United States v. Levenite , 277 F.3d 454 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4197
MICHAEL ALAN LEVENITE, a/k/a
Nomad,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4198
MICHAEL ALAN LEVENITE, a/k/a
Nomad,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4199
TRAVIS CHAD DAILEY, a/k/a "Taz",
Defendant-Appellant.

2 UNITED STATES v. LEVENITE
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4255
RICHARD FREDERICK CONNOR, a/k/a
Phez,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4468
KEITH ALAN WATSON, a/k/a Tank,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-99-23, CR-99-91)
Argued: October 30, 2001
Decided: January 10, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge Michael joined.
COUNSEL
ARGUED: William James Holmes, Virginia Beach, Virginia, for
Appellant Connor; John Warren Hart, JOHN W. HART, P.C., Vir-
UNITED STATES v. LEVENITE 3
ginia Beach, Virginia, for Appellant Levenite; Marlin Woodrow Grif-
fin, Jr., Hampton, Virginia, for Appellant Dailey; Douglas Fredericks,
Norfolk, Virginia, for Appellant Watson. Fernando Groene, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Kenneth E. Melson, United States Attorney, Robert J. Seidel, Jr.,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Michael Levenite, Travis Dailey, Richard Connor, and Keith Wat-
son were convicted of participating in a large-scale methamphetamine
trafficking conspiracy in Norfolk, Virginia. Levenite was sentenced to
94 months’ imprisonment; Dailey to 174 months; Connor to 21
months; and Watson to 188 months.
On appeal, all four challenge the testimony of an FBI-paid infor-
mant who received expenses and could earn, in the discretion of the
FBI, an additional $100,000 bonus, depending on the informant’s
cooperation and attainment of the objectives of the investigation.
They contend that the use of such testimony violated 18 U.S.C.
§ 201(c) (punishing the bribery of witnesses) and the Due Process
Clause of the Fifth Amendment. They also challenge the district
court’s decision, under Federal Rule of Criminal Procedure 23(b), to
permit an 11-person jury to deliberate and reach a verdict when one
of the jurors had become ill. Connor and Watson challenge the physi-
cal configuration of the courtroom, altered to accommodate a trial
involving 13 defendants, arguing that it denied them an ability to look
witnesses in the eye and to consult counsel, in violation of the Con-
frontation and Assistance-of-Counsel Clauses of the Sixth Amend-
ment. Levenite, Dailey and Connor challenge the sufficiency of
evidence offered to support their convictions. Finally, Levenite chal-
lenges two sentencing decisions.
For the reasons that follow, we affirm.
I
In April 1993, Jeremiah Saucier moved from California to Norfolk,
Virginia, for the purpose of distributing methamphetamine with Har-
4 UNITED STATES v. LEVENITE
old Ratliff. Over the next three years, Saucier organized a coast-to-
coast drug distribution network which was supplied by Juan Felix in
California. Felix shipped the drugs from California by either FedEx
or UPS to Saucier who then distributed them in Virginia to smaller
distributors such as Keith Watson and Travis Dailey. Watson and
Dailey, in turn, distributed the drugs to yet smaller distributors or to
customers. Several members of the conspiracy were also members of
the Renegade Motorcycle Club (the "Renegades").
In October 1996, Saucier was involved in a serious motorcycle
accident, and William Yates, one of Saucier’s customers, took over
leadership of the conspiracy until it was terminated by indictments
filed in February 1999 and subsequent arrests.
Through the operation of the conspiracy, hundreds of pounds of
methamphetamine, worth millions of dollars, as well as smaller
amounts of cocaine, were distributed over a period of almost six
years.
Investigation of the conspiracy began in earnest when a drug-
sniffing dog at the Norfolk airport "alerted on" a package being
shipped to Felix in California. The package contained $145,000 in
U.S. currency that was being sent to Felix in payment for metham-
phetamine. In addition to using surveillance, court authorized wire
taps, and undercover agents, the FBI engaged Robert Lowe as a paid,
confidential informant. Lowe, who infiltrated the conspiracy and the
Renegades itself and testified at substantial length against the mem-
bers of the conspiracy at trial, was paid a "salary" as well as expenses.
Under his arrangement with the FBI, Lowe could also earn a lump-
sum payment of up to $100,000, at the discretion of the FBI, depend-
ing on the extent of his cooperation in the investigation and his effec-
tiveness in helping the FBI attain the objectives of the investigation.
Later, before trial, Lowe was placed in the government’s witness pro-
tection program.
