the Due Process Clause of the Fifth
Amendment, which provides in relevant part “[n]o person . . .
shall be compelled in any criminal case to be a witness against
himself . . . without due process of law.” U.S. Const. amend.
V. A statement is involuntary under the Due Process Clause of
the Fifth Amendment if it was extracted by “any sort of threats
or violence, [or] obtained by any direct or implied promises,
however slight, [or] by the exertion of any improper influence.”
Hutto v. Ross, 429 U.S. 28, 30 (1976) (citations and internal
quotation marks omitted). In our view, Graves’s due process
argument fails because no coercive police activity was present.
See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that
“coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning
of the Due Process Clause”).

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 II

Johnson also raises three trial-related issues on appeal.

The evidence presented by the government at trial was similar to

the evidence presented by the government at the suppression

hearing. Detective Copeland, Special Agent Cochran, and Special

Agent Feres were the government’s three witnesses at the

suppression hearing, and they all testified at the trial.

Excell, who did not testify at the suppression hearing, was the

government’s only other witness at the trial. He testified

extensively about the particulars of the importation scheme. Of

note, the government’s use of Graves’s statements to the law

enforcement officers was limited by the dictates of Bruton v.

United States, 391 U.S. 123, 126 (1968) (holding a defendant is

deprived of his rights under the Confrontation Clause when a

codefendant’s incriminating confession is introduced at their

joint trial, even if the jury is instructed to consider that

confession only against the codefendant). Neither Johnson nor

Graves argue that their respective convictions run afoul of

Bruton.

A

Johnson contends that the district court, during the trial,

should have sua sponte severed his trial from Graves’s trial.

The failure to order a severance sua sponte is reviewed for

plain error. United States v. Hart, 273 F.3d 363, 369-70 (3d

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Cir. 2001). To demonstrate plain error, a defendant must show

that: (1) there was an error; (2) the error was plain; and (3)

the error affected his substantial rights. United States v.

Olano, 507 U.S. 725, 732 (1993). Even if these elements are

established, the decision to correct the error lies within our

discretion, and we exercise that discretion only if “the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. at 732 (citation, alteration, and

internal quotation marks omitted).

At the suppression hearing on December 6, 2011, Special

Agent Cochran testified that he did not know the cell phone

number of the cell phone seized from Johnson on the day of his

arrest. That evening, Special Agent Cochran retrieved the cell

phone number (757-576-2843) from the cell phone seized from

Johnson and conveyed this information to the Assistant United

States Attorney (the AUSA) handling the case. The AUSA promptly

notified Johnson’s counsel the following day, the first day of

trial, who responded with an oral motion in limine to prevent

the government from introducing this evidence. The district

court granted the motion, concluding that the government’s

disclosure to Johnson was late.

At trial, counsel for Graves introduced into evidence the

records of Graves’s cell phone activity around the time of her

arrest (December 18, 2010). These records showed that there was

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a common cell phone number called by both Excell’s and Graves’s

cell phone on December 18, 2010. Graves’s counsel was able to

elicit testimony from Special Agent Cochran that the common cell

phone number was attributable to the cell phone seized from

Johnson on the day of his arrest.

Johnson timely objected to Special Agent Cochran’s

testimony, but the district court overruled the objection.

Johnson now claims that, if the district court was going to

permit the introduction of this evidence, it was required to sua

sponte sever his trial from Graves’s trial. According to

Johnson, the introduction of this evidence rendered his defense

mutually antagonistic to Graves’s defense.

Two or more defendants may be charged in the same

indictment if they are alleged to have “participated in the same

act or transaction, or in the same series of acts or

transactions, constituting an offense or offenses.” Fed. R.

Crim. P. 8(b). Generally, we adhere to the principle that

defendants indicted together should be tried together, and a

defendant must show that he was prejudiced by the denial of a

severance motion in order to establish that the district court

abused its broad discretion in that regard. United States v.

Strickland, 245 F.3d 368, 384 (4th Cir. 2001); see also Zafiro

v. United States, 506 U.S. 534, 539 (1993) (noting that courts

should grant severance “only if there is a serious risk that a

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joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence”); United States v. Harris,

498 F.3d 278, 291 (4th Cir. 2007) (noting that a district court

abuses its discretion “only where the trial court’s decision to

deny a severance deprives the defendants of a fair trial and

results in a miscarriage of justice”) (citation and internal

quotation marks omitted); Fed. R. Crim. P. 14(a) (“If the

joinder of offenses or defendants in an indictment, an

information, or a consolidation for trial appears to prejudice a

defendant or the government, the court may order separate trials

of counts, sever the defendants’ trials, or provide any other

relief that justice requires.”). Moreover, a defendant is not

entitled to severance merely because he might have had a better

chance of acquittal in a separate trial. Zafiro, 506 U.S. at

540.

The presence of conflicting or antagonistic defenses alone

does not require severance under Rule 14(a). Id. at 538. “The

mere presence of hostility among defendants . . . or the desire

of one to exculpate himself by inculpating another [are]

insufficient grounds to require separate trials.” United States

v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986) (citation,

alterations, and internal quotation marks omitted). The

antagonistic defenses must involve more than “finger pointing.”

