PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 10-4084
LEOPOLDO CABRERA-BELTRAN, a/k/a
George,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:09-cr-00323-LMB-1)
Argued: September 23, 2011
Decided: November 10, 2011
Before TRAXLER, Chief Judge, and WILKINSON and
NIEMEYER, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Niemeyer
joined.
2 UNITED STATES v. CABRERA-BELTRAN
COUNSEL
ARGUED: Lionel Aron Pena, Edinburg, Texas, for Appel-
lant. Jeffrey Brian Bender, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Kim-
berly Riley Pedersen, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexan-
dria, Virginia, for Appellee.
OPINION
TRAXLER, Chief Judge:
Leopoldo Cabrera-Beltran was convicted by a jury of con-
spiracy to import and distribute cocaine and heroin. He chal-
lenges his conviction and sentence on multiple grounds. For
the reasons that follow, we affirm.
I.
"We recite the facts in the light most favorable to the Gov-
ernment." United States v. Murphy, 35 F.3d 143, 144 (4th Cir.
1994). Prior to 2007, the defendant worked for a Mexican
drug trafficking organization in which Branden Dodson
("Dodson") was involved. In 2007, the defendant convinced
Dodson to work directly for him and make both international
and domestic drug-related trips at his direction. This drug traf-
ficking and distribution scheme is best understood in terms of
the vehicles used in the operation to transport drugs and
money.
Nissan Sentra: Sometime in late December of 2006, Dod-
son assisted his fiancee, Stacy Dodson, in delivering a Sentra
to Mexico to be outfitted with secret compartments. Once in
Mexico, Dodson recruited Katrina Dodson, his sister-in-law,
UNITED STATES v. CABRERA-BELTRAN 3
to assist him in driving the Sentra from Mexico to Chicago.
Upon arriving in Chicago, they met up with the defendant and
another individual and followed them to a detached garage
where the defendant directed them to leave the Sentra. The
defendant paid Dodson $12,000 for the delivery.
In September of 2007, the Sentra was stopped, and a search
of the vehicle yielded $146,845 concealed in the front fender.
Dodson, the registered owner, was not in the vehicle; how-
ever, when Dodson received a DEA Notice of Seizure relating
to the money, the defendant requested a copy.
Nissan Murano: In June of 2007, Dodson recruited Thomas
Breeden to deliver a Murano to the drug organization in Mex-
ico. While in Mexico, the two men met up with the defendant,
who gave $10,000 to Dodson for the purpose of purchasing
a Jetta.
Volkswagen Jetta: Dodson used the $10,000 to purchase a
Jetta in the United States. The defendant assisted him in
obtaining a permit required to drive the vehicle to Mexico.
Dodson then delivered the Jetta to the defendant in Mexico.
In August of 2007, Dodson used the Jetta to make two drug
smuggling trips at the defendant’s direction. In the first trip,
he picked up the Jetta from the defendant in Mexico, drove it
to Michigan, met the defendant, and then delivered it to
Nebraska. He was paid $20,000 for this trip. In the second
trip, he picked up the Jetta from the defendant in Nebraska
and delivered it to the defendant in Mexico. Shortly thereaf-
ter, Dodson delivered the Jetta to the defendant’s associate in
Michigan and then drove it to the defendant in Nebraska. He
was paid $23,000 for this trip.
In October of 2007, Dodson picked up the Jetta from the
defendant in Nebraska and delivered it to him in Mexico. The
defendant returned the Jetta to Dodson, and Dodson delivered
it to the defendant in Missouri. Dodson then drove the Jetta
to Nebraska and left the vehicle in an airport parking lot. The
4 UNITED STATES v. CABRERA-BELTRAN
defendant paid Dodson $20,000 for this trip. Similarly, in
November of 2007, the defendant’s associate gave Dodson
the Jetta in Nebraska, and Dodson delivered it to the defen-
dant in Mexico.
Isuzu Rodeo: In September of 2007, Breeden travelled to
Mexico, picked up a Rodeo from the defendant, and drove it
to Nebraska. He was paid $8,500 for making this trip. At
some point during the trip, the Rodeo broke down, and the
defendant provided assistance.
Buick:1 In December of 2007, Breeden met the defendant
in Omaha and delivered a Buick to the defendant and the
defendant’s brother in Chicago. The defendant paid Breeden
and gave him additional money for Dodson to purchase
another vehicle.
