United States v. Ford , 88 F.3d 1350 ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5767
MELVIN A. FORD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5768
CYNTHIA EVETTE BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5781
CARLOS EDWIN MCGILL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5802
MICHAEL DEWAYNE SHORT,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5809
ERIC S. BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5071
NORMAN O'NEAL BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5080
WALTER TREVAUGHN SMITH,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5097
JEFFREY ANDREW REID, a/k/a U.S.,
Defendant-Appellant.
2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5152
RODERICK BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5180
HASSAN LAFIEK SMITH,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 93-5313
ROBERT ANTONIO WILLIAMS, a/k/a
John Doe, a/k/a Gibby,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 93-5362
MICHAEL STEVEN SMITH, a/k/a Black
Mike, a/k/a Smitty,
Defendant-Appellant.
3
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-90-454-WN)
Argued: December 8, 1995
Decided: July 15, 1996
Before RUSSELL and HALL, Circuit Judges, and THORNBURG,
United States District Judge for the Western District
of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Russell wrote the opinion, in which Judge Hall and Judge
Thornburg joined.
_________________________________________________________________
COUNSEL
ARGUED: John David Ash, Baltimore, Maryland; James Christo-
pher Savage, LAW OFFICES OF JAMES SAVAGE, Rockville,
Maryland; Arcangelo Michael Timinelli, Baltimore, Maryland; Wil-
liam B. Purpura, Baltimore, Maryland; David Richard Solomon, Bal-
timore, Maryland; William Scott Little, STARK & LITTLE,
Baltimore, Maryland; Colin R. Hueston, EUGENE P. TINARI &
ASSOCIATES, Philadelphia, Pennsylvania; Daniel Tisdale, Balti-
more, Maryland; Alan Curtis Drew, Upper Marlboro, Maryland, for
Appellants. John Vincent Geise, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: Eugene Patrick
Tinari, Philadelphia, Pennsylvania, for Appellant Eric Brown;
C. Michael Walls, Laurel, Maryland, for Appellant Hassan Smith;
Gary L. Segal, Rockville, Maryland, for Appellant Michael Smith;
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Mary-
land, for Appellant Cynthia Brown; Kenneth Mack Williams, Balti-
more, Maryland, for Appellant Walter Smith; Jeffrey C. Hines,
Baltimore, Maryland, for Appellant Roderick Brown. Lynne A. Bat-
4
taglia, United States Attorney, Barbara S. Skalla, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
This case is the result of an extensive investigation into the cocaine
trafficking activities of Paul Winestock, Jr., Norman Brown, and
numerous associates. The investigation included court-ordered elec-
tronic surveillance on several cellular telephone lines, numerous
undercover drug buys made by police agents, and the searches of
approximately 32 locations in Maryland, Virginia, the District of
Columbia, and Pennsylvania. The investigation led to the indictment
of thirty defendants, fifteen of whom were convicted after four sepa-
rate trials and six of whom entered guilty pleas.
The main trial of seventeen defendants (referred to by the parties
as the "Winestock" trial) began on November 4, 1991. The trial con-
tinued for sixty-nine trial days and concluded on March 31, 1992. The
jury acquitted all of the defendants on the conspiracy counts.1 The
jury, however, convicted each of the following defendants on at least
one substantive count: Paul Winestock, Jr., Norman Brown, Melvin
A. Ford, Eric S. Brown, Jeffrey A. Reid, Walter T. Smith, Roderick
Brown, Michael D. Short, Carlos E. McGill, Robert A. Williams, and
Cynthia E. Brown. Except for Paul Winestock, Jr., 2 all of these defen-
dants are parties to this appeal.3
_________________________________________________________________
1 Count I of the indictment charges a conspiracy of all of the defen-
dants. In Counts II and III, the indictment divided the defendants into
two groups and charged a conspiracy of each group. Count II involved
the group headed by Norman Brown; Count III involved the group
headed by Paul Winestock, Jr.
2 Although Winestock's appeal was originally consolidated with this
case, we ordered that his appeal be deconsolidated on June 14, 1996.
3 The jury acquitted the other six defendants: Douglas Allston, Paul
Winestock, Sr., Delbert Mobley, Terrance Ross, Alvin Martin, and Eric
Allston.
5
The trial against the other two defendants (the"Smith" trial) began
on April 7, 1992. At the completion of the trial, the jury convicted
Hassan L. Smith and Michael S. Smith on all counts brought against
them.4
The thirteen appellants have raised numerous arguments to their
convictions and sentences. We find error only in the sentencing of
Jeffrey A. Reid, which we vacate and remand for resentencing. We
affirm the convictions and sentences of all of the other appellants.
I.
We first turn to the sentencing of Jeffrey A. Reid, the one issue on
which we reverse. Reid was convicted on two counts of possession
with intent to distribute crack cocaine. The district court attributed to
him eight kilograms of crack cocaine and sentenced him at level 40.
Reid's presentence report assigned three criminal history points to
Reid, thus placing him in criminal history category II. He received
one point for a 1987 drug conviction in the District of Columbia and
two points for a 1987 conviction in the same jurisdiction for unautho-
rized use of a vehicle. At sentencing, the government presented evi-
dence that Reid had violated the terms of his probation on the drug
conviction, for which he received a sentence of 90 days imprison-
ment. Pursuant to § 4A1.1 of the Sentencing Guidelines, the govern-
ment added another criminal history point for the violation of
probation, which elevated Reid's criminal history category to Cate-
gory III. Because the government surprised Reid with this informa-
tion, the district court agreed to sentence Reid at the low end of the
Category III range (360 months), with the understanding that the
court would reopen the matter if Reid found that the extra criminal
history point was wrongly added. The court clearly stated that it
would sentence Reid at the low end of the Category II range (324
_________________________________________________________________
4 The jury could not reach a verdict on the charges brought against a
third defendant, Vincent Knight. Knight later entered a guilty plea on one
of the counts. The court also conducted two other jury trials against Der-
rick Curry and Tyrone Lancaster. The jury convicted each on at least one
count. Curry has filed an appeal, but it was deconsolidated by order of
the court on March 1, 1995. Lancaster has not filed an appeal.
6
months) if Reid established that Category II was the appropriate cate-
gory. After conducting further research, Reid's attorney conceded that
the government correctly assigned four criminal history points to
Reid.
After sentencing, Reid's attorney learned that the 1987 drug con-
viction used in the criminal history category determination resulted
from Reid's participation as a member of the Winestock group for the
distribution of cocaine in Washington. On this appeal, Reid argues for
the first time that he should not have received criminal history points
for the prior drug conviction because it was part of the same course
of conduct as his current convictions. Reid argues that we should sub-
tract the two criminal history points assigned from that conviction and
sentence him to the low end of the Category II range. The government
concedes that Reid should not have received criminal history points
for the 1987 conviction but argues that Reid failed to raise the issue
before the district court at sentencing.