In February 1999, 30 members of the conspiracy were charged
with trafficking in methamphetamine and related offenses in a 66-
count indictment, and in June 1999, 11 defendants charged in the
original indictment were charged in a supplemental indictment with
UNITED STATES v. LEVENITE 5
enhancement offenses. The two indictments were thereafter consoli-
dated for trial.
Seventeen of the defendants pleaded guilty, and several of them,
including Saucier, Yates, and Felix, testified on behalf of the govern-
ment at trial. Following trial, the jury acquitted five defendants and
found eight guilty of various offenses, including some lesser included
offenses. Four convicted defendants — Levenite, Dailey, Connor, and
Watson — filed this appeal.
II
All defendants on appeal contend that the testimony given by Rob-
ert Lowe, a paid confidential informant for the FBI, was incompetent
and constitutionally inadmissible. They assert that as part of Lowe’s
compensation, the FBI agreed to pay Lowe "a lump sum cash ‘bonus’
of up to $100,000.00 which was contingent upon the testimony of
Rob Lowe against these defendants and the outcome of this case,
including whether convictions against these specific defendants were
obtained." Characterizing the arrangement as "extremely disturbing"
and offensive, these defendants argue that the FBI’s arrangement with
Lowe violated 18 U.S.C. § 201(c) (punishing bribery of public offi-
cials and witnesses) and the Due Process Clause of the Fifth Amend-
ment. Based on these alleged violations, the defendants request a new
trial.
The government contends that Lowe "was paid for his truthful tes-
timony" and that procedural safeguards were instituted to protect the
defendants from any impropriety, including the government’s full
pretrial disclosure of the arrangement, the defendants’ and court’s
pretrial review of the arrangement through suppression motions, the
defendants’ cross-examination of the FBI’s case agent and Lowe, the
government’s corroboration of Lowe’s testimony through other evi-
dence, and the court’s cautionary instructions to the jury. The govern-
ment argues accordingly that Lowe’s testimony was both competent
and admissible.
The FBI first engaged Lowe in September 1996 as a confidential
informant who would gather information about drug distribution and
the Renegades and would report the information to the FBI. At that
6 UNITED STATES v. LEVENITE
time, however, Lowe did not want to testify in any court; his role was
to serve "strictly [as] eyes and ears." Approximately a year later,
Lowe agreed to become a cooperating witness, subject to direction by
the FBI as to "where to go [and] when to go." The relationship was
governed by a four-page written agreement between Lowe and the
FBI, dated October 15, 1997.
The agreement recited that the FBI was conducting an investigation
into racketeering and drug distribution by "an outlaw motorcycle
organization known as the Renegades" and that Lowe had information
and was willing to "furnish assistance" to the FBI. Under the agree-
ment, Lowe agreed to disclose information to the FBI, to introduce
undercover FBI agents to members of the Renegades, to wear wires
and make recordings, and to testify in "any and all court proceedings."
He agreed not to initiate any criminal acts and not to participate in
unlawful acts except as authorized by the FBI. The FBI retained the
right to control the investigation, as well as the right to terminate it
at any time.
In accordance with the agreement, Lowe received $2,000 per
month for his services and $1,300 per month for his expenses. Later,
the FBI also purchased a motorcycle for him so that he could become
a member of the Renegades. In addition, the agreement provided for
a potential lump-sum payment of up to $100,000, at the discretion of
the FBI at the end of the case. With respect to this $100,000 payment,
the agreement provided:
The FBI may, at its sole option and choice, elect to furnish
Mr. Lowe with a lump sum of money, not to exceed
$100,000.00, upon the completion of the investigation. Fac-
tors to be considered by the FBI in [determining] the amount
shall include, but not be limited to the following: the extent
of cooperation in the investigation by Mr. Lowe, the activi-
ties of Mr. Lowe in the furtherance of the investigation and
in attaining the objectives of the investigation, and the
degree of compliance with this Agreement by Mr. Lowe.
The agreement not only made any payment contingent upon Lowe’s
compliance with the agreement but also upon his maintenance of con-
fidentiality.
UNITED STATES v. LEVENITE 7
After signing the agreement, Lowe worked virtually full time for
the FBI in connection with the investigation of the Renegades, and he
was elected a member of the Renegade Motorcycle Club. In February
1999, Lowe was formally placed in the Witness Protection Program,
authorized by 18 U.S.C. § 3521, under which he was given protection
and paid additional personal expenses.
At trial, Lowe testified at length about what he had witnessed, pro-
viding substantial evidence against each of the defendants. His testi-
mony against Connor provided most of the evidence supporting
Connor’s conviction.
