United States v. Stewart

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 98-4155

ROGER WINFRED STEWART,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 98-4177

DENNEVER LIVINGSTON, a/k/a Fatta,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JUNIOR ANTHONY SIMMS, a/k/a
No. 98-4192
Glandan Steve Lynch, a/k/a Steve
Brown, a/k/a Leroy Sims, a/k/a Eric
Brooks, a/k/a "Tallest," a/k/a
"Sammo," a/k/a Mike Smith,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-97-39)
Argued: December 5, 2000

Decided: July 6, 2001

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded with instructions by
published opinion. Judge Williams wrote the opinion, in which Judge
Michael and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Samuel Warrenton Meekins, Jr., WOLCOTT, RIVERS,
WHEARY, BASNIGHT & KELLY, P.C., Virginia Beach, Virginia,
for Appellant Livingston; Christopher Ford Cowan, COWAN,
NORTH & LAFRATTA, L.L.P., Richmond, Virginia, for Appellant
Stewart; Charles Russell Burke, Virginia Beach, Virginia, for Appel-
lant Simms. Fernando Groene, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: David M. Bastiaans,
WOLCOTT, RIVERS, WHEARY, BASNIGHT & KELLY, P.C.,
Virginia Beach, Virginia, for Appellant Livingston. Helen F. Fahey,
United States Attorney, Sharilyn Yountz, Third Year Law Student,
Norfolk, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

In these consolidated appeals, Roger Winfred Stewart, Dennever
Livingston, and Junior Anthony Simms (collectively,"Appellants"),
raise numerous challenges to their convictions and sentences follow-
ing a federal jury trial in which each was found guilty of various
charges related to money laundering and/or drug trafficking.1 1 Finding
_________________________________________________________________
1 Forty-three persons were included in the indictment. Of those, only
four pleaded not guilty and went to trial. The fourth co-defendant, Rich-
ard Willis Teagle, became seriously ill and was granted a mistrial for
health reasons.

2
no reversible error with respect to Simms, we affirm his convictions
and sentences. However, we vacate Stewart's convictions, sentences,
and assessments due to improper venue. We also remand for the dis-
trict court to vacate Livingston's substantive money laundering con-
victions under Counts 115-120 as multiplicitous and to strike any
assessments applicable to those counts. We affirm the remainder of
Livingston's convictions and sentence.

I.

A.

From 1991 through 1997, Stewart, Livingston, and Simms were
involved in various roles in the bi-coastal distribution of large quanti-
ties of marijuana. Livingston obtained marijuana in Los Angeles, Cal-
ifornia from Mexican suppliers and shipped it to cities in the Eastern
District of Virginia and elsewhere via overnight courier. Simms was
one of the conspirators who retrieved the marijuana in Virginia and
repackaged and redistributed it to wholesalers. Once the marijuana
was distributed, Simms, along with other conspirators, collected the
drug proceeds and sent them back to Livingston in Los Angeles, via
Western Union money transfers and in parcels sent by overnight cou-
rier.

Livingston recruited various persons, including Stewart, to receive
the wire transfers and money parcels in Los Angeles. From February
1994 to March 1997, Stewart received 136 Western Union wire trans-
fers in Los Angeles totaling $345,840. Additionally, from October
1995 to April 1997, Stewart received 56 parcels of overnight mail in
Los Angeles containing money from drug proceeds. After receiving
the packages and money from Western Union, Stewart would deliver
the packages and money to Livingston.

B.

In April 1997, Stewart, Livingston,22 and Simms were indicted in
_________________________________________________________________
2 At the time of the indictment, the Government was unaware of Liv-
ingston's true identity and referred to him in the indictment as John Doe
a/k/a "Fatta." Upon discovering Livingston's identity, the Government
arrested him in August 1997, he was arraigned in September 1997, and
on October 20, 1997, Livingston was ordered to be tried with Stewart
and Simms.

3
the United States District Court for the Eastern District of Virginia on
the following charges: (1) conspiracy to possess with the intent to dis-
tribute and distribution of more than one thousand kilograms of mari-
juana, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999) and § 846
(West 1999 & Supp. 2000); (2) conspiracy to engage in money laun-
dering, in violation of 18 U.S.C.A. § 1956(h) (West 2000); and (3)
money laundering to promote and disguise drug trafficking, in viola-
tion of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West 2000). Under the same
indictment, Livingston and Simms were charged with money launder-
ing to promote and disguise drug trafficking, in violation of 18
U.S.C.A. § 1956(a)(1)(B)(i) (West 2000). Livingston and Simms also
were charged with possession with intent to distribute marijuana, in
violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2 (West
2000), and Simms was indicted on a charge of engaging in a continu-
ing criminal enterprise ("CCE"), in violation of 21 U.S.C.A. § 848
(West 1999 & Supp. 2000), and on charges of illegal use of a commu-
nication device, in violation of 21 U.S.C.A. § 843(b) (West 1999 &
Supp. 2000), and 18 U.S.C.A. §§ 2 & 3237(a) (West 2000). In July
1997, Simms was indicted on one count of attempted possession with
intent to distribute cocaine, in violation of 18 U.S.C.A. § 2, one count
of possession with intent to distribute cocaine, in violation of 21
U.S.C.A. § 841(a)(1), and three counts of knowingly carrying a fire-
arm during and in relation to a drug trafficking crime, in violation of
18 U.S.C.A. § 924(c)(1) (West 2000).

Following a jury trial that began on October 20, 1997 and con-
cluded on November 13, 1997, Stewart was found guilty of eleven
counts of money laundering to promote and disguise drug trafficking
and was found not guilty of all conspiracy charges. Livingston was
found guilty of one count of conspiracy to possess with intent to dis-
tribute marijuana, one count of possession with intent to distribute
marijuana, one count of conspiracy to launder money, and twelve
counts of money laundering to promote and disguise drug trafficking.
Simms was found guilty of one count of conspiracy to possess mari-
juana with the intent to distribute, one count of operating a CCE, one
count of conspiracy to launder money, forty-six counts of money
laundering to promote and disguise drug trafficking, four counts of
illegal use of a communication device, six counts of possession with
intent to distribute marijuana, and three counts of knowingly carrying
a firearm during and in relation to a drug trafficking offense. Simms

4
was found not guilty of attempting to possess with intent to distribute
cocaine and of possession with intent to distribute cocaine, and, on
Simms's motion prior to the jury's verdict, the district court dismissed
one count of illegal use of a communication device.

Stewart was sentenced to concurrent sentences of 135 months
imprisonment on each of his eleven money laundering convictions.
Stewart received three years of supervised release and was ordered to
pay a special assessment of $950.00. Livingston was sentenced to 360
months imprisonment, consisting of concurrent sentences of 360
months on his conviction for conspiracy to possess marijuana with
intent to distribute and 240 months on each of his other convictions.
Livingston received ten years of supervised release and was ordered
to pay a special assessment of $1,500. Simms was sentenced to 832
months imprisonment, consisting of 292 months for operating a CCE,
60 months for one count of carrying a firearm during and in relation
to a drug trafficking offense, and 240 months each for the remaining
two counts of carrying a firearm during and in relation to a drug traf-
ficking offense, all of which were imposed consecutively. Simms's
term of imprisonment also consisted of 292 months on the conspiracy
to launder money charge, 240 months on each of Simms's forty-six
convictions for money laundering to promote and disguise drug traf-
ficking, 48 months on each of his four convictions for illegal use of
a communications device, 60 months on each of his five convictions
for possession with intent to distribute marijuana, and 240 months on
Simms's final conviction for possession with intent to distribute mari-
juana, all of which were imposed concurrently. Simms received five
years of supervised release and was ordered to pay a special assess-
ment of $4,800.

Stewart, Livingston, and Simms filed their notices of appeal on
February 26, February 27, and February 28, respectively, from their
convictions and sentences. On March 11, 1998, we consolidated these
appeals.

On appeal, Stewart challenges his money laundering convictions
on several grounds, including improper venue. Livingston challenges
the district court's refusal to grant Livingston a mistrial, its denial of
his motion to dismiss for improper venue, its denial of his motion for
continuance, the district court's refusal to strike one set of money

5
laundering counts as multiplicitous, the sufficiency of the evidence as
to money laundering, the sufficiency of the evidence as to possession
with intent to distribute marijuana, the sufficiency of the evidence as
to conspiracy to possess with intent to distribute marijuana, whether
the district court violated Apprendi v. New Jersey, 530 U.S. 466
(2000), by failing to instruct the jury that it had to determine drug
quantity and type beyond a reasonable doubt, whether the district
court erred in computing drug weights when determining Livingston's
base offense level, and whether the district court erred by applying a
two level enhancement for obstruction of justice. Simms argues that
his CCE conviction should be reversed because the district court
failed to instruct the jury that they were required to agree unani-
mously on the specific violations comprising the"continuing series of
violations" of the CCE. Simms also argues that his CCE conviction
should be reversed because the evidence failed to prove that he acted
as a manager, supervisor, or organizer in furtherance of the predicate
offenses of the CCE or that he worked in concert with five or more
others. Finally, Simms alleges that his convictions for possession of
marijuana with intent to distribute should be reversed pursuant to
Apprendi because the Government failed to include drug quantity or
type in the indictment or the jury charge. We address each of the
Appellants' challenges in turn.

