UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4473
DION ANSARA ADAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-16)
Argued: April 10, 1998
Decided: September 3, 1998
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Shanon Stephanie Echols, Charlottesville, Virginia, for
Appellant. Ray B. Fitzgerald, Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Charlottesville, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dion Adams, the defendant, was charged with participation in a
drug conspiracy in violation of 21 U.S.C. § 846. Adams was alleged
to be a retailer for the drug distribution ring. The initial trial in July
of 1995 resulted in certain co-defendants being convicted, other co-
defendants being acquitted and no verdict as to Adams or his co-
defendant, Sanford Wigenton. A mistrial was declared as to these two
co-defendants and their case was scheduled for a new trial in October.
However, on the day that the second trial was to begin, the district
court disqualified the attorney representing Wigenton because the
attorney was laboring under a potential conflict of interest. The trial
was continued until November, but when Wigenton had difficulty
obtaining another attorney, the court continued the trial again until
December. Further problems caused the case to be continued again
and again.
The case finally came to trial on March 11, 1996. The district judge
denied certain pre-trial motions; those which have been appealed are
discussed below. After a three-day trial, the jury convicted Adams but
acquitted Wigenton. Adams's motion for acquittal and objection to
his sentence were denied. Adams then brought this appeal. He chal-
lenges his conviction and sentence on eight different grounds. Finding
no error, we affirm.
I. The District Court was Correct to Deny Adams's Motion to Dis-
miss his Indictment Pursuant to the Speedy Trial Act.
Adams argues that the district court erred in not dismissing his
indictment on Speedy Trial Act grounds, 18 U.S.C.§ 3161. A more
specific recitation of the events leading up to Adams's second trial
will be helpful.
2
On October 3, 1995, which was to be the eve of Adams's and
Wigenton's second trial, the government made a motion to disqualify
Wigenton's attorney because of a conflict of interest. The court found
that Wigenton could no longer be represented by his attorney, Billy
Ponds, because Ponds was also representing another co-defendant
from the first trial who had received an offer of sentencing leniency
if he would testify against Wigenton. The court therefore disqualified
Ponds from representing Wigenton.
Because Wigenton no longer had an attorney, the joint trial of
Wigenton and Adams could not commence the next day as had been
planned. The court therefore gave Wigenton a week to retain new
counsel, noting that if he were unable to do so, he would be assigned
an attorney. Taking into consideration the mandatory 30 days which
the new counsel would need to prepare for trial, the court scheduled
the trial for November 15.
Wigenton was unable to find a satisfactory attorney, however. On
November 5, Ponds filed a motion asking the court to reconsider its
previous decision disqualifying him from representing Wigenton.
After a hearing on November 8, the court denied the motion for
reconsideration. Wigenton then asserted that he would get a replace-
ment attorney immediately and would be able to advise the court of
his choice within the week. However, to ensure that there would be
no further delays, the district court appointed an attorney to represent
Wigenton until such time as Wigenton could retain his own attorney.
The court explained that the appointed attorney could participate as
co-counsel with whomever Wigenton retained as his primary counsel.
In this way, the court was able to schedule the trial for as soon as pos-
sible after the hearing, taking into account the 30-day period that the
appointed attorney would need to prepare. The trial date was reset for
December 11.
On November 14, Adams moved to dismiss the indictment for vio-
lation of the Speedy Trial Act. If all of the delay due to the continu-
ances were counted, far more than the maximum of 70 days had
elapsed since his mistrial. See 18 U.S.C.§ 3161(e). The court denied
the motion, however, holding that the period of delay caused by the
continuances was excludable from the Speedy Trial Act calculation
under 18 U.S.C. § 3161(h)(8). The court found that a failure to have
3
granted the continuances would have made the continuation of the
proceeding impossible or have resulted in a miscarriage of justice.
Because the time was excludable for Wigenton, it was also excludable
for Adams, who was to be jointly tried with Wigenton. See 18 U.S.C.
§ 3161(h)(7).
Adams appeals the denial of his motion. We review the legal stan-
dards applied by the district court de novo and review the district
court's findings of fact under the Speedy Trial Act for clear error. See
United States v. Keith, 42 F.3d 234, 236 (4th Cir. 1994).
