UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4043
MARIO SORTO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4044
ROSA SORTO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4045
JOSE CARCAMO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4046
FELIX ESCOBAR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4047
ANDRES MARTINEZ,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4048
ROBERTO SORTO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4049
ELIAS BERMUDEZ,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4087
NELSON RIVERA,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-96-251-A)
2
Submitted: January 27, 1998
Decided: April 21, 1998
Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia;
Joseph J. McCarthy, DELANEY, MCCARTHY, COLTON &
BOTZIN, P.C., Alexandria, Virginia; Richard E. Starr, Arlington,
Virginia; Daniel S. Orci, Jr., Washington, D.C.; Bruce M. Cooper,
Washington, D.C.; Jerome P. Aquino, Alexandria, Virginia; Michael
Hadeed, Jr., Alexandria, Virginia; Gary Smith, Alexandria, Virginia,
for Appellants. Helen F. Fahey, United States Attorney, Rebeca
Hidalgo Bellows, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants operated a large drug ring which distributed crack
cocaine in Arlington, Virginia. A jury convicted Appellants Rosa
Sorto, Jose Carcamo, Roberto Sorto, and Elias Bermudez of one
count each of conspiracy to possess with intent to distribute and to
distribute fifty grams or more of crack cocaine and to distribute crack
cocaine to persons under twenty-one years of age (21 U.S.C. § 846
3
(1994)) and distribution of crack cocaine (21 U.S.C.§ 841(a)(1)
(1994)). The jury convicted Appellants Mario Sorto, Felix Escobar,
and Nelson Rivera on the conspiracy count and four, two, and six
counts of distribution, respectively. Appellant Andres Martinez was
convicted on the conspiracy count and one count of possession of
crack cocaine with intent to distribute.
On appeal, all of the Appellants except Rivera challenge whether
the district court abused its discretion by enhancing their base offense
levels by one point for conspiracy to sell drugs to persons under the
age of twenty-one pursuant to USSG § 2D1.2(a)(2).1 All Appellants
raise as issues on appeal whether the court erred by refusing to allow
an experienced criminal defense attorney to testify as an expert wit-
ness concerning the Government witnesses' motivation to lie; whether
the court erroneously refused to instruct the jury on Government wit-
ness immunity and Fed. R. Crim. P. 35; and whether the district court
abused its discretion by not allowing them to submit a jury question-
naire or to individually question jurors. In addition, Mario Sorto chal-
lenges the district court's decision not to grant him a downward
adjustment for acceptance of responsibility; Carcamo and Rivera
allege that the evidence was insufficient to convict them of conspiracy
and distribution; and Bermudez challenges the district court's denial
of his motion for judgment of acquittal. Finding no reversible error,
we affirm.
We review the district court's application of USSG§ 2D1.2(a)(2)
de novo and find no error. See United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989). Contrary to Appellants' assertions, this case
is easily distinguished from United States v. Locklear, 24 F.3d 641,
648-49 (4th Cir. 1994). In Locklear, we vacated one defendant's sen-
tence on the ground that the district court erroneously applied a one-
point enhancement pursuant to USSG § 2D1.2(a)(2). Although the
indictment in Locklear mentioned that the defendant used a minor to
help sell drugs, he was not charged with violating the applicable stat-
ute. This court held that a defendant must be charged with and con-
victed of the applicable statutory provisions before the district court
may apply the enhancement. In the present case, the indictment
clearly stated that Appellants conspired to distribute crack cocaine to
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (1996).
4
persons under twenty-one years of age in violation of 21 U.S.C. § 859
(1994), and the jury expressly convicted Appellants of this offense.
The district court has broad discretion over the admission of expert
testimony, and we will not reverse its decision absent a clear abuse
of that discretion. United States v. Barsanti , 943 F.2d 428, 432 (4th
Cir. 1991). In the present case, Appellants allege that their expert wit-
ness, an experienced criminal defense attorney, would have testified
that Government witnesses who have been granted immunity or who
face the possibility of a reduced sentence have an incentive to incrim-
inate the defendants they are testifying against. It is well-settled that
the purpose of expert testimony is to assist jurors in understanding
complex subjects that are outside the realm of common knowledge.
We agree with the Sixth Circuit's reasoning in United States v.
Thomas, 74 F.3d 676, 683-84 (6th Cir.), cert. denied, ___ U.S. ___,
64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8380), and find that
the district court did not abuse its discretion by concluding that the
proposed testimony was within the realm of common sense and there-
fore not an appropriate subject for expert testimony.2
We review the district court's decision not to give a proposed jury
instruction for abuse of discretion, and we find none here. See United
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Appellants
proposed a jury instruction concerning immunity from further federal
prosecution and potential reduction of witnesses' federal sentences.
However, although several of the Government's witnesses had been
granted immunity and/or pled guilty in state court, none of them had
been charged or convicted in federal court. Therefore, the proposed
instruction concerning reduction of federal sentences was not rele-
vant. And we find that the district court's instructions sufficiently
covered the possibility of a grant of immunity affecting witness credi-
bility.