II. STEWART

A.

We first address Stewart's challenge to the district court's denial
of his motion to dismiss his money laundering counts for improper
venue. Specifically, Stewart argues that because the overt acts consti-
tuting his money laundering convictions took place only in California
and not in Virginia, the Eastern District of Virginia was the improper
venue to bring charges against him. We review de novo the district
court's ruling denying Stewart's motion to transfer venue. United
States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993).

Article Three of the United States Constitution provides, "[T]rial of
all Crimes . . . shall be held in the State where the said Crimes shall
have been committed." U.S. Const. art. III, § 2, cl. 3; see also U.S.
Const. amend. VI ("[I]n all criminal prosecutions, the accused shall

6
enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed.");
Fed. R. Crim. P. 18 ("[P]rosecution shall be had in a district in which
the offense was committed . . . .").

B.

Before turning to the merits of Stewart's venue argument, we first
must address whether Stewart properly objected to venue before the
district court. Stewart did not file a written motion objecting to venue.
Instead, Livingston filed such a motion, and during Livingston's argu-
ment to the district court regarding venue, Stewart stated:

Your Honor, just so the court will have it absolutely clear
in its mind, I don't think there is any allegation[ ] that Roger
Stewart was ever in the Eastern District of Virginia, either
before the marshals brought him here pursuant to this indict-
ment . . . . For whatever that's worth.

(JA 331.) Although the Government conceded at oral argument that
this statement sufficed to inform the Government that Stewart was
joining in Livingston's motion to object to venue, the Government
contends that Stewart's statement does not constitute a proper objec-
tion sufficient to preserve the venue issue for appeal.

If an objection to venue is not raised in the district court, the issue
is waived on appeal. United States v. Dabbs, 134 F.3d 1071, 1078
(11th Cir. 1998); United States v. Santiesteban , 825 F.2d 779, 783
(4th Cir. 1987); United States v. Winship, 724 F.2d 1116, 1124 (5th
Cir. 1984). A defendant, however, does not waive his venue objection
by failing to file a written pleading. United States v. Stratton, 649
F.2d 1066, 1077-79 (5th Cir. 1981).

Because proper venue is a constitutional right, waivers of venue
rights through failure to object should not readily be inferred. Win-
ship, 724 F.2d at 1124 n.7. In Winship, the Fifth Circuit held that a
venue objection was preserved sufficiently because the defendants
moved for a bill of particulars requesting that the Government state
more particularly where the charged criminal acts occurred. See id.

7
Although the Fifth Circuit noted that the bill of particulars did not
explicitly constitute a venue objection, it held that the general bill of
particulars precluded a finding of waiver. See id. Similarly, in Strat-
ton, the Fifth Circuit held that a co-defendant had properly preserved
a venue objection when the district court asked him whether he
adopted his co-defendants' motions to change venue and he answered
"that he stood `neutral, since he knew of no grounds to object to [the
change of venue] motions.'" Stratton, 649 F.2d at 1077. We agree
with the Fifth Circuit that ambiguity as to the defendant's intent to
waive venue should be interpreted in favor of the defendant, in light
of the constitutional underpinning of the defendant's right to proper
venue.

Additionally, in determining whether Stewart objected to venue in
a manner sufficient to preclude a finding of waiver, we must look to
the purposes of the contemporaneous objection rule."[O]ne of the
fundamental purposes of the contemporaneous objection rule is to
protect judicial resources, in particular by ensuring that the trial courts
will have an opportunity to avoid errors that might otherwise necessi-
tate time-consuming retrial." United States v. David, 83 F.3d 638,
644-45 (4th Cir. 1996). A second purpose of the contemporaneous
objection rule is to prevent counsel from "`sandbagging' the courts by
withholding a valid objection from the trial court in order to obtain
a new trial when the error is recognized on appeal." Id. at 645. Here,
both purposes were served sufficiently by Stewart's statement to the
district court that he was in a similar position to Livingston with
respect to the issue of venue. The Government concedes that it under-
stood Stewart to be challenging venue and proceeded to argue that
venue was proper with respect to both Livingston and Stewart. This
provided the district court with the opportunity to rule on venue as to
Stewart. Accordingly, we find Stewart's statement to the district court
sufficient to have preserved the venue issue for appeal.

C.

The issue, therefore, is whether Stewart committed any overt acts
of the money laundering offenses in the Eastern District of Virginia.
Stewart argues that the offenses occurred entirely in California. The
Government argues that by statute, Congress has made venue proper
for continuing offenses in any district "in which such offense was

8
begun, continued, or completed," 18 U.S.C.A.§ 3237(a), and Stew-
art's offenses, while completed in California, were begun in the East-
ern District of Virginia.

The Government first argues that Stewart's money laundering
offenses constitute continuing offenses for purposes of establishing
venue under § 3237(a) because the funds were generated from drug
trafficking that took place in the Eastern District of Virginia. In
United States v. Cabrales, 524 U.S. 1 (1998), the United States
Supreme Court rejected the Government's argument. Id. at 7-9. In
Cabrales, the money that Cabrales allegedly laundered was deposited
in the AmSouth Bank of Florida and was withdrawn in Florida
through four separate transactions. Id. at 4. The money deposited and
withdrawn was traceable to the specified unlawful activity of illegal
drug trafficking of cocaine in Missouri. Id. at 4. The Supreme Court
held that Cabrales's money laundering charges did not constitute con-
tinuing offenses for purposes of § 3237(a) and that the generation of
the funds through drug trafficking in Missouri was insufficient to
establish venue in Missouri. Id. at 7-9.

In Cabrales, the Court delineated a possible exception to its rule
that money laundering typically does not constitute a continuing
offense, triable both in the district where the illegal funds were gener-
ated and the district in which the financial transaction took place. It
stated that "[m]oney laundering . . . arguably might rank as a continu-
ing offense, triable in more than one place, if the launderer acquired
the funds in one district and transported them into another." Id. at 8.
This exception is inapplicable to Stewart. Stewart's role in the money
laundering was limited to that of a courier, who was responsible for
receiving money transfers and packages in California. Stewart han-
dled money only in California and was not responsible for or charged
with the transportation of the money from Virginia to California. He
testified that he simply signed for the packages and the money trans-
fers in California and delivered them to Livingston, who was also in
California, without opening the packages. Stewart also testified that
he had never been to Virginia, did not know anybody in Virginia, and
had never received any telephone calls from Virginia. The Govern-
ment offered no evidence to contradict this testimony. Thus, the fact
that the funds underlying Stewart's money laundering offenses were

9
generated through drug trafficking in the Eastern District of Virginia
is insufficient to establish that venue is proper in Virginia.

Nevertheless, the Government contends that Cabrales is distin-
guishable because of the nature of the financial transaction at issue.
In Cabrales, the financial transactions that were the subject of the
money laundering offenses were Cabrales's structuring of a deposit
and four withdrawals. Id. at 4. The deposit and all of the withdrawals
took place in Florida. Id. The Government argues that the financial
transactions underlying Stewart's money laundering offenses are dis-
tinct from the transaction involved in Cabrales because here, the
transactions involve Western Union transfers that began in the East-
ern District of Virginia and ended in California.

We find the Government's attempt to distinguish Cabrales unavail-
ing. In Cabrales, the funds originally derived from a district other
than the district in which the defendant handled the funds, but the
Supreme Court held that fact to be of no consequence to the venue
inquiry. See id. at 7. Instead, the Court emphasized that "the locus
delicti [of Cabrales's charged offenses] must be determined from the
nature of the crime alleged" and the location of the overt acts charged
and completed by the defendant. Id. Here, as the Government notes,
to complete the Western Union wire transfers, the senders deposited
money with Western Union in the Eastern District of Virginia. These
deposits authorized Stewart to withdraw this amount of money at a
Western Union in California. Stewart neither deposited the money nor
was responsible for the depositing of the money in Virginia; rather,
he handled the money only in California. Moreover, Stewart was not
charged with sending or transferring money through Western Union.
Instead, the indictment charged Stewart only with the receipt of funds
through Western Union. Therefore, the location of Stewart's charged
and completed overt acts comprising his money laundering offenses
consisted solely of his withdrawing funds in California, albeit funds
that were derived from illegal activity in Virginia. Accordingly, under
Cabrales, Stewart's money laundering offenses began, continued, and
ended in California for purposes of determining proper venue, and the
means by which he obtained the funds are "of no moment." Id. at 8
(internal quotation marks omitted).

