United States v. Francisco Barahona , 606 F. App'x 51 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4633
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO BARAHONA, a/k/a Poncho,
Defendant - Appellant.
No. 13-4637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOE FARID MEDRANO,
Defendant - Appellant.
No. 13-4822
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR STEELE, a/k/a Panamanian, a/k/a Omie,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, Senior District
Judge. (8:12-cr-00014-RWT-3; 8:12-cr-00014-RWT-7; 8:12-cr-
00014-RWT-5)
Argued: March 25, 2015 Decided: April 24, 2015
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished opinion. Senior Judge Davis wrote the
opinion, in which Judge Wilkinson and Judge Harris joined.
ARGUED: Kira Anne West, LAW OFFICE OF KIRA ANNE WEST,
Washington, D.C.; Anthony Douglas Martin, I, ANTHONY D. MARTIN,
PC, Greenbelt, Maryland; Elita C. Amato, Arlington, Virginia,
for Appellants. Scott A.C. Meisler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Sujit
Raman, Chief of Appeals, Deborah Johnston, Assistant United
States Attorney, Mara Zusman Greenberg, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland; Leslie R. Caldwell, Assistant Attorney General, David
A. O'Neil, Acting Deputy Assistant Attorney General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Senior Circuit Judge:
These appeals arise from the prosecution of members of a
conspiracy to distribute significant quantities of cocaine and
heroin in Maryland and other states from 2010 to January 2012.
At the center of the government’s case was cooperating
coconspirator Saul Calderon Mata, who obtained drugs from
sources in Virginia, Georgia, Texas, and elsewhere, and then
transported and distributed the drugs with the help of a network
of associates, including Francisco Barahona, Noe Farid Medrano,
and Omar Steele (all three, collectively, “the Defendants”).
Following a multi-week trial, a jury convicted Barahona and
Steele of conspiring to distribute more than five kilograms of
cocaine and one kilogram of heroin. The jury also found Medrano
guilty of conspiring to distribute more than five kilograms of
cocaine. On appeal, the Defendants make several assertions of
error, some individually and some jointly, regarding pretrial
rulings, their trial, and the application of a sentencing
enhancement. Having carefully considered all of the Defendants’
contentions, we discern no reversible error in any respect, and
we therefore affirm.
I.
A.
Law enforcement began investigating Mata in September 2011.
By then, Mata was active in the drug business, and had a
3
longstanding relationship with Barahona, who obtained cocaine
from Mata to distribute to others and made supply runs on Mata’s
behalf. For example, Mata paid Barahona a fee of $1,000 per
kilogram to make supply runs to Atlanta, Georgia. Barahona also
rented Mata the basement of his Gaithersburg, Maryland home to
store, cut, and repackage drugs.
Like Barahona, Medrano distributed drugs for Mata. Mata
fronted Medrano ounces of cocaine at a time, and then collected
payment from Medrano after he sold the drugs. In addition to
distributing drugs, Medrano made supply runs on Mata’s behalf,
and arranged for one of his associates, Daniel Stotz, to make
the Atlanta runs for the $1,000-per-kilogram fee, with $100 of
that fee going to Medrano. Mata also bought handguns from
Medrano and Stotz for his protection. By January 2012, Mata
owed Medrano and Stotz $15,000, and as collateral for the debt,
gave them large quantities of marijuana.
Steele was one of Mata’s main customers for cocaine and
heroin, and began buying kilogram quantities of those drugs in
2010. Some of those transactions took place at Steele’s
apartment on 16th Avenue in Hyattsville, Maryland, which Steele
eventually agreed to lease to Mata. Mata used the Hyattsville
apartment for about a month and a half, and during that time,
continued to distribute cocaine and heroin to Steele at the
apartment complex. On one occasion, while Mata was living in
4
the apartment, Steele served as a translator in a heroin deal
between Mata and Steele’s English-speaking friend. Steele’s
friend subsequently met Mata and one of his associates, Ivan
Santoyo-Villa, at a restaurant with $50,000, to be used to buy
cocaine and heroin from a supplier in Virginia. Shortly after
Mata moved out of the Hyattsville apartment, Steele brokered a
deal for Mata to sell a kilogram of heroin to a woman in New
York. Steele later arranged for Mata to sell the woman an
additional half-kilogram of heroin. Following this transaction,
Steele and Mata continued to stay in contact regarding drugs
Steele wanted, money that Steele owed Mata, and a digital scale
that Steele wanted Mata to return.
B.
In late January 2012, Mata sent Santoyo-Villa and Stotz to
Atlanta to pick up five kilograms of cocaine and two kilograms
of heroin, which would be concealed in a hidden compartment of a
vehicle driven by Stotz. Before the drugs arrived, Mata
contacted Barahona, who confirmed that Mata could cut and
repackage the drugs in his basement and helped Mata locate the
key to a room containing cutting materials. Mata also contacted
Medrano to confirm that his order for eighteen ounces of cocaine
would soon be ready, and Steele to find out how many kilograms
of drugs he needed. Suspecting that police were following him,
5
however, Steele put off placing his order. Steele was later
arrested by law enforcement agents following his car.
On January 25, 2012, Mata arrived at Barahona’s house in
the car that Stotz had driven from Atlanta. Mata and another of
his associates, Alfonso Solorio, brought the drugs, except for
one kilogram of cocaine which was stuck in the car’s hidden
compartment, to Barahona’s basement. Soon thereafter, law
enforcement agents entered the house with a search warrant. In
the basement, agents found kilograms of cocaine and heroin in
brick form, cutting agents, and various other materials
containing drug residue or used to package drugs. Agents also
recovered the remaining kilogram of cocaine from the hidden
compartment in the car, and seized a firearm, which Medrano had
sold to Mata. In Barahona’s upstairs bedroom, agents found a
small bag of cocaine in the mattress. Barahona and Medrano were
arrested the same day.
Two days later, on January 27, 2012, agents searched the
Hyattsville apartment. They found a vice press used to package
drugs, heat sealer bags (also used to package drugs), cutting
agents, baking pans with drug residue, and two digital scales
used to weigh drugs. Forensic testing confirmed that a
fingerprint found on one of the scales was Steele’s, and that
the scale contained cocaine and heroin residue.
6
C.
