United States v. Xavier Eccleston

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER D. ECCLESTON, a/k/a Xavier Daniel Eccleston, a/k/a X,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cr-00567-AW-3)

Argued: March 25, 2015 Decided: July 31, 2015

Before MOTZ and GREGORY, Circuit Judges, and Mary Geiger LEWIS,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge Lewis joined.

ARGUED: Anthony Douglas Martin, I, ANTHONY D. MARTIN, PC,
Greenbelt, Maryland, for Appellant. David Ira Salem, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

In this federal drug conspiracy case, the defendant-

appellant, Xavier Eccleston, alleges that the district court

made numerous errors before and during trial, as well as during

sentencing. Because the district court did not abuse its

discretion or err in its pretrial, trial, or sentencing rulings,

we affirm.

I.

A.

Eccleston and nineteen co-defendants were charged in a

criminal complaint on September 22, 2011 with one count of

conspiracy to posses with intent to distribute five kilograms or

more of a mixture or substance containing a detectable amount of

cocaine and 280 grams or more of a mixture or substance

containing a detectable amount of cocaine base, commonly known

as crack cocaine. The complaint was based in part on evidence

obtained through execution of a warrant issued pursuant to Title

III of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §§ 2510-2522 (“Title III”).

Eccleston appeared before the district court on September

28, 2011 and a magistrate judge signed an “order of detention by

agreement” on that same day. He was indicted on the charges set

forth in the criminal complaint on October 26, 2011. On

2
November 2, 2011, he was arraigned and entered a plea of not

guilty. The district court initially set a motions hearing date

of December 16, 2011 and a trial date of January 3, 2012.

On November 2, 2011, the government filed, and none of the

defendants opposed, a motion to exclude time under the Speedy

Trial Act, 18 U.S.C. §§ 3161-3174. In support of its motion,

the government cited: “(1) . . . two charged defendants who

have been fugitives for approximately one month; (2) . . .

voluminous discovery the government must produce and defense

counsel must analyze; and, (3) the unusual and complex nature of

the case.” J.A. 1128. In granting the motion, the district

court found that it was necessary to toll the speedy trial clock

not only pursuant to 18 U.S.C. § 3161(h)(6) due to the

fugitives, but also pursuant to 18 U.S.C. § 3161(h)(7) because

the “interests of justice” outweighed the interest in a speedy

trial. The court stated that it was necessary to toll the clock

to “provide the defendants and defense counsel sufficient time

to review fully all of the voluminous discovery materials and to

prepare and file pretrial motions” and to give “defense counsel

and the [g]overnment the reasonable time necessary for effective

preparation.” J.A. 116 (observing that the case “involve[s]

wiretap evidence, including more than 10,000 pertinent calls

captured from at least three different wiretapped phone lines”).

The order excluded from the speedy trial clock the time between

3
the date of the order, November 21, 2011, and the date of the

initial appearance of the last fugitive defendant. The order

further excluded any time between the date of the initial

appearance of the last fugitive defendant and the trial date,

which the court planned to set at a later date.

On December 15, 2011, the government filed a motion to take

the December 16, 2011 motions hearing date off of the calendar,

and to convert the January 3, 2012 trial date to a status

conference. Defense counsel consented to the motion. Though no

order granting the motion appears on the docket, the district

court apparently did so; it issued an informal January 3, 2012

letter order stating that pretrial motions were due by April 17,

2012 and that trial would commence on August 21, 2012.

Eccleston had previously written to his counsel on November

9, 2011 indicating that he did not want to waive his speedy

trial rights. He wrote to counsel again on December 22, 2011,

reiterating that he objected to a speedy trial waiver. On

January 3, 2012, Eccleston’s attorney filed a motion for a

speedy trial pursuant to both the Sixth Amendment and the Speedy

Trial Act. 1 In addition to his speedy trial motion, Eccleston

filed several pretrial motions on January 21, 2012, among

1
Although the docket text reflects that the government was
to respond by January 20, 2012, no response was filed on that
date.

4
others: (1) a motion for Disclosure by Government of Intent to

Use Uncharged Misconduct and Prior Convictions (the “404(b)

Motion”); and (2) a motion for sequestration of witness. 2

On January 23, 2012 Eccleston sent a letter to the district

court; the letter was dated January 10, 2012. His letter

stated: “[s]ince day one, I have been adamant about my desire

for a speedy trial. . . . I haven’t consented to any delays

and never gave any inclination to my attorney that I would.”

J.A. 1112. He argued also that (1) the fugitive defendants were

not named on the indictment and thus could not be properly

considered his co-defendants for purposes of tolling the speedy

trial clock; (2) the case was not complex, but rather an

ordinary street crime; (3) the government had failed to provide

complete discovery despite promises to do so; and (4) the

factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), which

courts use to determine whether a defendant has suffered

prejudicial delay in bringing his case to trial, weighed in his

favor. Eccleston sent the district court another letter on

April 9, 2012 (dated April 8, 2012) indicating that he had not

authorized counsel to enter into a discovery agreement with the

government, and that in any event, he believed that the

2 The government responded to these motions on January 30,
2012.

5
government had breached the agreement. He sent a third letter

to the court on June 1, 2012, again requesting “independent

access to my discovery so I can properly prepare my defense.” 3

J.A. 1119.

On April 17, 2012, Eccleston’s counsel filed additional

pretrial motions, among which were: (1) a second motion for a

speedy trial; (2) a motion to suppress the Title III wiretaps;

and (3) a motion to dismiss the indictment on speedy trial

grounds. The government filed a response to these motions on

May 14, 2012. The government’s May 14 filing was the first time

that it responded to Eccleston’s speedy trial motions.

Eccleston’s pretrial motions hearing took place on July 25,

2012. During the hearing, the district court granted the

government’s request to delay the beginning of trial to

September 11, 2012, due to a government counsel’s health

concerns. The court then ruled on Eccleston’s pending motions.

As relevant here, the court granted his motions for notice of

the government’s intent to use 404(b) evidence and for

sequestration of witness, and denied his speedy trial motion,

3
Counsel explained during the pretrial motions hearing that
Eccleston requested personal copies for his review while in
jail. However, counsel represented that the discovery agreement
prevented him from giving Eccleston such copies, because it
allowed only for Eccleston to review discovery during meetings
with counsel.

6
motion to suppress evidence obtained from the Title III

warrants. The court also denied his request for a Franks

hearing concerning the Title III warrant application. 4

On August 8, 2012, the grand jury returned a fourth

superseding indictment. 5 The indictment removed certain

defendants, and also included new charges against Eccleston.

Specifically, the fourth superseding indictment added two counts

of possession with intent to distribute cocaine (counts nine and

eleven) in violation of 21 U.S.C. § 841, as well as two counts

of using a telephone in furtherance of a drug trafficking

offense (counts eight and ten) in violation of 21 U.S.C.

§ 842(b). Eccleston was arraigned on the fourth superseding

indictment on the first day of trial, September 11, 2012.

B.

The trial took place from September 11-19, 2012. The

government called several witnesses, including co-defendants and

others who were cooperating with the government:

Christopher Rainey, Decarlos Bryant, Antonio Marshall,

Kenneth Smith, and Gavin Wallis.

4 Franks v. Delaware, 438 U.S. 154 (1978).
5Previous indictments had added a forfeiture allegation,
and added or removed defendants.

7
 Rainey testified that he sold drugs in the Kentland,

Maryland area in concert with co-defendant Phillip Whitehurst,

who ran the operation. According to Rainey, “it was a 24/7

operation” that was managed from three different stash houses in

the Kentland area. J.A. 462-63. The drug ring sold both crack

and powder cocaine. He witnessed Eccleston and other co-

defendants purchase distribution quantities of powder cocaine

from Whitehurst on several occasions. However, he disclaimed

personal knowledge of what Eccleston did with the powder.