Our analysis of the locus delicti of Stewart's charged offenses is
further informed by the statutory definition of"financial transaction."

10
18 U.S.C.A. § 1956(c)(4). The relevant portion of the money launder-
ing statute defines "financial transaction" as, inter alia, "a transaction
. . . involving the movement of funds by wire."§ 1956(c)(4)(A)(i).
With respect to a financial institution such as Western Union, see 31
U.S.C.A. § 5312(a)(2) (West 1983 & Supp. 2000), "transaction" is
defined as, inter alia, a deposit or a withdrawal, see 18 U.S.C.A.
§ 1956(c)(3), evidencing Congress's intent to treat a deposit and a
withdrawal as two separate transactions for purposes of the money
laundering statute. Thus, we reject as contrary to the plain text of the
money laundering statute the Government's argument that depositing
and withdrawing funds through Western Union constitutes a single
financial transaction rather than two or more separate financial trans-
actions.

Absent charges of aiding and abetting or a showing that Stewart
caused or participated in the overt acts of the depositors who were
located in the Eastern District of Virginia, venue is improper in that
district.3
3 Neither do we consider the Western Union transfer, which
necessitates two or more separate transactions, a single financial
transaction for purposes of determining venue. Thus, we vacate Stew-
art's money laundering convictions.4 4
_________________________________________________________________
3 Stewart also was charged with conspiracy to launder money. Because
Stewart ultimately was acquitted of that charge, we need not address
whether venue was proper with respect to the conspiracy count. We note,
however, that venue in the Eastern District of Virginia arguably would
have been improper on the conspiracy count with respect to Stewart
unless, during the venue hearing, the Government was able to forecast
some evidence demonstrating that Stewart, who had, at best, a very
minor role in the alleged conspiracy, knowingly and voluntarily entered
into a confederacy involving the Eastern District of Virginia. See United
States v. Cabrales, 524 U.S. 1, 9 (1998) (noting that venue would be
proper for Cabrales on the conspiracy charge only if the government
could prove that Cabrales entered into the agreement as alleged); United
States v. Bowens, 224 F.3d 302, 311 n.4 (4th Cir. 2000) ("[I]n a conspir-
acy charge, venue is proper for all defendants wherever the agreement
was made or wherever any overt act in furtherance of the conspiracy
transpires.").
4 Insofar as we vacate Stewart's money laundering convictions for
improper venue, we need not reach Stewart's other challenges to his
money laundering convictions.

11
III. LIVINGSTON

A.

Livingston first contends that the district court erred by denying his
motion for mistrial. We review the district court's denial of a motion
for mistrial for abuse of discretion. United States v. Dorlouis, 107
F.3d 248, 257 (4th Cir. 1997).

Livingston's mistrial motion arose out of a gesture he made toward
the jury, whereby Livingston pointed his fingers in the shape of a gun,
imitated squeezing the trigger, and said "pop" in the direction of the
jury during a bench conference. Livingston contends that his threaten-
ing gesture was provoked by prosecutorial misconduct. The prosecu-
tor admitted that he improperly communicated with Livingston after
Livingston walked by him on several occasions and stated, "Not
guilty, not guilty, not guilty." (J.A. at 511.) In response, the prosecu-
tor said, "Life." Livingston characterizes the prosecutor's comment as
an illegal attempt to provoke Livingston, which resulted in Living-
ston's gesture to the jury.

Initially, we note that the causal relationship between the prosecu-
tor's comment and Livingston's gesture is tenuous at best. Addition-
ally, we reject Livingston's characterization of the prosecutor's
comment as an attempt to provoke Livingston. To the contrary, the
district court made a factual finding on the record that the prosecu-
tor's comment was not intended to provoke Livingston; rather, Liv-
ingston provoked the prosecutor's comment. Insofar as Livingston
has failed to demonstrate that this factual finding is clearly erroneous,
we are bound by it. See United States v. Smith , 44 F.3d 1259, 1269
(4th Cir. 1995) (noting that district court's factual findings with
respect to a motion for mistrial are subject to the clearly erroneous
standard of review); cf. United States v. Meredith, 824 F.2d 1418,
1429 (4th Cir. 1987) (holding that when the prosecutor's improper
comment is invited by the defendant, the comment does not constitute
reversible error).5 5
_________________________________________________________________
5 We note that Livingston does not argue that the prosecutor's improper
comment provides an independent basis for a mistrial, nor could he suc-

12
Having concluded that Livingston's gesture was not caused by pro-
secutorial misconduct, we next address whether Livingston is entitled
to a mistrial because the threatening gesture nevertheless tainted the
jurors' ability to render a fair and impartial verdict, violating his Sixth
Amendment right. See United States v. Thompson , 744 F.2d 1065,
1068 (4th Cir. 1984). As the district court noted, granting Living-
ston's mistrial motion on the basis of Livingston's own misconduct
would subvert the judicial process and allow Livingston to benefit
from his own wrongdoing. If such behavior on the part of the defen-
dant were held to require a mistrial, "it would provide an easy device
for defendants to provoke mistrials whenever they might choose to do
so." United States v. West, 877 F.2d 281, 289 (4th Cir. 1989) (internal
quotation marks omitted); see also United States v. Harris, 2 F.3d
1452, 1456 (7th Cir. 1993) (holding that the defendant was not enti-
tled to a mistrial as the result of his own outburst during trial because
to grant the mistrial would allow the defendant to profit from his own
wrong); cf. United States v. Dockins, 986 F.2d 888, 893 (5th Cir.
1993) (holding that a defendant was not entitled to a mistrial when the
motion was based upon his own misconduct and the district court
concluded that the defendant had been trying to provoke a mistrial).
Accordingly, we hold that the district court acted within its discretion
by denying Livingston's motion for a mistrial based upon Living-
ston's own misconduct.

B.

Livingston next challenges the district court's denial of his motion
to transfer venue with respect to his twelve substantive money laun-
dering offenses and his single substantive drug offense. We review de
novo the district court's ruling denying Livingston's motion to trans-
fer venue. United States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993).
When multiple counts are alleged in an indictment, venue must be
_________________________________________________________________

cessfully advance such an argument, in that Livingston concedes that the
jury was never made aware of the prosecutor's comment. See United
States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993) (noting that for prosecu-
torial misconduct to warrant a mistrial, the misconduct must have "preju-
dicially affected the defendant's substantial rights so as to deprive the
defendant of a fair trial").

13
proper on each count. See United States v. Bowens, 224 F.3d 302, 308
(4th Cir. 2000).

1.

Livingston contends that because he was never physically present
in the Eastern District of Virginia, venue is improper in that district.
As we noted in Bowens, however, the appropriate focus for determin-
ing venue is "the place of the crime," and"[t]he inquiry into the place
of the crime may yield more than one appropriate venue, or even a
venue in which the defendant has never set foot." Id. at 309. In deter-
mining the place of the crime, we look to the location of the essential
conduct elements of the offense. Id.

Livingston was charged and convicted of money laundering under
18 U.S.C.A. §§ 1956(a)(1)(A)(i) and (a)(1)(B)(i). The financial trans-
actions underlying Livingston's money laundering offenses are essen-
tial conduct elements of the offenses. See United States v. Cabrales,
524 U.S. 1, 7 (1998). Those transactions were outlined in the indict-
ment as the "sending and receiving monies through Western Union
Financial Services, Inc., and causing the movement of funds by wire,
from the Eastern District of Virginia to various locations including
Jamaica and the greater New York, NY and Los Angeles, CA areas."
(J.A. at 207, 213.) The evidence introduced at trial demonstrated that
Livingston structured and directed a number of these financial trans-
actions. For example, Trevor Smith, Cassandra Crumble, Frederick
Dixon, and Marlon Johnson all testified that they sent money from the
Eastern District of Virginia to Los Angeles at the behest and direction
of Livingston. They testified that Livingston provided them with ali-
ases to use when wiring money from the Eastern District of Virginia.
Livingston also told the senders to whom they were to send the
money transfers and packages and provided them with addresses. The
evidence also demonstrated that Livingston was responsible for gen-
erating the drug proceeds in the Eastern District of Virginia by send-
ing packages of marijuana to distributors in that district for resale.
Additionally, while in the Eastern District of Virginia, Dixon testified
that he spoke directly with Livingston on the telephone to receive
instructions from Livingston regarding the distribution of the mari-
juana in the Eastern District of Virginia and the wire transfers from
that district to California. Thus, it is clear that Livingston was respon-

14
sible for the acquisition of the drug proceeds in the Eastern District
of Virginia and the interstate transportation of the proceeds involved
in the financial transactions from the Eastern District of Virginia to
Los Angeles, California.