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United States v. Najjar, 300 F.3d 466, 474 (4th Cir. 2002).

Instead, “[t]here must be such a stark contrast presented by the

defenses that the jury is presented with the proposition that to

believe the core of one defense it must disbelieve the core of

the other, . . . or that the jury will unjustifiably infer that

this conflict alone demonstrates that both are guilty.” Id.

(citation and internal quotation marks omitted).

Johnson’s defense at trial was that the government

introduced no evidence suggesting that he had any knowledge of

the drugs found in Graves’s purse. In asserting this defense,

Johnson’s counsel emphasized that: (1) the cell phone seized

from Johnson on the day of his arrest was never introduced into

evidence; (2) the cell phone corresponding to cell phone number

757-236-6211 was never recovered; (3) the canine did not alert

on the Envoy; (4) there was no evidence that he had any

knowledge of the $8,000 found in the Envoy, including the lack

of any fingerprint evidence; (5) there was no evidence that a

transaction took place after Garth entered the Envoy because his

hands were not seen handing drugs over; and (6) nothing sinister

could be drawn from Johnson’s actions at the Wal-Mart because

they were innocuous and done in a crowded place in broad

daylight.

Graves’s defense was similar to that of Johnson’s. Her

defense was that, like Johnson, she had no knowledge of the

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drugs found in her purse. According to Graves’s counsel, the

drugs could have gotten into her purse in any number of ways

without her knowledge. This point, according to her counsel,

was underscored by the fact that drugs were not found in the

protective search of the purse. Counsel for Graves also

emphasized that Excell was supposed to deliver the drugs to a

man named “Tony” and not to a woman. This point was underscored

by the calls Excell made to “Tony” and the absence of evidence

that Excell ever contacted Graves. As for her statements to the

law enforcement officers, Graves’s counsel posited that Graves

did not make the statements and, even if she did, such

statements were involuntary under the circumstances. Counsel

for Graves also downplayed the significance of the calls

received by Graves while she was in the company of the law

enforcement officers, suggesting that “somebody that knew her

number and knew she was there had suggested to somebody that

they call her just to check the status.” Finally, counsel for

Graves emphasized that Graves’s actions at the Wal-Mart, though

a little unusual, were not indicative of criminal activity,

especially since Graves was not in a position to return to

Virginia on her own and, given the time of year, it probably was

warmer in the Wal-Mart than in the Envoy.

In our view, Johnson’s and Graves’s defenses, while

conflicting on certain points, were not mutually antagonistic to

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the point where the jury was required to believe the core of one

defense and disbelieve the core of the other. In order to

convict Johnson, the jury was not required to believe Graves’s

defense that she was not a participant in the conspiracy.

Rather, to convict Johnson, the jury was required to find that

he knowingly participated in the conspiracy. Such a conviction

did not rest on the jury’s acceptance of Graves’s defense. In

other words, the jury was free to disbelieve both Johnson’s and

Graves’s versions of the events and conclude they both

participated in the conspiracy. Such a conclusion did not rest

on the belief of one defendant’s defense and the disbelief of

the other defendant’s defense. See id. (noting that defenses

were not mutually antagonistic where defendant’s guilt was not

dictated by the asserted innocence of his co-defendants). In

sum, in this case, “it is not so much that the defenses were

antagonistic to each other as it is that the evidence was

antagonistic to those defenses.” United States v. Frazier, 394

F.2d 258, 261 (4th Cir. 1968).

B

Johnson claims that the district court erred when it denied

his request for a missing witness instruction. We review the

district court’s refusal to grant a defendant’s request for a

jury instruction for an abuse of discretion. United States v.

Passaro, 577 F.3d 207, 221 (4th Cir. 2009).

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 Prior to the instant trial, Garth pleaded guilty to the

charged conspiracy and entered into a plea agreement with the

government whereby he had agreed to testify truthfully if called

to testify. At the time of trial, Garth was in custody awaiting

sentencing. At trial, the government decided not to call Garth,

prompting Johnson to request a missing witness instruction in

his proposed jury instructions. The district court denied this

request, and Johnson argues this ruling was in error. According

to Johnson, Garth’s plea agreement with the government rendered

him unavailable to the defense and, in any event, Johnson could

not compel Garth to testify for the defense. Johnson further

posits, in a speculative fashion, that Garth’s testimony would

have been helpful to his defense.

The Supreme Court announced the underlying rationale for

“missing witness” instructions in Graves v. United States, 150

U.S. 118 (1893): “if a party has it peculiarly within his power

to produce witnesses whose testimony would elucidate the

transaction, the fact that he does not do it creates the

presumption that the testimony, if produced, would be

unfavorable.” Id. at 121. To qualify for such an instruction,

two requirements must be met. First, it must be shown that the

party failing to call the witness has it peculiarly within its

power to produce the witness. United States v. Brooks, 928 F.2d

1403, 1412 (4th Cir. 1991). This requirement can be satisfied

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by showing either (1) that the witness is physically available

only to the other party, or (2) that, because of the witness’s

relationship with the other party, the witness “pragmatically”

is only available to that party. United States v. Rollins, 862

F.2d 1282, 1297 (7th Cir. 1988); see also United States v.

