United States v. Francisco Barahona

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4633

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANCISCO BARAHONA, a/k/a Poncho,

Defendant - Appellant.

No. 13-4637

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NOE FARID MEDRANO,

Defendant - Appellant.

No. 13-4822

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
OMAR STEELE, a/k/a Panamanian, a/k/a Omie,

Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, Senior District
Judge. (8:12-cr-00014-RWT-3; 8:12-cr-00014-RWT-7; 8:12-cr-
00014-RWT-5)

Argued: March 25, 2015 Decided: April 24, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished opinion. Senior Judge Davis wrote the
opinion, in which Judge Wilkinson and Judge Harris joined.

ARGUED: Kira Anne West, LAW OFFICE OF KIRA ANNE WEST,
Washington, D.C.; Anthony Douglas Martin, I, ANTHONY D. MARTIN,
PC, Greenbelt, Maryland; Elita C. Amato, Arlington, Virginia,
for Appellants. Scott A.C. Meisler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Sujit
Raman, Chief of Appeals, Deborah Johnston, Assistant United
States Attorney, Mara Zusman Greenberg, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland; Leslie R. Caldwell, Assistant Attorney General, David
A. O'Neil, Acting Deputy Assistant Attorney General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
DAVIS, Senior Circuit Judge:

These appeals arise from the prosecution of members of a

conspiracy to distribute significant quantities of cocaine and

heroin in Maryland and other states from 2010 to January 2012.

At the center of the government’s case was cooperating

coconspirator Saul Calderon Mata, who obtained drugs from

sources in Virginia, Georgia, Texas, and elsewhere, and then

transported and distributed the drugs with the help of a network

of associates, including Francisco Barahona, Noe Farid Medrano,

and Omar Steele (all three, collectively, “the Defendants”).

Following a multi-week trial, a jury convicted Barahona and

Steele of conspiring to distribute more than five kilograms of

cocaine and one kilogram of heroin. The jury also found Medrano

guilty of conspiring to distribute more than five kilograms of

cocaine. On appeal, the Defendants make several assertions of

error, some individually and some jointly, regarding pretrial

rulings, their trial, and the application of a sentencing

enhancement. Having carefully considered all of the Defendants’

contentions, we discern no reversible error in any respect, and

we therefore affirm.

I.

A.

Law enforcement began investigating Mata in September 2011.

By then, Mata was active in the drug business, and had a

3
longstanding relationship with Barahona, who obtained cocaine

from Mata to distribute to others and made supply runs on Mata’s

behalf. For example, Mata paid Barahona a fee of $1,000 per

kilogram to make supply runs to Atlanta, Georgia. Barahona also

rented Mata the basement of his Gaithersburg, Maryland home to

store, cut, and repackage drugs.

Like Barahona, Medrano distributed drugs for Mata. Mata

fronted Medrano ounces of cocaine at a time, and then collected

payment from Medrano after he sold the drugs. In addition to

distributing drugs, Medrano made supply runs on Mata’s behalf,

and arranged for one of his associates, Daniel Stotz, to make

the Atlanta runs for the $1,000-per-kilogram fee, with $100 of

that fee going to Medrano. Mata also bought handguns from

Medrano and Stotz for his protection. By January 2012, Mata

owed Medrano and Stotz $15,000, and as collateral for the debt,

gave them large quantities of marijuana.

Steele was one of Mata’s main customers for cocaine and

heroin, and began buying kilogram quantities of those drugs in

2010. Some of those transactions took place at Steele’s

apartment on 16th Avenue in Hyattsville, Maryland, which Steele

eventually agreed to lease to Mata. Mata used the Hyattsville

apartment for about a month and a half, and during that time,

continued to distribute cocaine and heroin to Steele at the

apartment complex. On one occasion, while Mata was living in

4
the apartment, Steele served as a translator in a heroin deal

between Mata and Steele’s English-speaking friend. Steele’s

friend subsequently met Mata and one of his associates, Ivan

Santoyo-Villa, at a restaurant with $50,000, to be used to buy

cocaine and heroin from a supplier in Virginia. Shortly after

Mata moved out of the Hyattsville apartment, Steele brokered a

deal for Mata to sell a kilogram of heroin to a woman in New

York. Steele later arranged for Mata to sell the woman an

additional half-kilogram of heroin. Following this transaction,

Steele and Mata continued to stay in contact regarding drugs

Steele wanted, money that Steele owed Mata, and a digital scale

that Steele wanted Mata to return.

B.

In late January 2012, Mata sent Santoyo-Villa and Stotz to

Atlanta to pick up five kilograms of cocaine and two kilograms

of heroin, which would be concealed in a hidden compartment of a

vehicle driven by Stotz. Before the drugs arrived, Mata

contacted Barahona, who confirmed that Mata could cut and

repackage the drugs in his basement and helped Mata locate the

key to a room containing cutting materials. Mata also contacted

Medrano to confirm that his order for eighteen ounces of cocaine

would soon be ready, and Steele to find out how many kilograms

of drugs he needed. Suspecting that police were following him,

5
however, Steele put off placing his order. Steele was later

arrested by law enforcement agents following his car.

On January 25, 2012, Mata arrived at Barahona’s house in

the car that Stotz had driven from Atlanta. Mata and another of

his associates, Alfonso Solorio, brought the drugs, except for

one kilogram of cocaine which was stuck in the car’s hidden

compartment, to Barahona’s basement. Soon thereafter, law

enforcement agents entered the house with a search warrant. In

the basement, agents found kilograms of cocaine and heroin in

brick form, cutting agents, and various other materials

containing drug residue or used to package drugs. Agents also

recovered the remaining kilogram of cocaine from the hidden

compartment in the car, and seized a firearm, which Medrano had

sold to Mata. In Barahona’s upstairs bedroom, agents found a

small bag of cocaine in the mattress. Barahona and Medrano were

arrested the same day.

Two days later, on January 27, 2012, agents searched the

Hyattsville apartment. They found a vice press used to package

drugs, heat sealer bags (also used to package drugs), cutting

agents, baking pans with drug residue, and two digital scales

used to weigh drugs. Forensic testing confirmed that a

fingerprint found on one of the scales was Steele’s, and that

the scale contained cocaine and heroin residue.

6
 C.

In February 2013, a federal grand jury issued a second

superseding indictment, charging Barahona, Medrano, and Steele

with conspiring to distribute more than five kilograms of

cocaine and more than one kilogram of heroin, in violation of 21

U.S.C. §§ 841 and 846 (Count 1); and using a telephone in

furtherance of a drug trafficking crime, in violation of 21

U.S.C. § 843(b) (Counts 5–8, 10, 12, and 15). The grand jury

also charged Steele and Barahona with managing places used to

distribute and store drugs, in violation of 21 U.S.C. § 856

(Counts 2 and 13); Steele and Barahona with engaging in

interstate travel for narcotics activity, in violation of 18

U.S.C. § 1952 (Counts 3 and 14); Steele with possessing with

intent to distribute heroin, in violation of 21 U.S.C. § 841

(Count 4); Medrano with possessing with intent to distribute

cocaine and marijuana in violation of 21 U.S.C. § 841 (Counts 9

and 11); and Barahona with possessing with intent to distribute

more than 1 kilogram of heroin and 500 grams of cocaine, in

violation of 21 U.S.C. § 841 (Count 16).