In February 2013, a federal grand jury issued a second
superseding indictment, charging Barahona, Medrano, and Steele
with conspiring to distribute more than five kilograms of
cocaine and more than one kilogram of heroin, in violation of 21
U.S.C. §§ 841 and 846 (Count 1); and using a telephone in
furtherance of a drug trafficking crime, in violation of 21
U.S.C. § 843(b) (Counts 5–8, 10, 12, and 15). The grand jury
also charged Steele and Barahona with managing places used to
distribute and store drugs, in violation of 21 U.S.C. § 856
(Counts 2 and 13); Steele and Barahona with engaging in
interstate travel for narcotics activity, in violation of 18
U.S.C. § 1952 (Counts 3 and 14); Steele with possessing with
intent to distribute heroin, in violation of 21 U.S.C. § 841
(Count 4); Medrano with possessing with intent to distribute
cocaine and marijuana in violation of 21 U.S.C. § 841 (Counts 9
and 11); and Barahona with possessing with intent to distribute
more than 1 kilogram of heroin and 500 grams of cocaine, in
violation of 21 U.S.C. § 841 (Count 16).
Barahona and Steele filed pretrial a motion to suppress
evidence uncovered at Barahona’s Gaithersburg residence and
Steele’s Hyattsville apartment, which the district court denied.
The Defendants proceeded to trial, following which the jury
found them guilty on all counts. The jury determined that
7
Barahona and Steele participated in a conspiracy to distribute
more than five kilograms of cocaine and one kilogram of heroin,
while Medrano conspired to distribute more than five kilograms
of cocaine. The district court sentenced Barahona to 132
months’ imprisonment; Medrano to 120 months’ imprisonment; and
Steele to 192 months’ imprisonment. This timely appeal
followed.
II.
A.
The Defendants challenge the district court’s denial of
their motion to suppress evidence recovered through the use of
electronic interception of telephone conversations.
Specifically, they claim that the government’s wiretap
applications did not satisfy the necessity requirement of 18
U.S.C. § 2518(3), and that the supporting affidavits contained
material misstatements or omissions justifying a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
1.
In September 2011, during a court-authorized wiretap of
drug dealer Kevin Walker’s phone (“Target Telephone A” or
“TTA”), law enforcement officers identified Mata as a Maryland-
based cocaine supplier. After monitoring calls and conducting
some physical surveillance over a period of weeks, officers
stopped a car driven by Mata’s girlfriend, Yacenia Beaver, on
8
October 5, 2011. Officers searched the car upon receiving
consent, and discovered approximately 403 grams of heroin and
$15,000 in cash. Subsequent interviews with Beaver and her
children confirmed that Mata was a drug dealer who had dealings
in Atlanta, but did not reveal the extent of Mata’s operations
in Maryland or the identity of his suppliers.
Following the above events, officers sought authorization
to wiretap a cellular phone used by Mata (“Target Telephone C”
or “TTC”). The supporting affidavit filed by Officer Richard
Armagost disclosed the TTA wiretap, and set forth the basis for
believing that Mata used TTC in his drug operation. Armagost
explained why previous wiretaps had provided valuable, albeit
limited, information. He also explained why other investigative
techniques, such as confidential sources, controlled purchases,
physical surveillance, and trash pulls, would not yield the
information that officers were seeking. On October 7, 2011, the
district court authorized the TTC wiretap, which ultimately
captured Mata’s calls with Barahona, among others.
As the investigation continued and Mata changed cell
phones, investigators sought authorization to wiretap additional
phones (“Target Telephones D through I” or “TTD through TTI”).
Armagost’s supporting affidavits for those wiretap applications
reviewed the history of the investigation, explained why there
was probable cause to believe that Mata was using the target
9
phones to further his drug dealings, and explained why
techniques other than wiretapping would not yield information
helpful to the investigation.
On November 29, 2011, the district court authorized the TTE
wiretap, which captured calls with Steele. The district court
later issued a “roving” order authorizing the wiretap of any
phones Mata used over the next thirty days; those phones were
TTG, TTH, and TTI. Based on an updated application, the court
extended the TTG and TTI wiretaps through the time of the
Defendants’ January 2012 arrests. 1
The Defendants joined in a motion to suppress the wiretap
evidence, filed by Steele. Following a hearing, the district
court denied the motion to suppress.
2.
In reviewing a denial of a motion to suppress, we review
factual findings for clear error and legal conclusions de novo.
United States v. Hampton, 628 F.3d 654, 658 (4th Cir. 2010). We
review for abuse of discretion an authorizing court’s
determinations of necessity under 18 U.S.C. § 2518(3). United
States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Finally,
1
Interception of TTD was quickly suspended because Mata
stopped using that phone within a few days of the district
court’s order authorizing the wiretap. Interception of TTF
never commenced because Mata stopped using that phone around the
time the court authorized its interception.
10
we review the denial of a Franks hearing de novo. United States
v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).
3.
To obtain authorization for a wiretap, the government must
“show the ‘necessity’ of any wiretap application via a full and
complete statement as to whether ‘normal investigative
procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous.’”
Wilson, 484 F.3d at 281 (quoting 18 U.S.C. § 2518(3)). The
burden on the government, however, “is not great, and the
adequacy of such a showing is to be tested in a practical and
commonsense fashion that does not hamper unduly the
investigative powers of law enforcement agents.” Id. (internal
quotation marks omitted). While the government
cannot meet its burden with bare conclusory statements
that normal techniques would be unproductive or mere
boilerplate recitation of the difficulties of
gathering usable evidence, it need only present
specific factual information sufficient to establish
that it has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence
such that wiretapping becomes reasonable, despite the
statutory preference for less intrusive techniques.
United States v. Galloway, 749 F.3d 238, 243 (4th Cir. 2014)
(internal quotation marks omitted). The federal wiretap statute
includes a “standing” requirement, permitting “[a]ny aggrieved
person in any trial, hearing, or proceeding” to file a motion to
“suppress the contents of any wire or oral communication”
11
alleged to have been unlawfully intercepted. 18 U.S.C. §
2518(10); see also 18 U.S.C. § 2510(11) (defining “aggrieved
person”).
Assuming without deciding that the Defendants have standing
to challenge the wiretaps, their challenge fails. Beginning
with TTA, the government made an adequate showing of necessity.
The affidavit supporting TTA explained how “agents and officers
involved in this investigation have made extensive use of
information provided by . . . informants concerning the [Walker]
organization’s drug distribution activities.” J.A. 2728.2
Nevertheless, informants were unable to provide information
regarding Walker’s sources of supply. The affidavit further
explained that, because “[Walker] is extremely suspicious” and
“has shown a pattern [of] utilizing other individuals to deliver
drugs on his behalf,” investigators have been unable to arrange
controlled purchases from Walker. J.A. 2729. Moreover, the
affidavit explained, investigators’ ability to conduct physical
surveillance has been limited by Walker’s use of “lookouts” and
other counter-surveillance maneuvers. Walker was also careful
about what he discarded in the trash, as two trash pulls did not
yield any information helpful to the investigation. In light of
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
12
the affidavit’s “fairly extensive discussions” of why other
techniques would fail “to reveal the full scope of the
organization,” risked “reveal[ing] the existence of the ongoing
investigation,” or were “not practical under the circumstances,”
the district court did not abuse its discretion in authorizing
TTA. Galloway, 749 F.3d at 243.
