UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4962
FERNANDO TEJADA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-97-4-S)
Argued: December 4, 1998
Decided: January 21, 1999
Before HAMILTON and LUTTIG, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John Lynam Dowling, Olney, Maryland, for Appellant.
James G. Warwick, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Fernando Tejada appeals his conviction for conspiracy to distribute
and to possess with intent to distribute cocaine. See 21 U.S.C.
§§ 841(a)(1) and 846. We affirm.
I
In late 1987 or early 1988, Wallace Miles met Tejada in the Balti-
more, Maryland, area after a friend told him that Tejada sold cocaine.
At the time of their first meeting, Tejada sold Miles a kilogram of
cocaine for $17,000. Miles continued to purchase cocaine from
Tejada in one kilogram quantities through 1991, when Miles lost con-
tact with Tejada.
In late March or early April 1993, Miles resumed purchasing
cocaine from Tejada. Miles purchased between a quarter of a kilo-
gram and two kilograms of cocaine on a biweekly basis from late
March or early April 1993 until the summer of 1995. Most of the
transactions followed the same modus operandi . Miles would page
Tejada, entering a certain code for the quantity of cocaine he desired.
Tejada would either call Miles to approve the deal or page Miles to
confirm that he had received the message. Tejada would then call
Miles and inform him of the time and place to complete the transac-
tion. Generally, Miles paid for the cocaine in cash, although on some
occasions Tejada would extend Miles credit for a week at a time.
During at least four transactions, one occurring in New York City
and the other three in Baltimore, Maryland, Miles personally com-
pleted the transaction with Tejada. At other times, Damon Jackson,
one of Miles' lieutenants, personally completed the transaction with
Tejada. Jackson was responsible for delivering the cocaine to the
street dealers. The street dealers would then sell the cocaine on the
2
streets of Baltimore, Maryland. The street dealers would turn the pro-
ceeds of their sales over to Jackson who would turn the proceeds over
to Miles.
On January 8, 1997, a federal grand jury sitting in the United States
District Court for the District of Maryland returned an indictment,
which charged Tejada as follows:
From in or about January, 1993 until in or about August,
1995 in the State and District of Maryland, the Southern
District of New York, and elsewhere, FERNANDO
TEJADA the defendant herein, willfully, knowingly and
unlawfully did combine, conspire, confederate and agree
with persons whose names are to the grand jury known and
unknown to distribute and to possess with intent to distrib-
ute quantities of mixtures or substances containing detect-
able amounts of heroin, a Schedule I Narcotic Controlled
Substance, and cocaine, a Schedule II Narcotic Controlled
Substance, in violation of Title 21, United States Code, Sec-
tion 841(a)(1). 21 U.S.C. § 846.
Following a jury trial in the Northern Division of the District of
Maryland, the jury returned a guilty verdict, but found that Tejada
only conspired to distribute and to possess with intent to distribute
cocaine.1 The district court sentenced Tejada to 230 months' impris-
onment, and Tejada noted a timely appeal.
II
Tejada contends that his Sixth Amendment right to be tried by a
fair and impartial jury was violated by the jury selection plan utilized
by the United States District Court for the District of Maryland. We
disagree.
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1 The government introduced evidence at trial suggesting that Tejada
participated in a conspiracy to distribute and to possess with intent to dis-
tribute heroin. However, the jury, through its verdict, found that the gov-
ernment's evidence did not prove this fact beyond a reasonable doubt.
3
At trial, prior to voir dire, Tejada, a native of the Dominican
Republic, moved to strike the venire assembled in his case2 on
grounds that none of its members were of Hispanic descent and that
almost ten percent of the nation's population was Hispanic. The dis-
trict court denied the motion as "frivolous under settled law."
The United States District Court for the District of Maryland is
composed of two federal judicial divisions, the Northern Division and
the Southern Division. The jury selection plan for the District of
Maryland randomly selects venire members from voter registration
lists in the counties comprising the Northern Division and the South-
ern Division, respectively. The voter registration lists are taken from
data available after the most recent statewide general election.