Rainey further testified that Eccleston stopped by the stash

houses to watch TV, do drugs, drink, and socialize. While

Eccleston was at the stash houses, others would often stop by to

purchase both crack and powder cocaine. The government also

introduced several audio recordings of phone calls through

Rainey. The audio was obtained pursuant to the Title III

wiretap warrant. During the phone calls, Eccleston and

Whitehurst discussed purchases of powder cocaine.

During Rainey’s testimony, Eccleston’s counsel approached

the bench to report that witnesses had been speaking with one

another in holding cells and in the hallway. He asked the

district court to direct government counsel to remind witnesses

of the sequestration order. However, counsel did not make any

representation that the conversations were about the trial or

about trial testimony. The district court ruled that there was

8
no evidence of a violation of the sequestration order. The

court nonetheless reminded government counsel to admonish

witnesses not to speak with each other about the case.

Later, Smith testified that he also had sold distribution

quantities of powder cocaine to Eccleston. Additional audio

recordings concerning Eccleston’s purchases were also introduced

through Smith. On these recordings, Whitehurst stated that

Eccleston was purchasing powder, cutting it with baking soda or

other substances, and then selling it.

Marshall similarly testified that he had sold distribution

quantities of powder cocaine to Eccleston.

Wallis was granted immunity for his testimony. He and

Eccleston met in high school, and more recently, Eccleston had

agreed to provide personal training sessions to Wallis free of

charge. Wallis testified that he had purchased cocaine from

Eccleston five to ten times, each time between one and ten

grams. He was not charged as part of the conspiracy, and

testified that he had never been convicted of a crime.

The government also introduced testimony from Montgomery

County Police Detective Robert Grims, who arrested Eccleston

pursuant to an arrest warrant. He searched Eccleston and found

two cell phones. He then searched one of these cell phones

without first obtaining a warrant for that search.

9
 Months after Detective Grims searched the phone, and

shortly before trial, the FBI obtained a search warrant and

searched the phone. Eccleston objected during trial to the

introduction of certain evidence obtained in connection with the

searches and moved to suppress that information. The district

court took a trial recess in order to allow counsel to do legal

research. The court then held a suppression hearing and took

testimony from Detective Grims. The district court ultimately

denied the motion to suppress, finding that then binding

appellate law permitted the warrantless search. The district

court further found that the subsequent warrant application was

based on information known prior to the search and seizure of

the phones, and that the subsequent search was not tainted by

the first search.

Near the end of trial, the following colloquy took place

between defense counsel and FBI Special Agent Mark E. James:

Q. Well you knew he was staying there [at the
residence where Eccleston was living], didn’t you?

A. We suspected that he was staying there based on
some physical surveillance and records, I believe,
we got from parole and probation. Yes.

J.A. 977. Despite Agent James’ reference to “parole and

probation,” Eccleston did not object or request a curative jury

instruction either at the time or during a later discussion with

the court about jury instructions.

10
 After the government rested its case, Eccleston moved for a

judgment of acquittal, arguing that there was insufficient

evidence to convict him for conspiracy with intent to distribute

cocaine and cocaine base. He further argued that the evidence

supported multiple conspiracies revolving around lead defendant

Whitehurst and requested a jury instruction for multiple

conspiracies. The motion for judgment and request for the

multiple conspiracy instruction were denied.

C.

The case was then submitted to the jury. During the course

of deliberations, the jury sent a note to the court, which read:

“Is it possible to alter the [verdict] form from ‘and crack

cocaine’ to ‘and/or’?” J.A. 1039. The district court provided

the following written response:

In response to your note, I am clarifying Instruction
No. 47,[6] a copy of which I am providing to you. I
instruct you that in order to find the defendant
guilty of Count One of the Fourth Superseding
Indictment, you must find that the government has
proved beyond a reasonable doubt the two elements of
the offense of conspiracy. With respect to the first
element of conspiracy, you must find that two or more
people entered into an unlawful agreement to
distribute and possess with intent to distribute a
controlled substance and you must also unanimously
agree which controlled substance -- powder cocaine,
crack cocaine, or both -- was involved in the

6 Instruction No. 47 addressed what the government must
prove with respect to the first element of conspiracy: the
existence of an unlawful agreement.

11
 conspiracy. You may find the defendant guilty of
Count One if you find that the conspiracy involved
powder cocaine or crack cocaine or both, but you must
be unanimous as to which form of cocaine was involved.
Accordingly, I am submitting to you a slightly revised
verdict form to reflect this instruction.

J.A. 1040. The two verdict forms were identical, except that

the revised form required the jury to identify which drug (or

drugs) it unanimously agreed was involved in the conspiracy.

Compare J.A. 1042 (original verdict form for count one), with

J.A. 1045 (altered verdict form for count one).

On September 21, 2012, the jury returned a verdict, finding

Eccleston guilty of conspiracy to distribute and possess with

intent to distribute both powder and crack cocaine. The jury

attributed to Eccleston 500 grams to 5 kilograms of powder

cocaine, and less than 28 grams of crack cocaine. Eccleston was

further found guilty of counts eight, nine, ten, and eleven of

the Fourth Superseding Indictment.

Eccleston was sentenced to concurrent sentences of 210

months’ imprisonment on count one, 96 months’ imprisonment on

count eight, 210 months’ imprisonment on count nine, 96 months’

imprisonment on count ten, and 210 months’ imprisonment on count

eleven, to be followed by 8 years of supervised release. He was

also assessed a $500 criminal monetary penalty. In sentencing

Eccleston, the district court “var[ied] down from the guidelines

235 [months’ imprisonment] for Count 1.” J.A. 1100.

12
 This appeal followed. Eccleston advances numerous

arguments on appeal. First, he contends that delay between his

arrest and the commencement of his trial was unconstitutionally

lengthy in violation of the Sixth Amendment, and that the delay

also constituted a violation of the Speedy Trial Act. He also

contends that it was error for the district court to admit the

evidence obtained from his cell phone. He argues that the

district court abused its discretion in finding that its

sequestration order had not been violated. He also argues that

he suffered prejudice under Federal Rule of Evidence 404(b) when

a case agent referred to obtaining information from a parole or

probation office about his address. Eccleston additionally

contends that the district court constructively amended the

indictment in this case when it altered the jury verdict form in

response to a jury question. He further challenges the district

court’s refusal to instruct the jury on multiple conspiracies.

And finally, Eccleston contends that the district court erred in

the amount of cocaine and cocaine base it attributed to him for

purposes of sentencing. For the reasons that follow, we reject

each of these arguments.

II.

Eccleston argues that both his constitutional and statutory

speedy trial rights were violated. We address each in turn.

13
 A.

First, Eccleston alleges that the delay between his arrest

and the commencement of his trial violated his right to a speedy

trial under the Sixth Amendment. We review de novo a district

court’s constitutional speedy trial determination. United

States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).

The Supreme Court has directed federal courts to consider

four factors when addressing Sixth Amendment speedy trial

claims: “Length of delay, the reason for the delay, the

defendant’s assertion of his right, and the prejudice to the

defendant.” Barker, 407 U.S. at 530. “To prevail on [his]

speedy trial claim, [a] [d]efendant[] [is] obliged, under

Barker, to establish ‘that on balance, [the] four separate

factors weigh in his favor.’” Hall, 551 F.3d at 271 (final

alteration in original).

There are two components to the first Barker factor. Id.,

551 F.3d at 271 (citing Doggett v. United States, 505 U.S. 647,

651-52 (1992)). “First of all, a reviewing court must decide

whether the length of the delay triggers a speedy trial inquiry.

In that respect, the Court has suggested that we should conduct

a full inquiry when such a delay approaches one year.” Id., 551

F.3d at 271 (citing Doggett, 505 U.S. at 651-52). The relevant

time period to consider is that between indictment and the

commencement of trial. Id. (citing United States v. MacDonald,

14
456 U.S. 1, 7 (1982)). Notably, “the delay that can be

tolerated for an ordinary street crime is considerably less than

for a serious, complex conspiracy charge.” Barker, 407 U.S. at

531.

Eccleston was first indicted on October 26, 2011, and his

trial commenced less than a year later, on September 11, 2012.