Barahona and Steele filed pretrial a motion to suppress

evidence uncovered at Barahona’s Gaithersburg residence and

Steele’s Hyattsville apartment, which the district court denied.

The Defendants proceeded to trial, following which the jury

found them guilty on all counts. The jury determined that

7
Barahona and Steele participated in a conspiracy to distribute

more than five kilograms of cocaine and one kilogram of heroin,

while Medrano conspired to distribute more than five kilograms

of cocaine. The district court sentenced Barahona to 132

months’ imprisonment; Medrano to 120 months’ imprisonment; and

Steele to 192 months’ imprisonment. This timely appeal

followed.

II.

A.

The Defendants challenge the district court’s denial of

their motion to suppress evidence recovered through the use of

electronic interception of telephone conversations.

Specifically, they claim that the government’s wiretap

applications did not satisfy the necessity requirement of 18

U.S.C. § 2518(3), and that the supporting affidavits contained

material misstatements or omissions justifying a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

1.

In September 2011, during a court-authorized wiretap of

drug dealer Kevin Walker’s phone (“Target Telephone A” or

“TTA”), law enforcement officers identified Mata as a Maryland-

based cocaine supplier. After monitoring calls and conducting

some physical surveillance over a period of weeks, officers

stopped a car driven by Mata’s girlfriend, Yacenia Beaver, on

8
October 5, 2011. Officers searched the car upon receiving

consent, and discovered approximately 403 grams of heroin and

$15,000 in cash. Subsequent interviews with Beaver and her

children confirmed that Mata was a drug dealer who had dealings

in Atlanta, but did not reveal the extent of Mata’s operations

in Maryland or the identity of his suppliers.

Following the above events, officers sought authorization

to wiretap a cellular phone used by Mata (“Target Telephone C”

or “TTC”). The supporting affidavit filed by Officer Richard

Armagost disclosed the TTA wiretap, and set forth the basis for

believing that Mata used TTC in his drug operation. Armagost

explained why previous wiretaps had provided valuable, albeit

limited, information. He also explained why other investigative

techniques, such as confidential sources, controlled purchases,

physical surveillance, and trash pulls, would not yield the

information that officers were seeking. On October 7, 2011, the

district court authorized the TTC wiretap, which ultimately

captured Mata’s calls with Barahona, among others.

As the investigation continued and Mata changed cell

phones, investigators sought authorization to wiretap additional

phones (“Target Telephones D through I” or “TTD through TTI”).

Armagost’s supporting affidavits for those wiretap applications

reviewed the history of the investigation, explained why there

was probable cause to believe that Mata was using the target

9
phones to further his drug dealings, and explained why

techniques other than wiretapping would not yield information

helpful to the investigation.

On November 29, 2011, the district court authorized the TTE

wiretap, which captured calls with Steele. The district court

later issued a “roving” order authorizing the wiretap of any

phones Mata used over the next thirty days; those phones were

TTG, TTH, and TTI. Based on an updated application, the court

extended the TTG and TTI wiretaps through the time of the

Defendants’ January 2012 arrests. 1

The Defendants joined in a motion to suppress the wiretap

evidence, filed by Steele. Following a hearing, the district

court denied the motion to suppress.

2.

In reviewing a denial of a motion to suppress, we review

factual findings for clear error and legal conclusions de novo.

United States v. Hampton, 628 F.3d 654, 658 (4th Cir. 2010). We

review for abuse of discretion an authorizing court’s

determinations of necessity under 18 U.S.C. § 2518(3). United

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Finally,

1
Interception of TTD was quickly suspended because Mata
stopped using that phone within a few days of the district
court’s order authorizing the wiretap. Interception of TTF
never commenced because Mata stopped using that phone around the
time the court authorized its interception.

10
we review the denial of a Franks hearing de novo. United States

v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).

3.

To obtain authorization for a wiretap, the government must

“show the ‘necessity’ of any wiretap application via a full and

complete statement as to whether ‘normal investigative

procedures have been tried and have failed or reasonably appear

to be unlikely to succeed if tried or to be too dangerous.’”

Wilson, 484 F.3d at 281 (quoting 18 U.S.C. § 2518(3)). The

burden on the government, however, “is not great, and the

adequacy of such a showing is to be tested in a practical and

commonsense fashion that does not hamper unduly the

investigative powers of law enforcement agents.” Id. (internal

quotation marks omitted). While the government

cannot meet its burden with bare conclusory statements
that normal techniques would be unproductive or mere
boilerplate recitation of the difficulties of
gathering usable evidence, it need only present
specific factual information sufficient to establish
that it has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence
such that wiretapping becomes reasonable, despite the
statutory preference for less intrusive techniques.

United States v. Galloway, 749 F.3d 238, 243 (4th Cir. 2014)

(internal quotation marks omitted). The federal wiretap statute

includes a “standing” requirement, permitting “[a]ny aggrieved

person in any trial, hearing, or proceeding” to file a motion to

“suppress the contents of any wire or oral communication”

11
alleged to have been unlawfully intercepted. 18 U.S.C. §

2518(10); see also 18 U.S.C. § 2510(11) (defining “aggrieved

person”).

Assuming without deciding that the Defendants have standing

to challenge the wiretaps, their challenge fails. Beginning

with TTA, the government made an adequate showing of necessity.

The affidavit supporting TTA explained how “agents and officers

involved in this investigation have made extensive use of

information provided by . . . informants concerning the [Walker]

organization’s drug distribution activities.” J.A. 2728.2

Nevertheless, informants were unable to provide information

regarding Walker’s sources of supply. The affidavit further

explained that, because “[Walker] is extremely suspicious” and

“has shown a pattern [of] utilizing other individuals to deliver

drugs on his behalf,” investigators have been unable to arrange

controlled purchases from Walker. J.A. 2729. Moreover, the

affidavit explained, investigators’ ability to conduct physical

surveillance has been limited by Walker’s use of “lookouts” and

other counter-surveillance maneuvers. Walker was also careful

about what he discarded in the trash, as two trash pulls did not

yield any information helpful to the investigation. In light of

2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

12
the affidavit’s “fairly extensive discussions” of why other

techniques would fail “to reveal the full scope of the

organization,” risked “reveal[ing] the existence of the ongoing

investigation,” or were “not practical under the circumstances,”

the district court did not abuse its discretion in authorizing

TTA. Galloway, 749 F.3d at 243.