We also reject the Defendants’ argument that the necessity
explanation provided in the TTC affidavit “amounted to bare
conclusory statements and boilerplate recitations that would
more or less apply to any drug-trafficking investigation.” Id.
at 242. The affidavit supporting TTC explained that, although
officers had interviewed Beaver and her children, their
information was limited to “the storage and distribution of
controlled substances [] and transportation of proceeds from
some of Mata’s customers.” J.A. 1807. Moreover, because Mata
was aware of Beaver’s traffic stop, he was “not likely to engage
in [further] criminal activities with” her. J.A. 1808. The
affidavit further explained why physical surveillance would be
insufficient, especially in light of Mata’s observed counter-
surveillance practices and the lack of an adequate place to
mount cameras. As for trash pulls, the affidavit explained
that, given the location of Mata’s residence, trash searches
were impractical. Although the Defendants take issue with the
fact that the officers did not attempt all the alternative
13
investigative techniques discussed in their affidavit, § 2518(3)
did not place that kind of burden upon them. See Wilson, 484
F.3d at 281 (stating that the government may obtain
authorization for a wiretap if it explains why normal
investigative procedures “reasonably appear to be unlikely to
succeed if tried or [are] too dangerous” (quoting 18 U.S.C. §
2518(3)); see also United States v. Clerkley, 556 F.2d 709, 715
(4th Cir. 1977) (“[P]olice need not exhaust every conceivable
technique before making [an] application for a wiretap.”).
Accordingly, the district court did not abuse its discretion in
finding the TTC wiretap necessary under § 2518(3).
As for TTE through TTI, the Defendants claim that the
government failed to satisfy the necessity requirement each time
it sought a wiretap. Although later affidavits repeated
relevant facts from earlier affidavits, this does not render the
government’s necessity explanations “boilerplate.” United
States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). The
affidavits for TTE through TTI relayed the progress of the
investigation, justifying the continued need for a wiretap. For
example, the affidavit for TTE explained that Mata had changed
residences following Beaver’s arrest, detailed the difficulties
of using Barahona or Santoyo-Villa to conduct controlled
purchases, and explained that a recently arrested co-conspirator
had refused to cooperate. The affidavit supporting the roving
14
order explained that Mata was changing cell phones “in a
continued effort to engage in his illegal activities and to
thwart law enforcement . . . .” J.A. 2155. The affidavit to
renew TTG and TTI explained that law enforcement had used trash
pulls and a pole camera, but that those techniques had provided
only limited information. Cf. United States v. Blackmon, 273
F.3d 1204, 1208 (9th Cir. 2001) (reversing necessity finding
where the wiretap application was a “carbon copy” of an earlier
wiretap application targeting a different suspect); United
States v. Carneiro, 861 F.2d 1171, 1180–81 (9th Cir. 1988)
(same). Thus, in sum, we find no abuse of discretion in the
district court’s necessity determinations.
Finally, we reject the Defendants’ claim that they are
entitled to a Franks hearing. Franks “carved out a narrow
exception to” the general rule that “[a]n accused is [] not
entitled to challenge the veracity of a facially valid . . .
affidavit.” Allen, 631 F.3d at 171. To trigger that exception,
“the accused must make a substantial preliminary showing that
false statements were either knowingly or recklessly included in
an affidavit supporting a search warrant and that, without those
false statements, the affidavit cannot support a probable cause
finding.” Id. (emphasis in original).
The Defendants claim that they are entitled to a Franks
hearing because the government failed to inform the district
15
court that: (1) the Mata investigation had spun off the Walker
investigation; and (2) it had misidentified Steele as “David
Lowell” in earlier wiretaps. As to the first claim, the
government did not, as the Defendants claim, use the TTA wiretap
to “mislead the court into thinking there was necessity as to
Mata and his target telephone.” Def. Br. at 46. Although the
government stated in the TTC affidavit that the court had
already authorized the TTA wiretap, it made clear that the goal
of TTC was different: to “identify [Mata’s] source of supply”
and “identify other participants in the [Mata] organization.”
J.A. 1767; see also J.A. 1807 (TTC affidavit explained why
traditional investigative methods were inadequate to understand
“[Mata’s] drug trafficking methods”). Moreover, the affidavit
supporting the TTE wiretap made clear that “[a]gents commenced
an investigation of [Mata]” after identifying Mata “during the
[Walker] investigation.” J.A. 1969. The affidavits, therefore,
fully apprised the district court of the origins of the Mata
investigation as well as its goals.
As to the second claim, the Defendants fail to demonstrate
that the “David Lowell” omission was “material” to the district
court’s decision to authorize the wiretaps. See United States
v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011) (explaining
that, to obtain a Franks hearing, the accused must show that
“omissions were material, i.e., rendered the affidavit unable to
16
support a probable cause finding” (internal quotation marks
omitted)); see also United States v. Colkley, 899 F.2d 297, 301
(4th Cir. 1990) (“Omitted information that is potentially
relevant but not dispositive is not enough to warrant a Franks
hearing.”). To authorize the wiretaps, the district court
needed to find probable cause that “particular communications
concerning that offense will be obtained through such
interception.” 18 U.S.C. § 2518(3)(b). “What mattered for that
purpose,” as explained by the government, “was that Mata used
his cell-phone to conduct his drug-trafficking operation, not
with whom he spoke.” Gov’t Br. at 23.
Likewise, the alleged omission was not material to the
district court’s necessity determination. The Defendants argue
that the government only learned of Steele’s identity through
physical surveillance. Thus, they claim, by omitting that
Steele was misidentified on earlier wiretaps, the government was
omitting the success of other, traditional investigative
techniques. As pointed out by the government, however, it only
learned of its misidentification after setting up surveillance
based on information gleaned from a wiretap. Accordingly, as
claimed by the government, traditional techniques alone were
insufficient to identify all of Mata’s co-conspirators. The
district court, in short, did not err in denying the Defendants’
motion to suppress wiretap evidence.
17
B.
Barahona and Steele contend that the district court erred
in denying their motion to suppress evidence uncovered at
Barahona’s Gaithersburg residence and Steele’s Hyattsville
apartment. They claim that the search warrants were not
supported by probable cause, and were so facially deficient in
establishing probable cause that the good-faith exception does
not apply. 3
Pursuant to well-established law, a warrant must be
supported by probable cause. United States v. Montieth, 662
F.3d 660, 664 (4th Cir. 2011). The probable cause determination
“is a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit [] . . . there is a
fair probability that contraband or evidence of a crime will be
found in a particular place.” Id. (internal quotation marks
omitted). “[T]he nexus between the place to be searched and the
items to be seized may be established by the nature of the item
and the normal inferences of where one would likely keep such
evidence.” United States v. Allen, 631 F.3d 164, 173 (4th Cir.