Before trial, the district court considered and denied motions to
suppress evidence from Lowe, and at trial, it overruled objections to
receipt of Lowe’s testimony. Although the district court permitted
Lowe to testify, it expressed concerns to the government:
Well, you’ve got this case, and you are going to put it on for
many weeks; and sometimes I’m surprised at the govern-
ment taking the risks that it does by asking the court to
accept certain evidence when they’ve got other evidence.
And if you wish to present this witness, based on what I’ve
heard, I’m not going to prevent it.
The court added that Lowe’s arrangement with the FBI "makes me
nervous."
When the FBI case agent, Kim Wright, was cross-examined at trial
about the agreement with Lowe, she testified that FBI headquarters,
not any individual agent in the field, would determine the size of the
payment that Lowe would receive at the end of the case. She agreed
that the payment would be based in part on the extent to which the
"objectives of the investigation" had been attained and she conceded
that among those objectives were the convictions of conspirators
identified through the investigation. Wright stated that after the case
was over, she would write a recommendation report to FBI headquar-
ters that would be used to determine the amount of payment to Lowe.
The defendants cross-examined both Agent Wright and Lowe
about their arrangement, and at the completion of the case, the district
court instructed the jury as follows:
8 UNITED STATES v. LEVENITE
You have heard testimony from paid informants who were
employed by the Government to investigate the defendants.
The fact that an individual is a paid informant does not dis-
qualify him as a witness. The uncorroborated testimony of
a paid informant may be a sufficient basis for a finding of
guilt if you believe beyond a reasonable doubt that such tes-
timony is both credible and of sufficient weight. It is neither
illegal nor improper to utilize paid informants in the
enforcement of the criminal laws. However, the testimony
of a paid informant must be subjected to a higher degree of
scrutiny as to both weight and credibility. This is true
because you must decide if such a witness has a greater
motive to testify truthfully or falsely.
Further, if the payment to the informant is fully or partially
contingent upon the content of his testimony at trial or upon
a finding of guilt at trial, then such testimony must be sub-
jected to an even higher degree of scrutiny.
Challenging Lowe’s testimony, the defendants argue first that the
provision for a bonus of up to $100,000 violated 18 U.S.C.
§§ 201(c)(2) and 201(c)(3), which provide that whoever gives or
receives "anything of value . . . for or because of the testimony under
oath or affirmation given or to be given by such person as a witness
upon a trial" shall be punished. The defendants say "Robert Ira Lowe
was essentially offered, and he accepted, a bribe," in violation of
§ 201(c).
As we noted recently, § 201 was enacted to strengthen the laws
relating to bribery and not to restrict the government from compensat-
ing witnesses that help expose and prosecute criminal activity. See
United States v. Anty, 203 F.3d 305, 308 (4th Cir. 2000); United
States v. Richardson, 195 F.3d 192, 196-97 (4th Cir. 1999). In Anty
we explained:
To interpret § 201(c)(2) to preclude the payment of money
to informants to assist in investigating and prosecuting
crimes, by giving truthful testimony, would not only "rob
the government of its long-standing prerogative[ ]" to do so
as established by statute and recognized practice, it would
UNITED STATES v. LEVENITE 9
also "work an obvious absurdity" in implicitly repealing
numerous statutes that authorize the payment of expenses,
fees, and rewards to witnesses.
Id. at 309 (quoting Richardson, 195 F.3d at 196). We noted that § 201
explicitly authorizes the government to pay witnesses fees as autho-
rized by law. See 18 U.S.C. § 201(d). As the government points out,
there are several statutes that allow the government to pay informants
and witnesses for their cooperation, services, and testimony. See, e.g.,
21 U.S.C. § 886(a) (authorizing payments in connection with drug
enforcement of "such sum or sums of money as [the Attorney Gen-
eral] may deem appropriate, without reference to any moieties or
rewards to which such person may otherwise be entitled by law"); 18
U.S.C. § 3059B (authorizing payment of reward "to any individual
who assists the Department of Justice in performing its functions").
Thus, we held in Anty that § 201(c) "does not prohibit the United
States from acting in accordance with long-standing practice and stat-
utory authority to pay fees, expenses, and rewards to informants even
when the payment is solely for testimony, so long as the payment is
not for or because of any corruption of the truth of testimony." Id. at
311. Accordingly, the defendants’ statutory argument lacks any merit.
The defendants also argue that even if the arrangement does not
violate § 201, it nevertheless violates their right to due process. They
argue that "payments which are contingent upon a conviction or upon
the outcome of a trial ‘skate very close to, if indeed, do not cross, the
limits imposed by the due process clause,’" quoting United States v.