We also reject the Defendants’ argument that the necessity

explanation provided in the TTC affidavit “amounted to bare

conclusory statements and boilerplate recitations that would

more or less apply to any drug-trafficking investigation.” Id.

at 242. The affidavit supporting TTC explained that, although

officers had interviewed Beaver and her children, their

information was limited to “the storage and distribution of

controlled substances [] and transportation of proceeds from

some of Mata’s customers.” J.A. 1807. Moreover, because Mata

was aware of Beaver’s traffic stop, he was “not likely to engage

in [further] criminal activities with” her. J.A. 1808. The

affidavit further explained why physical surveillance would be

insufficient, especially in light of Mata’s observed counter-

surveillance practices and the lack of an adequate place to

mount cameras. As for trash pulls, the affidavit explained

that, given the location of Mata’s residence, trash searches

were impractical. Although the Defendants take issue with the

fact that the officers did not attempt all the alternative

13
investigative techniques discussed in their affidavit, § 2518(3)

did not place that kind of burden upon them. See Wilson, 484

F.3d at 281 (stating that the government may obtain

authorization for a wiretap if it explains why normal

investigative procedures “reasonably appear to be unlikely to

succeed if tried or [are] too dangerous” (quoting 18 U.S.C. §

2518(3)); see also United States v. Clerkley, 556 F.2d 709, 715

(4th Cir. 1977) (“[P]olice need not exhaust every conceivable

technique before making [an] application for a wiretap.”).

Accordingly, the district court did not abuse its discretion in

finding the TTC wiretap necessary under § 2518(3).

As for TTE through TTI, the Defendants claim that the

government failed to satisfy the necessity requirement each time

it sought a wiretap. Although later affidavits repeated

relevant facts from earlier affidavits, this does not render the

government’s necessity explanations “boilerplate.” United

States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). The

affidavits for TTE through TTI relayed the progress of the

investigation, justifying the continued need for a wiretap. For

example, the affidavit for TTE explained that Mata had changed

residences following Beaver’s arrest, detailed the difficulties

of using Barahona or Santoyo-Villa to conduct controlled

purchases, and explained that a recently arrested co-conspirator

had refused to cooperate. The affidavit supporting the roving

14
order explained that Mata was changing cell phones “in a

continued effort to engage in his illegal activities and to

thwart law enforcement . . . .” J.A. 2155. The affidavit to

renew TTG and TTI explained that law enforcement had used trash

pulls and a pole camera, but that those techniques had provided

only limited information. Cf. United States v. Blackmon, 273

F.3d 1204, 1208 (9th Cir. 2001) (reversing necessity finding

where the wiretap application was a “carbon copy” of an earlier

wiretap application targeting a different suspect); United

States v. Carneiro, 861 F.2d 1171, 1180–81 (9th Cir. 1988)

(same). Thus, in sum, we find no abuse of discretion in the

district court’s necessity determinations.

Finally, we reject the Defendants’ claim that they are

entitled to a Franks hearing. Franks “carved out a narrow

exception to” the general rule that “[a]n accused is [] not

entitled to challenge the veracity of a facially valid . . .

affidavit.” Allen, 631 F.3d at 171. To trigger that exception,

“the accused must make a substantial preliminary showing that

false statements were either knowingly or recklessly included in

an affidavit supporting a search warrant and that, without those

false statements, the affidavit cannot support a probable cause

finding.” Id. (emphasis in original).

The Defendants claim that they are entitled to a Franks

hearing because the government failed to inform the district

15
court that: (1) the Mata investigation had spun off the Walker

investigation; and (2) it had misidentified Steele as “David

Lowell” in earlier wiretaps. As to the first claim, the

government did not, as the Defendants claim, use the TTA wiretap

to “mislead the court into thinking there was necessity as to

Mata and his target telephone.” Def. Br. at 46. Although the

government stated in the TTC affidavit that the court had

already authorized the TTA wiretap, it made clear that the goal

of TTC was different: to “identify [Mata’s] source of supply”

and “identify other participants in the [Mata] organization.”

J.A. 1767; see also J.A. 1807 (TTC affidavit explained why

traditional investigative methods were inadequate to understand

“[Mata’s] drug trafficking methods”). Moreover, the affidavit

supporting the TTE wiretap made clear that “[a]gents commenced

an investigation of [Mata]” after identifying Mata “during the

[Walker] investigation.” J.A. 1969. The affidavits, therefore,

fully apprised the district court of the origins of the Mata

investigation as well as its goals.

As to the second claim, the Defendants fail to demonstrate

that the “David Lowell” omission was “material” to the district

court’s decision to authorize the wiretaps. See United States

v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011) (explaining

that, to obtain a Franks hearing, the accused must show that

“omissions were material, i.e., rendered the affidavit unable to

16
support a probable cause finding” (internal quotation marks

omitted)); see also United States v. Colkley, 899 F.2d 297, 301

(4th Cir. 1990) (“Omitted information that is potentially

relevant but not dispositive is not enough to warrant a Franks

hearing.”). To authorize the wiretaps, the district court

needed to find probable cause that “particular communications

concerning that offense will be obtained through such

interception.” 18 U.S.C. § 2518(3)(b). “What mattered for that

purpose,” as explained by the government, “was that Mata used

his cell-phone to conduct his drug-trafficking operation, not

with whom he spoke.” Gov’t Br. at 23.

Likewise, the alleged omission was not material to the

district court’s necessity determination. The Defendants argue

that the government only learned of Steele’s identity through

physical surveillance. Thus, they claim, by omitting that

Steele was misidentified on earlier wiretaps, the government was

omitting the success of other, traditional investigative

techniques. As pointed out by the government, however, it only

learned of its misidentification after setting up surveillance

based on information gleaned from a wiretap. Accordingly, as

claimed by the government, traditional techniques alone were

insufficient to identify all of Mata’s co-conspirators. The

district court, in short, did not err in denying the Defendants’

motion to suppress wiretap evidence.

17
 B.

Barahona and Steele contend that the district court erred

in denying their motion to suppress evidence uncovered at

Barahona’s Gaithersburg residence and Steele’s Hyattsville

apartment. They claim that the search warrants were not

supported by probable cause, and were so facially deficient in

establishing probable cause that the good-faith exception does

not apply. 3

Pursuant to well-established law, a warrant must be

supported by probable cause. United States v. Montieth, 662

F.3d 660, 664 (4th Cir. 2011). The probable cause determination

“is a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit [] . . . there is a

fair probability that contraband or evidence of a crime will be

found in a particular place.” Id. (internal quotation marks

omitted). “[T]he nexus between the place to be searched and the

items to be seized may be established by the nature of the item

and the normal inferences of where one would likely keep such

evidence.” United States v. Allen, 631 F.3d 164, 173 (4th Cir.

2011) (internal quotation marks omitted). “In assessing the

3
The Defendants also challenge a search conducted at an
apartment in Upper Marlboro, Maryland. The government, however,
did not introduce any evidence from the Upper Marlboro apartment
at trial, and thus we need not decide whether that search was
lawful.

