UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4782
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARTIN MENDEZ, a/k/a Tilin, a/k/a Chico, a/k/a Gordo,
Defendant - Appellant.
No. 10-4803
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELVER DIAZ-VEGA, a/k/a Elver Vega-Diaz, a/k/a Elver Mendez-
Vega, a/k/a Al, a/k/a Raymond Sanchez,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Cameron McGowan Currie,
District Judge. (3:09-cr-00930-CMC-1; 3:09-cr-00930-CMC-2)
Submitted: February 27, 2012 Decided: March 29, 2012
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael W. Chesser, Aiken, South Carolina; Wallace H. Jordan,
Jr., WALLACE H. JORDAN, JR., PC, Florence, South Carolina, for
Appellants. William N. Nettles, United States Attorney, Susan Z.
Hitt, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal jury convicted Martin Mendez and Elver
Diaz-Vega of conspiracy to possess with intent to distribute and
distribute cocaine and cocaine base, in violation of 21 U.S.C.
§ 846 (2006); convicted Mendez of three counts of possession
with intent to distribute cocaine and marijuana and aiding and
abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.
§ 841(a)(1) (2006), and three counts of use of a communication
facility to commit a felony and aiding and abetting, in
violation of 18 U.S.C. § 2, 21 U.S.C. § 843; and convicted
Diaz-Vega of possession of a firearm in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (2006),
and possession of a firearm by an illegal alien, in violation of
18 U.S.C. § 922(g)(5) (2006). The district court sentenced
Mendez to a total of 240 months of imprisonment and sentenced
Diaz-Vega to a total of 300 months of imprisonment, and they now
appeal. Finding no error, we affirm.
On appeal, Mendez argues that the district court erred
in instructing the jury regarding the amount of drugs for which
it could find Mendez responsible. As Mendez failed to object to
the jury instructions before the district court, we review this
issue for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). To meet this
standard, Mendez must demonstrate that there was error, that was
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plain, and that affected his substantial rights. Id. Moreover,
even if Mendez demonstrates plain error occurred, we will not
exercise discretion to correct the error “unless the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
“We review a jury instruction to determine whether,
taken as a whole, the instruction fairly states the controlling
law.” United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir.
2006) (internal quotation marks and citation omitted). Under 21
U.S.C.A. § 841(b) (West 2006 & Supp. 2011), “the amount of
narcotics attributable to a defendant dictates the period of
incarceration for a defendant convicted of the substantive
offense.” United States v. Collins, 415 F.3d 304, 312 (4th Cir.
2005). In a prosecution for a conspiracy involving multiple
drugs, a district court must assess the quantity of drugs
attributable to each coconspirator by relying on the principles
set forth in Pinkerton v. United States, 328 U.S. 640 (1946).
Id. “Under current precedent, rather than the district court
applying Pinkerton principles when determining the appropriate
sentence under § 841(b), that same court must instead instruct
the jury to use Pinkerton principles when making the same
determination.” Id. at 314.
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Pursuant to Pinkerton, a coconspirator is liable for
the amount of drugs with which he was personally involved, or
the amount that other members of the conspiracy were involved in
whose actions “were both reasonably foreseeable and in
furtherance of the jointly undertaken criminal activity.” Id.
at 311 (citing Pinkerton, 328 U.S. at 640). Here, the district
court properly instructed the jury regarding the amount of drugs
for which it could hold Mendez responsible in accordance with
the Pinkerton principles. We therefore find no plain error in
the court’s charge to the jury.
Mendez and Diaz-Vega also argue that the district
court erred in allowing a witness to assert his Fifth Amendment
right against self-incrimination at a hearing on the Appellants’
motion for a new trial. We review a district court’s denial of
a motion for a new trial for abuse of discretion. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). “The Sixth
Amendment grants a defendant the right to compel testimony by
witnesses in his defense. When a defendant’s right to compel
testimony conflicts with a witness’ privilege against
self-incrimination, however, a court must make a proper and
particularized inquiry into the legitimacy and scope of the
witness’ assertion of the privilege.” United States v. Sayles,
296 F.3d 219, 223 (4th Cir. 2002) (internal quotation marks and
citation omitted). The district court may excuse a witness from
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testifying only upon a finding that the witness “could
legitimately refuse to answer any and all relevant questions.”
Id. (internal quotation marks and citations omitted). We have
thoroughly reviewed the record and conclude that the district
court conducted a proper inquiry and did not err in allowing the
witness to assert his Fifth Amendment privilege.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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