Dailey, 759 F.2d 192, 201 (1st Cir. 1985). They rightly assert, of
course, that government sponsored or encouraged perjury deliberately
presented to a jury to support a conviction would violate a defen-
dant’s right to due process. See Mooney v. Holohan, 294 U.S. 103,
112 (1935). But they have directed us to no evidence that the govern-
ment sponsored or suborned perjury. Indeed, most, if not all, of
Lowe’s testimony was corroborated to some degree; where direct cor-
roboration was lacking, circumstantial indications of trustworthiness
existed.
Nevertheless, arrangements such as the one between the FBI and
Lowe create fertile fields from which truth-bending or even perjury
could grow, threatening the core of a trial’s legitimacy. Yet, even
10 UNITED STATES v. LEVENITE
though compensation for testimony can be troubling, it does not fol-
low that the use of such an arrangement renders such testimony con-
stitutionally inadmissible per se. In Hoffa v. United States, 385 U.S.
293, 311 (1966), the Supreme Court stated about testimony given by
paid informants:
The established safeguards of the Anglo-American legal
system leave the veracity of a witness to be tested by cross-
examination, and the credibility of his testimony to be deter-
mined by a properly instructed jury.
Id.; see also Anty, 203 F.3d at 312 (noting the importance of protect-
ing the defendant’s right to cross-examine); United States v. Wilson,
904 F.2d 656, 659 (11th Cir. 1990) (same); United States v.
Cervantes-Pacheco, 826 F.2d 310, 313-16 (5th Cir. 1987) (en banc)
(citing Hoffa and discussing procedural safeguards to protect against
abuses).
The task of obtaining truthful testimony to prosecute criminal mat-
ters often presents a difficult challenge to the government. Witnesses
to criminal conduct are routinely either in conspiracy with the defen-
dants or at risk of harm because they bore witness to criminal con-
duct. In either case, the government frequently faces barriers to
obtaining relevant, truthful testimony. Therefore, it has long been rec-
ognized that grants of immunity, plea agreements, and sentencing
leniency are appropriate tools for use in the criminal justice system.
Indeed, the Rules of Criminal Procedure explicitly authorize these
devices, and this court has approved them. See, e.g., Fed. R. Crim. P.
11(e); United States v. Richardson, 195 F.3d 192, 194-97 (4th Cir.
1999). Similarly, the payment of fees to witnesses as an incentive to
come forward and testify has explicitly been approved by Congress.
See, e.g., 18 U.S.C. § 3059B; 21 U.S.C. § 886(a); Anty, 203 F.3d at
309-10 (listing statutes permitting such payments).
But just as a payment may provide witnesses an incentive to come
forward and testify truthfully at some risk to themselves, so too can
the same payment provide an incentive to witnesses to come forward
and lie simply for the purpose of receiving the payment. Even so, as
long as there are adequate safeguards, the potential corruption should
not condemn the practice. Indeed, in some rare cases, even a payment
UNITED STATES v. LEVENITE 11
contingent on specific truthful testimony might be justifiable. For
instance, when the government is confident before trial about the
truthfulness of a witness’s testimony but unsure that the witness will
adhere to such testimony in the face of external pressure from "the
street" or otherwise, a payment might be approved that is deferred and
dependent on the witness’ giving of truthful testimony. But because
of the vulnerability of such contingent-payment arrangements to cor-
ruption, they may be approved only rarely and under the highest scru-
tiny.
In recognition of the substantial risk that financial incentives can
corrupt, either through an aggressive prosecutor seeking testimony
inconsistent with the truth or a witness testifying untruthfully to sat-
isfy the government’s objectives, testimony given under an arrange-
ment involving the payment of a fee, "salary," or "bonus," whether
contingent on the content of the testimony or not, may be received in
court only within a structure of procedural safeguards.
First, a witness-fee payment arrangement must be disclosed to each
defendant against whom the witness will testify before the proceeding
at which the witness testifies. See Giglio v. United States, 405 U.S.
150, 154 (1972) (holding that evidence affecting the credibility of a
key witness is material); Brady v. Maryland, 373 U.S. 83, 87 (1963)
(holding that due process forbids suppression by the prosecution of
[material] evidence favorable to an accused when requested); Anty,
203 F.3d at 312 (noting the importance of protecting a defendant’s
right to be apprised of the government’s compensation arrangement
with a witness). Second, the defendant must be afforded an opportu-
nity to cross-examine the witness about the fee arrangement. Anty,
203 F.3d at 312. Third, the court must instruct the jury about the
heightened scrutiny to be given testimony provided under a fee pay-
ment arrangement. Wilson, 904 F.2d at 659. And finally, there can be
no indication that the government is sponsoring or suborning perjury.
