PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4085
ROLAND DEMINGO QUEEN, a/k/a
Mingo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-95-178-WMN)
Argued: September 29, 1997
Decided: December 29, 1997
Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Russell and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Arcangelo Michael Tuminelli, Baltimore, Maryland, for
Appellant. Andrew George Warrens Norman, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A.
Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
The primary issue raised in this appeal is whether evidence of the
defendant's prior acts of witness tampering were properly admitted
under Federal Rule of Evidence 404(b) to prove the element of intent
in a later prosecution for a separate act of witness tampering in viola-
tion of 18 U.S.C. § 1512(b)(1). Because we conclude, after a full
examination of our Rule 404(b) jurisprudence, that the district court
did not abuse its discretion in admitting the evidence, and because we
reject the defendant's other assignments of error, we affirm.
I
On August 8, 1995, a grand jury returned a superseding indictment
charging Roland D. Queen with conspiring to tamper with a witness
in violation of 18 U.S.C. § 371 and with tampering with a witness in
violation of 18 U.S.C. § 1512(b)(1). The indictment alleged that dur-
ing the period from February 1994 to March 1995 Queen had illegally
attempted to dissuade a witness named Feronica Isaacs from testify-
ing in the drug trafficking trial of Stephen Hester and others.
Before trial, the government notified Queen that it intended to
introduce evidence at trial indicating that Queen had tampered with
witnesses in 1986. In response, Queen filed a motion in limine to
exclude that evidence under Federal Rules of Evidence 404(b) and
403. At a pretrial hearing on the motion, the government presented
two witnesses whom it intended to have testify to the 1986 conduct.
According to one witness, before Queen's 1986 trial for armed rob-
bery, Queen threatened to shoot him if he testified against Queen at
trial, and according to the other, before the same trial Queen had
threatened to "deal with" him for his role in alerting the authorities
to Queen's involvement in the armed robbery. The district court
denied the motion in limine, ruling that the government's evidence of
prior acts was admissible under Federal Rule of Evidence 404(b) to
show intent for the crimes charged and that, under Federal Rule of
Evidence 403, the testimony would not be unduly prejudicial.
2
At trial, in addition to introducing evidence of Queen's prior acts
of witness tampering, the government introduced evidence of a con-
spiracy between Queen and Hester to tamper with witnesses before
and during Hester's trial. It presented evidence of threatening actions
that Hester had taken towards Isaacs, of menacing glares that Queen
had made towards witnesses testifying against Hester on the witness
stand, and of a meeting that Queen had with Isaacs on her doorstep
where Queen allegedly threatened Isaacs, telling her that it would be
in her best interest not to testify against Hester, and attempted to bribe
her not to testify. Although Queen admitted that he had visited Isaacs
and had spoken with her, he denied that he had threatened or bribed
her. He maintained that he visited Isaacs only to suggest that she visit
Hester's attorney. In instructing the jury, the district court told the
jury not to consider Queen's prior acts evidence for any purpose other
than to infer intent as to the charged crime.
The jury returned a verdict of guilty on both counts charged, and
the court sentenced Queen to 174 months imprisonment. In sentenc-
ing Queen, the court adjusted his offense level upward by two levels
for perjury committed during trial, finding:
I am satisfied by a preponderance that Mr. Queen's testi-
mony was false in respect to the purpose of his visit to Miss
Isaacs and with respect to his actions, which I find were, in
fact, designed to dissuade her from testifying or from testi-
fying truthfully, and, as such, constituted perjury; and that
Mr. Queen gave false testimony to the Court and the jury
under oath, and knowing it to be false and material, obvi-
ously to the issues, [which] were under inquiry.
This appeal followed.
II
As his principal argument on appeal, Queen contends that the dis-
trict court abused its discretion in admitting the evidence that he had
twice intimidated witnesses before his 1986 armed robbery trial.
Queen argues that such evidence could only have demonstrated his
propensity to commit witness tampering in this case and therefore is
prohibited by Federal Rule of Evidence 404(b). In order to bolster its
3
claim that Queen threatened Isaacs, the government had offered evi-
dence of the prior acts to show Queen's "intent, knowledge and lack
of mistake in visiting Feronica Isaacs" to threaten her at her doorstep.