The Speedy Trial Act provides:
If the defendant is to be tried again following a declaration
by the trial judge of a mistrial or following an order of such
judge for a new trial, the trial shall commence within sev-
enty days from the date the action occasioning the retrial
becomes final. . . . The periods of delay enumerated in sec-
tion 3161(h) are excluded in computing the time limitations
specified in this section.
18 U.S.C. § 3161(e). One period of delay which is excluded is that
resulting from a continuance, if the judge finds that the ends of justice
to be served by the granting of the continuance outweigh the interests
of the public and the defendant in a speedy trial. See § 3161(h)(8)(A).
However, in order for this period to be excludable, the judge must
explicitly make its ends-of-justice determination on the record:
No such period of delay resulting from a continuance
granted by the court in accordance with [§ 3161(h)(8)(A)]
shall be excludable under this subsection unless the court
sets forth, in the record of the case, either orally or in writ-
ing, its reasons for finding that the ends of justice served by
the granting of such continuance outweigh the best interests
of the public and the defendant in a speedy trial.
Id.
The defendant argues that because the judge granted the continu-
ances without explicitly balancing on the record the ends of justice to
4
be served by the continuance against Adams's and the public's inter-
est in a speedy trial, the period of time was not excludable under
§ 3161(h)(8). It is true that the judge did not explicitly make the find-
ings called for by § 3161(h)(8) at the time he granted the continuance.
Not until his ruling on the defendant's motion to dismiss did the judge
balance the ends of justice against the interest in a speedy trial. "[T]he
district court may not grant an ends of justice continuance nunc pro
tunc." Keith, 42 F.3d at 237. If the court had granted the continuance
for a reason not acceptable under the Speedy Trial Act, then later
engaged in post hoc rationalization in order to avoid a dismissal on
Speedy Trial Act grounds, we would not hold such a continuance to
have been excludable.
However:
The retroactive continuances that are forbidden should not
be confused with a continuance granted for valid reasons
before the expiration of the allowable time for commence-
ment of the trial and documented by findings of the court
after the time has expired. A continuance granted and sub-
stantiated under these circumstances validly excludes the
time that it encompasses.
United States v. Carey, 746 F.2d 228, 230 n.2 (4th Cir. 1984) (empha-
sis added). Section 3161(h)(8) "does not specify at what point in time
an ends of justice finding must be made." Keith, 42 F.3d at 237. In
fact, "a court may enter its ends of justice finding after it grants the
continuance, `sometimes as late as the filing of the defendant's
motion to dismiss on Speedy Trial Act grounds,' if it is clear from the
record that the court conducted the mandatory balancing contempora-
neously with the granting of the continuance." Id. (quoting United
States v. Doran, 882 F.2d 1511, 1516 (10th Cir. 1989)). "In other
words, `if findings are entered ex post facto, it must be clear from the
record that [the court] did consider the factors identified by the statute
when it granted the continuance.'" Id. (quoting Doran, 882 F.2d at
1516 (quoting United States v. Elkins, 795 F.2d 919, 924 (11th Cir.
1986)) (alteration in original)) (internal quotation marks omitted).
That is what happened here: although the district court did not
make its findings at the time it granted the continuances, it is clear
5
from the record that it considered the factors enumerated by the
Speedy Trial Act. Section 3161(h)(8)(B) lists "factors, among others,
which a judge shall consider in determining whether to grant a contin-
uance" whose delay can be excluded from the Speedy Trial Act calcu-
lations. The two factors relevant here are:
(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.
...
(iv) Whether the failure to grant such a continuance . . .
would deny the defendant reasonable time to obtain counsel
. . . or would deny counsel for the defendant . . . the reason-
able time necessary for effective preparation, taking into
account the exercise of due diligence.
Id.