Cervantes-Pacheco, 826 F.2d at 315 ("The government of course
must not deliberately use perjured testimony or encourage the use of
perjured testimony"). In addition, when the payment of a fee, "salary,"
or "bonus" is contingent on the content or nature of testimony given,
the court must ascertain (1) that the government has independent
means, such as corroborating evidence, by which to measure the
truthfulness of the witness’ testimony and (2) that the contingency is
12 UNITED STATES v. LEVENITE
expressly linked to the witness’ testifying truthfully. Moreover, when
a witness is testifying under such a contingent payment arrangement,
the government has a duty to inform the court and opposing counsel
when the witness’ testimony is inconsistent with the government’s
expectation.
Turning to whether these safeguards were applied in this case, first,
there is no dispute that the agreement between the FBI and Lowe was
disclosed to the defendants before trial. Indeed, in this case, the agree-
ment was scrutinized before trial through the defendants’ suppression
motion.
Second, at trial, the defendants had the opportunity to cross-
examine both FBI case agent Wright and confidential informant Lowe
about the terms of the agreement, its operation, and its effect. And
they took that opportunity by cross-examining both.
Third, the jury was instructed to give Lowe’s testimony heightened
scrutiny. As the court stated to the jury, "the testimony of a paid infor-
mant must be subjected to a higher degree of scrutiny as to both
weight and credibility. This is true because you must decide if such
a witness has a greater motive to testify truthfully or falsely." The
court went on to note that if the jury were to conclude that the pay-
ment to the informant was "fully or partially contingent upon the con-
tent of his testimony at trial or upon a finding of guilt," then the jury
was to subject that witness’s testimony "to an even higher degree of
scrutiny."
Finally, there was no indication that the FBI or the government
prosecutors were sponsoring or suborning perjury to any degree.
Indeed, when using Lowe during the investigation, the FBI instituted
safeguards by accompanying him, watching him, and debriefing him
promptly after he witnessed various incidents. And during trial, the
government offered not only Lowe’s testimony, but also corroborat-
ing testimony, as well as testimony revealing the FBI’s use of the
safeguards.
In short, the necessary safeguards were fully employed.
UNITED STATES v. LEVENITE 13
The defendants contend that Lowe’s fee agreement was also con-
tingent on his giving testimony that would convict the defendants.
This assertion, however, is not supported by the record. Lowe was
engaged through a written contract to assist in the investigation and
prosecution of the Renegades. The effort was a long-term and risky
undertaking. Consequently, the FBI was faced with the possibility
that Lowe would abandon his assistance and thereby substantially
damage an important investigation. To provide an incentive for Lowe
to remain involved until his assistance would no longer be necessary
would require deferment of his "bonus" until the case was complete.
Such an incentive to remain involved until the end was precisely
what the agreement in this case provided. It gave the FBI the "sole
option and choice" to provide Lowe with a lump sum payment up to
$100,000, based upon "the extent of cooperation in the investigation
by Mr. Lowe, the activities of Mr. Lowe in furtherance of the investi-
gation and in attaining the objectives of the investigation, and the
degree of compliance with this Agreement by Mr. Lowe." But this
agreement does not mean that payment was contingent on any partic-
ular testimony or trial outcome. It means that Lowe was required to
present fully and accurately to the jury whatever he witnessed during
the course of the investigation. Obviously, the objective of this crimi-
nal investigation, as any criminal investigation, was to uncover crimi-
nal activity and convict the guilty. It was, therefore, not surprising
that the FBI case agent testified that one of the objectives in the inves-
tigation was to attain convictions. But that explanation cannot be
interpreted to mean that payment was contingent on anything but
truthful testimony by the witness as to what he saw during the investi-
gation. Indeed, the agreement explicitly required that Lowe not com-
mit any unlawful activities — such as perjury — in carrying out the
agreement.
In sum, the FBI reasonably found it necessary in this case to enter
into the fee arrangement with Lowe as an undercover informant, and
it appropriately monitored his conduct. There is no evidence that the
government knowingly used or suborned any untruthful testimony.
The arrangement with Lowe was fully disclosed to the defendants,
and the defendants were permitted to cross-examine witnesses fully
about it and argue to the jury that Lowe’s credibility should be dis-
counted or doubted. Finally, the court admonished the jury to evaluate
14 UNITED STATES v. LEVENITE
Lowe’s testimony more carefully because of the arrangement. In these
circumstances, we conclude that the evidence was not constitutionally
inadmissible and that "[t]he Constitution does not require us to upset
the jury’s verdict." Hoffa, 385 U.S. at 312.