Spinosa, 982 F.2d 620, 632 (1st Cir. 1992) (missing witness

instruction proper when the witness is “so ‘clearly favorably

disposed’ to the other party”). Second, the witness’s testimony

must elucidate issues important to the trial, as opposed to

being irrelevant or cumulative. Brooks, 928 F.2d at 1412.

In this case, Johnson cannot get beyond the first

requirement. A witness is not unavailable merely because he

cooperates with the government. See Rollins, 862 F.2d at 1298

(holding that an inmate equally available to both the government

and the defense is not pragmatically unavailable simply because

he was also a government informant); Spinosa, 982 F.2d at 632

(holding that a witness is not pragmatically unavailable simply

because he is a paid government informant).

Moreover, Johnson has produced no evidence that Garth was

accessible only to the government or that Garth could not have

been subpoenaed to testify at trial. Reduced to its essence,

then, Johnson’s claim of entitlement to the missing witness

instruction rests on his contention that, because Garth was in

federal custody, he was available only to the government. This

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contention, however, is incorrect. Johnson could have asked the

district court to issue a writ of habeas corpus ad

testificandum, thereby requiring Garth’s presence at trial to

testify. 28 U.S.C. § 2241(c)(5); see also Muhammad v. Warden,

Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988) (holding

that a writ of habeas corpus ad testificandum may be issued

extraterritorially by the district court). There is no

indication in the record that Johnson made such a request. And

the fact that Garth may have invoked his Fifth Amendment

privilege against self-incrimination is of no moment. United

States v. St. Michael’s Credit Union, 880 F.2d 579, 598 (1st

Cir. 1989) (holding that a “witness’[s] decision to invoke his

fifth amendment privilege against testifying makes him neither

peculiarly available to the government nor within the

government’s exclusive control”). There was no abuse of

discretion by the district court.

C

Finally, Johnson challenges the sufficiency of the evidence

to support his conviction. “A defendant challenging the

sufficiency of the evidence . . . bears a heavy burden.” United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation

and internal quotation marks omitted). We will uphold the

jury’s verdict “if, viewing the evidence in the light most

favorable to the government, it is supported by substantial

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evidence.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008). “Substantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.” Id. (citation and internal quotation marks omitted).

In reviewing for substantial evidence, we consider both

circumstantial and direct evidence and allow the government all

reasonable inferences from the facts shown to those sought to be

established. United States v. Harvey, 532 F.3d 326, 333 (4th

Cir. 2008).

To be found guilty of conspiracy to import heroin and

cocaine, the government must prove: (1) an agreement to import

heroin and cocaine between two or more persons; (2) the

defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became a part of the conspiracy. See

generally United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996) (en banc). The government may establish the existence of

a conspiracy wholly by circumstantial evidence. Id. at 858.

And “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.” United States v. Banks, 10 F.3d 1044, 1054 (4th

Cir. 1993). “Once a conspiracy has been proved, the evidence

need only establish a slight connection between any given

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defendant and the conspiracy to support conviction.”

Strickland, 245 F.3d at 385.

A conspiracy conviction will be upheld by this court “even

if the defendant’s involvement is minimal.” United States v.

Allen, 716 F.3d 98, 103 (4th Cir. 2013). Consequently, “a

defendant may be convicted of conspiracy to [import] even if the

evidence shows participation in only one level of the conspiracy

charged in the indictment.” Id. (citation and internal

quotation marks omitted).

Whether there was a conspiracy to import heroin and cocaine

in this case is not in dispute. Excell and others were enlisted

to import heroin and drugs into the United States and did so.

The question is whether there is sufficient evidence in the

trial record to support the conclusion that Johnson knew of the

conspiracy and voluntarily became a part of it. In our view,

such sufficient evidence is in the trial record.

Under his dominion and control, Johnson possessed a large

sum of money. Such evidence supports the conclusion that some

of this money was to be paid to Excell. Although Johnson’s

presence at a Wal-Mart far away from home is not telling in and

of itself, the length of time he spent there and the actions he

took while there strongly suggest that he was participating in

the importation scheme. His interaction with Garth, first at

the driver’s side window of the Envoy and then in the vehicle as

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Garth appeared to remove something--such as a drug pack--from

his shoes further bolsters such a conclusion, as does the

furtive movements Johnson took while he was at the Wal-Mart.

Moreover, because Johnson did not leave once the Garth

transaction was concluded, the jury was free to conclude that

Johnson was waiting for a delivery from Excell. Finally, there

is plenty of evidence in the record to support the conclusion

that “Tony” and Johnson were the same person. In view of the

overwhelming evidence of guilt in the trial record, Johnson’s

sufficiency of the evidence challenge must be rejected.

III

For the reasons stated herein, the judgments of the

district court are affirmed.

AFFIRMED

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