The district court ruled, following a full pretrial evidentiary hearing,
that Queen's prior acts were relevant to whether his words to Isaacs
were spoken with an intent to intimidate. Although the court, while
applying Federal Rule of Evidence 403, acknowledged that the prior-
acts testimony contained a prejudicial aspect, it explained that the evi-
dence "is prejudicial because it is so highly probative."
The question of whether evidence of prior acts is admissible under
Federal Rule of Evidence 404(b) is frequently presented to our court.1
That fact suggests that as we address the issue again, we attempt to
provide yet a clearer standard for the rule's application.
We begin with the general proposition that any evidence which
tends to make the existence of a fact of consequence to an issue in
the case "more probable or less probable" than without the evidence
is relevant and therefore, as a general proposition, admissible. Fed. R.
Evid. 402, 401. But even relevant evidence may be excluded if its
probative value is "substantially outweighed" by the potential for
undue prejudice, confusion, delay or redundancy. Fed. R. Evid. 403.
Prejudice, as used in Rule 403, refers to evidence that has an "undue
tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one." Fed. R. Evid. 403 advisory com-
mittee's note; see also United States v. Powers , 59 F.3d 1460, 1467
(4th Cir. 1995) (ruling that prejudice is shown only where court
believes the evidence will unduly excite the emotions of the jury and
thereby cause it to act irrationally).
Against these general principles, Federal Rule of Evidence 404(b)
recognizes the potentially probative value of evidence about prior
"crimes, wrongs, or acts." The rule specifies that such evidence is
generally admissible except when it is offered to prove "the character
of a person in order to show action in conformity therewith."2
_________________________________________________________________
1 We have found over 60 published opinions since 1990 addressing the
rule.
2 Federal Rule of Evidence 404(b) provides in full:
4
Because the rule recognizes the admissibility of prior crimes, wrongs,
or acts, with only the one stated exception, it is understood to be a
rule of inclusion, see United States v. Aramony , 88 F.3d 1369, 1377
(4th Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997); United States
v. Russell, 971 F.2d 1098, 1106 (4th Cir. 1992), authorizing evidence
of prior acts for purposes other than character, such as "motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Fed. R. Evid. 404(b). 3 As a rule of inclusion,
_________________________________________________________________
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
3 Indeed, this circuit has found prior act evidence admissible for a wide
range of reasons unrelated to character. See, e.g., United States v.
Sanchez, 118 F.3d 192, 195 (4th Cir. 1997) (holding prior drug deals
admissible to prove knowledge of the drug trade); Aramony, 88 F.3d at
1378 (holding evidence of defendant's previous sexual advances towards
women admissible to show motive in fraudulent scheme to use company
funds for personal relationships); United States v. Ford, 88 F.3d 1350,
1362 (4th Cir.), cert. denied, 117 S. Ct. 496 (1996) (holding prior arrest
in connection with an undercover drug buy admissible to show intent to
distribute narcotics); United States v. Hayden , 85 F.3d 153, 159 (4th Cir.
1996) (holding evidence of prior witness intimidation admissible to show
criminal intent and guilty conscience); United States v. Morsley, 64 F.3d
907, 911-912 (4th Cir. 1995) (holding prior act testimony admissible to
establish the identity behind an alias); United States v. Tanner, 61 F.3d
231, 237 (4th Cir. 1995) (holding prior acts of illegal drug distribution
admissible to show modus operandi, knowledge, and absence of mis-
take); United States v. Boyd, 53 F.3d 631, 636-37 (4th Cir. 1995) (hold-
ing evidence of prior drug use admissible to show motive and the nature
of the defendant's relationship with co-conspirators); United States v.
Bengali, 11 F.3d 1207, 1213 (4th Cir. 1993) (admitting testimony of
defendant's prior extortionate acts to show motive, intent, and plan);
Russell, 971 F.2d at 1106-07 (holding evidence of defendant's extramari-
tal affairs and discharge from the Marine Corps admissible to show
motive in the murder of defendant's wife).
5
the rule's list is not exhaustive. See United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988).