As noted previously, in Cabrales, the Supreme Court delineated an
exception to its general rule that money laundering does not constitute
a continuing offense, stating that "[m]oney laundering . . . arguably
might rank as a continuing offense, triable in more than one jurisdic-
tion if the launderer acquired the funds in one district and transported
them into another." Cabrales, 524 U.S. at 8. Where, as here, Living-
ston is responsible for the acquisition of the funds in the Eastern Dis-
trict of Virginia and the subsequent interstate transportation of the
funds from the Eastern District of Virginia to Los Angeles, we have
no difficulty concluding that Livingston's conduct falls within this
exception. See id. at 7 (noting as significant that the counts at issue
did not link Calabres to, "or assert her responsibility for, acts done
by others" (emphasis added)); see also United States v. Kim, 246 F.3d
186, 192 (2d Cir. 2001) (holding that venue was proper for a substan-
tive wire fraud conviction as a continuing offense when the defen-
dant, although not the actual sender or receiver of wire transmissions,
"caused communications to be transmitted into and out of the district"
in which the defendant was tried). Thus, Livingston's money launder-
ing offenses constitute continuing offenses that properly can be tried
either in the district where the offense began, continued, or was com-
pleted. See 18 U.S.C.A. § 3237(a). Livingston's shipments of mari-
juana into the Eastern District of Virginia, along with his telephone
calls into that district instructing the distribution of the marijuana in
Virginia and the transportation of the funds back to California, and his
structuring of the financial transactions of sending and receiving the
drug proceeds from the Eastern District of Virginia to California,
demonstrate unequivocally that Livingston's money laundering
offenses began and continued in the Eastern District of Virginia. See
United States v. Gilboe, 684 F.2d 235, 237, 239 (2d Cir. 1982) (hold-
ing that venue was proper in New York for the continuing offense of
wire fraud when the defendant, who lived in Hong Kong, made sev-
eral telephone calls to New York to arrange the fraudulent conduct);
United States v. Lewis, 676 F.2d 508, 511 (11th Cir. 1982) (finding
that telephone call from Florida to Texas was sufficient to establish

15
venue in the Western District of Texas when the telephone call was
in furtherance of the offense). Thus, venue is proper in that district.

2.

Livingston next argues that his conviction for possession with
intent to distribute marijuana should be dismissed because venue is
improper in the Eastern District of Virginia. The essential conduct
element of a § 841(a)(1) offense is possession, see 21 U.S.C.A.
§ 841(a)(1); therefore, Livingston can properly be tried in any district
where he had possession of the marijuana, whether he intended to dis-
tribute the marijuana in that district or somewhere else. Livingston
contends that the overt acts underlying his substantive drug offense
occurred only in California, making venue improper in the Eastern
District of Virginia. We disagree.

Livingston's substantive drug offense, which is charged in Count
290, charges Livingston and others not only with possession with
intent to distribute marijuana in violation of 21 U.S.C.A. § 841(a)(1),
but also with aiding and abetting in violation of 18 U.S.C.A. § 2. Fur-
ther, the district court instructed the jury on aiding and abetting with
respect to Count 290. As we noted in Bowens,"a defendant who is
charged as an aider or abettor is subject to venue in any place where
the principal could be tried." Bowens, 224 F.3d at 311 n.4; cf.
Cabrales, 524 U.S. at 7 (finding venue improper in part because the
government had not charged the defendant as an aider and abettor).
Because others involved in the drug trafficking testified that they
completed essential conduct elements of the substantive offense of
possession with intent to distribute in the Eastern District of Virginia,
Livingston properly could be tried in that district as an aider or abettor.6
6
_________________________________________________________________

6 Livingston also argues that the evidence was insufficient on his sub-
stantive count of possession with intent to distribute because of the Gov-
ernment's failure to prove possession in the Eastern District of Virginia.
This argument also fails on the reasoning above because Livingston was
properly charged and convicted as an aider and abettor to the principals'
overt acts of possession in Virginia.

16
C.

Livingston next contends that the district court violated his Sixth
Amendment right to effective assistance of counsel by denying Liv-
ingston's motion for a continuance because the denial forced his
counsel to proceed to trial without an adequate amount of preparation
time. To prove abridgment of his Sixth Amendment right to effective
assistance of counsel based upon the district court's allegedly wrong-
ful denial of continuance, Livingston must prove first that the district
court abused its discretion in denying the continuance motion and sec-
ond that the denial "specifically prejudiced" his case. United States v.
LaRouche, 896 F.2d 815, 823 (4th Cir. 1990) (internal quotation
marks omitted).

Livingston maintains that the district court abused its discretion by
allowing his counsel only 46 days preparation, approximately 6
weeks, from the date of arraignment to that of trial. He points to the
amount of preparation time given his co-defendants, 152 days, as
proof that 47 days was inadequate. The Supreme Court has defined
"abuse of discretion" in the context of a denial of a motion for contin-
uance as "an unreasoning and arbitrary insistence upon expeditious-
ness in the face of a justifiable request for delay." Morris v. Slappy,
461 U.S. 1, 11-12 (1983) (internal quotation marks omitted). The
Supreme Court has noted that "broad discretion must be granted" to
district courts because "[t]rial judges necessarily require a great deal
of latitude in scheduling trials." Id. at 11.

Under this deferential standard, we do not believe the district court
abused its discretion by concluding that more than 6 weeks was an
adequate amount of time for Livingston's counsel to prepare for trial.
See LaRouche, 896 F.2d at 823-24 (holding that district court did not
abuse its discretion by denying continuance motion when counsel had
34 days to prepare from arraignment to trial). Simms and Stewart
were arraigned on May 21, 1997, and trial originally was set for Sep-
tember 11, 1997.77 In September, the Government moved for a contin-
uance for the purpose of arraigning Livingston, who had been arrested
_________________________________________________________________
7 The parties agreed that the case was complex, warranting the district
court to set the trial date beyond the 70 days allowed under the Speedy
Trial Act, 18 U.S.C.A. § 3161 (West 2000).

17
in August.88 The district court agreed that the interests of justice were
served by trying Livingston with the other defendants; thus, it granted
the Government's unopposed motion for continuance. During the
hearing on the Government's continuance motion, Livingston's co-
defendants requested that the trial be set for October 6. Livingston's
counsel indicated that a trial date of October 6 would not give him
adequate time to prepare for trial. To reasonably accommodate Liv-
ingston's request for adequate preparation time, the district court set
the trial date for October 20 rather than October 6. It noted, however,
that it would not entertain further motions for continuance, in light of
the interest of the public and the defendants in the trial commencing
within a reasonable amount of time after arraignment. Livingston then
waited until October 10, over a month later, to file a written motion
for a continuance, relying upon the complexity of the case and his dif-
ficulty in making photocopies of the relevant documents related to his
case.9
9 Considering Livingston's delay in bringing the motion and the
district court's expressed interest in accommodating the public's, Liv-
ingston's, and his co-defendants' interests in a reasonably speedy
trial, we cannot conclude that the district court acted arbitrarily or
without reason in denying Livingston's motion for continuance.
LaRouche, 896 F.2d at 824 ("The later that a motion for a continuance
is made, the more likely it is made for dilatory tactics; hence, it is less
likely that the district court arbitrarily denied the continuance.").
Accordingly, although we agree that this was a complex trial, we con-
clude that the district court did not abuse its discretion by denying
Livingston's motion.

Further, even assuming that the denial of Livingston's motion was
an abuse of discretion, Livingston is unable to demonstrate that his
convictions warrant reversal due to "specific prejudice" stemming
from the district court's denial of his motion. Id. at 825. "[I]n the
absence of circumstances giving rise to a presumption that the defen-
_________________________________________________________________
8 Livingston had not been arraigned and arrested earlier with his co-
defendants because the Government had not known his real name.
9 In support of his motion for continuance, Livingston did not contend
that he had difficulty obtaining discovery documents from the Govern-
ment. Rather, Livingston stated that he was unable to finish making pho-
tocopies of the pertinent documents because the photocopy machine he
was using "broke down." (J.A. at 305.)

18
dant's case was prejudiced, the defendant must point to specific errors
made by defense counsel that undermine confidence in the outcome
of the trial." Id. at 823. In United States v. Cronic, 466 U.S. 648
(1984), the Supreme Court held that "only when surrounding circum-
stances justify a presumption of ineffectiveness can a Sixth Amend-
ment claim be sufficient without inquiry into counsel's actual
performance at trial." Id. at 662. Surrounding circumstances that jus-
tify a presumption of ineffectiveness include either actual or construc-
tive absence of counsel during a critical stage of the trial. Id. at 660.