III
All four defendants also contend that the district court abused its
discretion in allowing an 11-person jury to complete deliberations and
return a verdict after one juror fell ill.
Upon the completion of the eight-week jury trial in this case, after
the alternate jurors had been discharged, a 12-person jury began its
deliberations. On the third day of deliberations — Friday, November
5, 1999 — one juror failed to appear because she was ill with an
intestinal flu. When the district court consulted counsel about their
preference from among several available options for proceeding, two
defendants (not appellants) opted to permit the jury to continue delib-
erating as an 11-person jury under Federal Rule of Criminal Proce-
dure 23(b). The government and the four defendants in this appeal
proposed delaying the continuation of deliberations for three days
until Monday, November 8, to allow for the possible return of the ill
juror.
After considering various options — including declaring a mistrial,
impaneling an alternate juror, delaying deliberations for three days, or
proceeding with an 11-person jury — the district court opted to pro-
ceed with an 11-person jury, as authorized by Rule 23(b). Explaining
its decision, the court rejected a mistrial as the least desirable alterna-
tive. Indeed, a mistrial may not even have been available because any
necessity for one was probably obviated by the authority granted by
Rule 23(b). The court also reasoned that impaneling an alternate juror
would require that the jury begin deliberations anew, a task that the
court thought would be difficult at best, and constitutionally suspect.
The court felt that delaying deliberations until the Monday after the
weekend risked losing more jurors, particularly in view of the fact
that the intestinal flu was contagious. It reasoned that if an 11-person
jury were unable to reach a verdict on Friday, the court would still
have the option of impaneling an alternate juror, should other jurors
UNITED STATES v. LEVENITE 15
be lost by then. The court also supported its decision with the reason-
ing outlined in the Advisory Committee Notes to Rule 23(b).
The Advisory Committee Notes to Rule 23(b) observe that the
problem of losing a juror after commencement of deliberations "is
acute when the trial has been a lengthy one and consequently the rem-
edy of mistrial would necessitate a second expenditure of substantial
prosecution, defense and court resources." The Notes also observe
that "[t]o permit substitution of an alternate [juror] after deliberations
ha[d] begun would require either that the alternate participate though
he has missed part of the jury discussion, or that he sit in with the jury
in every case on the chance he might be needed. Either course is sub-
ject to practical difficulty and to strong constitutional objection."
(Quoting Wright, Federal Practice and Procedure § 388 (1969)).
In the circumstances of this case, we conclude that the district court
acted well within its discretion. The parties do not dispute the district
court’s authority to proceed with 11 persons, and the district court
opted for this alternative after assessing the legal risks of impaneling
an alternate juror and the factual risks of losing jurors from delay.
Accordingly, we find no abuse of discretion. See United States v.
Acker, 52 F.3d 509, 515-16 (4th Cir. 1995) (permitting an 11-person
jury under Rule 23 when a juror was excused for an injury and it was
unclear when she would be able to return).
IV
Defendants Connor and Watson contend that the physical configu-
ration of the trial courtroom denied them their Sixth Amendment
rights of confrontation and the assistance of counsel.
Because this trial involved 13 defendants and their counsel, size
limitations of the courtroom dictated that each defendant be seated
behind his counsel. Under this seating arrangement, Connor and Wat-
son were seated six feet behind their counsel, and they could see only
the backs of witnesses. While their counsel were free to move about
the courtroom and to cross-examine witnesses face-to-face, security
concerns meant that the defendants themselves could not move about
freely. They were, however, permitted to consult freely with their
16 UNITED STATES v. LEVENITE
counsel, either by leaning forward and speaking directly to counsel or
by passing notes.
At the beginning of the trial, Watson’s counsel objected to the loca-
tion of his chair, lamenting that he was "sitting here, the thirteenth
lawyer in a row. I’m some six feet from my client." The substance of
his objection focused on "fundamental fairness." He stated:
The way the courtroom is configured, I’m looking at the
back of the witness’s head, and so I rise most humbly to
object on a basic fundamental fairness in this trial, that is
impossible for these 13 gentlemen to be tried fairly in this
court.
To meet counsel’s objection, the court stated, "If counsel wishes to
rise during the jury selection process or during the questioning of wit-
nesses so that they can see the witness, they are free to do so." With
that assurance, nothing further was said and the objection counsel for
Watson was making had apparently been accommodated.