The exception to admissibility under Rule 404(b) prohibits proof
of a defendant's character to show conduct in conformity therewith
because evidence of a person's character supplies an inadequate
causal link between it and the specific conduct sought to be estab-
lished. The fact that totally different types of conduct may follow
from a single type of character leaves proof of character too general,
ambiguous, and uncertain to prove specific conduct. But that realiza-
tion does not disqualify evidence of earlier specific states of mind
from proving a later similar state of mind. Thus, just as Federal Rule
of Evidence 406 recognizes the probative value of repetitive conduct,
authorizing the admission of evidence about habit and routine prac-
tice, Rule 404(b) recognizes the probative value of willful states of
mind. However, because of the complex and difficult distinction
between evidence of character and evidence of, for example, intent or
motive, the broad discretion generally given to trial judges in regulat-
ing the admissibility of evidence is, under Rule 404(b), more
restricted. Thus, we have articulated a four-prong test of admissibility
for prior-act evidence: (1) the prior-act evidence must be relevant to
an issue other than character, such as intent; (2) it must be necessary
to prove an element of the crime charged; (3) it must be reliable; and
(4) as required by Federal Rule of Evidence 403, its probative value
must not be "substantially outweighed" by its prejudicial nature. See,
e.g., Rawle, 845 F.2d at 1247. Notwithstanding the greater care
required in admitting evidence of prior acts, we still review a district
court's determinations of the admissibility of evidence under Rule
404(b) for abuse of discretion, as we do generally for evidentiary rul-
ings. See, e.g., United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.
1986).
Notwithstanding our test for application of Rule 404(b), the deci-
sions applying the test to determine whether prior-act evidence is pro-
bative of intent appear to lack consistency, perhaps because the rule's
underlying principles are so elusive. For example, in United States v.
Mark, 943 F.2d 444, 448 (4th Cir. 1981), we held that evidence of a
defendant's involvement in prior drug transactions was admissible to
prove intent in later drug trafficking incidents. Similarly, in United
States v. Bailey, 990 F.2d 119, 124 (4th Cir. 1993), we held it permis-
6
sible for a district court to admit a defendant's prior acceptances of
bribes in order to prove intent in a prosecution for vote-selling.
Indeed, we have noted that "when intent to commit a crime is at issue,
we have regularly permitted the admission of prior acts to prove that
element." Sparks v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir.
1993). On the other hand, we have also held that evidence of prior
drug transactions was inadmissible to demonstrate intent in a prosecu-
tion for other drug transactions when the former transactions were
unrelated to the charges contained in the indictment. See United
States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992). And simi-
larly, in United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir.
1992), we held that a conviction for an earlier assault was inadmissi-
ble to show intent for a later charge of assault even where the defen-
dant had placed intent at issue by pleading self-defense to the later
charge.
These seemingly contradictory holdings have led to some confu-
sion over what principles should be used to guide courts' discretion
in considering evidence under Rule 404(b). Accordingly, it will be
instructive to identify the dangers that Rule 404(b) was intended to
avoid.
The principal danger that Rule 404(b) targets is addressed by the
language of the rule itself -- that defendants not be convicted simply
for possessing bad character. See Michelson v. United States, 335
U.S. 469, 475-76 (1948) (explaining that propensity evidence is
excluded because it might "overpersuade" a jury and cause them to
"prejudge one with a bad general record"); Wigmore on Evidence
§ 58.2, at 1215 (Tillers rev. 1983) (noting the concern courts have felt
over "the overstrong tendency to believe the accused guilty of the
charge merely because he is a likely person to do such acts"). This
danger is compounded by the idea that juries might face defendants
whom the government has brought forth merely because it has
"rounded up the usual suspects" who have a history of prior bad acts.4
_________________________________________________________________
4 The archetype of this practice appears at the conclusion of the movie
Casablanca, where Police Captain Louis Renault, in attempting to dem-
onstrate a response to the politically sensitive murder of Major Strasser,
simply instructs his deputies to "round up the usual suspects."