A defendant's failure to object to a sentencing issue amounts to a
waiver of his right to raise that issue on appeal, absent plain error.
United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). Under this
standard, we must find that (1) an error was committed, (2) the error
was plain, and (3) the error affected the defendant's substantial rights.
United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993); United
States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995). Once these thresh-
old requirements are satisfied, we must also decide whether the error
"seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings." Olano, 113 S. Ct. at 1779 (quoting United
States v. Young, 470 U.S. 1, 15 (1985)); Lockhart, 58 F.3d at 88.
There is no question that an error was committed: even the govern-
ment concedes that Reid erroneously received two criminal history
points for a prior conviction that was part of the same course of con-
duct as his current convictions. The error was plain because, under the
Sentencing Guidelines, a defendant should receive criminal history
points for a "prior sentence" only if the prior conviction arises from
"conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). The
error clearly affected Reid's substantial rights because the extra points
caused Reid to be sentenced at a more severe guideline range. See
United States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994) ("A sen-
7
tence based on an incorrect guideline range constitutes an error affect-
ing substantial rights and can thus constitute plain error.").
Furthermore, sentencing a defendant at the wrong guideline range
seriously affects the fairness, integrity, and public reputation of the
judicial proceedings. If we do not correct this error, Reid will serve
a term of imprisonment three years longer than required by the sen-
tencing guidelines.5 We cannot casually ignore this fact because of an
overly-strict adherence to technical requirements. Three years of a
man's life is not a trifling thing. No court of justice would require a
man to serve three undeserved years in prison when it knows that the
sentence is improper. The fairness, integrity, and public reputation of
our judicial system demand that we correct Reid's sentence.
The district court stated at sentencing that it would sentence Reid
at the low end of the Category II guideline range (for a level 40
offense) if that criminal history category were appropriate. We there-
fore vacate and remand Reid's sentence with instructions to resen-
tence him to 324 months imprisonment, the low end of the Category
II guideline range.
II.
Having addressed the one issue on which we reverse, we now turn
to the numerous issues on which we affirm. We first address the pre-
trial issues arising from the Winestock trial.
A. Wiretaps
The appellants challenge the government's authority to place wire-
taps on the cellular phones of four of the appellants.
_________________________________________________________________
5 The district court stated at sentencing that it would sentence Reid at
the low end of the appropriate guideline range, whether it is Category II
or Category III. For a level 40 offense, the low end of the Category II
range is 324 months, and the low end of the Category III range is 360
months. Thus, correcting Reid's criminal history category would reduce
his sentence by three years.
8
Special Agent Eric V. Bryant of the Federal Bureau of Investiga-
tion, acting in an undercover capacity, met Norman Brown on
November 17, 1989, and portrayed himself as a supplier of untrace-
able and untappable cellular phones. Bryant gave Brown a cellular
phone in exchange for crack cocaine. Subsequently, Bryant supplied
Tommy Patrick Johnson and Michael S. Smith with cellular phones
in exchange for crack cocaine. Sergeant Thurman J. Dade of the
Washington Metropolitan Police Department supplied cellular phones
to Paul Winestock, Jr., and his associates.
On September 10, 1990, after receiving court authorization, the
government tapped the cellular phones of Norman Brown, Tommy
Johnson, Michael Smith, and Paul Winestock, Jr., as well as Wine-
stock's home telephone line. After one month, the government
dropped the taps on Johnson's and Smith's phones. The taps on
Brown's and Winestock's phones remained until December 5, 1990.
The government intercepted hundreds of conversations, many dealing
explicitly with drugs. At trial, the government introduced many of
these conversations into evidence.
Robert S. Mueller, III, an acting Assistant Attorney General of the
Criminal Division of the Department of Justice, authorized the gov-
ernment's applications for wiretaps. The appellants argue that Muel-
ler, as an acting Assistant Attorney General, lacked the statutory
power to authorize the wiretap applications. The appellants base their
argument on 18 U.S.C. § 2516(1) as originally enacted in 1968:
The Attorney General, or any Assistant Attorney General
specially designated by the Attorney General, may authorize
an application to a Federal judge of competent jurisdiction
for . . . an order authorizing or approving the interception of
wire or oral communications by [federal investigative agen-
cies seeking evidence of certain designated offenses].
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-
351, § 802, 82 Stat. 197, 216 (1968). Under this provision, the Attor-
ney General cannot delegate the power to authorize wiretap applica-
tions to acting Assistant United States Attorney Generals.
Congress, however, amended this provision in 1986 to allow an
acting Assistant Attorney General specially designated by the Attor-
9
ney General to authorize wiretap applications. Electronic Communi-
cations Privacy Act of 1986, Pub. L. 99-508, § 104, 100 Stat. 1848,
1855 (1986). On May 24, 1989, Attorney General Richard Thornburg
gave the power to authorize wiretap applications to"the Assistant
Attorney General in charge of the Criminal Division, any acting
Assistant Attorney General in charge of the Criminal Division, and
any Deputy Assistant Attorney General of the Criminal Division."
Order No. 1348-89 of the Attorney General of the United States (May
24, 1989). Thus, Robert Mueller, in his capacity as acting Assistant
Attorney General of the Criminal Division, had the power to autho-
rize wiretap applications in September 1990. The appellants argument
is therefore meritless.
B. Search of Vehicle
We next review whether the search of Cynthia Brown's vehicle
violated the Fourth Amendment.
On October 21, 1990, Paul Winestock, Jr., who based his operation
in Maryland, contacted Melvin Ford in Philadelphia, Pennsylvania,
and began making arrangements for Ford to supply Winestock with
cocaine. FBI agents, having tapped Winestock's cellular phone line
and home telephone line, closely monitored all contacts between
Winestock and Ford over the next few weeks.
In the early morning of November 9, 1990, the FBI intercepted a
telephone call from a man named Eric (later identified to be Eric
Brown) to Winestock. Eric notified Winestock that"the main man"
had "something" for him that would be available the next day.6 Other
intercepted calls that day clarified that Winestock would receive five
kilograms of cocaine from Philadelphia. At 10:19 p.m., the FBI inter-
cepted a conversation between Eric and Winestock, in which they
confirmed that the price would be $28,500 per kilogram and that the
courier would receive $250 per kilogram, or $1,250. At approxi-
mately 9:37 a.m. the following morning, the FBI intercepted another
of Eric's calls confirming that his driver was at the International
House of Pancakes in a rented red Corsica. At 10:50 a.m., Winestock
_________________________________________________________________
6 Apparently, Eric Brown and Melvin Ford were both agents of the
same source in Philadelphia.
10
and the courier spoke to Eric on Winestock's cellular phone. The cou-
rier verified to Eric that she had received "the paper, the 1,250," a ref-
erence to her courier fee. She also told Eric that she would be on the
road within three hours. Winestock told Eric that the couriers were at
the Marriott Hotel under his name. Winestock gave Eric the phone
number of the hotel.