In January of 2008, Dodson was stopped in the Jetta at the
United States-Mexico border. Customs officials recovered fif-
teen packages concealed in a hidden compartment. The pack-
ages contained 9.343 kilograms of heroin and 4.978 kilograms
of cocaine. Dodson was arrested, and the defendant was sub-
sequently arrested. Law enforcement searched two residences
associated with the defendant and recovered evidence of drug
activity. During the searches, law enforcement also found two
vehicles with built-in hidden compartments. One of the vehi-
cles was registered to the defendant.
The defendant was indicted and convicted of conspiracy to
import and distribute cocaine and heroin. He was sentenced
within the guidelines range after application of a three-level
enhancement for his role in the illegal operation.
1
The particular Buick model used in the conspiracy is unclear in the
record.
UNITED STATES v. CABRERA-BELTRAN 5
II.
The defendant’s first contention is that his rights under the
Sixth and Fourteenth Amendments were violated when the
district court during voir dire struck three Spanish-speaking
prospective jurors who expressed an inability to accept
English translations of Spanish testimony and documents. The
district court, sua sponte, struck these jurors for cause.
Because the record establishes that the court did not abuse its
discretion in dismissing the jurors, we reject this argument
and affirm the district court.
During voir dire, the judge asked the prospective jurors
whether any of them were "fluent in the Spanish language."
Trial Transcript 37. She explained her reason for asking the
question as follows:
Now, the reason I’m asking you this question is you-
all can see that we have interpreters here. I’m not
sure if any of the witnesses who will be testifying in
this case will be using interpreters, but it’s extremely
important that when a jury decides the case, if there
is a foreign language involved, you must decide the
case on the translation that is provided to everybody
in the courtroom. We don’t want basically a shadow
translator in the jury box.
Trial Transcript 37-38. Three of the prospective jurors indi-
cated some ability to understand the Spanish language, so the
judge asked each of them a follow-up question concerning
their ability to accept English translations of the Spanish lan-
guage. Each of the prospective jurors expressed an inability
to do so:
THE COURT: If you were chosen to be a juror in
this case and you disagreed with the interpretation or
translation by the interpreters, could you base your
decision on what the translator—all of these transla-
6 UNITED STATES v. CABRERA-BELTRAN
tors are court certified. Would you have any problem
in basing your decision on what the translators have
done?
PROSPECTIVE JUROR #1: Well, Your Honor, I’m
certain if I disagreed with the translator, it would
have to be a matter that I would bring up either to the
Court or to fellow jurors. I’ve also testified in civil
court in a foreign country in a foreign language, Por-
tuguese in this case, and I know the differences
between translation and what was actually said in the
court, so it’s a matter of some sensitivity to me.
...
THE COURT: [I]f you were to believe that the trans-
lators were not accurately translating what the wit-
ness might be saying, would you be able to base
your decision on what the translator has said, or
would you have problems with that?
PROSPECTIVE JUROR #2: It would depend on,
you know, what was said. If, you know, the differ-
ence. I couldn’t give you a specific yes-or-no
answer.
...
THE COURT: All right. You’ve heard my question
to the other two potential jurors. Would you have
difficulty if you felt that there was a translation that
you didn’t agree with?
PROSPECTIVE JUROR #3: Yes.
Trial Transcript 38-39. The court, sua sponte, struck each of
these prospective jurors for cause.2 Of the three, only one was
2
On this point, we note that this case does not involve the prosecutor’s
exercise of a peremptory strike. Accordingly, the defendant has not raised
a claim under Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny.
UNITED STATES v. CABRERA-BELTRAN 7
excused based solely on his inability to accept English trans-
lations. The other two were excused based on this inability
and other factors. See Trial Transcript 80.