In this case, the court's motivation for postponing the defendants'
trial was to allow Wigenton to obtain conflict-free counsel and to give
his new attorney an adequate opportunity to prepare for trial. The dis-
trict court explained, "I certainly don't want to move this thing off
[postpone the trial], but I think we've got to do it under the circum-
stances." Keeping in mind "as its first consideration the rights of
[Wigenton] to a fair and unbiased and impartial representation by
counsel" and the possibility that something Wigenton said in his trial
could affect the sentencing and the appeal of the previously convicted
co-defendant whom Ponds was also representing, the district judge
concluded that the conflict of interest prohibited Ponds from continu-
ing as an attorney. And clearly the trial could not commence until
Wigenton retained a new attorney and that attorney was given at least
30 days to prepare. These record findings are sufficient to indicate
that the district judge properly balanced the ends of justice against the
best interests of the public and the defendant in a speedy trial when
he granted these continuances, even if he did not explain that balanc-
ing until the motion to dismiss was filed.
6
II. The District Court Was Correct to Reject the Defendant's
Challenge to the Jury's Venire.
At trial, the defendant orally objected to the jury venire on the basis
that it was under-representative of African-Americans. Adams argued
that because the venire was roughly 8% African-American, whereas
the general community was approximately 14% African-American,
that fact "causes one to pause as to whether or not the process is itself
fair and that in itself presents the evidence that would be the good
faith basis for a challenge" to the jury venire. The district court over-
ruled Adams's objection.
On appeal, Adams argues that the district court violated the Jury
Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., by over-
ruling his objection. Adams asserts that § 1868 of the Act gives him
an absolute right to inspect records from the master jury list and that
§ 1867(f) gives him the right to inspect the contents of records or
papers used by the jury commissioner or clerk in connection with the
jury selection process. He argues that his motion to review these
materials was improperly denied, and that his motion for a hearing on
the matter and an opportunity to present evidence should have been
granted.
It is true that these statutes give the defendant"essentially an
unqualified right to inspect jury lists." Test v. United States, 420 U.S.
28, 30 (1975). However, despite Adams's assertion to the contrary,
the record reveals that defendants never made any motion requesting
permission to inspect the jury lists.
Instead of requesting to see the jury lists, Adams's attorney merely
objected to the make-up of the jury venire in general and requested
"the opportunity just to make sure that what Your Honor has stated
[about the jury venire being selected randomly and fairly] is in fact
the case." Similarly, the co-defendant's attorney only asked "for a
hearing on this entire matter and opportunity to request, to produce
evidence, investigate and produce evidence with respect to how these
lists are brought into being and used in this division." The district
court overruled these motions for a general hearing regarding the jury
venire. But these motions were not specific enough to notify the dis-
7
trict court that the defendants wished to exercise their rights under
§ 1867(f).
The defendant plainly did make a motion for a hearing to allow
him to present evidence with respect to the jury venire, but that
motion was properly denied. Title 28 U.S.C. § 1867(d) provides that
if a motion is filed that challenges the court's compliance with jury
selection procedures and "contain[s] a sworn statement of facts
which, if true, would constitute a substantial failure to comply with
the provisions of this title," then the moving party is entitled to pres-
ent evidence including the testimony of the jury commissioner or
clerk and any relevant records or papers to support his motion. 28
U.S.C. § 1867(d); United States v. Cecil , 836 F.2d 1431, 1451-52 (4th
Cir. 1988) (en banc). However, neither the defendant nor co-
defendant introduced the necessary sworn statement setting forth any
evidence suggesting a violation. Failure to file such a sworn statement
requires that the motion be denied.
Without any evidence suggesting that there was a violation of the
Jury Selection Act, the objection that the racial makeup of the venire
does not match that of the community is insufficient to support a chal-
lenge to the venire. As we stated in United States v. Meredith, 824
F.2d 1418 (4th Cir. 1987):
When the court asked defendants for a specific showing of
non-compliance with the Act, defendants stated only that the
number of blacks on the jury panel was disproportionately
low. The court properly found this fact insufficient to sup-
port a challenge to the array. The trial judge emphasized that
defendants were not entitled to a specific statistical balance
in the jury panel, but only to a jury chosen at random from
a representative pool; the administrator and deputy clerk
established that the random selection procedure prescribed
in the district had been followed.
Id. at 1424 n.3.