According to Tejada, the population of the Southern Division is
5.2% Hispanic and the population of the Northern Division is 1.17%
Hispanic.3 This disparity, Tejada argues, requires that venire members
be selected on a district-wide rather than a division-wide basis. Tejada
theorizes that, had the venire in his case contained citizens of counties
within the Southern Division, his ability to have Hispanics on his jury
would have been increased. Thus, he argues, the District of Mary-
land's jury selection plan systematically excludes the vast majority of
Maryland's Hispanic population from jury service in the Northern
Division.
The Sixth Amendment grants criminal defendants the right to trial
"by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascer-
tained by law . . . ." U.S. CONST. amend. VI. In furtherance of this
constitutional command, the Jury Selection and Service Act provides
in relevant part that "all litigants in Federal courts entitled to trial by
jury shall have the right to . . . petit juries selected at random from a
fair cross section of the community in the district or division wherein
the court convenes." 28 U.S.C. § 1861.
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2 The term "venire" is defined as "[t]he group of citizens from whom
a jury is chosen in a given case." Black's Law Dictionary 1556 (6th ed.
1990).
3 The government does not take issue with these statistics.
4
A jury selection plan violates this Sixth Amendment right if the
plan does not draw venire members from a fair cross section of the
community. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975). In
order to establish a prima facie case that a jury selection plan violates
the Sixth Amendment's fair cross section requirement, a defendant
must demonstrate: (1) that the group alleged to be excluded is a dis-
tinctive group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and reason-
able in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the
group in the jury selection process. See Duren v. Missouri, 439 U.S.
357, 364 (1979). If the defendant proves a prima facie case, the gov-
ernment then bears the burden of proving that attainment of a fair
cross section is incompatible with a significant governmental interest.
See id. at 368.
Here, the government does not dispute that the first prong of a
prima facie case is met, i.e., that Hispanics are a distinctive group in
the community. In support of the second prong, Tejada argues that the
selection of venire members in the Northern Division of the District
of Maryland solely from voter registration lists in the Northern Divi-
sion results in a statistically unacceptable underrepresentation of His-
panics on Northern Division venires as compared to the Hispanic
population in the District of Maryland as a whole. According to
Tejada, the relevant "community" for purposes of his Sixth Amend-
ment rights is the entire District of Maryland rather than just the
Northern Division.
Tejada's argument is without merit because there is no constitu-
tional right to a venire drawn from an entire judicial district, rather
than from one of its divisions. See, e.g., Ruthenberg v. United States,
245 U.S. 480, 482 (1918) ("[T]he proposition[that the Sixth Amend-
ment was violated where the jury was not drawn from the whole dis-
trict] disregards the plain text of the Sixth Amendment, the
contemporary construction placed upon it by the Judiciary Act of
1789 (1 Stat. 73, 88, c. 20, § 29) expressly authorizing the drawing
of a jury from a part of the district, and the continuous legislative and
judicial practice from the beginning."); United States v. Bahna, 68
F.3d 19, 25 (2d Cir. 1995) (relying on Ruthenberg and holding that
the Sixth Amendment does not require that potential jurors be drawn
5
from an entire judicial district despite demographic differences
between divisions). Only in those cases where the use of a division
instead of the entire judicial district constitutes gerrymandering,
resulting in the systematic exclusion of a "distinctive group" from
participation in any jury selection system, is there a potential violation
of the Sixth Amendment. See, e.g., United States v. Test, 550 F.2d
577, 594 (10th Cir. 1976) ("the partitioning of a district into jury divi-
sions is sanctioned by the statute [28 U.S.C.§§ 1863(a) and 1869(c)],
and it is clearly not unconstitutional, absent evidence that some cogni-
zable group has been systematically excluded by`gerrymandering'
the division lines").