18
probable cause determination,” this Court “accord[s] great

deference to the issuing judge’s assessment of the facts

presented,” id., and limits its inquiry “to whether there was a

substantial basis for determining the existence of probable

cause,” Monteith, 662 F.3d at 664 (internal quotation marks

omitted).

Applying the above standard, the issuing judge properly

concluded that there was a “fair probability” of discovering

contraband or evidence of a crime at Barahona’s Gaithersburg

home. In a January 13, 2012 affidavit, Officer David Papalia

explained in detail Barahona’s involvement in Mata’s drug

operation, describing, for example, Barahona’s role as a driver

in a thwarted October 2011 drug run to North Carolina. In

addition, the affidavit described a phone call between Mata and

a cocaine customer, in which Mata agreed to sell the customer

three and a half kilograms of cocaine and told the customer to

meet him at Barahona’s house. The affidavit also detailed a

January 6, 2012 call between Mata and Barahona, in which

Barahona asked Mata for money and told Mata to bring him air

fresheners because “you won’t believe the smell” at the house.

Surveillance confirmed that Mata went to Barahona’s house within

hours after the phone call.

Barahona argues that the above facts cannot establish

probable cause because they do not establish a nexus between his

19
house and evidence of his involvement in Mata’s drug operation.

He argues, at bottom, that there was no direct evidence that

drugs would be found at the house. As explained by this Court,

however, “we have upheld warrants to search suspects’ residences

and even temporary abodes on the basis of (1) evidence of the

suspects’ involvement in drug trafficking combined with (2) the

reasonable suspicion (whether explicitly articulated by the

applying officer or implicitly arrived at by the magistrate

judge) that drug traffickers store drug-related evidence in

their homes.” United States v. Williams, 548 F.3d 311, 319 (4th

Cir. 2008); see also United States v. Lalor, 996 F.2d 1578, 1582

(4th Cir. 1993) (“[A] warrant is not invalid for failure to

produce direct evidence that the items to be seized will be

found at a particular location.”).

The affidavit here established the requisite suspicion

regarding Barahona’s house. The affiant detailed Barahona’s

role in Mata’s drug activities, and asserted his experience with

drug dealers storing evidence in their homes. See J.A. 2592

(“[I]t is common for drug dealers to secrete contraband,

proceeds of drug sales and records of drug transactions in

secure locations within their residence . . . .”).

Additionally, the affiant offered facts from which a reasonable

judge could find a “fair probability” that drugs would be

present in Barahona’s house: (1) Mata instructed a customer to

20
meet him there; and (2) Barahona asked Mata to bring him air

fresheners, implying that the men were trying to conceal the

smell of drugs at the house. This was simply not a case where

evidence failed to “connect[] the drug activity to the

residence.” Lalor, 996 F.2d at 1583.

Likewise, the issuing judge properly concluded that there

was a “fair probability” of discovering contraband or evidence

of a crime at Steele’s Hyattsville apartment. In a January 27,

2012 affidavit, Armagost described a phone call between Steele

and Mata, in which they discussed whether Mata would leave a bag

containing drugs at the apartment. Agents later confirmed

through GPS that Mata was at or near the Hyattsville apartment

during the call. The affidavit also described Steele’s

subsequent dealings with Mata, as well as Steele’s connections

to the Hyattsville apartment. In particular, Steele drove a

vehicle registered to that address and, as of the time of his

arrest, had a key to the apartment building. Cf. United States

v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (“[I]t is

reasonable to suspect that a drug dealer stores drugs in a home

to which he owns a key.”). Additionally, officers saw Steele’s

car in the apartment’s parking lot. In short, the above

evidence provided a sufficient basis from which the issuing

judge could infer that evidence of drug activity would be found

at the Hyattsville apartment.

21
 In any event, even if the search warrants were deficient,

the district court properly denied suppression pursuant to the

good-faith exception to the exclusionary rule. Pursuant to that

exception, “the exclusionary rule does not apply when the police

conduct a search in ‘objectively reasonable reliance’ on a

warrant later held invalid.” Davis v. United States, 131 S. Ct.

2419, 2428 (2011) (quoting United States v. Leon, 468 U.S. 897,

922 (1984)). “[T]he good-faith inquiry is confined to the

objectively ascertainable question whether a reasonably well

trained officer would have known that the search was illegal in

light of all of the circumstances.” United States v. Stephens,

764 F.3d 327, 336 (4th Cir. 2014) (internal quotation marks

omitted). Accordingly, the good faith exception does not apply

when, for example, a warrant is based on an affidavit “so

lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.” Leon, 468 U.S.

at 923; see also Messerschmidt v. Millender, 132 S. Ct. 1235,

1245 (2012) (threshold for establishing that a warrant was

facially deficient is a “high one”).

The affidavits at issue here were not so “bare bones” as to

render officers’ reliance on them unreasonable. United States

v. Wilhelm, 80 F.3d 118, 122 (4th Cir. 1996). As explained

above, the affidavits detail Barahona and Steele’s involvement

in Mata’s drug-trafficking operation, and offer specific facts

22
linking that operation to Barahona’s house and Steele’s

apartment. Cf. id. at 123 (concluding that the good faith

exception did not apply where the affiant did little more than

assert that probable cause existed). Accordingly, because the

good faith exception applies, the district court did not err in

denying Barahona and Steele’s motion to suppress.

C.

Barahona and Medrano argue that there was a material

variance between the charged conspiracy and the proof presented

at trial, and relatedly, that they were entitled to a multiple-

conspiracies instruction.

1.

The court typically reviews de novo whether a material

variance occurred. See United States v. Ford, 88 F.3d 1350,

1360 (4th Cir. 1996); see also United States v. Malloy, 568 F.3d

166, 177 (4th Cir. 2009). Where, however, the defendant failed

to preserve his variance claim below, the court reviews only for

plain error. United States v. Jeffers, 570 F.3d 557, 567 (4th

Cir. 2009).

Here, Medrano preserved his variance claim by moving for a

judgment of acquittal and, later, for a new trial. Accordingly,

his variance claim is subject to de novo review. Barahona’s

variance claim, however, is subject to plain error review, as he

did not claim a variance below.

23
 As for claims of instructional error, the court typically

reviews for abuse of discretion the district court’s decision

not to give a particular jury instruction. United States v.

Bartko, 728 F.3d 327, 343 (4th Cir. 2013). Where, as here,

however, the defendants propose a particular jury instruction

but do not object to the failure to give that instruction, they

fail to preserve their instructional error claim, and plain

error review applies. United States v. Nicolaou, 180 F.3d 565,

569 (4th Cir. 1999).

2.