In sum, the defendant would have been entitled to inspect the jury
lists if he had specifically requested to do so, but he did not. His
objection to the jury venire and request for a hearing to present evi-
8
dence as to its disproportionately low percentage of African-
Americans was properly dismissed because he did not present a sworn
statement alleging facts that, if true, would demonstrate a violation of
the Jury Selection and Service Act. His objection to the panel based
solely on the under-representation of African-Americans, without
more, does not establish any violation.
III. The District Court did not Abuse its Discretion in Denying
Adams's Motion to Sever.
On the morning of trial, the government announced that it would
call three witnesses whom it had not previously identified, and pro-
vided the defense with the criminal histories of those witnesses. The
defendants moved to have the witnesses barred from testifying
because of the lateness of the notification. The defendants claimed
that they would not be prepared for cross-examination of the wit-
nesses because no investigation had been conducted.
In response, the government explained that it made the judgment
to withhold the names of these witnesses "until trial seemed immi-
nent" because there had been threats, a beating and fire bombings of
other witnesses in the conspiracy prosecution. The government
explained that it was out of regard for the safety of the witnesses that
it decided to notify the defense of their existence only 24 hours before
they were to testify. The government further explained that it did not
believe there would be any significant prejudice to the defendants
because the witnesses were closely known by them.
The district court acknowledged that it was "keenly aware of the
fact that we have had grievous problems concerning the safety of wit-
nesses in this case." It explained that if any of the witnesses were not
known to the defendants then the court "want[ed] to know about it,"
but if they were known then there would be less prejudice to the
defense and he would overrule the motion to bar them from testifying.
Adams's attorney confirmed that Adams did know the witnesses.
Nevertheless, she objected because the late notification did not give
her enough time to prepare to cross-examine the witnesses or to look
for other witnesses to testify in rebuttal. However, the district judge
was hostile to the idea of another continuance, complaining that "the
9
case has been continued interminably" and he was"just not going to
kick this thing around any more."
At that point, Adams's attorney appealed to the court, "Your
Honor, if it is a problem with continuing the entire case I could move
to sever." The court responded, "No, we are not going to do that
either. I overrule your objections."
Because the grant or denial of a motion for severance under Fed.
R. Crim. P. 14 lies within the discretion of the trial court, we will
overturn the court's decision only where it has clearly abused its dis-
cretion. See United States v. Santoni, 585 F.2d 667, 674 (4th Cir.
1978). Adams argues that the court's denial of his motion to sever
was an abuse of discretion.
The government does not respond to this argument. Instead, it
argues that no motion to sever was ever made, characterizing the
above-quoted exchange as an "ambiguous musing." The govern-
ment's argument is meritless; it is clear from the record that the
defendant indicated his intention to make a motion to sever and that
the judge denied that motion. To have required Adams's attorney for-
mally to restate a motion that the judge had already denied would be
a pointless exercise.
Although a motion to sever was made, the district court did not
abuse its discretion in denying that motion. "For reasons of efficiency
and judicial economy, courts prefer to try joint-conspirators together."
United States v. Ford, 88 F.3d 1350, 1361 (4th Cir.), cert. denied, 117
S. Ct. 496 (1996). To establish that the district court abused its discre-
tion in denying a motion to sever, Adams must demonstrate not only
that he was prejudiced, but also that "there[wa]s a serious risk that
a joint trial would [have] compromis[ed] a specific trial right . . . or
prevent[ed] the jury from making a reliable judgment about guilt or
innocence." United States v. Hayden, 85 F.3d 153, 160 (4th Cir. 1996)
(quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)) (certain
alteration in original) (internal quotation marks omitted).
The prejudice asserted by Adams here does not meet that standard.
Adams claims that if a severance had been granted, he would have
had time to investigate the backgrounds of the new witnesses, and
10
would have discovered material to impeach them. This is not the sort
of prejudice that invalidates the denial of a motion to sever under
Hayden; instead, the prejudice that Adams complains about was a
result of the district court's refusal to grant another continuance. Had
the court granted the severance but proceeded immediately with
Adams's trial, he would still have suffered the same inability to inves-
tigate the witnesses. Adams does not allege any prejudice arising
directly from his joint trial with Wigenton, and therefore the district
court did not abuse its discretion in denying the motion to sever the
two trials.