Undercover agents went to the hotel and observed a rented red Cor-
sica with Pennsylvania license plates. Agents at the hotel had received
a general description of the individuals staying in the room under
Winestock's name, and they observed two women who fit that gen-
eral description enter the red Corsica and drive off. They headed
south on I-95, instead of north toward Philadelphia. The Corsica trav-
elled recklessly between 80 and 95 miles per hour.
Special Agent Andrew McColl, who headed the investigation of
Winestock, was not at the scene but followed these events by police
radio and by cellular phone. He concluded that the women in the red
Corsica were couriers en route to making another cocaine delivery.
He ordered the agents at the scene to stop and search the vehicle.
With the assistance of a Virginia state trooper, the agents stopped the
Corsica.
Special Agent Stephen Benjamin approached the vehicle and spoke
with the driver, Cynthia Brown. He asked for permission to search the
contents of the vehicle. She consented. Benjamin asked if he could
look in the trunk. Again she consented and handed him the keys. He
asked if she would open the trunk; she did. Two bags were in the
trunk. Brown identified her bag, and she opened it herself. Benjamin
found clothing in the bag, but there was a shoebox at the bottom.
When asked, Brown stated that the shoebox contained shoes. Without
asking for Brown's consent, Benjamin opened the shoebox and found
three kilograms of cocaine.
In a pre-trial motion, the defense tried to suppress the evidence
found in the search. The district court denied the motion, finding that
the government had probable cause to search the vehicle and had
received the defendant's consent to search.
"The police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is
11
contained." California v. Acevedo, 500 U.S. 565, 580 (1991); United
States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir.), cert. denied, 115 S.
Ct. 102 (1994). Probable cause exists where, given all the facts at the
time of the search, "there is a fair probability that contraband or evi-
dence of a crime will be found in a particular place." Illinois v. Gates,
462 U.S. 213, 238 (1983).
Special Agent Benjamin had probable cause to search Brown's car,
including the trunk and the containers found within the trunk. From
the intercepted conversations obtained with the wiretaps, the FBI
agents knew that the women in the red Corsica had delivered five
kilograms of cocaine to Winestock. That fact alone likely establishes
probable cause to believe that the car might contain either more
cocaine or the payment for the cocaine. At the very least, the agents
had probable cause to believe the vehicle contained the $1,250 courier
fee. Furthermore, the fact that Brown did not return directly to Phila-
delphia, but instead headed south on I-95 away from Philadelphia,
suggests that she was going to make another delivery.
The federal agents had probable cause to believe Cynthia Brown's
car contained cocaine or drug money. Thus, Agent Benjamin had the
authority to search the car and any container within the car that could
hold drugs or drug money, including the trunk, the bag within the
trunk, and the shoebox within the bag. Because Agent Benjamin had
probable cause for the search, it is irrelevant that Brown did not con-
sent specifically to the search of the shoebox. We conclude that the
district court correctly denied the defense's motion to suppress the
evidence found in Brown's vehicle.
III.
We next address several trial issues arising from the Winestock
trial.
A. Timing of Closing Argument
First, we consider whether Melvin Ford can challenge his convic-
tion on the ground that his attorney delivered his closing argument
eleven days before the jury began its deliberations.
12
As already described in the previous section, Melvin Ford was con-
tacted by Paul Winestock, Jr. on October 21, 1990, about the purchase
of cocaine. Over the next few weeks, Ford and Winestock made the
necessary arrangements, which FBI agents intercepted from their
wiretaps. Other surveillance agents saw Ford and Winestock meet in
person, both in Maryland and Philadelphia. On November 9 and 10,
1990, FBI agents intercepted a series of telephone calls between
Winestock and Eric Brown which revealed the delivery of five kilo-
grams of cocaine from the source in Philadelphia to Winestock in
Maryland. These conversations led to the stop and search of Cynthia
Brown's vehicle. The jury convicted Ford of one count of distribution
of cocaine for his involvement as a middleman for the source in Phila-
delphia that supplied cocaine to Winestock. As with the other defen-
dants, he was acquitted of conspiracy.
Ford argues that the district court's denial of severance deprived
him of an effective closing argument.7 At the close of evidence, each
defendant's attorney made a closing argument. Because of the time
involved for so many closing arguments, the jury did not receive the
case until eleven days after Ford's attorney made his closing argu-
ment. Ford contends that the evidence against him was so weak that
if the jury had heard his closing argument closer to its deliberations,
he would certainly have been acquitted.
No constitutional or statutory provision gives a criminal defendant
the right to have the jury hear his closing argument immediately
before the case is sent to the jury. In a large-scale, multi-defendant
prosecution, simple logistics demands that some defendants' attorneys
will have to make their closing arguments several days or even a few
weeks before the jury commences its deliberations. Courts have
shown a strong preference for joinder of criminal defendants, which
promotes efficiency and judicial economy. United States v. Tedder,
_________________________________________________________________
7 Actually, Ford attempts to twist his argument into a claim for ineffec-
tive assistance of counsel. Ford, however, cannot blame his trial counsel
for delivering his closing argument eleven days before the jury began its
deliberation. The attorney had no choice in the matter. The district court,
by denying the defendants' motion for severance, forced the simulta-
neous trial of seventeen defendants. We therefore treat Ford's argument
as a challenge to the denial of severance.
13
801 F.2d 1437, 1450 (4th Cir. 1986), cert. denied, 480 U.S. 938
(1987). Establishing a right to a closing argument immediately before
the commencement of jury deliberations would force the government
to prosecute defendants separately; especially where the government
has alleged a conspiracy (and has sufficient evidence to support the
conspiracy charge), separate trials would be repetitive, inefficient, and
expensive.
We hold that a criminal defendant has no right to have his attorney
make a closing argument immediately before the jury commences its
deliberations. Accordingly, we reject Ford's claim.
B. Motion for Severance
We turn next to the denial of Carlos McGill's motion for severance
or a mistrial.
Before trial, the defendants moved for severance, claiming that
there was insufficient evidence for the jury to find a single conspiracy
of the charged defendants (Count I). The defendants argued that Nor-
man Brown and Paul Winestock, Jr. ran separate operations. The gov-
ernment's theory was that Brown and Winestock headed somewhat
independent but interrelated and interacting branches of a large, fluid
drug conspiracy. In denying the motion for severance, the district
court found sufficient evidence for a jury to find a single conspiracy
and allowed the conspiracy charge to go to trial.
Carlos McGill was one of the defendants charged in the conspir-
acy. About a month into trial, McGill moved for a severance or mis-
trial and requested the government to explain how the Brown and
Winestock groups were connected. McGill insisted that the evidence
presented by the government up to that point demonstrated that
Brown and Winestock ran separate operations. The government
recited the evidence it had so far presented and explained the evi-
dence it would present to connect Brown and Winestock as branches
of a single conspiracy. Satisfied with the government's proffer of evi-
dence, the district court denied McGill's motion for severance or mis-
trial. At the conclusion of the evidence, however, the district court
found sufficient evidence to warrant giving the jury a multiple con-
14
spiracy instruction. The jury acquitted the defendants on the conspir-
acy charge.