“In general, a ‘variance’ occurs when the evidence at trial

establishes facts materially different from those alleged in the

indictment.” United States v. Kennedy, 32 F.3d 876, 883 (4th

Cir. 1994). In a conspiracy case, “a defendant may establish

the existence of a material variance by showing that the

indictment alleged a single conspiracy but that the government’s

proof at trial established the existence of multiple, separate

conspiracies.” Id. “The question whether the evidence shows a

single conspiracy or multiple conspiracies . . . is one of fact

and is properly the province of the jury.” United States v.

Leavis, 853 F.2d 215, 218 (4th Cir. 1988). “Whether there is a

single conspiracy or multiple conspiracies depends upon the

overlap of key actors, methods, and goals.” Id.

24
 There is such an overlap here. The evidence at trial

showed, for example, that both Barahona and Medrano made supply

runs on Mata’s behalf. Likewise, both men obtained cocaine from

Mata to resell, with Mata fronting them the drugs and then

collecting payment later. Barahona and Medrano also aided Mata

in other ways: Barahona permitted Mata to store, cut, and

repackage drugs in the basement of his home, while Medrano

helped arrange for Stotz to make the Atlanta drug runs and sold

Mata a firearm for his protection. Cf. United States v. Bollin,

264 F.3d 391, 405–06 (4th Cir. 2001) (the jury’s finding of a

single conspiracy was supported by substantial evidence, despite

the fact that co-conspirators played different roles in the

conspiracy). Finally, Medrano was slated to receive drugs from

a shipment that Mata planned to store and repackage in

Barahona’s basement. Cf. United States v. Banks, 10 F.3d 1044,

1054–56 (4th Cir. 1993) (the jury could reasonably find a single

conspiracy based on “the interdependence of participants” in a

drug-trafficking venture). Based on the above facts, the jury

could reasonably find Barahona and Medrano engaged in a single

conspiracy. See Bollin, 264 F.3d at 405 (“[T]he finding of a

single conspiracy must stand unless the evidence, taken in the

light most favorable to the Government, would not allow any

reasonable juror to reach such a verdict.”).

25
 In the face of the above evidence, Barahona and Medrano

claim that there was a variance because the indictment charged a

conspiracy to traffic in cocaine and heroin, whereas the proof

at trial established only that they dealt in cocaine. As

explained in Bollin, however, “even if the evidence established

separate conspiracies, a variance is grounds for reversal only

if it infringed the defendant’s substantial rights and thereby

resulted in actual prejudice.” Id. at 406 (internal quotation

marks omitted). Medrano cannot establish prejudice because the

jury’s verdict against him rested on his participation in a

conspiracy to distribute cocaine, not heroin. The jury was

asked to determine whether Medrano was guilty of conspiracy to

distribute and possess with intent to distribute cocaine and, if

so, how much cocaine was attributable to him. It was not asked

to determine whether Medrano distributed heroin or how much

heroin was attributable to him. As for Barahona, because he

does not dispute that the evidence was sufficient to prove that

he conspired to distribute cocaine, any factual insufficiency as

to heroin would not require reversal of his conspiracy

conviction. See Griffin v. United States, 502 U.S. 46, 56–57

(1991) (“[W]hen a jury returns a guilty verdict on an indictment

charging several acts in the conjunctive . . . the verdict

stands if the evidence is sufficient with respect to any one of

the acts charged.” (internal quotation marks omitted)).

26
 In any event, the evidence was sufficient to link Barahona

to Mata’s heroin-trafficking activities. As explained above,

Barahona permitted Mata to use his basement to cut and repackage

a drug shipment, which included more than a kilogram of heroin.

Although Barahona indicates that he did not know Mata’s shipment

would include heroin, the jury could have reasonably rejected

that contention. The government presented evidence that

Barahona had seen drugs in the basement on a previous occasion,

and that among the items seized there were drug-packaging

materials testing positive for heroin. Based on this evidence,

the jury could have reasonably inferred, beyond a reasonable

doubt, that Mata had brought heroin to Barahona’s house on other

occasions, and that Barahona was aware of Mata’s heroin

dealings. Thus, in sum, Barahona and Medrano’s variance claim

fails.

Turning to Barahona and Medrano’s instructional error

claim, “[a] multiple conspiracy instruction is not required

unless the proof at trial demonstrates that appellants were

involved only in separate conspiracies unrelated to the overall

conspiracy charged in the indictment.” Bartko, 728 F.3d at 344

(internal quotation marks omitted). “And, even if one

overarching conspiracy is not evident, the district court’s

failure to give a multiple conspiracies instruction is

reversible error only when the defendant suffers substantial

27
prejudice as a result.” Id. In other words, “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. (emphasis in original)

(internal quotation marks omitted).

According to Barahona and Medrano, the lack of evidence

that they were involved in or knew about Mata’s heroin dealings

entitled them to a multiple-conspiracies instruction. But, even

assuming they were entitled to this instruction, the district

court’s failure to give it did not cause them substantial

prejudice. As explained above, the verdict form for Medrano

only permitted a conspiracy conviction based on cocaine

distribution. As for Barahona, there was sufficient

circumstantial evidence linking him to Mata’s heroin dealings.

Moreover, the district court instructed the jury to consider

each defendant individually for purposes of determining guilt

and drug quantities. In this way, the district court ensured

that the jury would not find a defendant guilty based merely on

the activities of another defendant. Cf. Jeffers, 570 F.3d at

567 (“Error will be found in a conspiracy instruction if the

proof of multiple conspiracies was likely to have confused the

jury into imputing guilt to [the defendant] as a member of one

conspiracy because of the illegal activity of members of the

28
other conspiracy.” (internal quotation marks omitted)). The

district court, therefore, did not commit reversible error in

declining to give a multiple-conspiracies instruction.

D.

Steele asserts that he is entitled to a new trial because

he was unable to recall two government witnesses, David Ware and

Michael Margulis. He claims that his inability to recall Ware

violated his right to confrontation, while his inability to

recall Margulis resulted in a Brady violation.

1.

On March 8, 2013, the government called Ware, a Utah-based

government contractor who translated recorded phone calls, to

testify as an expert witness. Among the calls Ware translated

was a December 6, 2011 call, in which Santoyo-Villa and Mata

used the Spanish word “carros,” which literally means “cars.”

Santoyo-Villa and Mata testified, however, that, in the context

of their conversations, “carros” meant “kilos.” Accordingly,

Ware translated the word “carros” as kilos. The parties

eventually stipulated that, in the December 6 call, “the word

used by the speaker in Spanish that was translated as kilos was

the word carros.” S.A. 272–73. 4

4
Citations to the “S.A.” refer to the Supplemental Joint
Appendix filed by the parties in this appeal.

29
 Despite the above stipulation, Steele requested that the

district court continue the trial so that he could recall Ware

and question him about the December 6 call. The court denied

the request, reasoning that the parties had “thoroughly brought

to the attention of the jury that the Spanish word used was

carros, not kilos.” S.A. 270. The court also denied Steele’s

subsequent motion for a new trial based on translation issues,

again reasoning that his concerns had been “amply developed

before the jury and the jury was able to make its own

determinations with respect to any challenges to the

interpretation of transcripts.” S.A. 292–93.