2011) (internal quotation marks omitted). “In assessing the
3
The Defendants also challenge a search conducted at an
apartment in Upper Marlboro, Maryland. The government, however,
did not introduce any evidence from the Upper Marlboro apartment
at trial, and thus we need not decide whether that search was
lawful.
18
probable cause determination,” this Court “accord[s] great
deference to the issuing judge’s assessment of the facts
presented,” id., and limits its inquiry “to whether there was a
substantial basis for determining the existence of probable
cause,” Monteith, 662 F.3d at 664 (internal quotation marks
omitted).
Applying the above standard, the issuing judge properly
concluded that there was a “fair probability” of discovering
contraband or evidence of a crime at Barahona’s Gaithersburg
home. In a January 13, 2012 affidavit, Officer David Papalia
explained in detail Barahona’s involvement in Mata’s drug
operation, describing, for example, Barahona’s role as a driver
in a thwarted October 2011 drug run to North Carolina. In
addition, the affidavit described a phone call between Mata and
a cocaine customer, in which Mata agreed to sell the customer
three and a half kilograms of cocaine and told the customer to
meet him at Barahona’s house. The affidavit also detailed a
January 6, 2012 call between Mata and Barahona, in which
Barahona asked Mata for money and told Mata to bring him air
fresheners because “you won’t believe the smell” at the house.
Surveillance confirmed that Mata went to Barahona’s house within
hours after the phone call.
Barahona argues that the above facts cannot establish
probable cause because they do not establish a nexus between his
19
house and evidence of his involvement in Mata’s drug operation.
He argues, at bottom, that there was no direct evidence that
drugs would be found at the house. As explained by this Court,
however, “we have upheld warrants to search suspects’ residences
and even temporary abodes on the basis of (1) evidence of the
suspects’ involvement in drug trafficking combined with (2) the
reasonable suspicion (whether explicitly articulated by the
applying officer or implicitly arrived at by the magistrate
judge) that drug traffickers store drug-related evidence in
their homes.” United States v. Williams, 548 F.3d 311, 319 (4th
Cir. 2008); see also United States v. Lalor, 996 F.2d 1578, 1582
(4th Cir. 1993) (“[A] warrant is not invalid for failure to
produce direct evidence that the items to be seized will be
found at a particular location.”).
The affidavit here established the requisite suspicion
regarding Barahona’s house. The affiant detailed Barahona’s
role in Mata’s drug activities, and asserted his experience with
drug dealers storing evidence in their homes. See J.A. 2592
(“[I]t is common for drug dealers to secrete contraband,
proceeds of drug sales and records of drug transactions in
secure locations within their residence . . . .”).
Additionally, the affiant offered facts from which a reasonable
judge could find a “fair probability” that drugs would be
present in Barahona’s house: (1) Mata instructed a customer to
20
meet him there; and (2) Barahona asked Mata to bring him air
fresheners, implying that the men were trying to conceal the
smell of drugs at the house. This was simply not a case where
evidence failed to “connect[] the drug activity to the
residence.” Lalor, 996 F.2d at 1583.
Likewise, the issuing judge properly concluded that there
was a “fair probability” of discovering contraband or evidence
of a crime at Steele’s Hyattsville apartment. In a January 27,
2012 affidavit, Armagost described a phone call between Steele
and Mata, in which they discussed whether Mata would leave a bag
containing drugs at the apartment. Agents later confirmed
through GPS that Mata was at or near the Hyattsville apartment
during the call. The affidavit also described Steele’s
subsequent dealings with Mata, as well as Steele’s connections
to the Hyattsville apartment. In particular, Steele drove a
vehicle registered to that address and, as of the time of his
arrest, had a key to the apartment building. Cf. United States
v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (“[I]t is
reasonable to suspect that a drug dealer stores drugs in a home
to which he owns a key.”). Additionally, officers saw Steele’s
car in the apartment’s parking lot. In short, the above
evidence provided a sufficient basis from which the issuing
judge could infer that evidence of drug activity would be found
at the Hyattsville apartment.
21
In any event, even if the search warrants were deficient,
the district court properly denied suppression pursuant to the
good-faith exception to the exclusionary rule. Pursuant to that
exception, “the exclusionary rule does not apply when the police
conduct a search in ‘objectively reasonable reliance’ on a
warrant later held invalid.” Davis v. United States, 131 S. Ct.
2419, 2428 (2011) (quoting United States v. Leon, 468 U.S. 897,
922 (1984)). “[T]he good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal in
light of all of the circumstances.” United States v. Stephens,
764 F.3d 327, 336 (4th Cir. 2014) (internal quotation marks
omitted). Accordingly, the good faith exception does not apply
when, for example, a warrant is based on an affidavit “so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” Leon, 468 U.S.
at 923; see also Messerschmidt v. Millender, 132 S. Ct. 1235,
1245 (2012) (threshold for establishing that a warrant was
facially deficient is a “high one”).
The affidavits at issue here were not so “bare bones” as to
render officers’ reliance on them unreasonable. United States
v. Wilhelm, 80 F.3d 118, 122 (4th Cir. 1996). As explained
above, the affidavits detail Barahona and Steele’s involvement
in Mata’s drug-trafficking operation, and offer specific facts
22
linking that operation to Barahona’s house and Steele’s
apartment. Cf. id. at 123 (concluding that the good faith
exception did not apply where the affiant did little more than
assert that probable cause existed). Accordingly, because the
good faith exception applies, the district court did not err in
denying Barahona and Steele’s motion to suppress.
C.
Barahona and Medrano argue that there was a material
variance between the charged conspiracy and the proof presented
at trial, and relatedly, that they were entitled to a multiple-
conspiracies instruction.
1.
The court typically reviews de novo whether a material
variance occurred. See United States v. Ford, 88 F.3d 1350,
1360 (4th Cir. 1996); see also United States v. Malloy, 568 F.3d
166, 177 (4th Cir. 2009). Where, however, the defendant failed
to preserve his variance claim below, the court reviews only for
plain error. United States v. Jeffers, 570 F.3d 557, 567 (4th
Cir. 2009).
Here, Medrano preserved his variance claim by moving for a
judgment of acquittal and, later, for a new trial. Accordingly,
his variance claim is subject to de novo review. Barahona’s
variance claim, however, is subject to plain error review, as he
did not claim a variance below.
23
As for claims of instructional error, the court typically
reviews for abuse of discretion the district court’s decision
not to give a particular jury instruction. United States v.
Bartko, 728 F.3d 327, 343 (4th Cir. 2013). Where, as here,
however, the defendants propose a particular jury instruction
but do not object to the failure to give that instruction, they
fail to preserve their instructional error claim, and plain
error review applies. United States v. Nicolaou, 180 F.3d 565,
569 (4th Cir. 1999).