Prior to trial, Martinez filed a motion, in which the other Appel-
lants joined, to submit a questionnaire to panel members and to indi-
vidually question the members of the venire. The district court denied
_________________________________________________________________
2 We note that Appellants' point was conveyed to the jury through
defense counsels' skillful cross-examination of the witnesses and the
court's cautionary instructions.
5
the motion and conducted voir dire. At the conclusion of voir dire, the
court stated that it considered the questions proposed by counsel and
believed it had asked sufficient questions to insure an impartial panel.
Appellants did not object to the conduct of voir dire or suggest addi-
tional questions. Since Appellants failed to preserve the issue by mak-
ing a timely objection, we find that the issue was waived. See United
States v. LaRouche, 896 F.2d 815, 829 (4th Cir. 1990) (prior submis-
sion of proposed questions insufficient to preserve issue).
Even assuming Appellants properly preserved the issue, we find
that the district court did not abuse its discretion in conducting the
voir dire. It is well-settled that a trial judge may conduct voir dire
without allowing counsel to pose questions directly to the potential
jurors. Fed. R. Crim. P. 24(a). In addition, a defendant does not
always have the right "to have questions posed during voir dire spe-
cifically directed to matters that conceivably might prejudice venire-
men against him." Ristaino v. Ross, 424 U.S. 589, 594 (1976). It is
only necessary that the "voir dire as a whole is reasonably sufficient
to uncover bias or partiality in the venire." United States v. Lancaster,
96 F.3d 734, 739-40 (4th Cir. 1996), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3569 (U.S. Feb. 18, 1997) (No. 96-6450). We find that the
district court's questions satisfied this standard. We further find that
the court's questions essentially covered the areas proposed by
Appellants.3 We reject Appellants' assertion that the district court's
failure to inquire into the jurors' understanding of the English lan-
guage violated our decision in United States v. Gray, 47 F.3d 1359
(4th Cir. 1995). There is no evidence in the record suggesting that any
of the jurors had difficulty understanding English. 4
We review the district court's decision not to grant Mario Sorto a
downward adjustment for acceptance of responsibility for clear error,
and we find none. See United States v. Gordon , 895 F.2d 932, 937
(4th Cir. 1990). While Sorto accepted responsibility for distributing
crack cocaine to an undercover police officer on four occasions, he
denied any participation in a conspiracy. In Gordon, we expressly
_________________________________________________________________
3 We note that Appellants do not allege any undiscovered bias.
4 Appellants cite to the court's exchange with one potential juror who
stated that she had difficulty understanding English, but that person was
never selected to serve on Appellants' jury.
6
held that a defendant must accept responsibility for all of his miscon-
duct to be entitled to the adjustment. Id. at 936. We reject Sorto's
request that he receive partial credit for acceptance of responsibility
as unsupported by the Guidelines.
On direct appeal of a criminal conviction, a verdict"must be sus-
tained if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). In the present case, we find that the evidence over-
whelmingly supports Carcamo's and Rivera's convictions. Contrary
to Carcamo's assertions, our review of the record discloses that sev-
eral Government witnesses testified that they received crack cocaine
from Carcamo and observed him selling it. We further find the evi-
dence sufficient to support Carcamo's conviction for distributing
crack cocaine to an undercover police officer. Carcamo and another
conspirator, Ortiz, met with the officer after he requested to buy
drugs. They ordered the officer to drive around, and he complied.
After a short time, Ortiz asked Carcamo if "everything was okay," and
Carcamo nodded affirmatively. Ortiz then gave the officer drugs in
exchange for money. We find these actions sufficient for the jury to
find that Carcamo acted as either a lookout or as the final decision-
maker on the sale rather than being a mere bystander. We affirm
Rivera's convictions for the same reasons. We find that the record
supports the jury's conclusion that Rivera distributed drugs directly
to the undercover officer and also facilitated sales between the officer
and other members of the conspiracy.
Finally, in reviewing the district court's decision to deny Ber-
mudez's motion for judgment of acquittal, we must consider the evi-
dence and all reasonable inferences in the light most favorable to the
Government and determine whether any rational factfinder could have
found the essential elements of the crime beyond a reasonable doubt.
See United States v. Sloley, 19 F.3d 149, 152 (4th Cir. 1994). We find
that the district court did not err in denying the motion because suffi-
cient evidence was presented to support Bermudez's convictions. The
testimony established that Bermudez was a street-level dealer who
obtained his drugs from other members of the conspiracy. In addition,
he sold drugs to the undercover officer at Rivera's direction. Finally,
he had sex with a juvenile witness in exchange for drugs at Escobar's
crack house.
7
Accordingly, we affirm Appellants' convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the material before the court and argu-
ment would not aid the decisional process.
AFFIRMED
8