On April 4, 2013, the government called canine handler

Margulis to testify about the January 25, 2012 searches of

Barahona’s house and the vehicle used to transport drugs there.

On cross-examination, Steele’s counsel went beyond the scope of

direct and asked Margulis whether he had conducted a dog sniff

at the Hyattsville apartment. Margulis indicated that his dog

had alerted during a scan of the Hyattsville apartment, but that

he would need to review his report to provide more details. At

a bench conference, Steele’s counsel complained that she had not

been provided with Margulis’ report. Although questioning

whether the report would be more “bad evidence” for Steele, the

district court agreed that Margulis would be subject to recall

30
after the government gave the report to defense counsel. S.A.

163–64.

The government located the report soon thereafter, and

Steele’s counsel recalled Margulis. Margulis testified that the

dog had alerted in the hall and bedroom of the Hyattsville

apartment, and that, to his best recollection, he had not

conducted a scan of Steele’s car in the apartment parking lot.

The court excused Margulis after his testimony.

The next day, on April 5, 2013, the government gave Steele

an additional report indicating that, on January 27, 2012,

Margulis conducted a scan of the car Steele was driving at the

time of his arrest, and that the dog did not alert. Steele’s

counsel did not advise the government until April 10, 2013, five

days later, however, that she wished to recall Margulis. By

that time, Margulis had left on a previously scheduled vacation

to Mexico and was not available for recall.

Steele moved for a mistrial, which the district court

denied. The court reasoned that the answer to the only question

Steele wished to pose—whether dogs alert to latent odors when

drugs are no longer present—was likely “it [] depends,” and that

the issue was not “of great significance to this case.” S.A.

250–52. The court denied Steele’s post-trial motion raising the

same issue. In any event, Steele’s counsel introduced the

31
result of the January 27 car scan by cross-examining Armagost,

and later used that testimony in her closing argument.

2.

We review for abuse of discretion limitations on the

defense case that are alleged to violate the Confrontation

Clause. See, e.g., United States v. Sterling, 724 F.3d 482, 516

(4th Cir. 2013); see also United States v. Williams, 445 F.3d

724, 738–39 (4th Cir. 2006) (“[B]road discretion must be granted

trial courts on matters of continuances; only an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the

assistance of counsel.” (internal quotation marks omitted)).

Likewise, we review for abuse of discretion the denial of a new

trial based on a Brady violation, reviewing de novo the legal

question of whether there was indeed a Brady violation. United

States v. Horton, 693 F.3d 463, 470 (4th Cir. 2012).

3.

The district court did not abuse its discretion in denying

Steele a continuance to recall Ware. As we have recognized,

denial of a motion for continuance may, “under certain

circumstances, implicate a defendant’s right to present a

defense or to confront the witnesses against him.” Williams,

445 F.3d at 739–40. In particular, denial of a continuance may

implicate the confrontation right when the defendant is

32
prevented from pursuing a meaningful line of inquiry. See id.

at 740 (no abuse of discretion in denying a continuance where

there was “nothing new” in the testimony the defendant sought to

elicit, or where the denial prevented the defendant from

presenting “cumulative evidence”).

Steele’s desire to question Ware about the Spanish word

“carros” used in the December 6 call is not such a meaningful

line of inquiry. As found by the district court, Steele

“thoroughly brought to the attention of the jury that the

Spanish word used [in the December 6 call] was carros, not

kilos.” S.A. 270. As indicated above, the parties stipulated

that the Spanish word “that was translated as kilos was the word

carros.” S.A. 272–73. Moreover, Steele’s counsel reminded the

jury of the parties’ stipulation during closing argument.

To the extent Steele argues that the court deprived him of

an opportunity to probe Ware’s potential bias, this argument

must be rejected. As pointed out by the government, defense

counsel elicited testimony from Ware that the U.S. Drug

Enforcement Administration (“DEA”) was one of his company’s

biggest clients, and that DEA agents provided the company with

call summaries and identified call participants. In addition,

Steele argued during closing that the jury should give less

credence to Ware’s testimony given his company’s relationship to

the DEA. Accordingly, the government is correct that any

33
further suggestion of bias would have been cumulative. Cf.

Williams, 445 F.3d at 740 (because the defendant was able to

explore the relevant issue elsewhere in trial, his “inability to

impeach [a witness] to a somewhat greater degree [cannot] be

viewed as a violation of his constitutional rights”).

As to Margulis, the district court was correct in finding

no Brady violation. To establish a Brady violation, “the burden

rest[s] on [the defendant] to show that the undisclosed evidence

was (1) favorable to him either because it is exculpatory, or

because it is impeaching; (2) material to the defense, i.e.,

prejudice must have ensued; and (3) that the prosecution had

materials and failed to disclose them.” United States v.

Wilson, 624 F.3d 640, 661 (4th Cir. 2010) (internal quotation

marks omitted) (emphasis added). “Evidence is material if it is

likely to have changed the verdict.” Id. (internal quotation

marks omitted).

Steele cannot show that questioning Margulis about whether

dogs alert to latent odors would have likely had any effect on

the verdict in his case. Indeed, he does not argue that this

line of questioning would have exculpated him, or that it would

have impeached Margulis. Steele instead contends that, by

questioning Margulis, he would have been able to impeach Mata,

who testified that he had put kilograms of drugs in Steele’s

car.

34
 But this assumes that Margulis would have testified that a

trained dog would have likely alerted to a car that formerly

contained drugs. And, as indicated by the district court, there

was no basis for believing that Margulis would give such

testimony. See S.A. 251 (“I could almost guarantee you that the

question of whether a dog is going to hit on a car that’s had

drugs in it . . . depends on whether any drug residue is left or

not.”). In any event, even if Margulis had testified as Steele

hoped, his testimony would not have undermined the other

considerable evidence presented by the government, including

phone calls in which Steele negotiated drug deals, surveillance

from a drug deal in New York, and a digital scale bearing

Steele’s fingerprint which was recovered from the Hyattsville

apartment. Cf. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per

curiam) (no reversible Brady error where the case against the

defendant was “overwhelming”). Steele, in short, was not

entitled to a new trial based on his inability to recall Ware or

Margulis.

E.

The Defendants claim that the district court abused its

discretion in denying their request to remove two jurors based

on alleged incidents involving Barahona. According to the

Defendants, the jurors involved in those incidents were actually

biased. In the alternative, the Defendants argue for a

35
“presumption of prejudice” under Remmer v. United States, 347

U.S. 227 (1954), or an “implication of bias” pursuant to Person

v. Miller, 854 F.2d 656 (4th Cir. 1988).

1.

On March 29, 2013, the third day of trial, the district

court informed the parties that a juror had the impression

Barahona had followed her down a courthouse escalator and taken

a picture of her with a cellphone. The juror also thought that

a woman outside the courthouse had taken pictures of her.