Indeed, although there was a delay between Eccleston’s September

28, 2011 arrest on the criminal complaint and the October 26,

2011 indictment, even the time between the arrest and the trial

was less than one year. Moreover, he was charged as part of a

large drug conspiracy. Accordingly, the first factor does not

weigh in his favor.

Based on the foregoing, we need not consider the remaining

factors. See Barker, 407 U.S. at 530 (“Until there is some

delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.”);

United States v. Woolfork, 399 F.3d 590, 597 (4th Cir. 2005)

(“One year is the ‘point at which courts deem the delay

unreasonable enough to trigger the Barker [i]nquiry.” (citing

Doggett, 505 U.S. at 652 n.1)). The first Barker factor “acts

as a threshold requirement,” and “[i]f the delay is not

uncommonly long, the inquiry ends there.” United States v.

Grimmond, 137 F.3d 823, 827 (4th Cir. 1998). Having failed to

15
clear the threshold requirement, Eccleston cannot show a

violation of his Sixth Amendment right.

Our conclusion would be the same even if we were to

consider the remaining factors under Barker. The second factor

addresses “the reasons for the delay.” Barker, 407 U.S. at 530.

“The reasons for a trial delay should be characterized as either

valid, improper, or neutral. On this factor, a reviewing court

must carefully examine several issues, specifically focusing on

the intent of the prosecution.” Hall, 551 F.3d at 272 (citation

omitted). Here, the district court stated that the delay

stemmed from the complexity of the case. Indeed, as we will

discuss in more detail below, the complexity of the case led the

court to grant the government’s motion to exclude time under the

Speedy Trial Act. Moreover, Eccleston caused delay by filing

numerous pretrial motions, all of which by definition had to be

resolved prior to the commencement of trial. We find that there

were valid reasons for the trial delay.

The third Barker factor addresses whether the defendant

timely asserted his right to a speedy trial. Barker, 407 U.S.

at 532. Eccleston did so, and this factor thus weighs in his

favor.

The final Barker factor requires us to consider the

prejudice to Eccleston. Id. Courts assess prejudice “in the

16
light of the interests of defendants which the speedy trial

right was designed to protect.” Id. at 532. There are

three such interests: (i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of
these, the most serious is the last, because the
inability of a defendant adequately to prepare his
case skews the fairness of the entire system.

Id. As to the first prejudice interest, we note per the first

Barker factor that the delay in this case was not presumptively

prejudicial and there is no allegation that Eccleston’s

detention was otherwise oppressive. As to the second prejudice

interest, Eccleston has asserted generalized concerns that would

affect any individual who is detained. See Opening Br. of

Appellant 41 (complaining of economic harm, damaged credit, the

inability to advance his skills at work, embarrassment, and

missed birthdays). Finally, Eccleston has not argued that his

defense was impaired by the delay. 7 See Grimmond, 137 F.3d at

830 (determining that the defendant had not shown impairment of

7Eccleston argues before this Court that the government
refused “to permit him access to discovery materials thus
denying him the opportunity to play a more active role in his
own defense.” Opening Br. of Appellant 42. However, Eccleston
did have access to the materials. As counsel explained during
the pretrial hearing, the discovery agreement in this case
prevented counsel from leaving copies of the discovery material
with Eccleston to keep and review while he was in prison.
Rather, the agreement allowed Eccleston to review discovery only
during meetings with counsel.

17
his defense where he failed to “identif[y] any witness that was

unavailable as a result of the delay,” did not “allege[] that

any witness was unable accurately to recall the events in

question,” and did “not contend that any exculpatory evidence

was lost” or that “any evidence . . . was unavailable because of

the delay”).

Because only one of the Barker factors weighs in

Eccleston’s favor, we find that his Sixth Amendment right to a

speedy trial was not violated.

B.

Eccleston also alleges that the district court erred in

excluding time from the speedy trial clock when it granted the

government’s tolling motion under the Speedy Trial Act.

Specifically, he faults the district court for adopting the

government’s assertion that fugitive co-defendants remained at

large, and claims that the fugitive co-defendants were

fabricated. He further contends that the government simply was

not ready to proceed with trial.

“We review the legal standards applied by the district

court in making its ends of justice determination de novo and

review the district court’s findings under the Speedy Trial Act

. . . 18 U.S.C. § 3161, under the clearly erroneous standard.”

United States v. Keith, 42 F.3d 234, 236 (4th Cir. 1994). The

Speedy Trial Act provides that a defendant’s trial must commence

18
within seventy days from the filing of the indictment unless one

of several exceptions applies. 18 U.S.C. §§ 3161(c)(1), (h).

Among other types of excusable delay, those delays attributable

to an appropriate “ends of justice” order can be excluded from

the speedy trial clock. Id. § 3161(h)(7)(A) (providing for the

exclusion of time when a continuance is granted sua sponte or

upon a motion by counsel “if the judge granted such continuance

on the basis of his findings that the ends of justice served by

taking such action outweigh the best interest of the public and

the defendant”).

Here, the speedy trial clock commenced on November 2, 2011,

when Eccleston was arraigned and pleaded not guilty. On that

same day, the government filed a motion to toll the speedy trial

clock. None of the defendants opposed the motion at that time.

In granting the motion, the district court found that

this case involves complex issues, particularly as
they involve wiretap evidence, including more than
10,000 pertinent calls captured from at least three
different wiretapped phones lines, and thus it would
be unreasonable to expect adequate preparation for
pretrial proceedings or for the trial itself within
the time limits established by the Speedy Trial Act.

J.A. 116. The court further explicitly found that the delay was

necessary to ensure continuity of counsel, as well as to ensure

that the parties -- both the defendants and the government --

had adequate time to review the discovery materials. J.A. 116;

cf. 18 U.S.C. §§ 3161(h)(7)(B)(ii), (iv). Given the nature of

19
the case, as described by the district court and based upon our

own review of the record, we hold that the district court did

not clearly err in granting the government’s motion and tolling

the speedy trial clock until August 21, 2012.

We further reject Eccleston’s challenge to the delay

occurring between the original August 21, 2012 trial date and

the actual start of trial on September 11, 2012. Eccleston

apparently takes issue with government counsel’s request for

this additional delay, even though government counsel indicated

that he was willing to go forward with trial on August 21 if the

court so ordered. The district court granted the government’s

request due to counsel’s serious medical situation. Unavoidable

health concerns are a valid reason for granting a reasonable

delay. United States v. Trotman, 406 F. App’x 799, 805 (4th

Cir. 2011) (unpublished); see also United States v. Hale, 685

F.3d 522, 535 (6th Cir. 2012); United States v. DiTommaso, 817

F.2d 201, 210 (2d Cir. 1987) (holding that a seven week

suspension of the speedy trial clock was warranted under the

“ends of justice” provision where the chief prosecutor was ill

and new assistant prosecutors required time to prepare for

20
trial). The district court did not clearly err in delaying the

commencement of trial from August 21 to September 11. 8

III.

Eccleston makes several arguments considering the use and

admissibility of wiretap evidence in his case. None of his

arguments are availing.

A.

Eccleston first faults the government for failing to

exhaust “normal investigative procedures” prior to filing its

wiretap warrant application. He contends that this failure

violated his rights under the Fourth Amendment, and that the

evidence obtained from the wiretaps thus should have been

suppressed.

“We review for clear error the factual findings underlying

a district court’s ruling on a motion to suppress, and we review

the court’s legal conclusions de novo.” United States v.

Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Additionally, “we

review for abuse of discretion determinations of necessity

under” Title III. Id. As we have previously noted, “wiretaps

are necessary tools of law enforcement, . . . particularly where

8Because we find no error in the district court’s “ends of
justice” ruling, we need not address its other bases for tolling
the clock.

21
crimes are committed by large and sophisticated organizations,”

and “[c]ourts must be careful not to read the statute in an

overly restrictive manner.” Id. at 281.

The government bears the burden of demonstrating the

necessity of a wiretap “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.’” Id. at 281 (quoting 18 U.S.C.