Allowing approximately 6 weeks of preparation time for counsel
does not result in a constructive absence of counsel giving rise to a
presumption of ineffectiveness. See Cronic, 466 U.S. at 666 (holding
that counsel, who was inexperienced, was not presumed ineffective
when given only 25 days to prepare for trial in a bank fraud case);
Avery v. Alabama, 308 U.S. 444 (1940) (holding that counsel was not
presumed ineffective when given only 3 days to prepare for a capital
case because witnesses and evidence easily were accessible). This
conclusion is bolstered by counsel's ability to prepare several pre-trial
motions, including the motion to transfer venue and a motion to quash
the indictment. These motions demonstrate that Livingston's counsel
was very familiar with the nature of the charges against Livingston
and the Government's evidence. Thus, we conclude that the circum-
stances surrounding Livingston's case were not such that prejudice
must be presumed.

Moreover, Livingston fails to "point to specific errors made by
defense counsel that undermine confidence in the outcome of the
trial." LaRouche, 896 F.2d at 823. Neither do we believe that Living-
ston could demonstrate errors sufficient to undermine confidence in
the outcome of the trial, in that the evidence against Livingston was
overwhelming, with several of his co-conspirators testifying as to the
extent of his involvement in the drug trafficking and money launder-
ing schemes. As a result, we conclude that Livingston has not estab-
lished that he was prejudiced by the denial of his motion for
continuance. Thus, the district court's denial of Livingston's continu-
ance motion does not constitute reversible error.

D.

Livingston was convicted of two sets of money laundering charges.
The first set charged him with six counts of laundering proceeds of

19
an unlawful activity with the intent to promote the carrying on of said
unlawful activity in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i)
(Counts 82, 83, 88-91), and the second set charged Livingston with
six counts of laundering proceeds of an unlawful activity with know-
ing concealment of those proceeds in violation of§ 1956(a)(1)(B)(i)
(Counts 115-120). The Government concedes that Counts 82, 83, and
88-91 are based upon the same financial transactions as Counts 115-
120, and the same evidence was used to prove each. Livingston
argues that his convictions for separate money laundering charges
based upon the same financial transactions are, under these circum-
stances, multiplicitous. See United States v. Burns, 990 F.2d 1426,
1438 (4th Cir. 1993) ("Multiplicity . . . is the charging of a single
offense in several counts." (internal quotation marks omitted)).
Because he raised this argument below, we review the multiplicity of
the money laundering charges de novo. See United States v. Hall, 972
F.2d 67, 69 (4th Cir. 1992) (noting that interpretation of a statute is
a purely legal question calling for de novo review).

In Sanabria v. United States, 437 U.S. 54 (1978), the Supreme
Court noted that the fact that a defendant uses differing means to
commit a single offense does not convert that single offense into sep-
arate offenses. See id. at 65 n.20 (citing Fed. R. Crim. P. 7(c)(1),
which provides that "[i]t may be alleged in a single count that the
means by which the defendant committed the offense are unknown or
that the defendant committed it by one or more specified means."). In
Sanabria, the Government had charged the defendant with violating
18 U.S.C.A. § 1955, which makes it a federal offense to "conduct,
finance, manage, supervise, direct, or own all or part of an illegal
gambling business." Sanabria, 437 U.S. at 56 (internal quotation
marks omitted). Pursuant to § 1955, a defendant can violate the stat-
ute in several different ways. 18 U.S.C.A. § 1955(b)(2). The indict-
ment charged two separate counts alleging violations of § 1995; one
count alleged a violation of that section by "horse betting," and one
alleged a violation of that section by "numbers betting." Id. at 61. The
Supreme Court noted that the Government erred by charging Sanabria
with two separate violations of § 1955. It stated that because the
indictment alleged only a single gambling business, only a single
offense had been charged, and the use of separate means by which the

20
offense was commited did not create separate offenses. Id. at 65-66
nn.19 & 20.10
10

Likewise, in United States v. Kimbrough, 69 F.3d 723 (5th Cir.
1995), the Fifth Circuit concluded that two counts of possession of
child pornography were multiplicitous. See id. at 729. In Kimbrough,
the government charged the defendant with two counts of possession
of child pornography, in violation of 18 U.S.C.A.§ 2252(a)(4)(B)
(West 2000), based upon the same conduct and evidence. See id. The
only difference between the counts was whether the pornographic pic-
tures or the materials used to produce the pictures traveled in com-
merce. See id. Because these were two different means to accomplish
the same offense, the Fifth Circuit held that the two separate counts
amounted to "an unlawful attempt to divide a single offense into mul-
tiple offenses." Id.

Similar to the statutes at issue in Sanabria and Kimbrough, the text
of § 1956 establishes that an illegal financial transaction creates a sin-
gle offense of money laundering, and the statute sets forth various
means by which the offense of money laundering is committed.
United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999) (noting that
the promotion and concealment prongs are two different types of
mens rea that can be used to constitute the offense conduct); United
States v. Navarro, 145 F.3d 580, 585 (3d Cir. 1998) (explaining that
§ 1956 describes a single offense of money laundering and provides
for differing mental states that suffice for purposes of being convicted
under that section); United States v. Marbella , 73 F.3d 1508, 1514
(9th Cir. 1996) (noting that promotion and concealment are two dif-
ferent mens rea elements listed in the disjunctive). Section 1956
_________________________________________________________________
10 In Sanabria v. United States, 437 U.S. 54 (1978), the Supreme Court
also held that the "same evidence" test, developed in Blockburger v.
United States, 284 U.S. 299 (1932), applies only when the government
charges distinct offenses arising under "separate statutes." Id. at 70 n.24;
see also United States v. Kimbrough, 69 F.3d 723, 729-30 n.5 (5th Cir.
1995) (noting that Blockburger does not apply when the two alleged
offenses are based upon a single statute); United States v. Johnson, 130
F.3d 1420, 1426 n.2 (10th Cir. 1997) (same). Here, as in Sanabria and
Kimbrough, the Government is alleging distinct offenses based upon a
single statute.

21
describes the separate mental states that will suffice to prove the
offense conduct in the disjunctive. See§§ 1956(a)(1)(A)(i) & (B)(i)
("[W]ith the intent to promote the carrying on of specified unlawful
activity; . . . or (B) knowing that the transaction is designed in whole
or in part -- (i) to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified
unlawful activity . . . ." (emphasis added)). Because the promotion
and concealment prongs are simply two different means by which the
requisite mens rea for the single offense of money laundering may be
proven, we conclude that the fact that Livingston possessed two dif-
ferent types of mens rea while completing each financial transaction
at issue cannot create distinct offenses. Cf. United States v. Zvi, 168
F.3d 49, 56-57 (2d Cir. 1999) (holding that charging defendant for
same financial transaction under §§ 1956(a)(1)(B)(i) and (a)(2)(B)(i)
was multiplicitous); United States v. Holmes, 44 F.3d 1150, 1154-56
(2d Cir. 1995) (overturning structuring conviction as multiplicitous
with money laundering conviction where both convictions were based
upon the same financial transaction, despite two separate improper pur-
poses).11
11 Accordingly, it was improper for the district court to allow
Livingston to be convicted on two separate sets of money laundering
charges based upon the same financial transactions simply because
Livingston possessed two different mental states. 12 Insofar as Living-
ston's sentence is unaffected by the reversal of Counts 115-120,13 13 we
_________________________________________________________________
11 The Senate Report further bolsters our conclusion that separate men-
tal states do not, without more, create separate offenses under the money
laundering statute, in that it describes § 1956(a)(1) as the "basic money
laundering offense," and indicates that, to prove a violation of this single
offense, the Government must show that the defendant"either intended
to facilitate a crime or knew that the transaction was designed to conceal
the proceeds of a crime." S. Rep. No. 99-433, at 8 (1986).
12 As the Government notes, we have affirmed multiple money launder-
ing convictions under the concealment and promotion prongs based upon
the same financial transaction. United States v. Winfield, 997 F.2d 1076,
1079 (4th Cir. 1993). In Winfield, however, the issue of multiplicity was
not raised for our review. See id. at 1079 & n.3. Thus, Winfield does not
control our resolution of this issue.
13 Livingston was sentenced to 360 months on his drug conspiracy con-
viction, 240 months on his conviction for conspiracy to launder money,
240 months on his substantive money laundering convictions, and 240
months on his substantive drug possession with intent to distribute con-
viction, all of which were imposed concurrently.

22
affirm Livingston's sentence but remand for the district court to
vacate Livingston's convictions under Counts 115-120 and the sen-
tences and assessments associated with these convictions.14 14 See Ball
v. United States, 470 U.S. 856, 864-65 (1985) (holding that the sole
remedy for multiplicity is to vacate the multiplicitous convictions and
sentences); Burns, 990 F.2d at 1438-39 (holding that all but one of the
multiplicitous charges must be vacated).

E.