The defendant first argues that the striking of Spanish-
speaking prospective jurors violated his right to Equal Protec-
tion under the Fourteenth Amendment. The Supreme Court’s
plurality and dissenting opinions in Hernandez v. New York,
500 U.S. 352 (1991), a factually similar case, guide our reso-
lution of the defendant’s Equal Protection claim. Hernandez
involved a Batson challenge to the striking of two prospective
Latino jurors. At trial, the prosecutor explained that his deci-
sion to peremptorily strike the potential jurors was based on
his "uncertainty as to whether they could accept the inter-
preter as the final arbiter of what was said by each of the wit-
nesses, especially where there were going to be Spanish-
speaking witnesses." Id. at 356 (plurality opinion) (internal
quotation marks omitted). A majority of the Court concluded
that the prosecutor’s rationale was a race-neutral basis for
striking the jurors that did not contravene the Equal Protection
clause. See id. at 372 (plurality opinion); id. (O’Connor, J.,
concurring).
Although Hernandez involved a Batson challenge rather
than a for-cause challenge as in the instant case, seven of the
Supreme Court justices in Hernandez took the opportunity to
note that a juror’s inability to accept a translator’s interpreta-
tion would support a valid for-cause challenge. In the four-
justice plurality opinion, the Court acknowledged that a
juror’s inability to accept a translation would be a valid for-
cause challenge. Id. at 362-63 (plurality opinion) ("While the
reason offered by the prosecutor for a peremptory strike need
not rise to the level of a challenge for cause, the fact that it
corresponds to a valid for-cause challenge will demonstrate its
race-neutral character." (internal citation omitted)). Similarly,
the three dissenting justices collectively espoused the same
opinion. See id. at 379 (Stevens, J., dissenting) ("[I]f the pros-
ecutor’s concern was valid and substantiated by the record, it
8 UNITED STATES v. CABRERA-BELTRAN
would have supported a challenge for cause."); id. at 375
(Blackmun, J., dissenting) (concurring in that part of Justice
Stevens’ dissent).3 Accordingly, in consideration of Her-
nandez, we hold that the for-cause striking of prospective
jurors based on their perceived inability to accept an inter-
preter as the final arbiter of what was said or written does not
violate the Equal Protection Clause of the Fourteenth Amend-
ment.4
The defendant also argues that the striking of the prospec-
tive jurors violated his rights under the Sixth Amendment. In
selecting a jury, "[t]he trial judge is in the best position to
make judgments about the impartiality and credibility of
potential jurors based on the judge’s own evaluations of . . .
responses to questions." United States v. Barber, 80 F.3d 964,
967 (4th Cir. 1996) (internal quotation marks omitted).
Accordingly, "[a]s a matter of law, the trial court is to exclude
veniremen who cannot be impartial." United States v. Turner,
389 F.3d 111, 117 (4th Cir. 2004). "We review challenges to
the qualifications of jurors under an abuse of discretion stan-
dard." Id. at 115. "[A] district judge retains a very broad dis-
cretion in deciding whether to excuse a juror for cause and his
decision will not be overturned except for manifest abuse of
that discretion." Id. (internal quotation marks omitted).
3
The remaining two justices in their concurring opinion did not neces-
sarily disagree with the other justices on this point, deciding instead to
limit their opinions to the context of the Batson challenge. See Hernandez,
500 U.S. at 375 (O’Connor, J., concurring) ("Batson does not require that
a prosecutor justify a jury strike at the level of a for-cause challenge.").
4
In this case, with the exception of one of the stricken potential jurors
who volunteered that he was Cuban, see Trial Transcript 39, the record is
silent on the ethnicity of the prospective jurors because the district court
properly did not inquire into this fact. Similarly, in Hernandez, the prose-
cutor noted that he was "not certain as to whether [the stricken jurors
were] Hispanics" because he "didn’t notice how many Hispanics had been
called to the panel." 500 U.S. at 356 (plurality opinion) (internal quotation
marks omitted). Thus, as in Hernandez, the striking of the prospective
jurors was unrelated to their ethnicity.
UNITED STATES v. CABRERA-BELTRAN 9
The Sixth Amendment entitles a defendant to a "trial[ ] by
an impartial jury." U.S. Const. amend. VI. "[A] juror is impar-
tial only if he can lay aside his opinion and render a verdict
based on the evidence presented in court . . . ." Patton v.
Yount, 467 U.S. 1025, 1037 n.12 (1984) (emphasis added);
see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("Due
Process means a jury capable and willing to decide the case
solely on the evidence before it . . . .").