On appeal Adams does not specifically challenge the district
court's refusal to grant his motion for a continuance. Perhaps he does
not appeal such a denial because his attorney never specifically
moved for a continuance, even hypothetically, at the time. However,
it is clear that she intended so to move, but that the judge declared his
refusal to continue the case. Because that denial is at the heart of
Adams's complaint, we address it.
We review a district court's refusal to grant a continuance for an
abuse of discretion. See United States v. Jordan , 466 F.2d 99, 101
(4th Cir. 1972). Adams's case is controlled by United States v.
Jordan. In that case, the trial court refused to grant a continuance to
a defendant who had not been given the names of the witnesses who
would testify for the prosecution until the day of trial. We found that
this refusal was not an abuse of discretion:
It is settled in this circuit that "[o]nly in a capital case is
the government required to furnish a pretrial list of govern-
ment witnesses." United States v. Chase, 372 F.2d 453, 466
(4th Cir. 1967); 18 U.S.C. § 3432. The court in its discretion
may order the government to produce such a list under Rule
16, Federal Rules of Criminal Procedure, but whether or not
it is an abuse of discretion not to do so, and whether it is an
abuse of discretion not to grant a continuance once the wit-
nesses' names become known, depends, we think, on
whether the denial of such motions amounts to a denial of
the defendant's right of confrontation in violation of the
Sixth Amendment. We find no such violation here.
11
Id. (alteration in original) (footnote omitted).
In Jordan, we noted that although the defendant did not know the
identity of the State's witnesses until the day of trial, the scope of his
cross-examination was not in any way curtailed. He knew the sub-
stance of what the witnesses would say from his attorney's conversa-
tions with the prosecution. Furthermore, although he was not able to
bring out any specific information about the offenses in their criminal
histories, he was able to impeach their credibility by demonstrating
that they were convicted felons. See id. at 102. Any further impeach-
ment on this point, we held, "would have been cumulative." Id.
Thus, the defendant's complaint boils down to the theory
that, if the defense had known the names of the witnesses,
or, once having ascertained their names, if a continuance
had been granted, it might have been possible to unearth
something more with which to discredit their testimony. We
recognize that counsel may sometimes need time to investi-
gate witnesses. But on the facts of this case it was not an
abuse of discretion to fail to grant a continuance.
Id.
The same can be said of Adams's case. The prejudice that Adams
asserts consists mainly of his claim that, had he been given a chance
to investigate the witnesses, he could have discovered further convic-
tions for possession of cocaine in their criminal histories. However,
under Jordan, this impeachment would have been cumulative because
he already had information about much of their criminal histories.
Adams further argues that he was prejudiced because he was
unable to discover that the witnesses had entered into agreements with
the government in which they would testify in return for favorable
consideration in their own cases. Although this is significant preju-
dice, it is outweighed by the court's concern for the safety of the wit-
nesses. In light of the threats made against witnesses, the fact that one
witness was beaten and that another was the victim of arson, the dis-
trict judge did not abuse his discretion by refusing to continue the trial
once the identity of these witnesses was known.
12
In sum, the district court's refusal to sever the trial or grant a con-
tinuance was not an abuse of discretion.
IV. The District Court did not Abuse its Discretion in Denying
Adams's Motion for a New Trial.
After Adams's conviction, he moved for a new trial, alleging newly
discovered impeachment evidence against two government witnesses.
The district court properly applied the five part test of United States
v. Chavis, 880 F.2d 788 (4th Cir. 1989), to determine whether a new
trial should be granted:
In determining whether a new trial should be granted under
Rule 33 of the Federal Rules of Criminal Procedure on the
basis of newly discovered evidence, this circuit utilizes a
five-part test: (i) is the evidence, in fact, newly discovered;
(ii) are facts alleged from which the court may infer due dil-
igence on the part of the movant; (iii) is the evidence relied
upon not merely cumulative or impeaching; (iv) is the evi-
dence material to the issues involved; and (v) would the evi-
dence probably result in acquittal at a new trial? Unless the
answer to each of these inquires is affirmative, a new trial
is not appropriate.