Tejada presented no evidence of gerrymandering with respect to
the division lines in the District of Maryland. Furthermore, the divi-
sion of districts by counties, which is the method used by the District
of Maryland in creating its two divisions, is a practice that has long
been accepted. See, e.g., United States v. Guy, 924 F.2d 702, 705-07
(7th Cir. 1991); see also, 28 U.S.C. § 1869(e) ("in judicial districts
where there are no statutory divisions," a division can include "such
counties, parishes, or similar political subdivisions surrounding the
places where the court is held").
Thus, properly framed, Tejada's Sixth Amendment challenge must
be limited to challenging the process/procedure employed for select-
ing venire members from within the Northern Division of the District
of Maryland. Even properly framed, Tejada's challenge still fails,
because "the use of voter registration lists[in the selection of venire
members] `has been consistently upheld against both statutory and
constitutional challenges, unless the voter list in question had been
compiled in a discriminatory manner.'" Truesdale v. Moore, 142 F.3d
749, 755 (4th Cir.) (quoting United States v. Cecil, 836 F.2d 1431,
1445 (4th Cir. 1988) (en banc)), cert. denied, 119 S. Ct. 380 (1998);
see also United States v. Lewis, 10 F.3d 1086, 1089-90 (4th Cir.
1993) (approving use of non-discriminatory voter registration lists in
jury selection plan). The record contains absolutely no evidence that
the voter registration list for the Northern Division of the District of
Maryland was compiled in a discriminatory manner. Accordingly,
6
Tejada's claim that his Sixth Amendment right to be tried by an
impartial jury was violated must be rejected.4
III
Tejada also contends that the district court's instructions to the jury
resulted in a constructive amendment of the indictment. We disagree.
Without objection, the district court instructed the jury in relevant
part as follows:
It's up to you to decide, based on all of the evidence,
whether or not the material in question was, in fact, cocaine
or heroin. In doing so, you should consider all the evidence
in the case, direct or circumstantial, which may aid in the
determination of the identity of the substance.
You must unanimously agree that the substance or sub-
stances in question were cocaine, heroin or both, before Mr.
Tejada can be found guilty. That is, if half of you think it's
cocaine and the other half think heroin only, you couldn't
convict him. It has to be unanimous agreement on either
heroin or cocaine or both. You could unanimously agree that
he had conspired to distribute both.
Because Tejada failed to object to this instruction, we review only
for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993). Under Olano, to establish plain error,
Tejada must demonstrate (1) an error that is (2) clear or obvious, (3)
that affects substantial rights, i.e., is prejudicial to the defendant, and
(4) that seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id. at 732.
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4 Tejada also presses a similar claim under the equal protection compo-
nent of the Fifth Amendment. This claim must be rejected because
Tejada cannot show that the complete absence of Hispanics on his jury
resulted from purposeful discrimination. Cf. Batson v. Kentucky, 476
U.S. 79, 94-95 (1986) (equal protection claim requires showing that
defendant was member of a cognizable racial group excluded from the
jury and that exclusion was result of purposeful discrimination).
7
In this case, the indictment charged Tejada with conspiracy to dis-
tribute and to possess with intent to distribute both heroin "and"
cocaine. The district court instructed the jury that it must unanimously
agree on whether the object of the conspiracy was either heroin or
cocaine or both.
Tejada argues that by instructing the jury that it could convict him
of conspiring to distribute cocaine or heroin or both, the district court
constructively amended the indictment by broadening the possible
bases for his conviction beyond that presented by the grand jury. In
other words, Tejada argues the district court's instruction erroneously
allowed the jury to pick and choose either or both substances as long
as they were unanimous, instead of finding guilt only as to both sub-
stances as charged in the indictment. Tejada's argument is without
merit.
A constructive amendment occurs through a jury instruction only
if the instruction "broadens the possible bases for conviction beyond
those presented by the grand jury." United States v. Floresca, 38 F.3d
706, 710 (4th Cir. 1994) (en banc). For a constructive amendment to
have occurred, therefore, the district court's instruction challenged by
Tejada must have exposed him to criminal "`charges that are not
made in the indictment against him.'" Id. at 711 (quoting Stirone v.