It is integral to the promise of a fair trial that all jurors in
a particular case base their decision on the same evidence. See
Sheppard v. Maxwell, 384 U.S. 333, 351 (1966) (noting "the
requirement that the jury’s verdict be based on evidence
received in open court, not from outside sources").5 Evidence
that is received in open court is determined, in large part, by
the district court, which "has broad discretion in the control
of evidence." United States v. Gomez, 529 F.2d 412, 420 (5th
Cir. 1976). In our view, the court’s right to control the evi-
dence may include requiring the jury to accept, as evidence,
in-court translations by court-certified translators. We reach
this conclusion because a juror who, during trial, refuses to
accept a court-approved translation, in favor of his own inter-
pretation of a language, is effectively deciding to base his ver-
dict in the case on evidence different than that considered by
the other jurors. Fundamental to our jury process is the
requirement that all jurors consider the same evidence.
That the prospective jurors only anticipated the possibility
that they would be unable to accept court-approved transla-
tions is sufficient to support the district court in light of the
considerable discretion it is afforded in this area.6 As a result,
5
This concern is apparent in the practice of jury sequestration utilized
to ensure jurors are not exposed to external evidence. See, e.g., United
States v. Harris, 458 F.2d 670, 674 (5th Cir. 1972) ("The purpose of
sequestering is . . . to protect the jury from interference.").
6
We note that when this kind of problem has previously arisen, other
courts have acknowledged means of resolving it short of dismissing the
10 UNITED STATES v. CABRERA-BELTRAN
the district court’s decision to strike the prospective jurors
was not a manifest abuse of its discretion and did not contra-
vene the Sixth Amendment.
III.
The defendant’s second contention also concerns the Sixth
Amendment. At trial, the government used Treasury Enforce-
ment Communications System (TECS) records to show that
the defendant and other co-conspirators crossed the border on
certain dates and in certain vehicles. The defendant argues
that the admission of the TECS records into evidence violated
his Sixth Amendment Confrontation Clause right to cross-
examine the border patrol personnel who produced the infor-
mation and statements contained in the TECS records.
Because we hold that TECS records are not testimonial, we
reject this argument.
According to the government’s evidence, TECS is a case
management system maintained by Customs and Border Pro-
tection, a division of the Department of Homeland Security.
The system is used to keep a record of who and what enters
the United States. The information contained in a TECS
record may include "a person’s name, date of birth, poten-
tially what document they used, potentially which method
they used to enter into the United States, and potentially
juror. See, e.g., Hernandez, 500 U.S. at 364 (plurality opinion) ("Spanish-
speaking jurors could be permitted to advise the judge in a discreet way
of any concerns with the translation during the course of trial."); United
States v. Perez, 658 F.2d 654, 662 (9th Cir. 1981) (quoting the district
court judge who permitted jurors to address the court "when the witness
is finished with his testimony" if they "hear certain words differently that
[sic] you understand the interpreter to relate them"). Although Hernandez
and Perez support the argument that the district court was not obligated
to strike the prospective jurors, those cases do not conflict with our hold-
ing that the district court acted within its discretion in striking the jurors
during voir dire based on their perceived inability to accept the transla-
tions of the court-certified translator.
UNITED STATES v. CABRERA-BELTRAN 11
which method they used to exit the United States." Trial Tran-
script 657. For vehicular border crossings, TECS maintains a
record of the vehicles used and their license plates. For air
travel across the border, TECS records may also include
information on the departing and receiving airports.
At trial, the defendant objected to the admission of the
TECS records on hearsay grounds only. He raised a Confron-
tation Clause argument for the first time in his Memorandum
in Support of his Motion for a New Trial.
An objection to the admission of evidence must be both
specific and timely. See Fed. R. Evid. 103(a)(1). The hearsay
objection at trial cannot be understood to include a Confronta-
tion Clause objection, see United States v. Dukagjini, 326
F.3d 45, 60 (2d Cir. 2003) (noting that "a hearsay objection
would not in itself preserve a Confrontation Clause claim"),
and the post-trial objection was untimely, see United States v.
Parodi, 703 F.2d 768, 783 (4th Cir. 1983) ("Timeliness of
objection under [Rule 103] requires that it be made at the time
the evidence is offered . . . .") (internal quotation marks omit-
ted); cf. United States v. Gibbs, 739 F.2d 838, 847-49 (3d Cir.