Although acquitted of conspiracy, McGill was convicted on one
count of distribution of crack cocaine and one count of possession
with intent to distribute crack cocaine. On November 7, 1990, McGill
gave 53.54 grams of crack cocaine to Sergeant Dade in payment for
Winestock's cellular phone. This transaction formed the basis of the
distribution charge brought against McGill. On December 5, 1990, the
police searched McGill's residence and found 84 grams of crack
cocaine inside a safe in his closet. This evidence formed the basis of
the possession with intent to distribute charge brought against McGill.
In urging this court to reverse his convictions on the substantive
counts, McGill ostensibly argues that the district court erred in deny-
ing his motion for severance or mistrial. The substance of his argu-
ment, however, is that a material variance occurred because the
government indicted the defendants on a single conspiracy but pres-
ented evidence of multiple conspiracies. We therefore review
McGill's claim first under a "variance" analysis.
A variance occurs when the evidence at trial establishes facts mate-
rially different from those alleged in the indictment. United States v.
Kennedy, 32 F.3d 876, 883 (4th Cir. 1994), cert. denied sub nom.
Ingram v. United States, 115 S. Ct. 939 (1995); United States v.
Tarantino, 846 F.2d 1384, 1391 (D.C. Cir.), cert. denied, 488 U.S.
840 & 867 (1988). "In a conspiracy prosecution, a defendant may
establish the existence of a material variance by showing that the
indictment alleged a single conspiracy but that the government's
proof at trial established the existence of multiple, separate conspira-
cies." Kennedy, 32 F.3d at 883.
The government's theory of the case was that Norman Brown and
Paul Winestock, Jr., headed somewhat independent operations but
participated in a single, albeit loose-knit, conspiracy. The government
presented evidence linking several of the defendants and witnesses to
both Brown and Winestock and showing that Winestock occasionally
supplied Brown with crack cocaine. The government also showed that
the two spoke on the phone on occasion; in one conversation, Wine-
stock asked for Brown's help in obtaining a gun, and in another,
15
Winestock invited Brown to a meeting with his source in Philadel-
phia. The district court found that the government introduced suffi-
cient evidence to send the conspiracy issue to the jury.
The fact that the jury acquitted the defendants on the conspiracy
charge does not demonstrate a material variance. The verdict shows
that the jury found the evidence of a single conspiracy lacking, but
not that the government's evidence pointed inescapably to the exis-
tence of multiple conspiracies. The government tried its conspiracy
case and lost, but losing does not in itself create a material variance
that undermines the jury's convictions on the substantive counts. A
variance occurs when the government produces so little evidence on
a charge in the indictment that the charge should not even be sent to
the jury.
Even if a variance had occurred, we would still affirm McGill's
convictions. "A variance constitutes a legitimate grounds for reversal
only if the appellant shows that the variance infringed his `substantial
rights' and thereby resulted in actual prejudice." Kennedy, 32 F.3d at
883. To show actual prejudice, an appellant must demonstrate that the
multiple conspiracy variance created a spillover effect, such that "the
jury was likely to transfer evidence from one conspiracy to a defen-
dant involved in an unrelated conspiracy." Id .
McGill was not prejudiced by any variance. The jury easily had the
ability to separate the evidence relating to the charges against McGill
from the evidence pertaining to the other defendants. See United
States v. Edwards, 69 F.3d 419, 433 (10th Cir. 1995) (holding that,
in evaluating whether a variance caused a prejudicial spillover, the
court considers "whether the proliferation of separate conspiracies in
the case affected the jury's ability to segregate each defendant's indi-
vidual actions and participation"). Direct evidence supported the two
charges on which the jury convicted McGill. One count involved a
sale of crack cocaine to an undercover police officer. At trial, Ser-
geant Dade testified to the details of the transaction and identified
McGill as the seller. The other count involved crack cocaine that the
police found in McGill's apartment during a search. At trial, Special
Agents Bryant and Burmeister testified to the search of McGill's resi-
dence. Agent Bryant identified the cocaine found in the safe in
McGill's closet. Given this direct evidence supporting McGill's con-
16
viction, we conclude that the jury could easily have separated the evi-
dence against McGill from the evidence pertaining to the other
defendants.
In fact, we find that the jury demonstrated its ability to sift through
the evidence and draw conclusions based on the evidence relevant to
each defendant. The jury did not convict all seventeen defendants on
all the counts charged against them. The jury acquitted the defendants
on the conspiracy counts. It convicted on some of the substantive
charges, and acquitted on others. The jury acquitted six defendants on
all of the charges brought against them. The verdict reveals that the
jury did not convict or acquit the defendants as a group. The jury went
through the indictment methodically and reached an independent ver-
dict on each charge.
If we treat McGill's argument as a review of the trial court's ruling
on his motion for severance or mistrial, we reach the same conclu-
sion. We review a trial court's ruling on a motion for severance or
mistrial under the abuse of discretion standard. United States v. West,
877 F.2d 281, 287-88 (4th Cir. 1989), cert. denied, 493 U.S. 869 &
959 (1989) & 493 U.S. 1070 (1990); see United States v. Brewer, 1
F.3d 1430, 1437 (4th Cir. 1993) (mistrial); United States v. Brooks,
957 F.2d 1138, 1145 (4th Cir.) (severance), cert. denied, 505 U.S.
1228 (1992). For reasons of efficiency and judicial economy, courts
prefer to try joint-conspirators together. United States v. Tedder, 801
F.2d 1437, 1450 (4th Cir. 1986), cert. denied , 480 U.S. 938 (1987).
The district court found that the government introduced sufficient evi-
dence for a jury to conclude that Brown and Winestock participated
in a single, albeit loosely-connected, conspiracy. As it turned out, the
jury acquitted all the defendants on the conspiracy counts. Nonethe-
less, we agree with the district court that the evidence was sufficient
for the jury to consider the conspiracy count.
A defendant must show prejudice in order for a trial court's ruling
on a motion for severance to constitute an abuse of discretion. United
States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485
U.S. 934 (1988). No prejudice exists if the verdicts demonstrate that
the jury "meticulously sifted the evidence" and "apprais[ed] the inde-
pendent evidence against each defendant." Id .; see United States v.
Alexander, 982 F.2d 262, 266 (8th Cir. 1992) (holding that prejudice
17
exists where the jury was unable to "compartmentalize the evidence"
as it related to the separate defendants). As we have already stated,
the verdict demonstrated that the jury considered the independent evi-
dence against McGill when it convicted him on the two substantive
counts.