Id. at 793 (citation omitted). The court concluded that Adams could
not satisfy prongs three or five of this test, and so denied the motion
for a new trial. We review the district court's ruling on a motion for
a new trial for an abuse of discretion. See United States v. Bynum, 3
F.3d 769, 773 (4th Cir. 1993).
Regarding prong three, the district court noted that"as [Adams's
attorney] indicated, the evidence is impeaching, and it is not more
than impeaching." On appeal, Adams argues that the third prong of
the Chavis test is "invalid" because impeaching information may be
just as determinative of guilt or innocence as any other information.
However, the great monetary expense, waste of time, expenditure of
judicial resources, inconvenience to witnesses required to testify
again and undermining of the finality of the trial system caused by the
granting of a motion for a new trial are rarely justified unless the new
evidence directly suggests that the result of the first trial was incor-
13
rect. In any case, we are bound by the established circuit precedent
and may not ignore this prong.
The district court also denied the new trial motion because it found
that part five of the test was not satisfied, that is, the newly discovered
evidence would not probably result in an acquittal at a new trial. The
court found that even if the newly discovered impeachment evidence
might have totally destroyed the credibility of the two surprise wit-
nesses "there was still ample evidence before the jury which would
support the verdict they returned." In particular, he noted that the evi-
dence provided by an undercover officer and a testifying co-
conspirator were particularly strong. On appeal, Adams argues that
the court's opinion "concerning the abundance of evidence aside from
the witnesses' whose credibility the new evidence would affect,
should not be persuasive in that the other testimony was essentially
the same as that of the first trial which resulted in a hung verdict."
However, even if the first jury could not agree on a verdict based on
that evidence, the district court did not abuse its discretion in finding
that the evidence was sufficient to support the second jury's verdict.
In sum, the district court did not abuse its discretion in denying
Adams's motion for a new trial.
V. The District Court did not Abuse its Discretion in Giving a Jury
Instruction on Conspiracies.
Adams does not allege that the jury instructions as a whole did not
accurately and fairly state the controlling law. Rather, he argues that
a particular instruction "was pure argument and had the effect of
reducing the burden of proof of the Government," and that therefore
there was more than a reasonable likelihood that the instruction "prej-
udiced the jury's consideration of the dispositive issue." "The deci-
sion of whether to give a jury instruction and the content of an
instruction are reviewed for abuse of discretion." United States v.
Abbas, 74 F.3d 506, 513 (4th Cir.), cert. denied, 517 U.S. 1229
(1996). Furthermore, even if the use or denial of a jury instruction
were in error, we would reverse only if the error were "prejudicial
based on a review of the record as a whole." United States v. Ellis,
121 F.3d 908, 923 (4th Cir. 1997), cert. denied , 118 S. Ct. 738 (1998).
14
The contested instruction in this case stated:
The informal agreement present in conspiracy cases must
frequently be proved entirely by circumstantial evidence.
The absence of direct proof of an agreement generally
results from the secretiveness and complexity of modern day
conspiracies, particularly those involving narcotics.
Adams argues that giving the instruction was an abuse of discretion
because the citation of authority that accompanied this instruction was
not accurate. The government concedes that the two cases cited,
"Lynch v. United States, 397 U.S. 1028," and "King v. United States,
402 F.2d 289 (10th Cir. 1968)," are not accurate sources of the
instruction. But whether the authority cited for the instruction was
incorrect is of little importance; it is the content of the instruction that
may have prejudiced the jury and with which we are therefore con-
cerned.
The government argues that the content of the instruction did little
more than rephrase well-established conspiracy law. It cites a passage
in United States v. Burgos, 94 F.3d 849 (4th Cir. 1996), cert. denied,
117 S. Ct. 1087 (1997), as supporting the statement of law given by
the district court:
By its very nature, a conspiracy is clandestine and covert,
thereby frequently resulting in little direct evidence of such
an agreement. Hence, a conspiracy generally is proved by
circumstantial evidence and the context in which the cir-
cumstantial evidence is adduced. Indeed, a conspiracy may
be proved wholly by circumstantial evidence.