Livingston challenges the sufficiency of the evidence with respect
to the money laundering convictions under Counts 82, 83, and 88-91.
These counts charged Livingston with six counts of laundering pro-
ceeds of an unlawful activity with the intent to promote the carrying
on of said unlawful activity in violation of 18 U.S.C.A.
§ 1956(a)(1)(A)(i). Livingston argues that no evidence was intro-
duced establishing that his drug proceeds were used to promote his
drug trafficking operation. In evaluating the sufficiency of the evi-
dence, the jury verdict must be upheld if there exists substantial evi-
dence, including circumstantial and direct evidence, to support the
verdict, viewing the evidence in the light most favorable to the gov-
ernment. See Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Burgos, 94 F.3d 849, 862 & n.5 (4th Cir. 1996) (en banc).

Although Section 1956(a)(1)(A)(i) requires proof that illegal pro-
ceeds were spent in furtherance of the specified unlawful activity,
which in this case is drug trafficking, it does not require that the gov-
ernment "trace the money [spent in furtherance of the illegal drug
trafficking] to a particular illegal drug transaction." United States v.
Hardwell, 80 F.3d 1471, 1483 (10th Cir. 1996), rev'd in part on other
grounds after rehearing by United States v. Hardwell , 88 F.3d 897
_________________________________________________________________
14 Because we conclude that the district court must vacate these money
laundering convictions and sentences on remand, we need not address
Livingston's argument that Counts 115-120 failed to charge adequately
concealment of proceeds; nor need we address Livingston's sufficiency
of the evidence challenge with respect to these counts. See United States
v. Zvi, 168 F.3d 49, 57-58 (2d Cir. 1999) (determining that counts were
multiplicitous and vacating the count that was subject to challenge on
other grounds).

23
(10th Cir. 1996). "Evidence that a defendant was engaged in drug
trafficking and had insufficient legitimate income to produce the
money used in a transactions is sufficient to establish that the money
was derived from proceeds of drug distribution." Id.; see also United
States v. Puig-Infante, 19 F.3d 929, 940 (5th Cir. 1994) (stating that
"[a]lthough proof of [a defendant's] limited income, by itself, is insuf-
ficient to support a conviction under section 1956, evidence of a dif-
ferential between legitimate income and cash outflow is sufficient for
a money-laundering conviction, even when the defendant claims
income from additional sources" and that "the jury is entitled to con-
sider such proof in combination with additional evidence, such as evi-
dence of [a] defendant's drug trafficking" (internal quotation marks
and citations omitted) (alterations in original)). Here, viewing the evi-
dence in the light most favorable to the Government, there is suffi-
cient evidence to support the inference that Livingston reinvested
illegal proceeds into the drug trafficking operation.

The evidence that Livingston received funds from the drug traffick-
ing was overwhelming. Several of Livingston's co-conspirators testi-
fied that Livingston recruited them to ship marijuana and retrieve wire
transfers for him. Co-conspirators who operated in the Eastern Dis-
trict of Virginia testified about paying Livingston by Western Union
wire transfers or overnight express shipments of cash. One co-
conspirator identified wire tapped conversations between him and
Livingston during which the co-conspirator told Livingston the track-
ing numbers of wire transfers he was sending to Livingston in pay-
ment for marijuana.

There also was a considerable amount of evidence regarding a wide
array of purchases by Livingston that furthered the drug trafficking
operation. Livingston often purchased large quantities of marijuana
from Mexican suppliers in the presence of co-conspirators. Livingston
rented an apartment for the purpose of packaging marijuana. Jean Fil-
saime, a co-conspirator, testified that he paid Stewart for his courier
services, on behalf of Livingston, with drug proceeds. Filsaime also
testified that Livingston purchased a blue Acura, which later was used
to transport marijuana and to retrieve wire transfers. The car cost
approximately $10,000, and Livingston paid for it with cash.

No evidence was introduced establishing that Livingston had legiti-
mate employment that would support such expenditures. When asked

24
what Livingston did for a living, Filsaime testified that Livingston
dealt marijuana. When asked how Livingston made his money, Court-
ney Minors, another co-conspirator, testified that Livingston made his
money by selling marijuana.

Based upon evidence establishing both that Livingston received
large amounts of money from drug trafficking, spent large amounts
of money in furtherance of drug trafficking, and possessed insuffi-
cient legitimate income to support these expenditures, the jury was
entitled to infer that a portion of the drug proceeds were reinvested
into the drug operation. Thus, the evidence is sufficient to support
Livingston's money laundering convictions under§ 1956(a)(1)(A)(i).

F.

Livingston next challenges the sufficiency of evidence with respect
to his conviction for conspiracy to distribute marijuana. In reviewing
a conspiracy conviction, we "view[ ] the evidence and the reasonable
inferences to be drawn therefrom in the light most favorable to the
Government," and determine "whether the evidence adduced at trial
could support any rational determination of guilty beyond a reason-
able doubt." Burgos, 94 F.3d at 863 (internal quotation marks omit-
ted).

To prove a drug conspiracy, the Government must prove the fol-
lowing: "(1) an agreement with another person to violate the law, (2)
knowledge of the essential objectives of the conspiracy, (3) knowing
and voluntary involvement, and (4) interdependence among the
alleged conspirators." United States v. Heckard, 238 F.3d 1222, 1229
(10th Cir. 2001); see 21 U.S.C.A. § 846. Livingston argues that the
Government failed to establish the element of interdependence.

Interdependence is established when the activities of alleged co-
conspirators in one aspect of the charged scheme are necessary or
advantageous to the success of the activities of co-conspirators in
another aspect of the charged scheme, or the success of the venture
as a whole. See Heckard, 238 F.3d at 1231; see also United States v.
Barsanti, 943 F.2d 428, 439 (4th Cir. 1991) ("A single conspiracy
exists where there is one overall agreement, . . . or one general busi-

25
ness venture. Whether there is a single conspiracy depends upon the
overlap of the main actors, methods and goals.").

Here, the evidence overwhelmingly proves the interdependence
between Livingston and the Virginia drug distributors. The evidence
demonstrates that Livingston was the main supplier of marijuana to
a drug distribution ring in Virginia. Livingston recruited a group of
people in California to aid with the packaging of the marijuana for
shipment to Virginia, the shipment of the marijuana to Virginia, and
the receipt of the drug proceeds from Virginia. One of the Virginia
distributors testified that Livingston shipped them over seven hundred
pounds of marijuana during the course of the conspiracy and that, dur-
ing the summer of 1996, they were getting two to three boxes of mari-
juana a day, which was coming primarily from Livingston. Many of
the distributors in Virginia knew Livingston and dealt with him
directly to obtain marijuana or to send him payments for marijuana.
Cassandra Crumble testified that at one point, when the distribution
in Virginia was struggling because the marijuana supply was being
interrupted by police seizures, she notified Livingston to help solve
the problem, and Livingston increased his supply so that the distribu-
tion could become more profitable.

Viewing this evidence in the light most favorable to the Govern-
ment, the evidence demonstrates the existence of common goals,
mutual cooperation, and a long-standing business relationship
between Livingston and the Virginia distributors. United States v.
MacDougall, 790 F.2d 1135, 1146 (4th Cir. 1986) (noting that a pat-
tern of mutual cooperation between participating individuals demon-
strates the requisite level of interdependence to support a conspiracy).
The Virginia distribution ring could not have been successful without
Livingston's continuous supply of marijuana, nor could Livingston
have been successful without the distribution ring in Virginia. United
States v. Portela, 167 F.3d 687, 697 (1st Cir.1999) (noting that the
requisite level of interdependence had been established when "there
was sufficient evidence for the jury to conclude that [the appellant]
understood that his transaction's success depended on the health of
the trafficking"). Based upon the overlap of the actors, the continuous
nature of Livingston's venture with the Virginia distributors, the
amount of marijuana supplied from Livingston to the Virginia distrib-
utors, the mutual cooperation between participating individuals, and

26
the common goals between participating individuals, we conclude
that a reasonable jury could infer interdependence. United States v.
Horn, 946 F.2d 738, 741 (10th Cir. 1991) ("[I]f the activities of a
defendant charged with conspiracy facilitated the endeavors of other
alleged coconspirators or facilitated the venture as a whole, evidence
of interdependence is present."). Accordingly, the evidence was suffi-
cient to support Livingston's conspiracy conviction.

G.

Livingston next challenges his conviction and sentence under
Apprendi v. New Jersey, 530 U.S. 466 (2000), with respect to his con-
viction under Count 1 for conspiracy to possess with intent to distrib-
ute marijuana.1515 During the pendency of this appeal, the Supreme
Court held that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reason-
able doubt." Id. at 490. Livingston argues that his 360-month sentence
is invalid in light of Apprendi because, he maintains, it exceeds the
maximum statutory penalty authorized by the jury verdict. Because
Livingston failed to raise this argument before the district court, our
review is for plain error. See United States v. Olano, 507 U.S. 725,
731-32 (1993).