1984) (en banc) (holding that Confrontation Clause objection
made for first time in Rule 29 Motion for Acquittal following
government’s case-in-chief, despite prior hearsay objection to
same evidence, was untimely). Accordingly, the issue was not
preserved for appeal, and we review for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993).
The Confrontation Clause of the Sixth Amendment pro-
vides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him." U.S. Const. amend. VI. This clause bars the introduc-
tion of out-of-court testimonial statements unless the declar-
ant is unavailable and the defendant had a prior opportunity
to cross-examine the declarant. See Crawford v. Washington,
541 U.S. 36, 68 (2004). Inherent in this rule, however, is the
limitation that "a statement must be ‘testimonial’ to be
12 UNITED STATES v. CABRERA-BELTRAN
excludable under the Confrontation Clause." United States v.
Udeozor, 515 F.3d 260, 268 (4th Cir. 2008). "Only statements
of this sort cause the declarant to be a ‘witness’ within the
meaning of the Confrontation Clause." Davis v. Washington,
547 U.S. 813, 821 (2006).
The most comprehensive definition of the term "testimo-
nial" is found in Crawford, where the Supreme Court pro-
vided three formulations of what it refers to as the "core class
of ‘testimonial’ statements." 541 U.S. at 51. These formula-
tions include:
ex parte in-court testimony or its functional equiva-
lent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial state-
ments that declarants would reasonably expect to be
used prosecutorially; extrajudicial statements . . .
contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or confes-
sions; [and] statements that were made under cir-
cumstances which would lead an objective witness
reasonably to believe that the statement would be
available for use at a later trial.
Id. at 51-52 (internal quotation marks and citations omitted).
Interpreting Crawford, this court has concluded that "the
‘common nucleus’ of the ‘core class’ of testimonial state-
ments is whether a reasonable person in the declarant’s posi-
tion would have expected his statements to be used at
trial—that is, whether the declarant would have expected or
intended to ‘bear witness’ against another in a later proceed-
ing." Udeozor, 515 F.3d at 268. Recently in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009), the Supreme Court
held that a forensic laboratory report was testimonial and,
therefore, "the analysts were subject to confrontation under
the Sixth Amendment." 129 S. Ct. at 2540. Because the
UNITED STATES v. CABRERA-BELTRAN 13
defendant wishes to compare the TECS records in this case to
the lab report in Melendez-Diaz, we review the facts of that
case by comparison.
In Melendez-Diaz, the Supreme Court held that affidavits
reporting the results of forensic analysis were testimonial
because they fell within the "core class of testimonial state-
ments" that the Court had previously laid out in Crawford.
129 S. Ct. at 2532 (internal quotation marks omitted). In
reaching this holding, the Court relied heavily on the fact that
the affidavits at issue were specifically created for trial pur-
poses. See id. at 2539 (acknowledging that affidavits were
made "for the sole purpose of providing evidence against a
defendant"); id. at 2540 (noting that the analyst’s statements
contained in the affidavit were "prepared specifically for use
at petitioner’s trial").
Unlike the affidavits at issue in Melendez-Diaz, the TECS
records in this case were not created for trial. To the contrary,
the information contained in the TECS records was entered
for the mere purpose of "maintain[ing] a record of what [was]
coming into the United States." Trial Transcript 657. "The
Customs Service officials who enter the license numbers of
vehicles crossing the border into the TECS system have no
motivation other than to mechanically register this unambigu-
ous factual matter." United States v. Puente, 826 F.2d 1415,
1418 (5th Cir. 1987) (internal quotation marks omitted). As
the Ninth Circuit has explained, TECS records are "records of
routine, nonadversarial matters" and "the simple recordation
of license numbers of all vehicles which pass [a] station is not
of the adversarial confrontation nature". United States v.
Orozco, 590 F.2d 789, 793 (9th Cir. 1979).
In Melendez-Diaz, the Supreme Court explained that
"[b]usiness and public records are generally admissible absent
confrontation not because they qualify under an exception to
the hearsay rules, but because—having been created for the
administration of an entity’s affairs and not for the purpose of
14 UNITED STATES v. CABRERA-BELTRAN
establishing or proving some fact at trial—they are not testi-
monial." 129 S. Ct. at 2539-40. This language does not mean
that all business and public records are non-testimonial. See
United States v. Jackson, 636 F.3d 687, 692 n.2 (5th Cir.