7
There are two other dangers that Rule 404(b) addresses. First, it
protects against juries trying defendants for prior acts rather than
charged acts, and guards against juries becoming confused by the pur-
pose of the admitted acts and using the acts improperly in arriving at
a verdict. See Michelson, 335 U.S. at 475-76; Wigmore, supra, at
1215 (noting "the tendency to condemn not because the accused is
believed guilty of the present charge but because he has escaped
unpunished from other offenses"). And second, it protects against the
"trial by ambush" that would occur if one were confronted at trial not
only with acts alleged in the indictment but also with prior acts from
the span of one's entire lifetime. Such a trial would be nearly impossi-
ble to prepare for effectively. Indeed, the history of the limitation on
other-act evidence indicates that the genesis of the exclusion arose in
response to abuses in the seventeenth-century English courts, particu-
larly the Star Chamber. See Thomas J. Reed, Trial by Propensity:
Admission of Other Criminal Acts Evidenced in Federal Criminal
Trials, 50 U. Cin. L. Rev. 713, 716 (1981). In the Star Chamber, pros-
ecutors prepared the evidence for unspecified charges in advance of
trial, giving defendants little opportunity to reply or defend. Id. Wor-
ried about such abuses, English courts began, not long after the aboli-
tion of the Star Chamber, to place limitations on evidence presented
outside the scope of the charge. See Wigmore, supra, § 58.2, at 1213-
16 nn.1-2.
Even though Rule 404(b) recognizes the existence of these dangers
and seeks to minimize their risk, it also recognizes that "[e]xtrinsic
acts evidence may be critical to the establishment of the truth as to
a disputed issue, especially when that issue involves the actor's state
of mind and the only means of ascertaining that mental state is by
drawing inferences from conduct." Huddleston v. United States, 485
U.S. 681, 685 (1988). Once an act is assumed to be done, "the prior
doing of other similar acts . . . is useful as reducing the possibility that
the act in question was done with innocent intent. The argument is
based purely on the doctrine of chances, and it is the mere repetition
of instances . . . that satisfies our logical demand." Wigmore on
Evidence, § 302, at 245 (Chadbourn rev. 1979)(footnote omitted). But
in order for repeated actions to have probative value, the earlier
actions must be similar in nature to the charged acts. Mark, 943 F.2d
at 448; Rawle, 845 F.2d at 1247 n.3; Wigmore, supra, at 245 ("[T]he
essence of this probative effect is the likeness of the instance"). This
8
similarity may be demonstrated through physical similarity of the acts
or through the "defendant's indulging himself in the same state of
mind in the perpetration of both the extrinsic offense and charged
offenses." United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978). The more similar the extrinsic act or state of mind is to the act
involved in committing the charged offense, the more relevance it
acquires toward proving the element of intent. Furthermore, when
only a defendant's similar acts are introduced, the concern that a
defendant is being tried merely for having a bad character is some-
what allayed. The similarity of the acts not only provides a logical
nexus between the extrinsic act and the charged act, but also provides
a cognizable divide between the kinds of evidence that are introduced
to show a particular intent and those that are introduced only to show
a much more generalized intent (and therefore propensity to commit
crime in general). See Wigmore, supra , at 247 n.5 (stating that where
courts admit dissimilar other crime evidence, "the inference of intent
arises only if the inference of bad character is first drawn").
Thus, when the mental state of a defendant is at issue, similar acts
that do not strongly implicate the dangers that Rule 404(b) was
designed to protect against may be admitted as evidence relevant to
and probative of intent. For example, in cases where identity is not
at issue, the fear that the defendant is on trial for being a "usual sus-
pect" diminishes. In cases where the trial judge has given a limiting
instruction on the use of Rule 404(b), the fear that the jury may
improperly use the evidence subsides. And in cases where the prose-
cution has notified the defendant of its intent to use particular Rule
404(b) evidence and where there is no evidence that the prosecution
is placing the defendant's entire earlier life on trial, the fear of a "trial
by ambush" recedes.
These observations about the purposes of Rule 404(b) suggest fur-
ther qualifications to the test we articulated in Rawle. Thus, we hold
that evidence of prior acts becomes admissible under Rules 404(b)
and 403 if it meets the following criteria: (1) The evidence must be
relevant to an issue, such as an element of an offense, and must not
be offered to establish the general character of the defendant. In this
regard, the more similar the prior act is (in terms of physical similar-
ity or mental state) to the act being proved, the more relevant it
becomes. (2) The act must be necessary in the sense that it is proba-
9
tive of an essential claim or an element of the offense. (3) The evi-
dence must be reliable. And (4) the evidence's probative value must
not be substantially outweighed by confusion or unfair prejudice in
the sense that it tends to subordinate reason to emotion in the factfind-
ing process. Also, additional protection against the pitfalls the rule
protects against may be provided by (1) a limiting jury instruction,
when requested by a party, explaining the purpose for admitting evi-
dence of prior acts, and (2) the requirement in a criminal case of
advance notice, when so requested, of the intent to introduce prior act
evidence. When Rule 404(b) is administered according to these rules,
it will not, we believe, be applied to convict a defendant on the basis
of bad character, or to convict him for prior acts, or to try him by
ambush. But it will yet allow the admission of evidence about similar
prior acts that are probative of elements of the offense in trial.