§ 2518(3)). But this burden “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. (quoting United States v. Smith,

31 F.3d 1294, 1298 (4th Cir. 1994)). In Wilson, this Circuit

found that the government adequately demonstrated the necessity

of a wiretap by submitting a detailed affidavit in support of

its wiretap application. 484 F.3d at 281. The affidavit

“span[ned] 64 pages in the Joint Appendix.” Id. The Circuit

observed of the affidavit:

In exhaustive fashion, [the government] set forth the
techniques that had been used up to that point. Those
techniques included confidential informants,
undercover agents, surveillance, trash searches,
interviews, search warrants, telephone records,
reverse buys, GPS trackers, and financial and public
records. The affiants then explained that despite the
information they had been able to gain from these
traditional sources, they believed that those sources,
standing alone, were insufficient to achieve the goals
of the investigation and prove the extent of the

22
 conspiracy. For example, they explained that
confidential informants were unable to identify the
higher-ups of the conspiracy. The traditional sources
also failed to uncover the conspiracy’s cocaine source
and the extent to which the coconspirators distributed
it for resale.

Id. (citation omitted).

The government has satisfied its burden here. In

Eccleston’s case, as in Wilson, the government has presented a

detailed affidavit concerning “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.’”

Id. at 281 (quoting 18 U.S.C. § 2518(3)). The forty-five page

Affidavit in Support of an Application for an Order Authorizing

the Interception of Wire Communications was submitted by FBI

Special Agent Mark E. James to a district judge on March 3,

2011. The Affidavit details the normal investigative techniques

used during the course of the investigation, including:

physical surveillance, confidential informants, cooperating

sources, undercover agents, interviews of subjects or

associates, search warrants, pen registers/toll records, and

trash cover. For each investigative category, James set forth

whether the normal techniques had been used; how well they had

worked; and whether there was additional information needed for

the investigation that was unavailable from further use of that

technique. He also was forthcoming about which techniques, such

23
as physical surveillance, had been fruitful and would continue

to be used going forward. J.A. 1177 (discussing success with

physical surveillance, but observing that heavy foot traffic in

the area, as well as the targets’ use of different vehicles

registered in others’ names, thwarted efforts at identification

of additional conspirators). For techniques that had not been

used, such as grand jury subpoenas, he explained why they would

not be useful or would be counterproductive. J.A. 1177-78

(explaining that the use of subpoenas would alert the

conspirators to the investigation and might cause them to flee

or to threaten potential witnesses). We find that the level of

specificity in the Affidavit sufficient to meet the government’s

burden, and thus the issuing court did not abuse its discretion

in authorizing the wiretap, and the district court did not err

in denying Eccleston’s motion to suppress.

B.

Eccleston separately contends that there was insufficient

and “misleading” probable cause to support the wiretap

application. “The probable cause required for issuance of a

wiretap order is the same as that which is necessary to obtain

the issuance of a search warrant.” United States v. Talbert,

706 F.2d 464, 467 (4th Cir. 1983). And the probable cause

determination is a “practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before

24
[the judge] . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983). Courts look to the

“totality-of-the-circumstances” in making their decisions. Id.

Reviewing courts “must accord great deference to the

magistrate’s assessment of the facts presented to him.” United

States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (internal

quotation marks and citation omitted).

Here, given the nature and specificity of the information

in the Affidavit, we find that there was probable cause to grant

the wiretap application. James stated that the facts set forth

in the Affidavit were based in part on his personal knowledge

and in part on information and belief. He based his information

and belief on, among other things, reports received from other

field agents and law enforcement officials, his review of

various telephone records and consensually recorded interviews,

his review of evidence, and debriefings. Information from a

number of confidential sources was incorporated into the

Affidavit where specified. The Affidavit set forth several

detailed, specific facts to support the existence of probable

cause to believe that several individuals, known and unknown,

were engaged in a conspiracy to distribute cocaine and cocaine

base in Kentland. For example, the Affidavit discussed

controlled purchases of crack cocaine carried out by

25
confidential sources at the direction of law enforcement.

Moreover, it set forth specific facts suggesting that there was

probable cause to believe that the target phone numbers would

yield information concerning the alleged drug conspiracy. For

example, the Affidavit included excerpts from wiretaps executed

earlier in the investigation, and also described information

obtained from pen registers concerning numbers known to be

associated with the conspiracy. Because there was probable

cause to authorize the wiretaps, the district court did not

abuse its discretion in refusing to suppress the evidence

obtained from the wiretaps.

C.

Finally, Eccleston argues that the district court erred by

denying him a Franks hearing. In particular, he alleges that

two of the five confidential sources whose information formed

part of the basis of James’ Affidavit were engaging in

unauthorized drug dealing activity and that one of these two

informants was killed during the unauthorized activity.

Moreover, Eccleston contends that “the task force knew or should

have known that the lead defendant [Whitehurst] was a murder

suspect and had an outstanding warrant for his arrest.” Opening

Br. of Appellant 25. Eccleston faults the government for

failing to include this information in the Affidavit and argues

26
that the district court would have denied the wiretap

application had the information been included.

The Supreme Court held in Franks that,

where the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant’s request.

438 U.S. at 155-56. In addition to false statements, “Franks

protects against omissions that are designed to mislead, or that

are made in reckless disregard of whether they would mislead,

the magistrate.” United States v. Colkley, 899 F.2d 297, 301

(4th Cir. 1990) (emphasis deleted).

This Court reviews the legal determinations underlying a

district court’s denial of a Franks hearing de novo, and its

factual findings for clear error. United States v. Allen, 631

F.3d 164, 171 (4th Cir. 2011). To warrant a Franks hearing, a

defendant’s preliminary “showing ‘must be more than conclusory’

and should include affidavits or other evidence to overcome the

‘presumption of [the warrant’s] validity.’” United States v.

Clenney, 631 F.3d 658, 663 (4th Cir. 2011) (quoting Franks, 438

U.S. at 171). Where a defendant “rel[ies] on an omission,

rather than on a false affirmative statement,” his “burden

increases yet more.” United States v. Tate, 524 F.3d 449, 454

27
(4th Cir. 2008). “[M]erely showing an intentional omission of a

fact from a warrant affidavit does not fulfill Franks’

requirements.” Id. at 455. Rather, “[t]o satisfy the Franks’

intentional or reckless falsity requirement for an omission, the

defendant must show that facts were omitted ‘with the intent to

make, or in reckless disregard of whether they thereby made, the

affidavit misleading.’” Id. (quoting Colkley, 899 F.2d at 300).

Here, Eccleston offers only a conclusory showing that a

Franks hearing would be appropriate. Despite Eccleston’s

insistence that the lead defendant in the conspiracy was subject

to an outstanding warrant, he has presented no documentary proof

to that effect. And though he questions the reliability of the

information in James’ Affidavit, he does not demonstrate that

Special Agent James had any intent to mislead the court. See

Colkley, 899 F.2d at 301 (“Here Johnson made no showing, and the

district court possessed no evidence, that agent Moore had the

requisite intent to mislead.”). While some courts have inferred

intent where “the omitted material was ‘clearly critical’ to the

finding of probable cause,” id., that showing cannot be made

here. James’ Affidavit relied on information from three

additional confidential sources aside from those challenged

here. At least one of these additional confidential sources

participated in controlled purchases of crack cocaine at the

direction of law enforcement. Furthermore, the Affidavit relied

28
on reports from law enforcement officials, review of pen

register and documentary evidence, and personal knowledge.

Eccleston points to two other pieces of information missing

from the Affidavit: the unauthorized criminal activity by one

of the confidential sources and the murder and unauthorized drug

dealing activity of another of the confidential sources. This

information is not “critical” to the probable cause

determination. We note first that we cannot with certainty say

that the information with which Eccleston takes issue was not

contained in the Affidavit, because much of the Affidavit is

redacted. Even so, the Affidavit stated that the information

from the sources had been independently corroborated through

other investigative techniques. And though it did not go into

detail, the Affidavit also acknowledged that one confidential

source died during the course of the investigation. The

information about the killing and the unauthorized drug dealing

was later disclosed to the district court in Special Agent

Garrett Swick’s “Affidavit in Support of Criminal Complaint and

Arrest Warrants.”