We therefore conclude that the district court did not abuse its dis-
cretion in denying McGill's motion for severance or a mistrial.
C. Evidentiary Rulings
We next review two evidentiary rulings that affected Robert A.
Williams.
Williams was convicted of possession with intent to distribute 117
grams of crack cocaine. The evidence on which Williams was con-
victed was found in a four-bedroom house at 501 Castlewood Place
in Largo, Maryland, where Williams was living. In one of the bed-
rooms, identified at trial as "bedroom number four," the police found
a beeper, Williams' social security card, 7 grams of crack cocaine,
and $800 in cash. Another bedroom, identified as"bedroom number
two," contained more incriminating evidence: 117 grams of crack
cocaine, a loaded .357 Magnum, a cellular phone, and $1803 in cash.
Williams claims that he resided in bedroom number four, and that
Bernard Langley, another resident of the house, lived in bedroom
number two.
During the presentation of the defense's case, Williams requested
that Special Agent Wally Borum be recalled to testify that Bernard
Langley, and not Williams, occupied bedroom number two where the
117 grams of crack cocaine were found. The district court denied Wil-
liams' request. Williams argues that he was prejudiced because the
district court denied his request to recall Special Agent Borum.
We review the district court's evidentiary rulings for abuse of dis-
cretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993),
cert. denied, 114 S. Ct. 1374 (1994). A district court has the discre-
tion to place reasonable limits on the presentation of evidence. Id.
(citing United States v. Gravely, 840 F.2d 1156, 1162-64 (4th Cir.
18
1988)). Williams had an opportunity to cross-exam Special Agent
Borum when he testified during the government's case. Williams
could have presented evidence establishing that Langley lived in bed-
room number two and that he lived in bedroom number four. Wil-
liams insists that, because of the length and complexity of the trial,
he needed to wait until the defense's case to examine Agent Borum
so that the jury would not forget the testimony regarding which room
Williams occupied. This argument is unavailing, however, because
Williams had an opportunity at closing argument to remind the jury
of Agent Borum's testimony and to argue that he did not reside in the
bedroom where the 117 grams of crack cocaine were found. We con-
clude that the district court had the discretion to control the presenta-
tion of evidence in this complex trial, and that it did not abuse its
discretion when it denied Williams' request to recall Agent Borum.
Williams also challenges the government's introduction of evi-
dence of Williams' involvement in a drug transaction not included in
the indictment. On April 3, 1990, Robert Williams was arrested along
with Maurice Robinson and Gary Chapel in connection with an
undercover drug buy. The police found Williams in possession of the
marked funds used to purchase the crack cocaine, but they later
released Williams without bringing charges. Williams contends that
the district court improperly admitted evidence of his past bad acts.
Rule 404(b) of the Federal Rule of Evidence provides as follows:
Evidence 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, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mis-
take or accident . . . .
Fed. R. Evid. 404(b). We have held that "other identical instances of
criminal activity to that charged in the indictment, occurring reason-
ably current with the activity charged in the indictment and connected
with the very illegal activity which was the subject matter of the
indictment, is admissible under the rubric of intent, plan, scheme or
design." United States v. Ramey, 791 F.2d 317, 323 (4th Cir. 1986);
see United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991); United
19
States v. Fells, 920 F.2d 1179, 1181-82 (4th Cir. 1990), cert. denied,
501 U.S. 1219 (1991); United States v. King, 768 F.2d 586, 587-88
(4th Cir. 1985). Williams' previous arrest was evidence that he was
a seller of crack cocaine during the time of the events charged in the
indictment. Given that Williams claimed that he was a user and not
a distributor of cocaine, the evidence was relevant to Williams' intent.
We conclude that the district court did not abuse its discretion in
the two evidentiary rulings that negatively impacted Williams.
D. Failure to Grant Mistrial
We next consider whether the district court, after learning that a
third party had improperly contacted one of the jurors, erred in not
granting a mistrial.
After a five-month trial, the jury finally received the case on March
31, 1992, and deliberated for seven court days. On the evening of
April 9, the jury informed the court that it had reached a verdict on
all counts except for two counts of distribution of cocaine, both of
which pertained to Eric Brown. On the morning of April 10, 1992,
one of the jurors informed the court that an individual had phoned her
the night before wanting to know the status of the deliberations. The
district judge spoke with the juror in chambers and, in front of coun-
sel, questioned her extensively about the incident. The juror main-
tained she could proceed with the deliberations even though the
incident had disturbed her.
The government suggested that a mistrial may be in order because
it would be unfair to put the juror through the stress of additional
deliberations. Eric Brown's attorney asked for a mistrial, which the
court indicated it would grant. When the court reconvened, however,
Brown's attorney explained he had changed his mind and asked for
the jury to continue its deliberations. The district court agreed with
the request and did not grant a mistrial on the remaining two counts.
Before the jury returned to its deliberations, the court directed the
jury to return a verdict on the counts it had decided. The jury
announced it had acquitted on the conspiracy counts and on many of
20
the substantive counts. The jury then returned to its deliberations, and
when it returned, it convicted Brown on one of the remaining counts
and acquitted on the other.
Brown now claims his counsel failed to represent his wishes in not
moving for a mistrial. He alleges he was not informed that his attor-
ney had changed his mind and would request that the jury continue
its deliberation. Brown claims that, had he known of his attorney's
decision, he would have directed him to request a mistrial. However,
when court had reconvened and Brown's attorney had requested that
the jury continue its deliberations, Brown did not make his feelings
known to the court.
To the extent Brown argues that the district court should have
declared a mistrial sua sponte over the attorney's request that the jury
continue to deliberate, we review the district court's decision for plain
error. United States v. Barnes, 909 F.2d 1059, 1070 (7th Cir. 1990).
The plain error standard is appropriate because Brown never commu-
nicated to the court that he wanted a mistrial. We conclude that the
district court's failure to declare a mistrial did not constitute plain
error because the court carefully questioned the juror about the impact
of the third party contact and the juror insisted that she could continue
to deliberate fairly and objectively. Cf. United States v. Sanders, 962
F.2d 660, 670 (7th Cir.) (district court did not abuse its discretion in
allowing the jury to continue deliberations after one of the jurors was
threatened because the court carefully inquired into the incident and
the juror explicitly testified that she could continue to serve impar-
tially), cert. denied, 506 U.S. 892 & 900 (1992).
To the extent Brown raises an ineffective assistance of counsel
claim, we do not reach the issue. A claim of ineffective assistance of
counsel is normally considered on collateral review, not on direct
appeal. United States v. Grubb, 11 F.3d 426, 441 (4th Cir. 1993).
Unless the record conclusively demonstrates ineffective assistance,
the defendant should file a 28 U.S.C. § 2255 motion in the district
court. United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992),
cert. denied, 507 U.S. 942 (1993). The record in this case does not
conclusively demonstrate ineffective assistance.