United States, 361 U.S. 212, 217 (1960)). Because the indictment
charged a conspiracy to distribute and to posses with intent to distrib-
ute cocaine, we must conclude a fortiori that the challenged instruc-
tion did not expose Tejada to criminal charges not made in the same
indictment.5
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5 Tejada also makes a related argument based on his theory that,
because the indictment charged a heroin "and" cocaine conspiracy, her-
oin is an essential element that the jury had to find in order to convict
him. In this regard, Tejada argues that the district court committed
reversible error by failing to inquire into and resolve the jury's cocaine-
only verdict, because heroin was an element of the offense and the spe-
cial verdict exposed him to double jeopardy. Tejada's argument is with-
out merit. First, as explained above, the jury did not have to find that
heroin was the object of the conspiracy in order to convict Tejada as long
as it unanimously found that cocaine was the object of the conspiracy.
Second, any double jeopardy argument is premature inasmuch as the
government has not sought to reindict Tejada for the same alleged heroin
conspiracy.
8
IV
Tejada contends that there is insufficient evidence in the record to
support his conspiracy conviction. We disagree.
A defendant challenging the sufficiency of the evidence to support
a conviction bears "a heavy burden." United States v. Hoyte, 51 F.3d
1239, 1245 (4th Cir. 1995). In reviewing the sufficiency of the evi-
dence supporting a criminal conviction, our role is limited to consid-
ering whether "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). We must bear in mind that"[t]he jury, not
the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented." United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Further, "if the evidence
supports different, reasonable interpretations, the jury decides which
interpretation to believe." Id. Reversal for insufficient evidence is
reserved for the rare case "where the prosecution's failure is clear."
Burks v. United States, 437 U.S. 1, 17 (1978). In sum, we "may not
overturn a substantially supported verdict merely because [we] find
the verdict unpalatable or determine that another, reasonable verdict
would be preferable." United States v. Burgos , 94 F.3d 849, 862 (4th
Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997).
To prove a conspiracy to distribute and to possess with intent to
distribute cocaine, the government must establish that: (1) an agree-
ment to distribute and to possess with intent to distribute cocaine
existed between two or more persons, other than government agents;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy. See id.
at 857. In addition to proving the existence of a conspiracy beyond
a reasonable doubt, the government must also prove a defendant's
connection to the conspiracy beyond a reasonable doubt. See id. at
858. To satisfy that burden, the government need not prove that the
defendant knew the particulars of the conspiracy or all of his conspir-
ators. See id. Once it has been shown that a conspiracy exists, the evi-
dence need only establish a "slight connection" between the defendant
and the conspiracy to support conviction. See id. at 861. "The term
`slight' does not describe the quantum of evidence that the govern-
ment must elicit in order to establish the conspiracy, but rather the
9
connection that the defendant maintains with the conspiracy." Id.
Because "a conspiracy is clandestine and covert, . . . a conspiracy gen-
erally is proved by circumstantial evidence and the context in which
the circumstantial evidence is adduced." Id. at 857. The circumstantial
evidence can include "a variety of conduct, apart from selling narcot-
ics." Id. at 859.
In this case, the government's evidence established that Tejada sold
large quantities of cocaine to Miles over a two-year span. Tejada per-
sonally completed some of these transactions with Miles, others he
personally completed with Jackson, one of Miles' lieutenants. In light
of this evidence, we conclude the evidence was more than sufficient
to convict Tejada of conspiracy to distribute and to posses with intent
to distribute cocaine. See id. at 862.
V
Tejada also raises one other claim that he contends should be
resolved in his favor. He contends that the district court abused its
discretion in admitting evidence of preconspiracy cocaine sales in
violation of Federal Rule of Evidence 404(b). We have reviewed this
claim and find it to be without merit. Accordingly, for the reasons
stated herein, the judgment of the district court is affirmed.
AFFIRMED
10