Even without information about the murder or the

unauthorized illegal activity, there is sufficient, independent

probable cause outlined in the James’ Affidavit for the issuance

of the wiretap warrant. We find that Eccleston has not made a

29
preliminary showing sufficient to warrant a Franks hearing. The

district court properly denied his request.

IV.

Eccleston argues that the district court erred in admitting

evidence obtained from his cell phone. In particular, he

contends that the warrantless search of his cell phone at the

time of his arrest violated the Fourth Amendment, and that the

later application for and issuance of a search warrant for the

phone did not cure the violation.

“This Court reviews evidentiary rulings for an abuse of

discretion, and ‘will only overturn an evidentiary ruling that

is arbitrary and irrational.’” United States v. Cone, 714 F.3d

197, 219 (4th Cir. 2013) (citation omitted). “A court has

abused its discretion if its decision ‘is guided by erroneous

legal principles’ or ‘rests upon a clearly erroneous factual

finding.’” United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010) (citation omitted).

A.

The United States Supreme Court recently held that, upon

lawful arrest, “officers must generally secure a warrant before

conducting” a search of a cell phone. Riley v. California, --

U.S. ---, 134 S. Ct. 2473, 2485 (2014). There is no dispute

that Riley applies to this case. However, while “the

30
retroactive application of a new rule of substantive Fourth

Amendment law raises the question whether a suppression remedy

applies[,] it does not answer that question.” Davis v. United

States, --- U.S. ---,131 S. Ct. 2419, 2431 (2011) (citing United

States v. Leon, 468 U.S. 897, 906 (1984)). Rather, “[w]hether

the exclusionary sanction is appropriately imposed in a

particular case . . . is an issue separate from whether the

Fourth Amendment rights of the party seeking to invoke the rule

were violated by police conduct.” Leon, 468 U.S. at 907

(internal quotation marks and citation omitted); see also

Davis,131 S. Ct. at 2431 (2011) (“Retroactive application does

not . . . determine what ‘appropriate remedy’ (if any) the

defendant should obtain.”).

The exclusionary rule “cannot be expected, and should not

be applied, to deter objectively reasonable law enforcement

activity.” Leon, 468 U.S. at 919; see id. (“If the purpose of

the exclusionary rule is to deter unlawful police conduct, then

evidence obtained from a search should be suppressed only if it

can be said that the law enforcement officer had knowledge, or

may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” (quoting United

States v. Peltier, 422 U.S. 531, 542 (1975))); see also Davis,

131 S. Ct. at 2431. Thus, “[b]ecause suppression would do

nothing to deter police misconduct” in cases where “the police

31
conduct a search in compliance with binding precedent that is

later overruled,” and “because [suppression] would come at a

high cost to both the truth and the public safety, . . .

searches conducted in objectively reasonable reliance on binding

appellate precedent are not subject to the exclusionary rule.”

Davis, 131 S. Ct. at 2423-24.

At the time of Eccleston’s arrest, binding appellate

precedent from this Circuit permitted the warrantless search of

his cell phone incident to his arrest. See United States v.

Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009). In Murphy, the

defendant argued that the warrantless search of his cell phone

was unlawful “because there was no evidence of the volatile

nature of the cell phone’s information,” and also because the

search “was not contemporaneous with his arrest.” Id. at 411.

We rejected the defendant’s arguments, observing that “this

Court ha[d] held on at least two prior occasions, albeit in

unpublished opinions, that officers may retrieve text messages

and other information from cell phones and pagers seized

incident to an arrest.” Id. (citing United States v. Young, 278

F. App’x 242, 245-46 (4th Cir. 2008), cert. denied, 555 U.S.

1006 (2008), and United States v. Hunter, No. 9604259, 1998 WL

887289, at *3 (4th Cir. Oct. 29, 1998)). This Court further

observed that “the initial search of the cell phone occurred in

Murphy’s presence and at his direction,” and another search

32
occurred at the police station “during the course of the

inventory search.” Id. at 412. Accordingly, we held that the

district court committed no error when it refused to suppress

the contents of the defendant’s cell phone.

Prior to the Supreme Court’s decision in Riley, Murphy

served as binding appellant precedent permitting the search of

Eccleston’s cell phone incident to his arrest without a warrant.

Because the search was “conducted in objectively reasonable

reliance on [then-]binding appellate precedent,” it is “not

subject to the exclusionary rule.” Davis, 131 S. Ct. at 2423-

24. We therefore hold that the district court did not abuse its

discretion in refusing to suppress the evidence obtained from

Eccleston’s cell phone.

B.

Regardless of the applicability of Murphy at the time of

Eccleston’s arrest, and as the district court held, the same

information was later lawfully obtained by the FBI pursuant to a

search warrant. Eccleston did not challenge the validity of the

warrant below. He argues here that the district court did not

address whether the initial search tainted the warrant.

It is well established that where the government can show

“by a preponderance of the evidence that the information

ultimately or inevitably would have been discovered by lawful

means . . . then the deterrence rationale [for the exclusionary

33
rule] has so little basis that the evidence should be received.”

Nix v. Williams, 467 U.S. 431, 444 (1984); see also United

States v. Whitehorn, 813 F.2d 646, 650 n.4 (4th Cir. 1987)

(“[T]he premise of the inevitable discovery doctrine is that the

illegal search played no real part in discovery of incriminating

evidence. Only then, if it can be shown that the taint did not

extend to the second search, would the product of the second

search be admissible.”); Simmons v. Poe, 47 F.3d 1370, 1378 (4th

Cir. 1995) (finding, in the 42 U.S.C. § 1983 context, that

defendant’s challenge to the validity of a warrant was meritless

where there “existed sufficient independent evidence in the

warrant application to justify the magistrate’s finding of

probable cause”).

Here, the district court explicitly stated: “[T]here’s no

indication at all that the alleged unlawful search, if it was an

unlawful search, . . . tainted the subsequent application for a

search warrant. In fact, [the government] read portions of the

application. It had no reference at all to what occurred back

on” the date of Eccleston’s arrest. J.A. 626; see also J.A. 622

(discussing contents of warrant application). We agree.

Eccleston did not challenge the warrant on any grounds, and does

not meaningfully do so before this Court. In fact, when asked

by the district court if the warrant had been challenged,

Eccleston’s counsel stated: “I’m not trying to say that because

34
of what [Grims] did everything after that is tainted, because I

think at some point the government realized, yeah, we do need a

warrant. And so, they went and they got it, and they did the

right thing.” J.A. 623. Because the government presented

evidence that the search did not taint the warrant, and because

Eccleston presented no evidence or arguments to the contrary,

the second search of Eccleston’s cell phone pursuant to the FBI

warrant was not tainted by the initial warrantless search. The

district court did not abuse its discretion by refusing to

suppress the evidence obtained from the search of Eccleston’s

cell phone.

V.

Eccleston argues that the district court’s sequestration

order was violated due to cohabitation of witnesses in a holding

cell, which in turn undermined his Fifth Amendment due process

rights. As noted above, we review a trial court’s evidentiary

rulings for abuse of discretion. Cone, 714 F.3d at 219.

This Court has not directly addressed this type of

challenge to a sequestration order, but case law from the First

and Eleventh Circuits is instructive. In United States v.

Sepulveda, the First Circuit stated that cohabitation of

witnesses did not equate to an automatic violation of the trial

court’s sequestration order. 15 F.3d 1161, 1176-77 (1st Cir.

35
1993). In that case, the district court granted the defendants’

motion for sequestration. The motion did not “indicat[e] to the

court what level of restraint [the defendants] thought

appropriate.” Id. at 1176. Accordingly, “[t]he court granted

the motion in its simplest aspect, directing counsel ‘to monitor

sequestration’ and ordering ‘that witnesses who are subject to

[the court’s] order are not to be present in the courtroom at

any time prior to their appearance to render testimony.’” Id.