Acknowledging that the juror might have been mistaken, the

district court “[didn’t] want to make a deal out of it with the

juror,” but admonished the parties not to take the escalators

used by jurors and not to take pictures with their cell phones.

J.A. 511.

The government suggested that the court determine whether

Barahona had taken the picture and, if not, inform the juror

that she had been “confused.” J.A. 511. Accordingly, the court

asked Barahona’s counsel to question him about the alleged

incident. A short time later, counsel reported that she had

checked Barahona’s phone, and that there were no pictures of any

jurors. The court did not conduct any further inquiry of the

juror, nor did the Defendants request that the court do so.

Four days later, on April 5, 2013, the district court

informed the parties that another juror expressed concern that

36
Barahona had followed her home upon leaving the courthouse. To

avoid “any apprehension by jurors that they’re being followed or

intimidated,” the district court ordered the Defendants to

depart the courthouse each day fifteen minutes after the jury.

J.A. 1057. Following the district court’s order, the Defendants

requested that the court voir dire the juror. After confirming

through Barahona’s counsel that he had not followed the juror,

the court determined that it—but not the parties’ attorneys—

would conduct the inquiry.

Upon questioning, the juror stated that, while she had seen

Barahona’s van, she “[couldn’t] truly say he was following

[her].” J.A. 1061. Additionally, she stated that the incident

did not impede her ability to be a fair juror, and that she had

not discussed the incident with other jurors. The court told

the juror that seeing Barahona’s car was likely “coincidental,”

but explained that the Defendants would now be departing fifteen

minutes after the jury to avoid any future encounters. J.A.

1062. The court verified that this measure addressed the

juror’s concerns, and twice reminded her not to talk with the

other jurors about what they had discussed. The Defendants did

not ask the court to make further inquiries, nor did they move

to excuse the juror.

On April 11, 2013, Steele’s counsel reported to the court

that, an hour after court recessed the day before, she saw the

37
same juror the court had voir dired “sitting in the backseat of

her car with the door open and on the phone and kind of looking

around like she was freaked out.” J.A. 1426. Counsel brought

the incident to the court’s attention because “it was 94-degrees

[out], so [she] just thought it was strange.” J.A. 1426. The

court indicated that it had heard no additional concerns from

the juror, and the Defendants neither moved to excuse the juror

nor asked the court to inquire further.

On April 17, 2013, just prior to the commencement of

deliberations, the Defendants moved to exclude the two jurors

involved in the above incidents. The Defendants argued that the

two jurors had “shown some bias and concern,” and that they

could be replaced with alternates. J.A. 1445. Stating that the

jurors “didn’t reflect any bias,” and that it had “addressed the

issue long ago,” the district court denied the motion. J.A.

1445.

2.

We typically review for abuse of discretion the district

court’s handling of juror-intimidation allegations. United

States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 2010). Where,

however, the defendants fail to raise the issue at trial, we

review only for plain error. Id.

The government urges us to apply plain error review as to

the March 29 and April 11 incidents, as the Defendants did not

38
request additional voir dire. The Defendants, for their part,

seem to assume that the abuse of discretion standard applies.

We need not decide which standard of review controls, as the

Defendants’ challenges fail even under the more lenient abuse of

discretion standard.

3.

As an initial matter, we reject the Defendants’ claim of

actual bias. “[T]he trial court has a serious duty to determine

the question of actual bias, and a broad discretion in its

rulings on challenges therefor . . . .” Wainwright v. Witt, 469

U.S. 412, 429–30 (1985) (internal quotation marks omitted).

That being said, the trial court must, as a matter of law,

“exclude veniremen who cannot be impartial.” United States v.

Turner, 389 F.3d 111, 117 (4th Cir. 2004). “[A] juror is

impartial only if he can lay aside his opinion and render a

verdict based on the evidence presented in court . . . .”

Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). “[T]he burden

of proving partiality is upon the challenger.” Turner, 389 F.3d

at 117–18 (internal quotation marks omitted).

The Defendants simply did not meet that burden here. As to

the first juror, there is nothing in the record to indicate that

she could not be impartial following the March 29 incident.

Indeed, the Defendants never even requested that the court

question the juror. While the district court might have

39
summoned the juror anyway to explain that Barahona had not taken

any pictures of her, the decision not to do so was a sound

exercise of its “wide discretion in handling matters relating to

. . . the integrity of the jury.” United States v. Johnson, 657

F.2d 604, 606 (4th Cir. 1981). The district court may have

reasonably concluded, for instance, that individualized voir

dire would be counterproductive, and “unnecessarily highlight

the matter in the eyes of the juror[].” United States v. Mack,

729 F.3d 594, 606 (6th Cir. 2013); see also United States v.

Stafford, 136 F.3d 1109, 1113 (7th Cir. 1998) (recognizing that

individual questioning in the middle of a trial may “unsettle

the jury”).

As to the second juror, the district court asked her

whether the incident with Barahona caused her “any concern as to

whether [she] can continue to be a fair juror in this case,” and

the juror answered clearly, “[n]o, it does not.” J.A. 1061.

The Defendants attempt to argue the juror was nevertheless

biased by relying on the April 11 incident. But, as recognized

by the district court, the juror never reported any additional

concerns to the court, and the April 11 incident might have had

nothing to do with the trial. The district court, therefore,

did not err in failing to find actual bias.

Turning to the Defendants’ argument for a “presumption of

prejudice,” this Court has explained that, “[b]ecause the

40
potential for mischief is so great when a third party

establishes private, extrajudicial contact with a juror, . . .

‘any private communication [or] contact . . . with a juror

during a trial about the matter pending before the jury is . . .

presumptively prejudicial . . . .’” Fullwood v. Lee, 290 F.3d

663, 678 (4th Cir. 2002) (quoting Remmer, 347 U.S. at 229). The

Remmer presumption, however, is “not one to be casually

invoked.” Baptiste, 596 F.3d at 221 (internal quotation marks

omitted). To trigger the presumption, “the defendant bears the

initial burden of establish[ing] both that an unauthorized

contact was made and that it was of such a character as to

reasonably draw into question the integrity of the verdict.”

Id. (internal quotation marks omitted). In determining whether

the defendant has met his burden, the court “refer[s] back to

the factors the Supreme Court deemed important in Remmer

itself”: “any private communication; any private contact; any

tampering; directly or indirectly with a juror during trial;

about the matter before the jury.” Barnes v. Joyner, 751 F.3d

229, 245 (4th Cir. 2014) (internal quotation marks omitted).