Id. at 857-58 (citations omitted).
The given instruction goes farther than does this passage from
Burgos in describing "the secretiveness and complexity" of modern
drug conspiracies as an explanation for the lack of direct proof, and
it has a ring of argument to it. We do not endorse the instruction.
However, the remainder of the jury instructions properly emphasized
that the burden of proving that a conspiracy existed remained with the
15
government. We cannot conclude that this instruction was prejudicial
based on a review of the record as a whole.
VI. The Trial Court's Refusal to Inquire of the Venire Whether They
Were More Apt to Believe the Testimony of a Police Officer
Than of a Lay Witness was not Plain Error.
Normally we review a district court's refusal to ask a voir dire
question for abuse of discretion. See United States v. Barber, 80 F.3d
964, 967 (4th Cir.), cert. denied, 117 S. Ct. 198 (1996). However, in
this case Adams did not object to the district court's refusal to ask the
requested question. Instead, the defendant's attorney stated:
Your Honor, I believe there is one other question. You did
inquire as to whether or not we had any sort of knowledge
or relationship to somebody in law enforcement, etcetera.
However, I believe there is another question that the court
usually propounds having to do with would you believe tes-
timony of a law enforcement officer.
The court declined to ask any such question, explaining "No,
ma'am, I normally do not propound that because that's getting over
into the California system." Adams's attorney then responded "I apol-
ogize, your Honor." Because no objection was made at the time,
Adams has forfeited his right to have us review the district court's
refusal for an abuse of discretion.
We may exercise our discretionary remedial power to correct the
district court if it committed plain error. See United States v.
Childress, 26 F.3d 498, 502 (4th Cir. 1994). But no such error appears
here.
Although this Circuit held in United States v. Evans, 917 F.2d 800
(4th Cir. 1990), that the refusal to ask jurors whether they would give
more weight to the testimony of a police officer was error, id. at 806,
Evans was overruled by our recent opinion in United States v.
Lancaster, 96 F.3d 734, 740-42 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 967 (1997). After Lancaster, whether such a ques-
tion need be asked of the jury venire is committed to the discretion
16
of the trial court. To determine whether the court abused its discre-
tion, we "examine the voir dire as a whole to determine whether it
was reasonably sufficient to probe the prospective jurors for bias and
partiality." Id. at 742.
The defendant does not argue that the voir dire as a whole was
insufficient to probe the prospective jurors for bias. In fact, Adams
has included in the record of this case only one page of the transcript
of the voir dire, which is certainly not enough for us to determine
whether the voir dire was sufficiently searching. We, therefore, can-
not conclude that the district court abused its discretion, much less
that the error was plain.
VII. The Trial Court did not Err in Refusing to Grant Adams's
Motion for Acquittal Just Because his Co-Conspirator was
Acquitted.
The defendant argues that because he was prosecuted on a theory
that he sold drugs that Wigenton supplied, and because Wigenton was
acquitted, no rational trier of fact could have convicted the defendant
of the conspiracy charge. His motion for acquittal was denied. We
review the denial of a motion for judgment of acquittal under a suffi-
ciency of the evidence standard. See United States v. Brooks, 957
F.2d 1138, 1147 (4th Cir. 1992).
The result here is controlled by the case of United States v.
Thomas, 900 F.2d 37 (4th Cir. 1990). There, a defendant argued that
his conspiracy conviction had to be reversed because his co-defendant
and alleged co-conspirator was acquitted. We rejected the common
law "rule of consistency" that a defendant cannot be convicted of con-
spiracy where his co-conspirator is found innocent in the same trial.
Id. at 40. We relied on numerous Supreme Court cases that "made it
clear that a defendant cannot challenge his conviction merely because
it is inconsistent with a jury's verdict of acquittal on another count."
Id. We explained that:
According to the Supreme Court, inconsistent verdicts
"should not necessarily be interpreted as a windfall to the
Government at the defendant's expense. It is equally possi-
ble that the jury, convinced of guilt, properly reached its
17
conclusion on the compound offense, and then through mis-
take, compromise, or lenity, arrived at an inconsistent con-
clusion on the lesser offense." This explanation applies
equally as much to this case [of one conspirator convicted
while the other is acquitted] . . . .