2011) (noting that under Melendez-Diaz, "business records
are not per se nontestimonial, but they are generally" (empha-
sis in original)). However, it does indicate that business and
public records are non-testimonial if they were "created for
the administration of an entity’s affairs" rather than for "prov-
ing some fact at trial." Melendez-Diaz, 129 S. Ct. at 2539-40;
see also id. at 2538 ("Documents kept in the regular course
of business may ordinarily be admitted at trial despite their
hearsay status. But that is not the case if the regularly con-
ducted business activity is the production of evidence for use
at trial." (internal citation omitted)).
At least two federal courts have held that TECS records are
admissible under the public records exception to hearsay. See
Puente, 826 F.2d at 1417; Orozco, 590 F.2d at 793.7 We
agree. The border-crossing information contained in the
TECS records was registered merely to administer the affairs
of the United States Customs and Border Patrol. This reason
is entirely unrelated to "proving some fact at trial." The TECS
records, thus, are non-testimonial, see Melendez-Diaz, 129 S.
Ct. at 2539-40, and their admission into evidence did not vio-
late the Confrontation Clause, see Michigan v. Bryant, 131 S.
Ct. 1143, 1155 (2011) (noting that "when a statement is not
7
The applicable portion of the public records hearsay exception pro-
vides:
[t]he following are not excluded by the hearsay rule . . . (8)
Records, reports, statements, or data compilations, in any form,
of public offices or agencies, setting forth . . . (B) matters
observed pursuant to duty imposed by law as to which matters
there was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law enforcement
personnel.
Fed. R. Evid. 803(8)(B).
UNITED STATES v. CABRERA-BELTRAN 15
procured with a primary purpose of creating an out-of-court
substitute for trial testimony . . . the admissibility of a state-
ment is the concern of state and federal rules of evidence, not
the Confrontation Clause").
IV.
The defendant next challenges his conviction under an
indictment that charged him with conspiracy to import and
distribute "1 kilogram or more" of heroin and "5 kilograms or
more" of cocaine. J.A. 17-18. The jury found the defendant
guilty of the heroin offenses in the same amount as alleged in
the indictment. However, the jury found the defendant guilty
of the cocaine offenses in the amount of "500 grams or more,
but less than 5 kilograms," an amount less than that alleged
in the indictment. J.A. 29-30. The defendant argues that his
conviction on the lesser included offense amounted to a vari-
ance and thus requires reversal.
A defendant charged with conspiracy to import or distribute
an amount of a controlled substance "can, if the evidence war-
rants, be convicted of one of the lesser included offenses"
based on a smaller amount of the substance. United States v.
Brooks, 524 F.3d 549, 555 n.9 (4th Cir. 2008). Such a verdict
is permissible as "an offense necessarily included in the
offense charged." Fed. R. Crim. P. 31(c)(1). Because the
lesser included offense is included in the charged offense,
there is no variance. See United States v. Martinez, 430 F.3d
317, 340 (6th Cir. 2005) ("[T]his results in neither a prejudi-
cial variance from, nor a constructive amendment to the
indictment because [the defendant] was merely convicted of
a lesser-included offense and all the elements of the former
necessarily include those of the latter.").
V.
The defendant also argues that the indictment was defec-
tive. It is unclear whether the defendant argues that the indict-
16 UNITED STATES v. CABRERA-BELTRAN
ment suffered from multiplicity or duplicity. However, the
defendant did not allege any defect in the indictment prior to
trial as required by Rule 12(b)(3)(B) of the Federal Rules of
Criminal Procedure. Because the defendant fails to provide a
showing of good cause, his claim that the indictment was
defective is waived. See Fed. R. Crim. P. 12(e); United States
v. Price, 763 F.2d 640, 643 (4th Cir. 1985) (applying waiver
rule to multiplicity and duplicity challenges where a defen-
dant failed to raise the issues prior to trial).
VI.
The defendant next contends that the trial court erred dur-
ing jury deliberations by giving an Allen charge rather than
granting a mistrial. After a three-day trial, jury deliberations
began on the afternoon of October 8. At midday on October
9, the jury submitted a note to the court that read, "Judge, we
cannot all come to an agreement. Do you want our response
now?" Trial Transcript 841. The district court judge encour-
aged the jury to continue deliberating. Later that afternoon,
the jury submitted a second note that read, "We have no unan-
imous verdict on any of the counts and do not foresee this
happening." Trial Transcript 844. At that time, the judge gave
the jury a modified Allen charge and dismissed the jury for
the day. The jury reached a verdict the next day of court
before lunchtime.