To establish our authority to notice an error not preserved by a
timely objection, Livingston must show: (1) that an error occurred;
(2) that the error was plain; (3) that the error affected his substantial
rights; and (4) that the error seriously affected the fairness, integrity
or public reputation of judicial proceedings. Id. at 732. Livingston
concedes that Count 1 properly charged drug quantity and type and
challenges only the jury instruction, wherein the district court
informed the jury that "[i]t is not necessary for the government to
_________________________________________________________________
15 At oral argument, when Livingston's counsel was asked what count
he was challenging on Apprendi grounds, he stated that he was challeng-
ing only the conviction and sentence under Count 1 and did not raise
Apprendi with respect to his conviction and sentence under Count 290
for his substantive charge of possession with intent to distribute. There-
fore, to the extent an Apprendi argument was available as to Count 290,
we consider it waived.

27
prove the exact or precise amount of controlled substances alleged in
the indictment." (T.T. at 78). Because the indictment properly charged
drug quantity and type, the only error is with respect to the jury
instruction. We have recently held that drug quantity and type are ele-
ments of § 841. United States v. Promise , No. 99-4737, ___ F.3d ___
(4th Cir. June 29, 2001) (en banc); United States v. Angle, No. 96-
4662, ___ F.3d ___ (4th Cir. June 29, 2001) (en banc). However, the
failure to instruct the jury on an element of an offense does not consti-
tute error per se. Neder v. United States, 527 U.S. 1, 15 (1999) (hold-
ing that failure to instruct the jury on an essential element of the
offense is not structural error).

For purposes of this appeal we conclude that the district court's
jury instruction with respect to drug quantity was erroneous. We fur-
ther conclude that the error is plain. Nevertheless, we affirm Living-
ston's sentence because Livingston has not shown that the error
affected his substantial rights.

To establish that the error affected his substantial rights, Livingston
must demonstrate that it was prejudicial -- that it "actually affected
the outcome of the proceedings." United States v. Hastings, 134 F.3d
235, 240 (4th Cir. 1998). Thus, Livingston must demonstrate that the
360-month sentence imposed by the district court was longer than that
which would otherwise have been authorized by the jury verdict.

In light of Livingston's prior felony drug conviction,16
16 Livingston
was subject to a 360-month sentence upon proof of Livingston's
involvement with over 50 kilograms of marijuana. See 21 U.S.C.A.
§ 841(b)(1)(C). The jury heard testimony from one of Livingston's
co-conspirators that Livingston shipped them over 700 pounds of
marijuana, which equals over 300 kilograms, during the course of the
conspiracy. Another co-conspirator, Dixon, identified a wiretapped
conversation with Livingston wherein Livingston admitted to supply-
ing Dixon with 7 pounds of marijuana, which equals 3.8 kilograms.
In another wiretapped conversation, Dixon and Livingston discussed
Livingston's shipment of 13 pounds of marijuana to Dixon, which
_________________________________________________________________
16 At sentencing, the district court found that the Government had prop-
erly charged Livingston as having a prior felony conviction for posses-
sion of a controlled substance.

28
converts to 5.91 kilograms. Marlon Johnson testified that on one
occasion, Livingston shipped him two packages of marijuana, which
together weighed approximately 40 pounds, or 18.18 kilograms. John-
son also testified that he overheard a conversation implicating Living-
ston in the sale of 17 pounds of marijuana, or 7.73 kilograms, to
another co-conspirator. Co-conspirators further testified that they wit-
nessed Livingston buying "large plastic garbage bags" filled with
marijuana. (J.A. at 910.) The jury also heard evidence that Livingston
was arrested mailing two packages of marijuana, which were weighed
to contain 50 pounds of marijuana, or 22.73 kilograms.

Based upon the uncontested and overwhelming evidence implicat-
ing Livingston with several times more than 50 kilograms of mari-
juana, Livingston is unable to demonstrate that the 360-month
sentence he received exceeds the statutory penalty that would have
been authorized by the jury verdict absent the erroneous jury instruc-
tion.17
17 Because Livingston cannot demonstrate that he was prejudiced
by the error in the jury instruction, we decline to notice the Apprendi
error with respect to Livingston's conviction and sentence for con-
spiracy to possess with intent to distribute marijuana.1818
_________________________________________________________________
17 Although Livingston "contested" that the Government overestimated
the drug quantity for sentencing purposes, he certainly did not "genuinely
contest[ ]" that the quantity of marijuana at issue was more than the
threshold of 50 kilograms necessary to support his sentence under
§ 841(b)(1)(c). See United States v. Strickland, 245 F.3d 368, 381 (4th
Cir. 2001). As such, the error did not affect his substantial rights.

18 There also was sufficient evidence of drug weights to support the
base offense level of 32 applied by the district court. Factual determina-
tions that increase a defendant's sentence under the sentencing guidelines
do not implicate Apprendi and may be made by the sentencing judge.
United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000). We will not
reverse the district court's factual determinations absent clear error.
United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). The amount of
drugs attributable to Livingston during the sentencing hearing were sup-
ported by, inter alia, testimony from co-conspirators, seized packages,
and information obtained through wiretaps. The district court also
accounted for a statistical margin of error in the drug weights by adjust-
ing the amount downward so as not to trigger the highest base offense
level. The district court has broad discretion in determining what infor-

29
H.

Finally, Livingston contends that the district court erred by apply-
ing a two level enhancement for obstruction of justice. To apply the
obstruction-of-justice enhancement, the district court must find that a
defendant "consciously act[ed] with the purpose of obstructing jus-
tice." United States v. Romulus, 949 F.2d 713, 717 (4th Cir. 1991)
(internal quotation marks omitted). We review the district court's fac-
tual findings that serve as a basis for an obstruction-of-justice
enhancement for clear error. United States v. Gormley, 201 F.3d 290,
294 (4th Cir. 2000).

United States Sentencing Guideline § 3C1.1 (1998) provides in
part, "If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the course of the investigation, prosecution, or sentencing during the
instant offense . . . increase the offense level by 2 levels." U.S.S.G.
§ 3C1.1. "[T]hreatening, intimidating, or otherwise unlawfully influ-
encing a co-defendant, witness, or juror, directly or indirectly, or
attempting to do so" are types of conduct to which the § 3C1.1
obstruction enhancement applies. U.S.S.G. § 3C1.1 cmt. n.4(a). The
district court found that the obstruction enhancement was warranted
because Livingston's continuous misconduct throughout the trial indi-
cated that he had been attempting to intimidate the jurors. In particu-
lar, the district court pointed to an incident in which Livingston made
a gun-like gesture in the presence of the jurors and an incident in
which Livingston shouted, "Not guilty," outside the jury room. (J.A.
at 1687.) To the extent that Livingston argues that these instances of
improper conduct were provoked by improper conduct on the part of
the prosecutor and were not intended as intimidation, the district court
made a factual finding on the record to the contrary, and Livingston
_________________________________________________________________
mation to credit in making its calculations, United States v. Falesbork,
5 F.3d 715, 722 (4th Cir. 1993), and the district court need not use actual
amounts and may estimate the quantity of controlled substances impli-
cated in a conspiracy charge, United States v. D'Anjou, 16 F.3d 604, 614
(4th Cir. 1994). Accordingly, we conclude that the district court did not
clearly err in its calculation of the drug quantities attributable to Living-
ston.

30
has failed to demonstrate that this factual finding was clearly errone-
ous. Thus, we affirm the two-level enhancement for obstruction of
justice.

IV. SIMMS

A.

Simms raises three challenges with respect to his CCE conviction.
To establish a conviction for engaging in a CCE, the Government
must prove the following five elements: (1) the defendant committed
a felony violation of the federal drug laws; (2) such violation was part
of a continuing series of violations of the drug laws; (3) the series of
violations were undertaken by defendant in concert with five or more
persons; (4) the defendant served as an organizer or supervisor, or in
another management capacity with respect to these other persons; and
(5) the defendant derived substantial income or resources from the
continuing series of violations. 21 U.S.C.A. § 848(c).

1.

Simms first challenges the district court's jury instruction with
respect to his CCE conviction. Specifically, Simms contends that the
district court erred by failing to instruct the jury that it must unani-
mously agree as to which three violations of Title 21 constituted the
series of transactions that comprised the CCE. After Simms was con-
victed and sentenced, the Supreme Court held that, in a prosecution
for engaging in a CCE under 21 U.S.C.A. § 848, the jury "must agree
unanimously about which three crimes the defendant committed."
Richardson v. United States, 526 U.S. 813, 818 (1999). Because
Simms failed to object to the CCE jury instruction before the district
court, we review for plain error. See United States v. Lewis, 235 F.3d
215, 218 (4th Cir. 2000).