Id. (quoting United States v. Powell, 469 U.S. 57, 65 (1984)) (citation
omitted). Protection against jury irrationality or error is provided by
our independent review of the sufficiency of the evidence. See id.
The defendant's claim therefore fails under Thomas. The defendant
does not contend that the evidence was insufficient to support his con-
viction, as numerous witnesses as well as a police officer with a video
tape testified that Adams sold crack cocaine. The defendant's motion
for acquittal was properly denied.
VIII. The Trial Court did not Err in its Determination of the Appro-
priate Sentencing Guideline Level for Adams.
The defendant challenges his sentence on multiple grounds. Find-
ings of fact for sentencing are reviewed for clear error; the application
of the Sentencing Guidelines to the facts is reviewed with deference;
and legal interpretations are reviewed de novo . See United States v.
Cutler, 36 F.3d 406, 407 (4th Cir. 1994).
First, the defendant challenges the amount of cocaine attributable
to him. The district judge adopted the probation officer's calculations
in the pre-sentence report, observing that the officer had "been con-
servative to a fault" in his estimations. Adams makes three main
objections to the facts relied upon in the presentence report. These
objections are meritless.
Second, the defendant objects to the use of hearsay in the pre-
sentence report. However, "[f]or sentencing purposes, hearsay alone
can provide sufficiently reliable evidence of [the] quantity" of cocaine
attributable to a defendant. United States v. Uwaeme, 975 F.2d 1016,
1019 (4th Cir. 1992).
Third, Adams objects to the variation in the formula used to con-
vert the amount of cocaine in grams from its value in dollars. But the
18
sentencing guidelines permit a district court to use street values to
convert an amount of drugs in dollars to the equivalent amount in
grams. In making this calculation, district courts may rely on fluctuat-
ing and transitory street values even though these methods are neither
scientifically nor statistically precise. See id. In short, when the
amount of drugs seized "does not reflect the scale of the offense, the
district court may `approximate' the quantity to be used for sentenc-
ing." Id.
Fourth, the defendant objects to the use of a witness's testimony
whom the defendant asserts was lying. But we must give due regard
to the district court's opportunity to judge the credibility of the wit-
nesses upon whom it relies and the court need only reach its approxi-
mation by a preponderance of the evidence. See id. at 1018. The
defendant points to no evidence nor makes any argument that sug-
gests that the district court's finding was clearly erroneous.
Finally, the defendant contests the two point enhancement given to
his offense level under Sentencing Guideline § 4A1.1(d). That section
provides that two points should be added if the defendant committed
the instant offense while under any criminal justice sentence, includ-
ing probation, parole, supervised release, imprisonment, work release,
or while escaped from some such sentence. The defendant was on
twelve months unsupervised probation from February, 1993, to Feb-
ruary, 1994. The judge added the two point enhancement because that
probation period was within the time period alleged for the conspir-
acy.
The defendant argues that there was no evidence that he sold any
cocaine during the particular period during which he was on proba-
tion. However, the district court concluded that it need not find that
the defendant committed a discrete act in furtherance of the conspir-
acy while on probation in order to add the two points:
It is sufficient that the defendant was a participant in that
conspiracy during that period of time, which certainly over-
lapped the period of time when he was on unsupervised pro-
bation. Any other result would simply emasculate the whole
concept of conspiracy, where each individual is responsible
19
for the reasonably foreseeable efforts of each other member
of the conspiracy.
We agree that the defendant need not have committed a particular
act in furtherance of the conspiracy during the time he was on proba-
tion in order to be eligible for the enhancement if the conspiracy,
itself, was ongoing during that time. The crime of conspiracy does not
require any particular criminal act. The defendant could have been
convicted of the conspiracy had he never sold an ounce of cocaine
himself. Because the conspiracy for which he was convicted took
place while he was on probation, the enhancement for committing an
offense while on probation applies.
The defendant's conviction and sentence are therefore
AFFIRMED.
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