The defendant did not move for a mistrial after the jury
announced its inability to reach a verdict, nor did he object to
the giving of an Allen charge.8 We therefore review the claims
for plain error only. See Olano, 507 U.S. at 732; United States
v. Ford, 88 F.3d 1350, 1363 (4th Cir. 1996).
"The court has considerable discretion and is in the best
8
Counsel did object to the content of the Allen charge during trial but
did not object to the court’s decision to give the charge. The defendant
does not pursue his content challenge on appeal.
UNITED STATES v. CABRERA-BELTRAN 17
position to gauge whether a jury is deadlocked or able to pro-
ceed further with its deliberations." United States v. Seeright,
978 F.2d 842, 850 (4th Cir. 1992). We cannot conclude that
the district court judge in this case committed plain error in
giving the modified Allen charge after receiving two jury
notes expressing an inability to reach a verdict. Nor can we
conclude that the court plainly erred by not, sua sponte, order-
ing a mistrial after approximately two days of jury delibera-
tions.
VII.
The defendant also contends that the district court should
have granted his motion for acquittal because the evidence
was insufficient to support his conviction. The "jury verdict
must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(emphasis and internal quotation marks omitted). "Substantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt." United States
v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (internal quota-
tion marks omitted).
The defendant does not challenge the quantity of the evi-
dence. Rather, he argues that the testimony of the witnesses
was vague, uncertain, and incredible. The jury has already
assessed the credibility of the witnesses, and this court cannot
do so on appeal. See Murphy, 35 F.3d at 148 ("The jury, not
the reviewing court, weighs the credibility of the evidence
. . . ."). Substantial evidence supported the verdict, and the
district court did not err in denying the motion for acquittal.9
9
The defendant’s sufficiency claim concerning the discrepancy between
the indictment and the verdict has been addressed in supra section IV and
will not be readdressed here.
18 UNITED STATES v. CABRERA-BELTRAN
VIII.
The defendant next contends that the trial court erred by
admitting the testimony of Lorenzo Salgado, who testified
that he purchased heroin from the defendant on several occa-
sions prior to any of the conduct alleged in the indictment.
The district court admitted the evidence under Federal Rule of
Evidence 404(b).
Under Rule 404(b),
[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent.
Fed. R. Evid. 404(b). Rule 404(b) is "an inclusive rule, admit-
ting all evidence of other crimes or acts except that which
tends to prove only criminal disposition." United States v.
Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (internal quota-
tion marks omitted). "To be admissible under Rule 404(b),
prior bad acts evidence . . . must be relevant to an issue other
than character, . . . necessary to prove an element of the crime
charged, . . . [and] reliable." United States v. Blauvelt, 638
F.3d 281, 292 (4th Cir. 2011). Finally, the "probative value
[of the evidence] must not be substantially outweighed by its
prejudicial nature." Id. (emphasis in original).
We review the admission of such "bad acts" evidence for
abuse of discretion. See United States v. Hadaway, 681 F.2d
214, 217 (4th Cir. 1982). However, because "[j]udgments of
evidentiary relevance and prejudice are fundamentally a mat-
ter of trial management, . . . we will not vacate a conviction
unless we find that the district court judge acted arbitrarily or
irrationally in admitting evidence." United States v. Benkahla,
UNITED STATES v. CABRERA-BELTRAN 19
530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks
omitted). The district court did not clarify the basis under
Rule 404(b) upon which it was admitting the evidence. How-
ever, "we may sustain the admission of such evidence on any
viable theory." Blauvelt, 638 F.3d at 292.
The government submits that the testimony is relevant to
prove knowledge and intent. We agree. In drug cases, evi-
dence of a defendant’s prior, similar drug transactions is gen-
erally admissible under Rule 404(b) as evidence of the
defendant’s knowledge and intent. See, e.g., United States v.
Branch, 537 F.3d 328, 341-42 (4th Cir. 2008) (admitting evi-
dence of prior arrest and conviction for possession with intent
to distribute cocaine in subsequent prosecution for, inter alia,
the same offense); United States v. Hodge, 354 F.3d 305, 312
(4th Cir. 2004) (admitting evidence of prior possession and
sale of cocaine in subsequent prosecution for, inter alia, pos-
session of cocaine with intent to distribute).