Turning now to the case before us, the evidence of Queen's prior
acts in witness tampering was specifically offered to prove the intent
element essential to proving witness tampering under 18 U.S.C.
§ 1512(b)(1); it was not offered to prove Queen's character as a bad
actor or a criminal. Indeed, the high degree of similarity between the
prior acts and the act with which Queen was charged supports the
finding that the acts were relevant to intent. Moreover, the district
court wisely instructed the jury that it could only consider the prior-
act evidence to infer the element of intent. Because we believe that
the jury could reasonably have taken the similar prior acts as evidence
tending to make it less probable that Queen's intent in visiting Isaacs
was for an innocent purpose, the evidence was relevant.
Queen argues, however, that the evidence could only be used to
prove character because intent was not truly at issue in this case. He
notes that he offered to stipulate that if the jury found Isaacs' testi-
mony that Queen threatened and attempted to bribe her to be true,
then the government would have demonstrated the requisite intent.
Thus, he argues, it is not intent that is at issue but witness credibility.
As we understand this argument, Queen attempts to preclude the
admission of prior-acts evidence by his conditional stipulation to the
intent element. The government, however, did not agree to this stipu-
lation, nor was it required to do so. Not only could a conditional stip-
ulation become a source of jury confusion, but also, and perhaps more
importantly, the government, which has the burden of proving every
10
element of the crime charged, must have the freedom to decide how
to discharge that burden. It could well have believed that prior-act
evidence was necessary, in view of attacks on witness credibility, to
bolster its proof of intent.
Queen also argues that the government never showed that nine-
year old evidence of intent was probative of intent in this case. That
argument amounts to a contention that the 1986 evidence was not rel-
evant because it did not make Queen's intent more probable than
without the evidence. See Fed. R. Evid. 401. The rules of evidence
give trial judges broad discretion in evaluating whether evidence is
probative, requiring only a "plus value" to make it admissible.
Wigmore, supra, § 29, at 976 (Tillers rev. 1983). Once admitted, its
value or weight is determined by the jury. As Professor Wigmore
characterizes that interplay,
the evidentiary fact offered does not need to have strong,
full, superlative, and probative value and does not need to
involve demonstration or to produce persuasion by its sole
and intrinsic force but merely needs to be worth consider-
ation by the jury. It is for the jury to give the fact the appro-
priate weight in effecting persuasion.
Id. We believe that the evidence of prior similar acts offered in this
case to prove a substantive element of an offense are "worth consider-
ation" by a jury and that the district court did not abuse its discretion
in finding nine-year-old evidence probative to some positive degree,
particularly when the defendant has spent many of those intervening
nine years in prison.
Having affirmed, therefore, that the prior act testimony was rele-
vant, we move on to consider whether the district court properly
determined that the evidence met the other prongs of our four-part
test, that is, whether it was necessary, reliable, and properly balanced
under Rule 403.
Evidence is necessary where, considered in the "light of other evi-
dence available to the government," United States v. DiZenzo, 500
F.2d 263, 266 (4th Cir. 1974), it is an "essential part of the crimes on
trial, or where it furnishes part of the context of the crime." Mark, 943
11
F.2d at 448 (internal citation and quotation marks omitted). In this
case, the government presented the prior-act evidence in order to
prove intent, which is an essential element of the crime charged.
Because the government's case for intent rested solely on the testi-
mony of Isaacs and one other witness, the similar prior-act evidence
was important in making the case that Queen possessed the requisite
intent to tamper with witnesses. The evidence was, therefore, "neces-
sary."