The court additionally admonished witnesses not to discuss their

testimony with other witnesses. Id. The defendants later

sought to vacate their convictions based, in part, on alleged

violations of the sequestration order. In affirming the

district court’s denial of relief, the First Circuit indicated

that “[t]he crux of sequestration . . . is communication between

witnesses, not shared accommodations or geographic proximity.

. . . We assume that witnesses, like all other persons subject

to court orders, will follow the instructions they receive.”

Id. at 1177. And “if [the defendants] desired a more vigorous

sequestration regime, such as an edict that would have banned

cohabitation or other contact amongst prisoner-witnesses, they

had a duty to ask for it.” Id. Where the defendants failed to

do so, and where their claims of the prejudice from the alleged

violation of the sequestration order were “speculative,” the

36
district court did not err in refusing to vacate the

convictions. Id.

The Eleventh Circuit faced a more extreme situation. In

United States v. Eyster, at least two witnesses admitted to

discussing testimony with each other while confined together in

jail during trial. 948 F.2d 1196, 1210 (11th Cir. 1991). The

circuit court found a violation of the district court’s

sequestration order, and noted that “both the district court and

the government were lax in upholding the sequestration rule.”

Id. at 1211. However, because the district court had allowed

cross examination on the issue, the Eleventh Circuit held that

the district court had sufficiently cured the violation by

“giving the jury the opportunity to evaluate [the witnesses’]

credibility.” Id. Accordingly, the district court had not

abused its discretion in denying the appellants’ motion for a

mistrial. Id.

We need not rule on the entire universe of potential

sequestration violations in order to address Eccleston’s claims.

There is no admission or direct allegation in this case, as

there was in Eyster, that any of the witnesses actually

discussed testimony while confined together. Thus, we address

our inquiry to whether cohabitation alone is sufficient to

violate a district court’s sequestration order. With respect to

this question, we find the First Circuit’s analysis in Sepulveda

37
persuasive. We hold today that the cohabitation of witnesses in

a holding cell is ordinarily insufficient to constitute a

violation of a district court’s sequestration order where the

defendant has failed to request a sequestration order explicitly

banning cohabitation of witnesses, and where the defendant

presents only speculation that a sequestration order has been

otherwise violated.

Evaluated in this light, Eccleston’s challenge must fail.

Eccleston moved for sequestration of witnesses without making

any request for witnesses to be housed separately. See ECF No.

105, United States v. Xavier Eccleston, Case No. AW-11-CR-0567

(filed Jan. 21, 2012) (Motion for Sequestration of Witnesses).

The district court granted the motion without including any such

requirement. The court’s order provided: “the court will

sequester the witnesses and instruct them to remain outside the

courtroom and not discuss their testimony with one another and

we will hold the lawyers responsible for that.” J.A. 179.

Beyond cohabitation, Eccleston points to no evidence that

the sequestration order was otherwise violated. On the third

day of trial, Eccleston’s counsel, expressed sequestration

concerns to the court citing certain witnesses’ cohabitation, as

well as having seen two witness who had not yet testified

talking in the hallway. J.A. 577. The court directed

government counsel to notify the witnesses and the marshal’s

38
office once more that the witnesses were not to discuss their

testimony with one another, but added that it was “not sure what

[defense counsel] is alluding to when he says [the witnesses]

were talking. I mean, they could have been talking about

anything.” J.A. 578. The court stated further that it had not

heard any “representation that they’re talking about the

testimony.” J.A. 578. Defense counsel responded “I can’t make

that representation to the court because I don’t know that, Your

Honor.” J.A. 578. The court then stated that it found no

violation of the sequestration order. At no point during this

exchange or otherwise did defense counsel request that the

cooperating witnesses be physically separated from one another

in the holding cells.

Throughout the remainder of the trial, the court admonished

some of the witnesses, but not all, that they were not to

discuss their testimony with one anyone. Eccleston’s counsel

inquired of some witnesses, but not all, whether they had

discussed the trial with others. They testified that they had

not. Government counsel made similar inquiries. The witnesses

denied speaking with one another about their testimony, and

indicated that the holding cells were too loud and too public to

permit a private conversation. Some witnesses testified that

they were also eventually physically separated from one another.

39
 In sum, Eccleston did not request physical separation of

witnesses in his motion or in his verbal exchange with the

court, and cohabitation alone did not violate the sequestration

order. In any event, Eccleston failed to present any evidence

to the court that the witnesses had in fact discussed their

testimony. The court repeatedly admonished witnesses to refrain

from discussing their testimony with other witnesses, and also

directed the government to so advise its witnesses.

Additionally, on cross examination, the witnesses who were asked

uniformly testified that they had not discussed their testimony

with one another. Bearing all of this in mind, we find that the

district court did not abuse its discretion in ruling that there

had been no violation of the sequestration order.

VI.

Eccleston argues that Federal Rule of Evidence 404(b) was

violated when a case agent made reference to Eccleston’s parole

and probation officer, thereby causing substantial prejudice.

He further contends that the district court compounded the

problem by its “refusal to give a curing instruction.” 9 Opening

Br. of Appellant 50.

9Eccleston seems to abandon his final point about
aggravation in his reply brief. See Reply Br. of Appellant 21
(“It was difficult if not impossible for the defense to recover
(Continued)
40
 Rule 404(b) “prevents the government from using a

defendant’s prior bad conduct to suggest his propensity to

commit a crime.” United States v. Campbell, 935 F.2d 39, 44

(4th Cir. 1991). We review a district court’s admission of

evidence of prior bad acts for abuse of discretion. United

States v. McBride, 676 F.3d 385, 395 (4th Cir. 2012). “While we

have reversed convictions in cases where evidence of other

crimes had been improperly presented, in those cases the

inadmissible evidence was not only prejudicial, but had been

purposely introduced by the prosecution.” United States v.

Johnson, 610 F.2d 194, 197 (4th Cir. 1979); see also Campbell,

935 F.2d at 44 (“Certainly it was not error for the district

court to fail to exclude evidence elicited by [the defendant’s]

own counsel.”).

We find that the district court did not abuse its

discretion in allowing the testimony at issue. As discussed

above, the district court granted Eccleston’s 404(b) Motion

prior to trial, thereby requiring the government to notify him

of its intent to introduce evidence of uncharged conduct or

prior convictions. In setting forth his 404(b) argument before

from the impression left that the Appellant was a recidivist,
because the agent was the last witness called and any curing
instruction would have only highlighted the point.”).

41
this Court, Eccleston states that a case agent made reference to

Eccleston’s parole and probation officer on the last day of

trial. His challenge is aimed at the testimony from James,

specifically the following exchange between Eccleston’s counsel

and James:

Q. Well you knew he was staying there [at the
residence where Eccleston was living], didn’t
you?

A. We suspected that he was staying there based on
some physical surveillance and records, I
believe, we got from parole and probation. Yes.

J.A. 977. This testimony, which was elicited by Eccleston’s

counsel, does not implicate Rule 404(b). See Campbell, 935 F.2d

at 44. Moreover, although Eccleston faults the district court

for its “refusal” to give a curative instruction, we note that

he never requested such an instruction at the time. 10 Further,

when discussing the jury instructions after the conclusion of

all testimony, Eccleston noted his exception to instructions 21,

22, 36, 37, 38, 39, and 40. A review of those instructions

reveals that none addresses prior bad acts or uncharged conduct.

Given that the testimony was elicited by Eccleston’s counsel,

and given that there was no objection to the testimony, we find

10 Eccleston erroneously states in his opening brief that a
bench conference followed and addressed potential prejudice
stemming from James’ testimony. Rather, an unrelated bench
conference occurred prior to James’ testimony.

42
that the district court did not abuse its discretion in

permitting the testimony.