2.
“In general, a ‘variance’ occurs when the evidence at trial
establishes facts materially different from those alleged in the
indictment.” United States v. Kennedy, 32 F.3d 876, 883 (4th
Cir. 1994). In a conspiracy case, “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
conspiracies.” Id. “The question whether the evidence shows a
single conspiracy or multiple conspiracies . . . is one of fact
and is properly the province of the jury.” United States v.
Leavis, 853 F.2d 215, 218 (4th Cir. 1988). “Whether there is a
single conspiracy or multiple conspiracies depends upon the
overlap of key actors, methods, and goals.” Id.
24
There is such an overlap here. The evidence at trial
showed, for example, that both Barahona and Medrano made supply
runs on Mata’s behalf. Likewise, both men obtained cocaine from
Mata to resell, with Mata fronting them the drugs and then
collecting payment later. Barahona and Medrano also aided Mata
in other ways: Barahona permitted Mata to store, cut, and
repackage drugs in the basement of his home, while Medrano
helped arrange for Stotz to make the Atlanta drug runs and sold
Mata a firearm for his protection. Cf. United States v. Bollin,
264 F.3d 391, 405–06 (4th Cir. 2001) (the jury’s finding of a
single conspiracy was supported by substantial evidence, despite
the fact that co-conspirators played different roles in the
conspiracy). Finally, Medrano was slated to receive drugs from
a shipment that Mata planned to store and repackage in
Barahona’s basement. Cf. United States v. Banks, 10 F.3d 1044,
1054–56 (4th Cir. 1993) (the jury could reasonably find a single
conspiracy based on “the interdependence of participants” in a
drug-trafficking venture). Based on the above facts, the jury
could reasonably find Barahona and Medrano engaged in a single
conspiracy. See Bollin, 264 F.3d at 405 (“[T]he finding of a
single conspiracy must stand unless the evidence, taken in the
light most favorable to the Government, would not allow any
reasonable juror to reach such a verdict.”).
25
In the face of the above evidence, Barahona and Medrano
claim that there was a variance because the indictment charged a
conspiracy to traffic in cocaine and heroin, whereas the proof
at trial established only that they dealt in cocaine. As
explained in Bollin, however, “even if the evidence established
separate conspiracies, a variance is grounds for reversal only
if it infringed the defendant’s substantial rights and thereby
resulted in actual prejudice.” Id. at 406 (internal quotation
marks omitted). Medrano cannot establish prejudice because the
jury’s verdict against him rested on his participation in a
conspiracy to distribute cocaine, not heroin. The jury was
asked to determine whether Medrano was guilty of conspiracy to
distribute and possess with intent to distribute cocaine and, if
so, how much cocaine was attributable to him. It was not asked
to determine whether Medrano distributed heroin or how much
heroin was attributable to him. As for Barahona, because he
does not dispute that the evidence was sufficient to prove that
he conspired to distribute cocaine, any factual insufficiency as
to heroin would not require reversal of his conspiracy
conviction. See Griffin v. United States, 502 U.S. 46, 56–57
(1991) (“[W]hen a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict
stands if the evidence is sufficient with respect to any one of
the acts charged.” (internal quotation marks omitted)).
26
In any event, the evidence was sufficient to link Barahona
to Mata’s heroin-trafficking activities. As explained above,
Barahona permitted Mata to use his basement to cut and repackage
a drug shipment, which included more than a kilogram of heroin.
Although Barahona indicates that he did not know Mata’s shipment
would include heroin, the jury could have reasonably rejected
that contention. The government presented evidence that
Barahona had seen drugs in the basement on a previous occasion,
and that among the items seized there were drug-packaging
materials testing positive for heroin. Based on this evidence,
the jury could have reasonably inferred, beyond a reasonable
doubt, that Mata had brought heroin to Barahona’s house on other
occasions, and that Barahona was aware of Mata’s heroin
dealings. Thus, in sum, Barahona and Medrano’s variance claim
fails.
Turning to Barahona and Medrano’s instructional error
claim, “[a] multiple conspiracy instruction is not required
unless the proof at trial demonstrates that appellants were
involved only in separate conspiracies unrelated to the overall
conspiracy charged in the indictment.” Bartko, 728 F.3d at 344
(internal quotation marks omitted). “And, even if one
overarching conspiracy is not evident, the district court’s
failure to give a multiple conspiracies instruction is
reversible error only when the defendant suffers substantial
27
prejudice as a result.” Id. In other words, “the evidence of
multiple conspiracies [must have been] so strong in relation to
that of a single conspiracy that the jury probably would have
acquitted on the conspiracy count had it been given a cautionary
multiple-conspiracy instruction.” Id. (emphasis in original)
(internal quotation marks omitted).
According to Barahona and Medrano, the lack of evidence
that they were involved in or knew about Mata’s heroin dealings
entitled them to a multiple-conspiracies instruction. But, even
assuming they were entitled to this instruction, the district
court’s failure to give it did not cause them substantial
prejudice. As explained above, the verdict form for Medrano
only permitted a conspiracy conviction based on cocaine
distribution. As for Barahona, there was sufficient
circumstantial evidence linking him to Mata’s heroin dealings.
Moreover, the district court instructed the jury to consider
each defendant individually for purposes of determining guilt
and drug quantities. In this way, the district court ensured
that the jury would not find a defendant guilty based merely on
the activities of another defendant. Cf. Jeffers, 570 F.3d at
567 (“Error will be found in a conspiracy instruction if the
proof of multiple conspiracies was likely to have confused the
jury into imputing guilt to [the defendant] as a member of one
conspiracy because of the illegal activity of members of the
28
other conspiracy.” (internal quotation marks omitted)). The
district court, therefore, did not commit reversible error in
declining to give a multiple-conspiracies instruction.
D.
Steele asserts that he is entitled to a new trial because
he was unable to recall two government witnesses, David Ware and
Michael Margulis. He claims that his inability to recall Ware
violated his right to confrontation, while his inability to
recall Margulis resulted in a Brady violation.
1.
On March 8, 2013, the government called Ware, a Utah-based
government contractor who translated recorded phone calls, to
testify as an expert witness. Among the calls Ware translated
was a December 6, 2011 call, in which Santoyo-Villa and Mata
used the Spanish word “carros,” which literally means “cars.”
Santoyo-Villa and Mata testified, however, that, in the context
of their conversations, “carros” meant “kilos.” Accordingly,
Ware translated the word “carros” as kilos. The parties
eventually stipulated that, in the December 6 call, “the word
used by the speaker in Spanish that was translated as kilos was
the word carros.” S.A. 272–73. 4
4
Citations to the “S.A.” refer to the Supplemental Joint
Appendix filed by the parties in this appeal.