Both Connor and Watson now contend, for the first time on appeal,
that they individually, as distinct from their counsel, could not see the
faces of witnesses and that this violated the Sixth Amendment. We
reject this claim because nothing in the defendants’ brief nor in the
record suggests that they can establish the elements required for notic-
ing and correcting plain error. See United States v. Olano, 507 U.S.
725 (1993); Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (noting that a
denial of face-to-face confrontation is subject to harmless error analy-
sis). In addition, Watson and Connor press the argument made by
Watson’s counsel at trial that the placement of these defendants six
feet behind their counsel denied them the assistance of counsel, in
violation of the Sixth Amendment. We disagree. Counsel and client
were free to consult throughout the trial, and there was no evidence
that either defendant’s ability to communicate with his attorney and
assist in his defense was impaired. See United States v. Balsam, 203
F.3d 72, 81-82 (1st Cir. 2000) (holding that defendants seated four to
five feet from defense table and permitted to "consult freely" with
counsel were not denied assistance of counsel); United States v.
Jones, 766 F.2d 994, 1004 (6th Cir. 1985) (holding that in a trial of
18 defendants where the defendants were seated in two rows behind
UNITED STATES v. LEVENITE 17
counsel’s table, there was no Sixth Amendment violation because
defendants were able to communicate with their attorneys during
trial).
V
Connor, Dailey, and Levenite contend that the evidence presented
by the government was insufficient to support their convictions. Our
standard for reviewing jury verdicts is deferential. We uphold a ver-
dict if "‘there is substantial evidence, taking the view most favorable
to the Government, to support it.’" United States v. Wilson, 135 F.3d
291, 303 (4th Cir. 1998) (quoting Glasser v. United States, 315 U.S.
60, 80 (1942)).
Connor was convicted on two counts of distributing and aiding and
abetting the distribution of cocaine. In support of these charges, the
government introduced evidence that on July 17, 1998, when confi-
dential informant Lowe went to the Good Fellows Bar to buy drugs,
he went with Connor to a back room where Connor "informed" him
that Billie Joe Fields, a dancer known as "Dixie," "was holding and
had some [drugs] for sale." Lowe then purchased drugs from Fields
and turned the purchased drugs over to a nearby FBI agent. The agent
corroborated the transaction based on the movements of the individu-
als, although he did not actually hear the conversation between Con-
nor and Lowe.
Evidence was also introduced that on January 6, 1999, confidential
informant Lowe sought to retrieve cocaine that was owed to him by
Robert Provo. Lowe testified that he was repaid the cocaine when
Connor gave it to Provo to give it to Lowe. The testimony of "Dixie"
Fields corroborated Lowe’s testimony. She overheard a conversation
between Connor and another individual about the same cocaine in
which the individual requested buying cocaine from Connor and Con-
nor stated that "he could not sell it because it [belonged to Provo]."
We are satisfied that the evidence introduced by the government
demonstrated that Connor culpably participated in the drug transac-
tions with which he was charged and had knowledge of the intended
result of each transaction. See United States v. Arrington, 719 F.2d
701, 705 (4th Cir. 1983).
18 UNITED STATES v. LEVENITE
Dailey challenges his conviction for conspiracy to distribute
methamphetamine, arguing that there was insufficient evidence to
link him in any conspiracy with Saucier, Yates, or Felix. Yet Felix
and John Courtney testified that Dailey was Saucier’s "right hand
man" in the drug distribution ring, even though Dailey and Saucier’s
relationship had not always remained smooth. Saucier testified that he
provided Dailey with quarter-pound quantities of methamphetamine
every two to three months. Gerald Penor buttressed this testimony by
stating that he saw Dailey purchase methamphetamine from Saucier
and that Penor then bought some from Dailey. Numerous other wit-
nesses, including Steven Cooper, Ernest Soricelli, Reid Woodruff,
and Jeremy Bruss testified that they purchased methamphetamine
from Dailey. This evidence amply demonstrates Dailey’s involvement
in a distribution conspiracy in which Saucier sold large quantities of
methamphetamine to Dailey who then distributed them in smaller
quantities to others.
Dailey also contends that the evidence was insufficient to support
his convictions for two charges of possession of methamphetamine
with intent to distribute in 1996. On these counts, Jerry Lee Penor,
Gerald Penor’s son, provided the key testimony, stating that, begin-
ning in February 1996, he went over to Saucier’s house frequently
and visited Dailey there. Jerry Lee saw methamphetamine there sev-
eral times, including a "huge mound" of it on the floor at one point.
Jerry Lee later saw Dailey package the methamphetamine and Jerry
Lee delivered some of the drugs to Ratliff who paid Dailey directly.