21
We therefore affirm Brown's conviction for distribution of crack
cocaine, although he is free to raise his claim for ineffective assis-
tance of counsel on collateral review.
E. Improper Cross-examination
We next review whether the district court should have granted a
mistrial to Michael D. Short for the government's allegedly improper
cross-examination of Short's character witnesses.
Short was convicted on one count of distribution, involving a direct
delivery of crack cocaine to an undercover agent. At trial, Special
Agent Bryant identified Short and testified that on December 19,
1989, Short gave him one half ounce of crack cocaine as payment for
Norman Brown's cellular phone service and an additional two ounces
in exchange for $1,800 in cash. Because Short was also charged with
conspiracy, the government presented other evidence of Short's drug
trafficking activities to show his participation in the conspiracy.
As part of his defense, Short called several character witnesses.
During cross-examination of some of these witnesses, the government
made several improper statements. First, the government asked Cindy
Dennison, one of the character witnesses, the following question:
Q: Were you aware that on December 5, 1990, when
agents of the FBI and the Metropolitan Police Depart-
ment were looking for Mr. Short, to arrest him pursuant
to our arrest warrant, that they spoke with Rhonda
Short, Mr. Short's sister, and she said, "What do you
want him for? I know he does some dealing." Were you
aware of that statement?
A: No, I was not.
Short objected to this question because Rhonda Short's statement had
never been placed in evidence and the prosecutor's use of the state-
ment constituted hearsay. Second, the government asked Douglas
Winkler, another character witness, whether he knew that Short had
admitted to purchasing a .44 magnum for $200 on the street; when the
22
witness said that he had not, the government asked him whether his
opinion of Short would change if the admission were true. Although
Short does not contest the fact that he made the admission, he
objected to the question because it asked the witness to give his opin-
ion of Short's character based on an unsubstantiated fact. Cf. United
States v. Siers, 873 F.2d 747, 749 (4th Cir. 1989) ("If the witness has
not heard of the fact, that is the end of the inquiry, and asking the wit-
ness to assume the fact simply has no place in this case."), cert.
denied, 506 U.S. 1086 (1993).
The district court sustained the objections and issued limiting
instructions to the jury on the following morning. With regard to the
question to Ms. Dennison concerning Rhonda Short's statement of her
brother's of dealing drugs, the district court instructed the jury to dis-
regard both the question and the answer because"there isn't any evi-
dence that Mr. Short's sister had made any such statement." Similarly,
with regard to the question to Mr. Winkler regarding Short's admis-
sion that he purchased a gun, the district court instructed the jury to
disregard both the question and the answer because"there simply is
no evidence before you as to whether Mr. Short ever made any such
admission."
Despite these limiting instructions, Short argues that the govern-
ment's improper questioning prejudiced his defense and that the dis-
trict court should have granted a mistrial. We disagree. Courts
"presume that a jury will follow an instruction to disregard inadmissi-
ble evidence presented to it, unless there is an`overwhelming proba-
bility' that the jury will be unable to follow the court's instructions
. . . and a strong likelihood that the effect of the evidence would be
`devastating' to the defendant." Greer v. Miller, 483 U.S. 756, 766
n.8 (1987) (citations omitted); see United States v. Jones, 907 F.2d
456, 460 (4th Cir. 1990) ("The jury is generally presumed to be able
to follow an instruction to disregard evidence, absent some strong
indication that the evidence is so powerful that a jury could not ignore
it and that the defendant would be harmed as a result."), cert. denied
sub nom., Johnson v. United States, 498 U.S. 1029 (1991).
Short has not shown that the jury could not follow the district
court's instruction. Even if we assume, arguendo , that the prosecu-
tor's questions affected the jury so much that the limiting instruction
23
could not cure the prejudice, the questions did not devastate Short's
defense. The government presented direct evidence pertaining to the
count on which Short was convicted: the jury heard Special Agent
Bryant identify Short and testify that he had given him two and one-
half ounces of crack cocaine in exchange for $1,800 in cash and Nor-
man Brown's cellular phone payment. Given the clear evidence of
distribution, the improper character evidence that the jury heard and
was instructed to disregard could not have significantly skewed the
jury's judgment on this count. The improper evidence may have
affected the jury's judgment on the conspiracy counts, but the jury did
not convict Short of conspiracy.
We conclude that the district court did not abuse its discretion in
denying Short's motion for a mistrial.
IV.
We next consider the appellants' remaining challenges to their sen-
tences.
A. Sentencing of Norman Brown
Norman Brown received a sentence of life imprisonment under the
mandatory minimum sentence provision in 21 U.S.C.
§ 841(b)(1)(A)(iii). He raises three arguments against his sentence,
which we address in turn.
1. Constitutionality of 100 to 1 ratio for crack cocaine
First, Brown challenges the constitutionality of the 100 to 1 con-
version ratio between powder cocaine and crack cocaine in the United
States Sentencing Guidelines. We have addressed this issue before
and have repeatedly affirmed the constitutionality of the sentencing
ratio for powder cocaine and crack cocaine against equal protection
and due process challenges. United States v. Fisher, 58 F.3d 96, 99-
100 (4th Cir.), cert. denied, 116 S. Ct. 329 (1995); United States v.
Jones, 18 F.3d 1145, 1151 (4th Cir. 1994); United States v. D'Anjou,
16 F.3d 604, 612 (4th Cir.), cert. denied, 114 S. Ct. 2754 (1994);
United States v. Bynum, 3 F.3d 769, 774 (4th Cir. 1993), cert. denied,
114 S. Ct. 1105 (1994). We see no need to repeat this discussion here.
24
2. Number of prior felony convictions
Second, Brown argues that he should not have received a manda-
tory life sentence under 21 U.S.C. § 841(b)(1)(A)(iii). That section
provides that if a defendant is convicted of an offense involving 50
grams or more of cocaine base and committed "after two or more
prior convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release . . . ." 21 U.S.C. § 841(b)(1)(A)(iii). Brown had two
prior felony convictions resulting from two sales of cocaine to an
undercover agent on July 13, 1987 and July 15, 1987. These actions
formed the basis for two separate counts of a single indictment. The
counts were tried together, Brown was convicted of both, and the
court imposed concurrent sentences. Brown argues that the two prior
convictions arose from a single act of criminality, and he urges this
court to construe them as a single conviction for purposes of sentenc-
ing under 21 U.S.C. § 841(b)(1)(A)(iii).