29
Despite the above stipulation, Steele requested that the
district court continue the trial so that he could recall Ware
and question him about the December 6 call. The court denied
the request, reasoning that the parties had “thoroughly brought
to the attention of the jury that the Spanish word used was
carros, not kilos.” S.A. 270. The court also denied Steele’s
subsequent motion for a new trial based on translation issues,
again reasoning that his concerns had been “amply developed
before the jury and the jury was able to make its own
determinations with respect to any challenges to the
interpretation of transcripts.” S.A. 292–93.
On April 4, 2013, the government called canine handler
Margulis to testify about the January 25, 2012 searches of
Barahona’s house and the vehicle used to transport drugs there.
On cross-examination, Steele’s counsel went beyond the scope of
direct and asked Margulis whether he had conducted a dog sniff
at the Hyattsville apartment. Margulis indicated that his dog
had alerted during a scan of the Hyattsville apartment, but that
he would need to review his report to provide more details. At
a bench conference, Steele’s counsel complained that she had not
been provided with Margulis’ report. Although questioning
whether the report would be more “bad evidence” for Steele, the
district court agreed that Margulis would be subject to recall
30
after the government gave the report to defense counsel. S.A.
163–64.
The government located the report soon thereafter, and
Steele’s counsel recalled Margulis. Margulis testified that the
dog had alerted in the hall and bedroom of the Hyattsville
apartment, and that, to his best recollection, he had not
conducted a scan of Steele’s car in the apartment parking lot.
The court excused Margulis after his testimony.
The next day, on April 5, 2013, the government gave Steele
an additional report indicating that, on January 27, 2012,
Margulis conducted a scan of the car Steele was driving at the
time of his arrest, and that the dog did not alert. Steele’s
counsel did not advise the government until April 10, 2013, five
days later, however, that she wished to recall Margulis. By
that time, Margulis had left on a previously scheduled vacation
to Mexico and was not available for recall.
Steele moved for a mistrial, which the district court
denied. The court reasoned that the answer to the only question
Steele wished to pose—whether dogs alert to latent odors when
drugs are no longer present—was likely “it [] depends,” and that
the issue was not “of great significance to this case.” S.A.
250–52. The court denied Steele’s post-trial motion raising the
same issue. In any event, Steele’s counsel introduced the
31
result of the January 27 car scan by cross-examining Armagost,
and later used that testimony in her closing argument.
2.
We review for abuse of discretion limitations on the
defense case that are alleged to violate the Confrontation
Clause. See, e.g., United States v. Sterling, 724 F.3d 482, 516
(4th Cir. 2013); see also United States v. Williams, 445 F.3d
724, 738–39 (4th Cir. 2006) (“[B]road discretion must be granted
trial courts on matters of continuances; only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” (internal quotation marks omitted)).
Likewise, we review for abuse of discretion the denial of a new
trial based on a Brady violation, reviewing de novo the legal
question of whether there was indeed a Brady violation. United
States v. Horton, 693 F.3d 463, 470 (4th Cir. 2012).
3.
The district court did not abuse its discretion in denying
Steele a continuance to recall Ware. As we have recognized,
denial of a motion for continuance may, “under certain
circumstances, implicate a defendant’s right to present a
defense or to confront the witnesses against him.” Williams,
445 F.3d at 739–40. In particular, denial of a continuance may
implicate the confrontation right when the defendant is
32
prevented from pursuing a meaningful line of inquiry. See id.
at 740 (no abuse of discretion in denying a continuance where
there was “nothing new” in the testimony the defendant sought to
elicit, or where the denial prevented the defendant from
presenting “cumulative evidence”).
Steele’s desire to question Ware about the Spanish word
“carros” used in the December 6 call is not such a meaningful
line of inquiry. As found by the district court, Steele
“thoroughly brought to the attention of the jury that the
Spanish word used [in the December 6 call] was carros, not
kilos.” S.A. 270. As indicated above, the parties stipulated
that the Spanish word “that was translated as kilos was the word
carros.” S.A. 272–73. Moreover, Steele’s counsel reminded the
jury of the parties’ stipulation during closing argument.
To the extent Steele argues that the court deprived him of
an opportunity to probe Ware’s potential bias, this argument
must be rejected. As pointed out by the government, defense
counsel elicited testimony from Ware that the U.S. Drug
Enforcement Administration (“DEA”) was one of his company’s
biggest clients, and that DEA agents provided the company with
call summaries and identified call participants. In addition,
Steele argued during closing that the jury should give less
credence to Ware’s testimony given his company’s relationship to
the DEA. Accordingly, the government is correct that any
33
further suggestion of bias would have been cumulative. Cf.
Williams, 445 F.3d at 740 (because the defendant was able to
explore the relevant issue elsewhere in trial, his “inability to
impeach [a witness] to a somewhat greater degree [cannot] be
viewed as a violation of his constitutional rights”).
As to Margulis, the district court was correct in finding
no Brady violation. To establish a Brady violation, “the burden
rest[s] on [the defendant] to show that the undisclosed evidence
was (1) favorable to him either because it is exculpatory, or
because it is impeaching; (2) material to the defense, i.e.,
prejudice must have ensued; and (3) that the prosecution had
materials and failed to disclose them.” United States v.
Wilson, 624 F.3d 640, 661 (4th Cir. 2010) (internal quotation
marks omitted) (emphasis added). “Evidence is material if it is
likely to have changed the verdict.” Id. (internal quotation
marks omitted).
Steele cannot show that questioning Margulis about whether
dogs alert to latent odors would have likely had any effect on
the verdict in his case. Indeed, he does not argue that this
line of questioning would have exculpated him, or that it would
have impeached Margulis. Steele instead contends that, by
questioning Margulis, he would have been able to impeach Mata,
who testified that he had put kilograms of drugs in Steele’s
car.
34
But this assumes that Margulis would have testified that a
trained dog would have likely alerted to a car that formerly
contained drugs. And, as indicated by the district court, there
was no basis for believing that Margulis would give such
testimony. See S.A. 251 (“I could almost guarantee you that the
question of whether a dog is going to hit on a car that’s had
drugs in it . . . depends on whether any drug residue is left or
not.”). In any event, even if Margulis had testified as Steele
hoped, his testimony would not have undermined the other
considerable evidence presented by the government, including
phone calls in which Steele negotiated drug deals, surveillance
from a drug deal in New York, and a digital scale bearing
Steele’s fingerprint which was recovered from the Hyattsville
apartment. Cf. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per
curiam) (no reversible Brady error where the case against the
defendant was “overwhelming”). Steele, in short, was not
entitled to a new trial based on his inability to recall Ware or
Margulis.
E.