Applying Remmer, the March 29 incident did not trigger a

presumption of prejudice because it did not “reasonably draw

into question the integrity of the verdict.” Baptiste, 596 F.3d

at 221. The Defendants made no effort to meet their threshold

burden. The only “evidence” of bias came from a brief statement

41
by the district court outside the presence of the jury that one

juror had reported an incident. Nor did the April 11 incident

trigger the Remmer presumption. As indicated above, the

Defendants have not shown that the juror’s behavior on that day

had anything to do with the trial, let alone that it stemmed

from an “unauthorized contact” with Barahona. Id. Indeed, the

Defendants merely speculate that the juror was upset because of

an incident with Barahona. Cf. United States v. Heater, 63 F.3d

311, 321–22 (4th Cir. 1995) (concluding that “defense counsel’s

declaration of improper jury contact was nothing more than a

bald assertion,” and that the “mere proffer without further

support is not enough to create a question about improper jury

tampering”).

As to the November 5 incident, even assuming the Defendants

met their initial burden “of establish[ing] both that an

unauthorized contact was made and that it was of such a

character as to reasonably draw into question the integrity of

the verdict,” Baptiste, 596 F.3d at 221 (internal quotation

marks omitted), additional questioning of the juror established

that the contact was “harmless to the defendant[s].” United

States v. Lawson, 677 F.3d 629, 641 (4th Cir. 2012). As already

explained, the juror indicated that she was not certain Barahona

had followed her, that the fifteen-minute delay for the

Defendants’ departure allayed any concerns she had, and that she

42
could continue to be a fair juror. Thus, the Defendants’

presumed prejudice argument fails.

Finally, as for the Defendants’ argument for an

“implication of bias,” this Court has stated that “the doctrine

of implied bias is limited in application to those extreme

situations where the relationship between a prospective juror

and some aspect of the litigation is such that it is highly

unlikely that the average person could remain impartial in his

deliberations under the circumstances.” Person, 854 F.2d at

664. Implied bias might arise, for example, when “the juror is

an actual employee of the prosecuting agency, [when] the juror

is a close relative of one of the participants in the trial or

the criminal transaction, or [when] the juror was a witness or

somehow involved in the criminal transaction.” United States v.

Umana, 750 F.3d 320, 341 (4th Cir. 2014) (internal quotation

marks omitted); see also Dyer v. Calderon, 151 F.3d 970, 982

(9th Cir. 1998) (applying implied bias doctrine where the juror

lied during voir dire to keep her status as a juror and “secure

the right to pass on [the defendant’s] sentence”).

Applying the above standard, the two jurors had no pre-

existing relationships or experiences suggesting a risk of

partiality. Nor were the alleged incidents with Barahona the

kind of “extreme situations” warranting relief. Person, 854

F.2d at 664. Rather, as recognized by the district court, they

43
were likely misunderstandings addressed through practical

measures, including having the Defendants not take the

escalators used by jurors and having the Defendants leave the

courthouse fifteen minutes after the jury. Thus, we discern no

error or abuse of discretion in the district court’s denial of

the Defendants’ request to substitute alternates for the two

belatedly-challenged jurors.

F.

Barahona argues that the district court clearly erred in

applying a two-level enhancement to his base offense level due

to co-conspirator Mata’s possession of a firearm.

1.

Barahona’s presentence investigation report (“PSR”)

calculated a total offense level of 36. The PSR calculated a

base-offense level of 34 derived from the quantity of drugs

attributable to Barahona. It then added two levels under

U.S.S.G. § 2D1.1(b)(1) because Mata’s possession of a handgun

was “in furtherance of the jointly undertaken criminal activity

and was reasonably foreseeable by [] Barahona.” J.A. 3039.

Overruling Barahona’s objection to the two-level enhancement,

the district court calculated an advisory guidelines range of

188 to 235 months, and ultimately sentenced Barahona to 132

months.

44
 2.

Section 2D1.1(b)(1) permits a two-level increase in a

defendant’s base offense level “[i]f a dangerous weapon

(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

The two-level enhancement “‘should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense.’” United States v. Gomez-Jimenez,

750 F.3d 370, 381 (4th Cir. 2014) (quoting U.S.S.G. § 2D1.1 cmt.

n.11(A)). In particular, with respect to conspiracy cases,

“weapons carried by a member of a conspiracy are attributable to

a co-conspirator when ‘under the circumstances of the case, it

was fair to say that it was reasonably foreseeable to [the

defendant] that his co-participant was in possession of a

firearm.’” Id. (quoting United States v. Kimberlin, 18 F.3d

1156, 1160 (4th Cir. 1994)). “‘[A]bsent evidence of exceptional

circumstances, . . . it [is] fairly inferable that a

codefendant’s possession of a dangerous weapon is foreseeable to

a defendant with reason to believe that their collaborative

criminal venture includes an exchange of controlled substances

for a large amount of cash.’” Kimberlin, 18 F.3d at 1160

(quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir.

1991)). In considering whether a co-defendant’s possession of a

weapon was foreseeable to the defendant, this Court reviews the

45
district court’s findings of fact for clear error. United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

Applying the above standard, the district court did not

clearly err in imposing the two-level enhancement based on

Mata’s possession of a firearm. Contrary to Barahona’s

assertion that “the firearm had [nothing] to do with” Mata’s

drug trafficking activities, Def. Br. at 86, Mata testified at

trial that he had purchased the handgun for protection from a

drug supplier named Berna, with whom he had quarreled over a

drug debt. Moreover, agents recovered the gun in the car that

Mata had driven to Barahona’s house, where he had planned to

store and cut the latest shipment of cocaine and heroin.

In any event, there were no “exceptional circumstances”

rendering Mata’s possession of the handgun unforeseeable to

Barahona. Kimberlin, 18 F.3d at 1160 (internal quotation marks

omitted). Barahona seizes on Mata’s statement at trial that the

handgun “wasn’t to protect the drugs” but rather himself. J.A.

621. Mata made clear, however, that he “always” carried the

gun, including when he was transporting drugs. J.A. 621–22.

Barahona also argues that he and Mata never discussed firearms,

and that he was unaware Mata even possessed a gun. But the

simple fact that Mata never discussed the gun with Barahona does

not make his possession of the gun unforeseeable; nor must

Barahona have been actually aware of the gun for the two-level

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enhancement to apply. Cf. Kimberlin, 18 F.3d at 1159–60 (actual

knowledge not required where there is a “strong showing of

foreseeability”).

Finally, to the extent Barahona argues that the two-level

enhancement was improper because it was not applied to some of

his co-defendants, this argument must be rejected. Barahona

cites no authority indicating that failure to apply an

enhancement to one conspirator bars application of that

enhancement to other conspirators. Indeed, in “jointly

undertaken criminal activity,” “relevant conduct is not

necessarily the same for every participant,” and thus sentencing

enhancements may apply to one conspirator but not another.

U.S.S.G. § 1B1.3 cmt. n.2(B). In sum, the district court’s

application of the two-level enhancement under § 2D1.1(b)(1) did

not result from a clear error of fact or otherwise an abuse of

discretion.

III.

For the foregoing reasons, the judgments are

AFFIRMED.

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