Brown argues that our decision in United States v. Blackwood, 913
F.2d 139 (4th Cir. 1990), supports his position. In Blackwood, the
defendant had two previous convictions for possession of large quan-
tities of marijuana. The first conviction involved marijuana found in
a pickup truck that the defendant was driving when arrested. The sec-
ond conviction concerned marijuana found in the defendant's motel
room less than two hours later. We held that the two convictions arose
from a single act of criminality--the possession with intent to sell
marijuana within a limited geographical area and period of time--and
should therefore have been treated as one prior conviction for pur-
poses of 21 U.S.C. § 841(b). Id. at 145. We recognized that, for pur-
poses of 21 U.S.C. § 841(b) and other similar sentencing
enhancement statutes, the term "prior convictions" refers to "separate
criminal episodes, not separate convictions arising out of a single
transaction." Id. at 145-46. Relying on Blackwood, Brown contends
that his two prior convictions for distribution of cocaine arose from
a single act of criminality, and that his prior convictions should be
treated as a single prior conviction.
We disagree. Brown was previously convicted of distribution, not
possession. An instance of possession is somewhat amorphous: a sin-
gle act of possession may occur over a period of time and in a range
25
of locales. An act of distribution, however, occurs at a distinct time
and place. We have held that separate acts of distribution that occur
on different days or even at different times on the same day constitute
separate criminal episodes. See United States v. Letterlough, 63 F.3d
332, 334-37 (4th Cir.) (two convictions for two acts of distribution of
a single dose of crack cocaine occurring less than two hours apart on
the same evening constituted two prior convictions for purposes of 18
U.S.C. § 924(e), a similar mandatory minimum sentencing statute),
cert. denied, 116 S. Ct. 406 (1995); United States v. Samuels, 970
F.2d 1312, 1315 (4th Cir. 1992) (convictions for two acts of distribu-
tion occurring on consecutive days counted as two separate prior con-
victions for purposes of 18 U.S.C. § 924(e), even though the two
convictions had been consolidated for disposition and resulted in con-
current sentences). We therefore conclude that Brown's prior convic-
tions resulted from two separate episodes of criminality and that they
constituted two separate convictions for sentencing purposes under 21
U.S.C. § 841(b)(1)(A).
3. Evidence of attributable weight of crack cocaine.
Brown also claims that the evidence attributing 551 ounces of
crack cocaine to him was unreliable. Because we affirm the imposi-
tion of a life sentence under 21 U.S.C. § 841(b)(1)(A), the calculation
of Brown's sentence under the guidelines is irrelevant. We therefore
do not review the evidence supporting the calculation of Brown's
attributable weight.
B. Sentencing of Jeffrey A. Reid
We have already vacated Jeffrey A. Reid's sentence and remanded
for resentencing under criminal history category II. Reid also raises
two other challenges to his sentence, which we now address.
1. Rule of lenity
First, Reid challenges the differentiation between cocaine powder
and cocaine base inherent in the Sentencing Guidelines. The drug
quantity table in U.S.S.G. § 2D1.1 has separate listings for "Cocaine"
and "Cocaine Base," such that the penalty for cocaine base is much
26
more harsh than for an equivalent amount of cocaine. The term "co-
caine base," however, is not defined by statute or in the Sentencing
Guidelines. The term "cocaine" is defined by statute as:
Coca leaves except coca leaves and extracts of coca leaves
from which cocaine, ecgonine, and derivatives of ecgonine
or their salts have been removed; cocaine, its salts, optical
and geometric isomers, and salts of isomers; ecgonine, its
derivatives, their salts, isomers, and salts of isomers; or any
compound, mixture or preparation which contains any quan-
tity of any of the substances referred to in this paragraph.
21 U.S.C. § 812(c). Reid argues that this definition of "cocaine"
includes cocaine base. There is no scientific distinction between pow-
der cocaine and crack cocaine: they share the same chemical proper-
ties, molecular weight, and melting point. See United States v. Davis,
864 F. Supp. 1303, 1305 (N.D. Ga. 1994). Reid argues that the failure
to define the term "cocaine base" creates an ambiguity in the applica-
tion of the guidelines.
The rule of lenity provides that a court will not interpret a federal
criminal statute so as to increase the penalty that it places on an indi-
vidual when such an interpretation can be based on no more than a
guess as to what Congress intended. Bifulco v. United States, 447 U.S.
381, 387 (1980); Ladner v. United States, 358 U.S. 169, 178 (1958).
Applying the rule of lenity, Reid argues that the district court should
have sentenced him under the Sentencing Guidelines based on the
drug quantities applicable to "cocaine," not"cocaine base."
This court recently rejected this argument in United States v.
Fisher, 58 F.3d 96 (4th Cir.), cert. denied , 116 S. Ct. 329 (1995).
Fisher involved the mandatory minimum sentencing provision of 21
U.S.C. § 841(b)(1)(A), which applies to the possession and distribu-
tion of 5 kilograms or more of "cocaine," but only 50 grams or more
of "cocaine base." The defendants in Fisher argued that the treatment
of cocaine base under the statute was ambiguous because the term
"cocaine" includes cocaine base. Asserting the rule of lenity, the
defendants implored the sentencing court to apply the lesser of the
two penalties.
27
We held that "the only rational interpretation" of the statute was to
conclude that the standards for "cocaine" applied to all forms of
cocaine except for cocaine base, which had its own harsher penalties.
Id. at 99. The rule of lenity does not force us to ignore our common
sense. Id. By establishing different standards for cocaine base, Con-
gress clearly intended it to be punished more harshly than other forms
of cocaine. In fact, the legislative history of 21 U.S.C. § 841(b)(1)(A)
"demonstrates that Congress intended . . . to penalize more severely
violations involving crack cocaine." Id.
Based on our clear holding in Fisher, we conclude that the rule of
lenity does not require us to ignore the harsher penalties for cocaine
base inherent in the Sentencing Guidelines.
2. Alleged inaccuracies in presentence report
Finally, Reid argues that we should remand for resentencing
because the district court did not correct alleged inaccuracies in his
presentence report. The district court did not address Reid's objec-
tions to the report's accuracy because it specifically stated that it was
not relying on the accuracy of the report but on its own recollection
of the evidence presented at trial. Reid maintains, however, that the
district court should have corrected the alleged inaccuracies in the
presentence report because the Bureau of Prisons will use that report
throughout Reid's incarceration.
Rule 32(c)(1) of the Federal Rules of Criminal Procedure provides
that:
At the sentencing hearing, the court must afford counsel for
the defendant and for the Government an opportunity to
comment on the probation officer's determinations and on
other matters relating to the appropriate sentence, and must
rule on any unresolved objections to the presentence report.
The court may, in its discretion, permit the parties to intro-
duce testimony of other evidence on the objections. For
each matter controverted, the court must make either a find-
ing on the allegation or a determination that no finding is
necessary because the controverted matter will not be taken
into account in, or will not affect, sentencing. A written
28
record of these findings and determinations must be
appended to any copy of the presentence report made avail-
able to the Bureau of Prisons.
Fed. R. Crim. P. 32(c)(1) (emphasis added). The district court clearly
complied with this rule. When Reid raised objections to findings
made in the presentence report, the district court stated on the record
that "I don't think it is really necessary that we get into that because
for purposes of sentencing I am not relying upon in any respect the
factual matter that is set out in the presentence report." Transcript of
Sentencing Hearing for Jerry Andrew Reid at 7. Given this ruling, it
was unnecessary to correct any alleged inaccuracies in the presen-
tence report.