The Defendants claim that the district court abused its
discretion in denying their request to remove two jurors based
on alleged incidents involving Barahona. According to the
Defendants, the jurors involved in those incidents were actually
biased. In the alternative, the Defendants argue for a
35
“presumption of prejudice” under Remmer v. United States, 347
U.S. 227 (1954), or an “implication of bias” pursuant to Person
v. Miller, 854 F.2d 656 (4th Cir. 1988).
1.
On March 29, 2013, the third day of trial, the district
court informed the parties that a juror had the impression
Barahona had followed her down a courthouse escalator and taken
a picture of her with a cellphone. The juror also thought that
a woman outside the courthouse had taken pictures of her.
Acknowledging that the juror might have been mistaken, the
district court “[didn’t] want to make a deal out of it with the
juror,” but admonished the parties not to take the escalators
used by jurors and not to take pictures with their cell phones.
J.A. 511.
The government suggested that the court determine whether
Barahona had taken the picture and, if not, inform the juror
that she had been “confused.” J.A. 511. Accordingly, the court
asked Barahona’s counsel to question him about the alleged
incident. A short time later, counsel reported that she had
checked Barahona’s phone, and that there were no pictures of any
jurors. The court did not conduct any further inquiry of the
juror, nor did the Defendants request that the court do so.
Four days later, on April 5, 2013, the district court
informed the parties that another juror expressed concern that
36
Barahona had followed her home upon leaving the courthouse. To
avoid “any apprehension by jurors that they’re being followed or
intimidated,” the district court ordered the Defendants to
depart the courthouse each day fifteen minutes after the jury.
J.A. 1057. Following the district court’s order, the Defendants
requested that the court voir dire the juror. After confirming
through Barahona’s counsel that he had not followed the juror,
the court determined that it—but not the parties’ attorneys—
would conduct the inquiry.
Upon questioning, the juror stated that, while she had seen
Barahona’s van, she “[couldn’t] truly say he was following
[her].” J.A. 1061. Additionally, she stated that the incident
did not impede her ability to be a fair juror, and that she had
not discussed the incident with other jurors. The court told
the juror that seeing Barahona’s car was likely “coincidental,”
but explained that the Defendants would now be departing fifteen
minutes after the jury to avoid any future encounters. J.A.
1062. The court verified that this measure addressed the
juror’s concerns, and twice reminded her not to talk with the
other jurors about what they had discussed. The Defendants did
not ask the court to make further inquiries, nor did they move
to excuse the juror.
On April 11, 2013, Steele’s counsel reported to the court
that, an hour after court recessed the day before, she saw the
37
same juror the court had voir dired “sitting in the backseat of
her car with the door open and on the phone and kind of looking
around like she was freaked out.” J.A. 1426. Counsel brought
the incident to the court’s attention because “it was 94-degrees
[out], so [she] just thought it was strange.” J.A. 1426. The
court indicated that it had heard no additional concerns from
the juror, and the Defendants neither moved to excuse the juror
nor asked the court to inquire further.
On April 17, 2013, just prior to the commencement of
deliberations, the Defendants moved to exclude the two jurors
involved in the above incidents. The Defendants argued that the
two jurors had “shown some bias and concern,” and that they
could be replaced with alternates. J.A. 1445. Stating that the
jurors “didn’t reflect any bias,” and that it had “addressed the
issue long ago,” the district court denied the motion. J.A.
1445.
2.
We typically review for abuse of discretion the district
court’s handling of juror-intimidation allegations. United
States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 2010). Where,
however, the defendants fail to raise the issue at trial, we
review only for plain error. Id.
The government urges us to apply plain error review as to
the March 29 and April 11 incidents, as the Defendants did not
38
request additional voir dire. The Defendants, for their part,
seem to assume that the abuse of discretion standard applies.
We need not decide which standard of review controls, as the
Defendants’ challenges fail even under the more lenient abuse of
discretion standard.
3.
As an initial matter, we reject the Defendants’ claim of
actual bias. “[T]he trial court has a serious duty to determine
the question of actual bias, and a broad discretion in its
rulings on challenges therefor . . . .” Wainwright v. Witt, 469
U.S. 412, 429–30 (1985) (internal quotation marks omitted).
That being said, the trial court must, as a matter of law,
“exclude veniremen who cannot be impartial.” United States v.
Turner, 389 F.3d 111, 117 (4th Cir. 2004). “[A] juror is
impartial only if he can lay aside his opinion and render a
verdict based on the evidence presented in court . . . .”
Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). “[T]he burden
of proving partiality is upon the challenger.” Turner, 389 F.3d
at 117–18 (internal quotation marks omitted).
The Defendants simply did not meet that burden here. As to
the first juror, there is nothing in the record to indicate that
she could not be impartial following the March 29 incident.
Indeed, the Defendants never even requested that the court
question the juror. While the district court might have
39
summoned the juror anyway to explain that Barahona had not taken
any pictures of her, the decision not to do so was a sound
exercise of its “wide discretion in handling matters relating to
. . . the integrity of the jury.” United States v. Johnson, 657
F.2d 604, 606 (4th Cir. 1981). The district court may have
reasonably concluded, for instance, that individualized voir
dire would be counterproductive, and “unnecessarily highlight
the matter in the eyes of the juror[].” United States v. Mack,
729 F.3d 594, 606 (6th Cir. 2013); see also United States v.
Stafford, 136 F.3d 1109, 1113 (7th Cir. 1998) (recognizing that
individual questioning in the middle of a trial may “unsettle
the jury”).
As to the second juror, the district court asked her
whether the incident with Barahona caused her “any concern as to
whether [she] can continue to be a fair juror in this case,” and
the juror answered clearly, “[n]o, it does not.” J.A. 1061.
The Defendants attempt to argue the juror was nevertheless
biased by relying on the April 11 incident. But, as recognized
by the district court, the juror never reported any additional
concerns to the court, and the April 11 incident might have had
nothing to do with the trial. The district court, therefore,
did not err in failing to find actual bias.
Turning to the Defendants’ argument for a “presumption of
prejudice,” this Court has explained that, “[b]ecause the
40
potential for mischief is so great when a third party
establishes private, extrajudicial contact with a juror, . . .
‘any private communication [or] contact . . . with a juror
during a trial about the matter pending before the jury is . . .
presumptively prejudicial . . . .’” Fullwood v. Lee, 290 F.3d
663, 678 (4th Cir. 2002) (quoting Remmer, 347 U.S. at 229). The
Remmer presumption, however, is “not one to be casually
invoked.” Baptiste, 596 F.3d at 221 (internal quotation marks
omitted). To trigger the presumption, “the defendant bears the
initial burden of establish[ing] both that an unauthorized
contact was made and that it was of such a character as to
reasonably draw into question the integrity of the verdict.”