Although the dates of these transactions are not entirely precise, there
was ample evidence that the transactions occurred substantially dur-
ing the period alleged in the indictment.
Finally, Levenite challenges the sufficiency of evidence to support
his conviction for possession of a firearm and explosive materials by
a convicted felon. While he does not challenge the proof that he was
a convicted felon and that the firearms in question traveled in inter-
state commerce, he challenges the sufficiency of the evidence demon-
strating that he had possession of them. There was evidence, however,
that Levenite was the "enforcer" for the Renegades and that, at times,
he carried a 9 mm weapon. Karen Twiddy testified that Levenite kept
a Walther PPK on his bedside table and also had an assault rifle. Mark
Baker stated that he saw an SK-47 assault rifle at Levenite’s house.
UNITED STATES v. LEVENITE 19
Kenneth Connor testified that he saw Levenite with a 9 mm gun, and
Ernest Soricelli testified that he saw a "Street Sweeper" shotgun at
Levenite’s house. Confidential informant Lowe testified that he twice
purchased weapons from Levenite, a .38 special Derringer and a
Mossberg shotgun. Finally, during a search of Levenite’s house con-
ducted on February 24, 1999, the FBI seized a Walther PPK 7.65 cali-
ber semi-automatic pistol, a 12-gauge Street Sweeper shotgun, a Mac-
11 9 mm semi-automatic pistol, a Poly-Tech AKS 7.62 caliber semi-
automatic assault rifle, over 700 rounds of ammunition, an offensive
hand grenade, a grenade simulator, and four detonators. The evidence
to support Levenite’s conviction for possession of firearms and explo-
sive materials was ample.
VI
Finally, Levenite contends that the district court erred in enhancing
his sentence (1) by the number of firearms involved in his convic-
tions, under U.S.S.G. § 2K2.1(b)(1)(C), and (2) by reason of a previ-
ous conviction, under U.S.S.G. § 4A1.1.
First, the district court enhanced Levenite’s offense level by three
levels because he was in possession of ten weapons, including four
detonators. Levenite contends that a detonator is not a weapon that
should enhance his sentence. We disagree.
The commentary to U.S.S.G. § 2K2.1 defines a firearm to include
a "destructive device" and states that the definition of "destructive
device" is found in 26 U.S.C. § 5845(a). See U.S.S.G. § 2K2.1, cmt.
n.1, 4. Section 5845(f)(3) defines the term destructive device to
include "any combination of parts either designed or intended for use
in converting any device into a destructive device . . . and from which
a destructive device may be readily assembled. The term ‘destructive
device’ shall not include any device which is neither designed nor
redesigned for use as a weapon." We have held that in determining
whether a device falls under this definition, the government must
present evidence demonstrating that the defendant intended to use
such components "as a weapon." United States v. Blackwell, 946 F.2d
1049, 1054 (4th Cir. 1991).
In this case, the government proved that Levenite was the "en-
forcer" for the Renegades Motorcycle Club, a function that did not
20 UNITED STATES v. LEVENITE
provide a legitimate reason or commercial purpose for the use of det-
onators. FBI special agent Thomas Mohnal testified that detonators
are designed and manufactured to set off an explosive such as dyna-
mite and that the four detonators in this case worked as they were
designed. The government also presented evidence that the detonators
were seized from Levenite’s house along with other firearms and gre-
nades. Although the evidence is circumstantial, we conclude that suf-
ficient evidence supported the district court’s conclusion that the
sentence should be enhanced three levels based upon its finding that
Levenite intended to use the detonators as weapons.
The district court also enhanced Levenite’s sentence based on his
1984 Pennsylvania conviction for driving under the influence. Leve-
nite was sentenced to a range of 2 days to 23 months for the convic-
tion and served 2 days. He contends that this conviction does not
fulfill the Sentencing Guidelines’ requirement that the conviction be
one for which the sentence of imprisonment exceeds one year and one
month. Again, we disagree.
The district court applied U.S.S.G. § 4A1.1(a), which directs the
district court to "[a]dd three points for each prior sentence of impris-
onment exceeding one year and one month." The sentence of impris-
onment referred to is the maximum sentence imposed, not the time
actually served, see id. § 4A1.2(b) & cmt. n.2, as long as the defen-
dant served some period of imprisonment, id. § 4A1.2 cmt. n.2.
Although Levenite served only 2 days for the conviction, the maxi-
mum sentence imposed was 23 months, fulfilling the Sentencing
Guidelines’ requirement for the enhancement.
For the foregoing reasons, the judgments of the district court are
AFFIRMED.