Here, the conduct charged in the indictment is exceedingly
similar to the conduct about which Salgado testified: the same
drugs were sold in similar quantities and transported in a simi-
lar manner, even allegedly using the same car in one instance.
Because the evidence helped establish the existence of a con-
tinuing distribution scheme, it was admissible under Rule
404(b). See Hodge, 354 F.3d at 312 ("[T]he evidence of [a
defendant’s prior] drug transactions was relevant and neces-
sary in that it tended to show the existence of a continuing
narcotics business . . . ."); United States v. Sanchez, 118 F.3d
192, 196 (4th Cir. 1997) ("A not-guilty plea puts one’s intent
at issue and thereby makes relevant evidence of similar prior
crimes when that evidence proves criminal intent." (emphasis
added)). Accordingly, rather than being admitted for an
impermissible purpose, Salgado’s testimony served to "prove
[the defendant’s] knowledge of the drug trade and suggest
that he was an intentional, rather than unwitting, participant
in the conspiracy." Sanchez, 118 F.3d at 195.
20 UNITED STATES v. CABRERA-BELTRAN
Finally, the probative value of the evidence was not sub-
stantially outweighed by unfair prejudice. In light of the gov-
ernment’s evidence at trial, it is unlikely that the jury would
react irrationally to Salgado’s testimony, and any remaining
danger of unfair prejudice was alleviated by the cautionary
jury instruction given by the district court. See United States
v. Queen, 132 F.3d 991, 997 (4th Cir. 1997) ("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 evi-
dence subsides."). We therefore conclude that the district
court acted within its discretion in admitting the evidence.
IX.
Finally, the defendant challenges his sentence on two
grounds. He first argues that the district court erred in calcu-
lating the drug quantity by accounting for drugs that were sold
to Salgado prior to the conduct alleged in the indictment. We
review this issue for clear error. See United States v. Randall,
171 F.3d 195, 210 (4th Cir. 1999). However, we need not
consider the propriety of the district court’s accounting for
drugs sold to Salgado. The defendant’s base offense level is
the same even if the drugs sold to Salgado are excluded.
Therefore, any error the district court may have made is harm-
less. See Fed. R. Crim. P. 52(a).
The defendant also submits that the district court erred by
applying a three-level sentence enhancement for his manage-
rial role in the conspiracy pursuant to § 3B1.1(b) of the sen-
tencing guidelines. See U.S.S.G. § 3B1.1(b) (2009). We
review this issue for clear error as well. See United States v.
Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
The "aggravating role" enhancement provides, in pertinent
part, that "[i]f the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive, increase
by 3 levels." U.S.S.G. § 3B1.1(b). In classifying the role
UNITED STATES v. CABRERA-BELTRAN 21
played by a defendant, the district court considers, among
other things, "the exercise of decision making authority, the
nature of participation in the commission of the offense, the
recruitment of accomplices, . . . and the degree of control and
authority exercised over others." Id. § 3B1.1 cmt. 4. In this
case, the defendant did not smuggle drugs himself. Instead, he
played a managerial role that included recruiting Dodson,
exercising control over the participants, making decisions
about where and when to transport drugs and money, and pro-
viding payments to the participants. Considering these facts in
light of the relevant factors set forth in comment 4 to § 3B1.1,
we cannot conclude that the district court committed clear
error in finding, based on a preponderance of the evidence,
see United States v. Harvey, 532 F.3d 326, 337 (4th Cir.
2008), that the defendant was a manager or supervisor in the
conspiracy.
The defendant also argues that the criminal activity did not
"involve[ ] five or more participants" pursuant to § 3B1.1(b).
However, the district court did not err in finding that five par-
ticipants were involved, including the defendant, Dodson,
Katrina Dodson, Thomas Breeden, and the individuals in
Mexico who retrofitted the vehicles with compartments in
which drugs and money were concealed. Therefore, the dis-
trict court did not clearly err in applying the "aggravating
role" enhancement to the defendant’s sentence.
X.
For the foregoing reasons, the defendant’s convictions and
sentence are affirmed.
AFFIRMED