We stress that the fact that Eccleston’s counsel elicited

the testimony is not dispositive. Rather, we view that fact in

conjunction with the reality that Eccleston’s counsel failed to

request a curative instruction, the fact that the government did

not later refer to the challenged testimony in an attempt to

establish Eccleston’s general character, and the overwhelming

evidence presented by the government. Under these

circumstances, we cannot find that the district court abused its

discretion in permitting the testimony. Even if the district

court did abuse its discretion, we find that the weight of the

government’s case against Eccleston rendered any error harmless.

See, e.g., United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)

(“Furthermore, any error was at most harmless error. The

evidence of Chin’s guilt provided in government videotapes and

audio recordings was overwhelming.”).

VII.

Eccleston argues that the evidence presented by the

government did not support his conviction of the charges in the

indictment. He contends that the jury note at issue in this

case demonstrates that the jurors did not think he was involved

in the crack cocaine aspect of the conspiracy. Moreover, he

43
argues that the district court’s response to the jury note and

subsequent amendment of the verdict form resulted in an

impermissible constructive amendment of the indictment and

allowed the government “to have Mr. Eccleston convicted of a

conspiracy to distribute cocaine or crack; when he was charged

with conspiracy to distribute cocaine and crack.” Opening Br.

of Appellant 14 (emphasis added).

“We review a district court’s decision to respond to a

jury’s question, and the form of that response, for an abuse of

discretion.” United States v. Foster, 507 F.3d 233, 244 (4th

Cir. 2007). And “in responding to a jury’s request for

clarification on a charge, the district court’s duty is simply

to respond to the jury’s apparent source of confusion fairly and

accurately without creating prejudice.” United States v. Smith,

62 F.3d 641, 646 (4th Cir. 1995). Reversal is warranted only

where the district court’s response “is prejudicial in the

context of the record as a whole.” Foster, 507 F.3d at 244.

“A constructive amendment to an indictment occurs when

either the government (usually during its presentation of

evidence and/or its argument), the court (usually through its

instructions to the jury), or both, broadens the possible bases

for conviction beyond those presented by the grand jury.”

Foster, 507 F.3d at 242. Constructive amendments are “fatal

variances because ‘the indictment is altered to change the

44
elements of the offense charged, such that the defendant is

actually convicted of a crime other than that charged in the

indictment.’” Id. (quoting United States v. Randall, 171 F.3d

195, 203 (4th Cir. 1999)). We have stated that “[c]onstructive

amendments are error per se and, given the Fifth Amendment right

to be indicted by a grand jury, ‘must be corrected on appeal

even when not preserved by objection.’” Id. (quoting United

States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)).

In determining whether an amendment has occurred, “it is the

broadening itself that is important—nothing more.” Floresca, 38

F.3d at 711. “The key inquiry is whether the defendant has been

tried on charges other than those made in the indictment against

him.” Foster, 507 F.3d at 242-43; see also Floresca, 38 F.3d at

710 (“The court’s instruction . . . was more than just a

misstatement of the law applicable to the indicted offense; it

stated a distinct, unindicted offense. It was by no means only

a slight defect in the charge [that] could be cured by other

circumstances.” (internal quotation marks and footnote

omitted)).

The district court’s amendment of the jury verdict form did

not create a variance. The fourth superseding indictment uses

the conjunctive term “and.” The thrust of Eccleston’s argument

is that the district court’s response to the jury note resulted

in a constructive amendment because it altered the language of

45
the verdict form from permitting only a finding of conspiracy to

distribute powder and crack cocaine, to instead allowing the a

finding of conspiracy to distribute powder and/or crack cocaine.

But this change does not appear so starkly in the record. The

original verdict form read:

How do you find the defendant, Xavier Eccleston, as to
Count One of the Fourth Superseding Indictment
(conspiracy to distribute and possess with intent to
distribute cocaine and/or crack cocaine), guilty or
not guilty?

Guilty ______ Not Guilty ______

If you find the defendant not guilty of Count One,
proceed to Question Two below. If you find the
defendant, Xavier Eccleston, guilty as to Count One,
how do you find as to the amount of cocaine
attributable to the defendant, Xavier Eccleston?

J.A. 1042 (emphasis added). The revised form read:

How do you find the defendant, Xavier Eccleston, as to
Count One of the Fourth Superseding Indictment
(conspiracy to distribute and possess with intent to
distribute cocaine and/or crack cocaine), guilty or
not guilty?

Guilty ______ Not Guilty ______

If you find the defendant not guilty of Count One,
proceed to Question Two below. If you find the
defendant, Xavier Eccleston, guilty as to Count One,
which drug do you unanimously agree was involved in
the conspiracy?

Powder Cocaine _______
Crack Cocaine _______
Both powder cocaine and crack cocaine ______

46
J.A. 1045 (underlined text appears in original indictment, and

bolded portion added to revised verdict form). Aside from the

bolded text above, the two verdict forms are identical.

As is clear from the text above, the verdict form always

provided a disjunctive option to the jury. This makes sense

because “[i]t is well settled that conjunctive indictment . . .

permits disjunctive consideration of guilt.” United States v.

Champion, 387 F.2d 561, 563 n.6 (4th Cir. 1967). The Supreme

Court has stated that “[t]he general rule is that when 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.” Turner

v. United States, 396 U.S. 398, 420 (1970); see also United

States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001)

(reiterating that “[w]here a statute is worded in the

disjunctive, federal pleading requires the Government to charge

in the conjunctive. The district court, however, can instruct

the jury in the disjunctive” (citation omitted)).

Indeed, this Circuit rejected an argument identical to that

advanced by Eccleston, albeit in an unpublished opinion. See

United States v. Davis, 270 F. App’x 236, 242 n.2 (4th Cir.

2008) (unpublished). There, we observed that while the statute

prohibiting distribution of cocaine or cocaine base is written

in the disjunctive, the indictment was charged in the

47
conjunctive. Id. The jury instructions, like the statute,

“allowed conviction if either drug was found to be within the

scope of the conspiracy in the relevant amount.” Id. We

nonetheless determined that “this seeming discrepancy does not

actually pose a meaningful variance, and certainly does not

undermine Appellants’ convictions.” Id. (citing Turner, 396

U.S. at 420). Similarly, we do not find that the district

court’s amendment of the jury verdict form here posed a

meaningful variance. The amendment simply required the jury to

specify which drug or drugs were involved in the conspiracy. We

thus hold that the district court did not abuse its discretion

by amending the verdict form.

Aside from the verdict form, Eccleston mistakenly contends

that the district court amended Instruction No. 47 to read in

the disjunctive. The district court stated only that it had

amended the verdict form in order to clarify Instruction No. 47.

Accordingly, the court provided a copy of the existing

instruction, explained the instruction, and provided a revised

verdict sheet. By way of explanation, the district court

stated:

In response to your note, I am clarifying Instruction
No. 47, a copy of which I am providing to you. . . .
You may find the defendant guilty of Count One if you
find that the conspiracy involved powder cocaine or
crack cocaine or both, but you must be unanimous as to
which form of cocaine was involved. I am submitting

48
 to you a slightly revised verdict form to reflect the
instruction.

J.A. 1040. The instruction itself was originally written in the

disjunctive, and thus the court’s explanation did not

meaningfully alter the instruction. See J.A. 1041 (Instruction

No. 47) (“The first element which the government must prove

beyond a reasonable doubt to establish the offense of conspiracy

is that two or more persons entered the unlawful agreement

charged, which is to distribute and possess with intent to

distribute cocaine or cocaine base.” (emphasis added)).

In any event, as discussed above, the statute at issue

prohibits the distribution of cocaine or cocaine base in the

disjunctive. See 21 U.S.C. § 841. Accordingly, it was

permissible for the government to charge in the conjunctive and

for the district court to instruct the jury in the disjunctive.

See Montgomery, 262 F.3d at 242; Davis, 270 F. App’x at 242 n.2.

The district court thus did not abuse its discretion by

clarifying Instruction No. 47.

VIII.