There was also sufficient evidence that the witnesses testifying to
the prior acts were reliable. Both were cross-examined prior to trial
and both had testified to Queen's threats against them before the ear-
lier trial. Queen argues that the witnesses' reliability was damaged
because the two witnesses were testifying pursuant to agreements for
favorable treatment in their cases. We have noted, however, that
while a defendant may always impugn witnesses' credibility on the
basis of bias, "there is the countervailing consideration that self-
exposure to a perjury charge is unlikely. The plea bargainer's position
frequently makes him extremely reluctant to commit another crime or
crimes and thus lay himself open to greater punishment." United
States v. Hadaway, 681 F.2d 214, 218 (4th Cir. 1982).
Finally, in weighing the evidence under Rule 403, the district court
concluded that while it was prejudicial, it was only prejudicial
because it was so highly probative. There is no suggestion that the
prior testimony would invoke emotion in place of reason as a deci-
sionmaking mechanism. Moreover, there is no evidence that the prior
testimony tended to cause any confusion with respect to the charges
actually lodged against Queen.
The other historical dangers addressed by Rule 404(b) -- risk of
juror confusion and trial by ambush -- were never present in this case
and were not the basis of Queen's challenge. Any potential for confu-
sion that the prior acts were the actual acts charged in this case was
certainly eliminated by the court's instruction to the jury, if it was not
eliminated by the arguments of counsel. And the government pro-
vided Queen with advance notice of the evidence, allowing him the
opportunity not only to prepare adequately but also to cross-examine
the proffered witnesses.
12
For the foregoing reasons, we conclude that the district court prop-
erly applied both Rule 404(b) and Rule 403 and did not abuse its dis-
cretion in admitting the evidence of Queen's prior acts.
III
Queen also contends that the district court erred in instructing the
jury that it could find a conspiracy beginning anytime "within or rea-
sonably near to the [time] window" alleged in the indictment. He
argues that the jury must find that the conspiracy began near the start-
ing date alleged in the indictment, and not simply near any date in the
time window. Alternatively, he argues that if the jury could find that
a conspiracy began much later than the alleged starting date, then the
district court should have limited the use of evidence of Hester's
actions before that date. Finally, he argues that the district court
should have at least instructed the jury that his attorney was not at
fault for arguing that it could not find a conspiracy that began sub-
stantially later than the starting date alleged in the indictment.5
_________________________________________________________________
5 The district court instructed the jury:
[T]he charges that are set out in the indictment regarding the
conspiracy count, indicate that the offense was committed on or
about a certain date or dates, but the proof need not establish
with certainty the exact date of the alleged offense. It is suffi-
cient if the evidence establishes beyond a reasonable doubt the
offense was committed on a date reasonably near the date
alleged.
During deliberations, the jury asked the court whether the conspiracy
needed to begin near the starting date mentioned in the indictment or
only within the window created by the starting and ending dates. Over
objection, the court submitted the following answer to the jury:
With respect to the conspiracy charge, if you find beyond a rea-
sonable doubt that a conspiracy as charged in the indictment
came into existence at any point in time within or reasonably
near to the window from February 1994 to March 1995, and that
Mr. Queen knowingly joined in the conspiracy at some point
within or reasonably near to that same window, then the first two
elements of proof as to the conspiracy charge are satisfied.
The court then rejected suggested supplemental instructions that the
defense counsel's statements in closing argument had been accurate as
to the original instruction.
13
Although we have not previously addressed in any comprehensive
way the issue of whether the trier of fact must find that the starting
date of a conspiracy coincide with the starting date alleged in the
indictment, we conclude that it need not do so. Rather, the trier of fact
may find that the starting date of a conspiracy begins anytime in the
time window alleged, so long as the time frame alleged places the
defendant sufficiently on notice of the acts with which he is charged.
Cf. Harms v. United States, 272 F.2d 478, 482 (4th Cir. 1959) (hold-
ing that an instruction that limited the jury's ability to find a conspir-
acy to finding conspiracies starting 14 months after the starting date
alleged in the indictment was proper); Berger v. United States, 295
U.S. 78, 82 (1935). The indictment in this case specifically alleges
which acts were part of the ongoing conspiracy. It mentions the name
of the witness who was the object of tampering, suggests a number
of events in the conspiracy, and names a co-conspirator. Queen was
sufficiently on notice of both of the charges against him to enable him
to defend himself effectively and to prevent re-prosecution for the
same offense. See United States v. Smith, 44 F.3d 1259, 1263-64 (4th
Cir. 1995). Against this background, the district court did not err in
instructing the jury that it could find that the acts occurred anytime
within the alleged window.