We assume that a written transcript of the sentencing hearing has
been appended to the copy of the presentence report made available
to the Bureau of Prisons, as required by Rule 32(c)(1). Our holding
today does not prevent Reid from arguing in the future that the
Bureau of Prisons has not received a transcript of the sentencing hear-
ing.
C. Sentencing of Carlos E. McGill
Carlos E. McGill raises a sufficiency of the evidence claim con-
cerning several kilograms of cocaine base that was attributed to him
at sentencing.
The jury convicted McGill for the distribution of 53.54 grams of
crack cocaine to an undercover agent, and for possession with intent
to distribute 84.3 grams of crack cocaine, which was found at his resi-
dence during the execution of a search warrant. At sentencing, the
district court found that McGill participated in the efforts of Paul
Winestock, Jr., to obtain large quantities of cocaine from a source in
Philadelphia, and attributed an additional seven kilograms of crack
cocaine to McGill. Although the cocaine obtained by Winestock from
Philadelphia came in powder form, the district court treated it as crack
cocaine because it found that McGill knew or should have known that
the powder cocaine would be converted into crack cocaine before it
was sold. The district court stated:
29
I guess I am satisfied that, although perhaps reluctantly so,
perhaps I didn't really want to hear it and didn't want to be
satisfied, but I can't escape it because I am confident that
there has been a preponderance of the evidence to indicate
that the seven kilograms from October and November from
Mr. McGill's standpoint did involve foreseeability that they
would become crack cocaine. It is important that it was
crack that he had in his house when he was arrested.
I can't conclude that Mr. McGill stuck his head in the
sand with regard to what he foresaw or should have foreseen
with regard to the powder that was ultimately cooked into
crack. The evidence is just too convincing. It probably really
reaches a clear and convincing standard that on this point
leaves me with no other conclusion to make on the seven
kilograms and of course, that he was convicted with respect
to the two counts.
We review the district court's factual findings under a clearly erro-
neous standard. United States v. Williams, 977 F.2d 866, 869 (4th Cir.
1992), cert. denied, 507 U.S. 942 (1993). We have reviewed the
record and conclude that the district court was not clearly erroneous
in finding that McGill foresaw or should have foreseen that the seven
kilograms of cocaine would be converted into crack cocaine. Conse-
quently, we conclude the district court correctly sentenced McGill.
D. Sentencing of Roderick Brown
Roderick Brown challenges the attribution of 969.56 grams of
crack cocaine to him during sentencing.
Brown was convicted on one count of distribution of cocaine to an
undercover agent. At sentencing, Brown conceded that two distribu-
tions (of 28 grams and of 5 grams) could be attributed to him. The
district court also attributed another 969.96 grams of crack cocaine to
Brown because of his involvement in "cooking" cocaine powder into
crack cocaine. Brown argues that the jury's acquittal on the conspir-
acy counts indicates their finding that Brown was not involved in
cooking drugs.
30
At sentencing, a district court may consider evidence relating to
counts on which the defendant was acquitted. United States v.
Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985). Even if we assume,
arguendo, that the acquittal on the conspiracy count indicates that the
jury did not find beyond a reasonable doubt that Brown was involved
in cooking cocaine, the sentencing judge need only find by a prepon-
derance of the evidence that Brown was involved in the cooking of
cocaine. After reviewing the record, we conclude that the district
court was not clearly erroneous in finding that Brown was involved
in the conversion of 969.56 grams of powder cocaine into crack
cocaine.
V. Jury Selection at the Smith Trial
We next turn to the one issue raised by the defendants at the trial
of Hassan L. Smith and Michael S. Smith.
During jury selection, the district court conducted a voir dire exam-
ination of the jury pool. Twenty-seven members of the jury pool
responded affirmatively when asked if they had previous contact with
the criminal justice system. Each one of these 27 members was exam-
ined individually at the bench by the district court and by counsel.
None of the defendants heard what transpired during the bench con-
ferences. After the completion of voir dire, the court recessed so that
counsel could confer among themselves. After the break, counsel sub-
mitted their list of peremptory challenges, and the jury was chosen.
The district court released the remaining members of the venire and
swore in the jury. The court then broke for lunch.
After the lunch break, the defendants' attorneys informed the court
that the defendants had voiced their objection to the jury selection
process during the lunch break. Specifically, they complained that
they were not present at all stages of the jury selection process
because they could not hear the discussions that transpired during the
bench conferences with individual members of the venire. Further-
more, the defendants complained that their attorneys compiled the list
of peremptory challenges without consulting their clients. The defen-
dants requested that the court summon a new venire and select a new
jury. The district court denied their request because they objected too
late, after the jury had been sworn in.
31
Rule 43(a) of the Federal Rules of Criminal Procedure provides as
follows:
The defendant shall be present at the arraignment, at the
time of the plea, at every stage of the trial including the
impaneling of the jury and the return of the verdict, and at
the imposition of sentence, except as otherwise provided by
this rule.
Fed. R. Crim. P. 43(a). We agree that the defendants had the right to
be present during the bench conferences with the jurors, but we con-
clude that the defendants waived their right by failing to object before
the district court swore in the jury. The Supreme Court has stated:
The district court need not get an express "on the record"
waiver from the defendant for every trial conference which
a defendant may have a right to attend. . . . A defendant
knowing of . . . a discussion [between a juror and the district
judge] must assert whatever right he may have under Rule
43 to be present.
United States v. Gagnon, 470 U.S. 522, 528 (1985). The defendant's
obligation to assert expressly his right to be present extends to bench
conferences during jury selection. United States v. Washington, 705
F.2d 489 (D.C. Cir. 1983). In Washington, the D.C. Circuit stated:
In normal cases the defendant upon request should be
allowed to observe and hear juror responses made at the
bench. But because it is a right infrequently exercised and
usually delegated to counsel, unless a specific request is
made for the defendant to participate in bench examinations
of prospective jurors, such right shall be deemed to have
been waived.
Washington, 705 F.2d at 497.
We conclude that the defendants' assertion of their right to be pres-
ent during the bench conferences was untimely because it came after
the district court swore in the jury. See United States v. Romero-
32
Reyna, 867 F.2d 834 (5th Cir.), cert. denied , 110 S. Ct. 1818 (1990).
Accordingly, we hold that the Hassan L. Smith and Michael S. Smith
were not denied a fair trial.
VI.
For the foregoing reasons, we affirm the convictions of all of the
appellants, and we affirm the sentences of all of the appellants except
for Jeffrey A. Reid. We vacate and remand Reid's sentence with
instructions to resentence him to 324 months imprisonment.
AFFIRMED IN PART AND VACATED
AND REMANDED IN PART
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