Eccleston argues that the district court erred in refusing

to give the jury an instruction on multiple conspiracies or an

instruction stating that mere presence or association is

insufficient for a conviction of a conspiracy charge. Similar

49
to his arguments about constructive amendment of the indictment,

he believes that the jury note at issue in this case

demonstrates that the jurors did not think he was involved in

the crack cocaine aspect of the conspiracy.

We review a district court’s decision to refuse to give a

jury instruction for abuse of discretion. United States v.

Passaro, 577 F.3d 207, 221 (4th Cir. 2009). The refusal to give

a requested instruction constitutes reversible error “only when

the instruction ‘(1) was correct; (2) was not substantially

covered by the court’s charge to the jury; and (3) dealt with

some point of the trial so important, that failure to give the

requested instruction seriously impaired the defendant’s ability

to conduct his defense.’” Id. (quoting United States v. Lewis,

53 F.3d 29, 32 (4th Cir. 1995)). “Even if these factors are

met, however, failure to give the defendant’s requested

instruction is not reversible error unless the defendant can

show that the record as a whole demonstrates prejudice.” United

States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

A.

Eccleston argues that the jury’s note shows that the jury

did not think he was selling crack cocaine. Even if this were

true, the jury properly could have found Eccleston guilty of

conspiracy to distribute either form of the drug, as was

50
discussed above. Thus, a multiple conspiracy charge would not

have cured the problem that he attributes to the jury’s note.

An instruction on multiple conspiracies is necessary only

“‘if such an instruction is supported by the facts.’ Hence,

‘[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 (citation

omitted). Moreover, failure to give the instruction when

required “is not reversible error unless a defendant can show

that this caused him substantial prejudice.” United States v.

Tipton, 90 F.3d 861, 883 (4th Cir. 1996). Substantial prejudice

exists when “the evidence of multiple conspiracies” is “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.

Moreover, we have held that “[w]hether there is a single

conspiracy or multiple conspiracies depends upon the overlap of

key actors, methods, and goals.” United States v. Stockton, 349

F.3d 755, 762 (4th Cir. 2003). On the other hand, “[a] single

conspiracy exists where there is ‘one overall agreement,’ or

‘one general business venture.’” United States v. Leavis, 853

F.2d 215, 218 (4th Cir. 1988). There need not be continuous

activity to constitute a single conspiracy. Id. “Our focus

51
must be not on the timing of the conspiracy’s operations, but on

whether it functioned as an ongoing unit.” Id. at 219.

Here, there was little to no evidence that Eccleston was

involved in a separate conspiracy unrelated to that charged in

the indictment. Rather, there was testimony that Eccleston was

involved in a cocaine enterprise that centered around his co-

defendant, Whitehurst. Several witnesses identified Eccleston

as purchasing amounts of powder cocaine in excess of that

typically obtained for personal use. Witnesses also placed

Eccleston in at least two of the drug ring’s stash houses during

the sale of crack cocaine. Additionally, audio tapes of

wiretapped phone calls detailing sales were played for the jury.

This evidence points to a single conspiracy.

B.

Eccleston additionally argues that mere presence or

association is insufficient to support a charge of conspiracy.

He contends that the evidence clearly shows that he was not part

of the charged conspiracy, and that the jury instead found him

guilty of conspiracy based solely on his presence in the stash

houses or his association with others who were engaged in

illegal activity.

In explaining why it rejected certain jury instructions,

the district court noted that Eccleston “had a request for a

separate instruction on association and presence which the Court

52
found was already contained in the conspiracy instructions.”

J.A. 995. We agree. The court instructed the jury that “the

government must prove that there was a mutual understanding,

either spoken or unspoken, between two or more people to

cooperate with each other to accomplish an unlawful act.” J.A.

1041 (Jury Instruction No. 47). The requirement that the

government prove a mutual understanding sufficiently

communicates that both Eccleston and any other person with whom

he allegedly conspired understood that Eccleston was part of the

conspiracy. The instructions given made clear that simple

presence or association was insufficient for conviction.

We hold that the district court did not abuse its

discretion in refusing the requested instructions.

IX.

Finally, Eccleston challenges his sentence. The jury

attributed to him less than 28 grams of crack cocaine, as well

as between 500 grams and 5 kilograms of powder cocaine to him.

Eccleston argues that the district court thus erred in

attributing to him for sentencing purposes more than 28 grams of

crack cocaine to him, and in attributing 16 kilograms of powder

cocaine. “We review the sentence imposed by a district court

under a ‘deferential abuse-of-discretion standard.’ We review

factual findings for clear error, and legal conclusions de

53
novo.” United States v. Davis, 679 F.3d 177, 182 (4th Cir.

2012) (citation omitted).

Contrary to Eccleston’s contention, the district court

attributed less than 28 grams of crack cocaine to him. 11 See

J.A. 1078. The district court then concluded that the

appropriate base offense level was 34. 12 Next, it raised the

offense level to 36 due to an obstruction of justice

11
Although Eccleston argued in the district court that no
amount of crack cocaine should be attributable to him as
relevant conduct, he does not explicitly advance that argument
here. Even if he did, we would review the district court’s
determination of the drug quantity attributable to him only for
clear error. United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999). For sentencing purposes, a defendant is accountable
for “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,” which
“occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” USSG
§ 1B1.3(a)(1)(B); see also United States v. Williams, 986 F.2d
86, 90 (4th Cir. 1993) (“A defendant convicted of conspiracy
should be sentenced not only on the basis of his conduct, but
also on the basis of conduct of coconspirators in furtherance of
the conspiracy that was known to the defendant or reasonably
foreseeable to him.”). Here, there is evidence in the record to
support the district court’s conclusion that it was foreseeable
to Eccleston that crack cocaine would be sold as part of the
conspiracy. Witness testimony established that he was present
in the stash houses while his coconspirators sold crack cocaine.
Indeed, Rainey’s testimony established that the conspiracy sold
crack cocaine at a rate of 3 ounces per day, or 2.25 kilograms
per month, for 16 months. Given this witness testimony, we find
that the district court did not clearly err in attributing less
than 28 grams of crack cocaine to Eccleston.
12
This base offense level incorporated both the powder and
crack cocaine.

54
enhancement. Eccleston’s trial counsel confirmed that the base

offense level of 34 was correct. See J.A. 1076-78 (arguing that

no crack cocaine at all should be attributed to Eccleston, but

conceding that if less than 28 grams of crack cocaine were

attributed him, the base offense level would be 34). We thus

reject Eccleston’s argument that the district court erred in

attributing to him less than 28 grams of crack cocaine.

In arguing that the district court erred in attributing 16

kilograms of powder cocaine to him, 13 Eccleston relies primarily

on Alleyne v. United States, 133 S. Ct. 2151 (2013), which

expressly overruled the Supreme Court’s decision in Harris v.

United States, 536 U.S. 545 (2002). Alleyne, 133 S. Ct. at

2155. Specifically, the Court held “that any fact that

increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.” Id. Here, however, the facts at issue

-- the amount of powder cocaine attributable to Eccleston -- did

not serve to increase a mandatory minimum, and thus Alleyne does

13As indicated above, the jury attributed only between 500
grams and 5 kilograms of powder cocaine to Eccleston. In
attributing 16 kilograms to Eccleston for sentencing purposes,
the district court accepted the government’s analysis of
Rainey’s testimony. The government pointed to Rainey’s
testimony that the drug operation “moved about a kilogram a
month” during the course of the 16 month conspiracy. J.A. 1066.
Eccleston does not challenge these calculations except to say
that the amount is “clearly in excess of the jury’s finding.”
Opening Br. of Appellant 50.

55
not apply. See United States v. Benn, 572 F. App’x 167, 180

(4th Cir. 2014) (unpublished) (“The district court’s drug

quantity determinations at sentencing did not increase

Appellants’ statutory mandatory minimum sentences, but rather,

were used to determine their advisory Guidelines ranges (from

which, in any event, the district court varied downward).”) 14 We

thus reject Eccleston’s argument that the district court erred

in its attribution of powder cocaine during sentencing.

X.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

14 The district court here also varied downward.

56