To establish plain error, Simms must demonstrate: (1) that error
occurred; (2) that the error was plain; (3) that the error affected his
substantial rights; and (4) that the error "seriously affected the fair-
ness, integrity or public reputation" of the judicial proceeding. United
States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks

31
omitted). Here, the district court failed to instruct the jury on this una-
nimity requirement because at the time, Fourth Circuit precedent did
not require such an instruction. See United States v. Hall, 93 F.3d
126, 129-30 (4th Cir. 1996) (holding that the jury was not required
to unanimously agree that three or more drug violations were related
to each other), overruled by Richardson v. United States, 526 U.S.
813 (1999). Thus, the jury instruction was erroneous, establishing the
first prong of the plain error test. Likewise, the error was plain. As
the Supreme Court noted in Johnson v. United States, 520 U.S. 461
(1997), "where the law at the time of trial was settled and clearly con-
trary to the law at the time of appeal -- it is enough that an error be
`plain' at the time of appellate consideration." Id. at 468.

Although the first two prongs of the plain error test have been
established, Simms cannot demonstrate that the error affected his sub-
stantial rights.19
19 The requirement that the error affect substantial rights
"typically means that the defendant is prejudiced by the error in that
it affected the outcome of the proceedings." United States v. Rolle,
204 F.3d 133, 138 (4th Cir. 2000). To establish the type of prejudice
required by the third prong of the plain error test, Simms must "dem-
onstrate that the erroneous . . . instruction given by the district court
resulted in his conviction." United States v. Hastings, 134 F.3d 235,
243-44 (4th Cir. 1998). Under plain error review, the burden is upon
the defendant to prove that the error was not harmless. Id. at 240.

In this case, Simms was charged and unanimously found guilty of
four counts of illegal use of a communication device, in violation of
21 U.S.C.A. § 843(b), and six counts of possession with intent to dis-
tribute marijuana, in violation of 21 U.S.C.A. § 841(a)(1). These
offenses are the type of violations that constitute predicate offenses
for purposes of the CCE conviction. 21 U.S.C.A.§ 848(c)(1).2020 Thus,
_________________________________________________________________
19 We previously have held that a Richardson error is not a structural
defect and is subject to harmless error review. United States v. Brown,
202 F.3d 691, 699 (4th Cir. 2000).
20 The CCE count is charged in the indictment in Count 2. Count 2 pro-
vides that the charged predicate offenses of the CCE are, "knowingly and
intentionally violat[ing] Title 21, United States Code, Sections 841,
843(b) and 846, including, but not limited to, those violations alleged in

32
the jury unanimously agreed that Simms was guilty of more than
three predicate offenses that comprise the CCE conviction. Cf. United
States v. Stitt, 250 F.3d 878 (4th Cir. 2001) (holding that a CCE con-
viction was proper under plain error review when Stitt was charged
and unanimously found guilty of more than three qualifying predicate
offenses). Accordingly, we conclude that the district court's failure to
instruct as to the unanimity requirement is not reversible under the
plain error test because Simms has failed to establish that he was prej-
udiced by the error.

2.

Next, Simms argues that his CCE conviction should be reversed
because the Government failed to introduce sufficient evidence that
Simms acted as an organizer, supervisor, or manager of a CCE. We
uphold the jury verdict if there is substantial evidence, viewed in the
light most favorable to the government, to support it. United States
v. Wilson, 135 F.3d 291, 303 (4th Cir. 1998). The management ele-
ment is given a "common sense reading," bearing in mind that the
statute is intended to reach the leaders of the drug trade. Id. (internal
quotations omitted).

Several of Simms' co-conspirators testified that they worked for
Simms, who they testified was the head of the drug distribution ring
in Virginia. They testified that Simms recruited people into the drug
distribution ring, and that Simms gave them instructions regarding
how and when to sell the marijuana. Simms also was responsible for
choosing the principal supplier of marijuana for distribution. Viewing
this evidence in the light most favorable to the Government, it is more
than sufficient to support the jury's determination that Simms was an
organizer, supervisor, or manager of a CCE involving the predicate
offenses of possession with intent to distribute marijuana.
_________________________________________________________________
the instant indictment, which are realleged and incorporated by reference
herein." (J.A. at 166.) Simms was convicted of violating § 843(b) in
Counts 262, 264, 267, and 270 and § 841(a)(1) in Counts 299, 304, 306-
07, 311, and 314. Thus, these ten substantive convictions are "violations
. . . alleged to be predicate violations constituting the continuing series"
and exceed the number of predicate violations required for a CCE con-
viction. United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000).

33
3.

Simms also contends that his CCE conviction should be reversed
because the Government failed to introduce sufficient evidence that
Simms acted in concert with five or more people in furtherance of the
CCE. We conclude that substantial evidence supports this element of
Simms's CCE conviction.

Co-conspirator Trevor Smith testified that he and several others,
including Damion Chambers, Conrad Anglin, Philip Daly, and Claude
Jackson, came to Virginia at the request of Simms to aid in the selling
and distribution of marijuana. Co-conspirators Crumble and Dixon
also testified that they retrieved marijuana packages and sold mari-
juana under the leadership of Simms. The Government introduced
wiretapped conversations in which Crumble and Dixon separately
spoke with Simms regarding transfers of marijuana and drug pro-
ceeds; each identified their voices. Sean Rainey, Kelvin Thomas, Pat-
rick Crooks, and Terrence Everett all testified that they bought large
quantities of marijuana from Simms, which they later resold. Thomas
further testified that he had been employed with UPS and that Simms
had requested that Thomas ensure that the UPS packages would get
to Virginia from California without being intercepted. These facts
provide substantial evidence that Simms was acting in concert with
five or more people in committing the predicate offenses of posses-
sion with intent to distribute marijuana.21
21
_________________________________________________________________

21 In Simms's brief, he argues that if his CCE conviction is sustained,
his drug conspiracy conviction under Count 1 must be vacated as a
lesser-included offense within the CCE. See United States v. Brown, 202
F.3d 691, 703 (4th Cir. 2000) (noting that a drug conspiracy is a lesser
included offense to a CCE charge and that it was error for the district
court to impose punishment with respect to both offenses). Because the
district court recognized that the drug conspiracy conviction was a lesser-
included offense to the CCE, it withheld the imposition of a sentence and
assessment with respect to that count. Thus, Simms has not been sub-
jected to "impermissible double punishment." Id. (alteration and internal
quotation marks omitted). Accordingly, we find no reversible error.

34
B.

Finally, Simms challenges his sentence with respect to one of his
convictions for possession with intent to distribute marijuana on the
basis of Apprendi v. New Jersey, 530 U.S. 466 (2000). With respect
to Count 314, Simms received a sentence of 240 months, which was
imposed concurrently with his sentence of 832 months. Simms con-
tends that because drug quantity was not charged as an element of the
offense and found by the jury beyond a reasonable doubt, the maxi-
mum statutory term of imprisonment for Count 314 is 5 years, or 60
months. See 21 U.S.C.A. § 841(b)(1)(D). Having failed to raise
Apprendi before the district court, we review this challenge for plain
error.

The failure to charge drug quantity and type constitutes an error
under Apprendi; however, we conclude that the Apprendi error did
not affect Simm's substantial rights. To establish that the error
affected his substantial rights, Simms must demonstrate that it was
prejudicial, i.e., that it "actually affected the outcome of the proceed-
ings." Hastings, 134 F.3d at 240. Thus, Simms must demonstrate that
the 240-month sentence that was imposed by the district court was
longer than that to which he would otherwise be subject. Pursuant to
United States v. White, 238 F.3d 537 (4th Cir. 2001), we conclude
that Simms cannot make this showing.

In White, we noted that, "[i]n the case of multiple counts of convic-
tion, the guidelines instruct that if the total punishment mandated by
the guidelines exceeds the highest statutory maximum, the district
court must impose consecutive terms of imprisonment to the extent
necessary to achieve the total punishment." See id. at 543 (citing
U.S.S.G. § 5G1.2(d)). Simms was convicted of six counts of posses-
sion with intent to distribute marijuana. The district court determined
that, under the guidelines, Simms should be held accountable for
between 1,000 and 3,000 kilograms of marijuana. After grouping, the
guideline range for these offenses was 292-365 months. Assuming
that Simms is correct to assert that the statutory maximum for each
count is 60 months, to reach the appropriate guideline sentence for
that quantity of drugs, the district court would have been obligated to
impose the sentences for each substantive drug conviction consecu-
tively until reaching a total sentence of more than 240 months. See

35
White, 238 F.3d at 542 ("[T]he district court would have been obli-
gated to reach that total sentence by imposing a term of imprisonment
of 240 months or less on each count of conviction and ordering those
terms to be served consecutively to achieve the total punishment man-
dated by the guidelines."). Accordingly, we decline to notice the
Apprendi error with respect to Count 314.

V.

Based upon the foregoing analyses, we vacate Stewart's convic-
tions, sentences, and assessments, we affirm Livingston's convictions
and ultimate sentence but remand with instructions for the district
court to vacate the convictions, sentences, and assessments attribut-
able to Counts 115-120, and we affirm Simms's convictions and sen-
tences.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED IN PART WITH INSTRUCTIONS

36