In any event, the error that Queen assigns would not affect the dis-
position of this case. In order for a variance between the initial charge
and the instruction given to the jury to be reversible error, it must
affect the substantial rights of the defendant. Kotteakos v. United
States, 328 U.S. 750, 756 (1946); Berger, 295 U.S. at 82. Minor dis-
crepancies from the indictment do not create reversible error, United
States v. Fletcher, 74 F.3d 44, 53 (4th Cir. 1996), and "[w]here a par-
ticular date is not a substantive element of the crime charged, strict
chronological specificity or accuracy is not required," United States
v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994), quoting United
States v. Morris, 700 F.2d 427, 429 (1st Cir. 1983). In this case, the
specificity of the indictment's allegations "fairly [apprised] the defen-
dant of the crimes with which he was charged," Kimberlin, 18 F.3d
at 1159, quoting Land v. United States, 177 F.2d 346, 348 (4th Cir.
1949), and the date of the conspiracy was not a substantive element
of the crime of conspiracy. Even if an improper variance had existed,
it would not have impinged on Queen's substantial rights.
14
Furthermore, the district court's decision not to give the defen-
dant's offered limiting instructions to the jury was a reasonable exer-
cise of its discretion. "A district court's refusal to provide an
instruction requested by a defendant constitutes reversible error only
if the instruction: `(1) was correct; (2) was not substantially covered
by the court's charge to the jury; and (3) dealt with some point in the
trial so important, that failure to give the requested instruction seri-
ously impaired the defendant's ability to conduct his defense.'"
United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995), quoting United
States v. Camejo, 929 F.2d 610, 614 (11th Cir. 1991) (internal quota-
tions omitted). Because we find that the instruction did not seriously
impair Queen's ability to defend himself, we need not address
whether the instructions satisfied the first two elements of the test
articulated in Lewis.
Queen's request for a limitation on the evidence of Hester's earlier
acts was not of sufficient importance as to have significantly impaired
his ability to defend himself. Queen was aware that evidence of Hes-
ter's acts would be introduced at trial because the indictment charged
that Hester's acts were part of the conspiracy. Furthermore, the gov-
ernment presented ample evidence for the period of March 1995 alone
to convict Queen of conspiracy. Indeed, the jury's question suggests
that its concern was whether it could find a conspiracy only from
events after the start of the indictment's time frame. In these circum-
stances, we cannot find that the trial court's failure to limit the use of
Hester's early acts was so important as to have seriously diminished
Queen's ability to defend himself.
Similarly, the district court's decision not to explain to the jury that
Queen's attorney had, during his closing argument, relied on ambigu-
ous language in the original instruction was a permissible exercise of
discretion. Although the supplemental instruction may have under-
mined defense counsel's argument, the instruction stated the law
properly. We do not reverse judgments for jury instruction errors
where "the charge was not misleading and contained an adequate
statement of the law." United States v. United Med. and Surgical Sup-
ply Corp., 989 F.2d 1390, 1407 (4th Cir. 1993), quoting United States
v. Park, 421 U.S. 658, 675 (1975). Furthermore, the instruction did
not refer either to counsel or to counsel's argument. Instead, the
15
instruction fairly responded to the jury question in a non-prejudicial
manner. See id.
IV
Finally, Queen challenges his sentence, contending that the district
court, in adjusting his offense level upward by two levels based on
perjury, failed to make findings detailed enough to satisfy the require-
ments for an upward adjustment outlined in United States v.
Dunnigan, 507 U.S. 87 (1993).
Under Dunnigan, in order to make an adjustment for perjury, a
court must find that all of the elements of perjury were present in the
defendant's testimony. That is, the court must find that the defen-
dant's testimony was untruthful as to a material matter, and that the
false testimony was willful. Id. at 94-95. Although "it is preferable for
a district court to address each element of the alleged perjury in a sep-
arate and clear finding," id. at 95, the court may nevertheless make
the upward adjustment whenever it finds all three elements of perjury.
Here, the district court found that Queen's testimony was "false" and
that Queen gave this false testimony, "knowing it to be false and
material." That, we conclude, is sufficient.
Accordingly, we affirm Queen's conviction and sentence.
AFFIRMED
16