Id. (internal quotation marks omitted). In determining whether
the defendant has met his burden, the court “refer[s] back to
the factors the Supreme Court deemed important in Remmer
itself”: “any private communication; any private contact; any
tampering; directly or indirectly with a juror during trial;
about the matter before the jury.” Barnes v. Joyner, 751 F.3d
229, 245 (4th Cir. 2014) (internal quotation marks omitted).
Applying Remmer, the March 29 incident did not trigger a
presumption of prejudice because it did not “reasonably draw
into question the integrity of the verdict.” Baptiste, 596 F.3d
at 221. The Defendants made no effort to meet their threshold
burden. The only “evidence” of bias came from a brief statement
41
by the district court outside the presence of the jury that one
juror had reported an incident. Nor did the April 11 incident
trigger the Remmer presumption. As indicated above, the
Defendants have not shown that the juror’s behavior on that day
had anything to do with the trial, let alone that it stemmed
from an “unauthorized contact” with Barahona. Id. Indeed, the
Defendants merely speculate that the juror was upset because of
an incident with Barahona. Cf. United States v. Heater, 63 F.3d
311, 321–22 (4th Cir. 1995) (concluding that “defense counsel’s
declaration of improper jury contact was nothing more than a
bald assertion,” and that the “mere proffer without further
support is not enough to create a question about improper jury
tampering”).
As to the November 5 incident, even assuming the Defendants
met their initial burden “of establish[ing] both that an
unauthorized contact was made and that it was of such a
character as to reasonably draw into question the integrity of
the verdict,” Baptiste, 596 F.3d at 221 (internal quotation
marks omitted), additional questioning of the juror established
that the contact was “harmless to the defendant[s].” United
States v. Lawson, 677 F.3d 629, 641 (4th Cir. 2012). As already
explained, the juror indicated that she was not certain Barahona
had followed her, that the fifteen-minute delay for the
Defendants’ departure allayed any concerns she had, and that she
42
could continue to be a fair juror. Thus, the Defendants’
presumed prejudice argument fails.
Finally, as for the Defendants’ argument for an
“implication of bias,” this Court has stated that “the doctrine
of implied bias is limited in application to those extreme
situations where the relationship between a prospective juror
and some aspect of the litigation is such that it is highly
unlikely that the average person could remain impartial in his
deliberations under the circumstances.” Person, 854 F.2d at
664. Implied bias might arise, for example, when “the juror is
an actual employee of the prosecuting agency, [when] the juror
is a close relative of one of the participants in the trial or
the criminal transaction, or [when] the juror was a witness or
somehow involved in the criminal transaction.” United States v.
Umana, 750 F.3d 320, 341 (4th Cir. 2014) (internal quotation
marks omitted); see also Dyer v. Calderon, 151 F.3d 970, 982
(9th Cir. 1998) (applying implied bias doctrine where the juror
lied during voir dire to keep her status as a juror and “secure
the right to pass on [the defendant’s] sentence”).
Applying the above standard, the two jurors had no pre-
existing relationships or experiences suggesting a risk of
partiality. Nor were the alleged incidents with Barahona the
kind of “extreme situations” warranting relief. Person, 854
F.2d at 664. Rather, as recognized by the district court, they
43
were likely misunderstandings addressed through practical
measures, including having the Defendants not take the
escalators used by jurors and having the Defendants leave the
courthouse fifteen minutes after the jury. Thus, we discern no
error or abuse of discretion in the district court’s denial of
the Defendants’ request to substitute alternates for the two
belatedly-challenged jurors.
F.
Barahona argues that the district court clearly erred in
applying a two-level enhancement to his base offense level due
to co-conspirator Mata’s possession of a firearm.
1.
Barahona’s presentence investigation report (“PSR”)
calculated a total offense level of 36. The PSR calculated a
base-offense level of 34 derived from the quantity of drugs
attributable to Barahona. It then added two levels under
U.S.S.G. § 2D1.1(b)(1) because Mata’s possession of a handgun
was “in furtherance of the jointly undertaken criminal activity
and was reasonably foreseeable by [] Barahona.” J.A. 3039.
Overruling Barahona’s objection to the two-level enhancement,
the district court calculated an advisory guidelines range of
188 to 235 months, and ultimately sentenced Barahona to 132
months.
44
2.
Section 2D1.1(b)(1) permits a two-level increase in a
defendant’s base offense level “[i]f a dangerous weapon
(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).
The two-level enhancement “‘should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.’” United States v. Gomez-Jimenez,
750 F.3d 370, 381 (4th Cir. 2014) (quoting U.S.S.G. § 2D1.1 cmt.
n.11(A)). In particular, with respect to conspiracy cases,
“weapons carried by a member of a conspiracy are attributable to
a co-conspirator when ‘under the circumstances of the case, it
was fair to say that it was reasonably foreseeable to [the
defendant] that his co-participant was in possession of a
firearm.’” Id. (quoting United States v. Kimberlin, 18 F.3d
1156, 1160 (4th Cir. 1994)). “‘[A]bsent evidence of exceptional
circumstances, . . . it [is] fairly inferable that a
codefendant’s possession of a dangerous weapon is foreseeable to
a defendant with reason to believe that their collaborative
criminal venture includes an exchange of controlled substances
for a large amount of cash.’” Kimberlin, 18 F.3d at 1160
(quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir.
1991)). In considering whether a co-defendant’s possession of a
weapon was foreseeable to the defendant, this Court reviews the
45
district court’s findings of fact for clear error. United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
Applying the above standard, the district court did not
clearly err in imposing the two-level enhancement based on
Mata’s possession of a firearm. Contrary to Barahona’s
assertion that “the firearm had [nothing] to do with” Mata’s
drug trafficking activities, Def. Br. at 86, Mata testified at
trial that he had purchased the handgun for protection from a
drug supplier named Berna, with whom he had quarreled over a
drug debt. Moreover, agents recovered the gun in the car that
Mata had driven to Barahona’s house, where he had planned to
store and cut the latest shipment of cocaine and heroin.
In any event, there were no “exceptional circumstances”
rendering Mata’s possession of the handgun unforeseeable to
Barahona. Kimberlin, 18 F.3d at 1160 (internal quotation marks
omitted). Barahona seizes on Mata’s statement at trial that the
handgun “wasn’t to protect the drugs” but rather himself. J.A.
621. Mata made clear, however, that he “always” carried the
gun, including when he was transporting drugs. J.A. 621–22.
Barahona also argues that he and Mata never discussed firearms,
and that he was unaware Mata even possessed a gun. But the
simple fact that Mata never discussed the gun with Barahona does
not make his possession of the gun unforeseeable; nor must
Barahona have been actually aware of the gun for the two-level
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enhancement to apply. Cf. Kimberlin, 18 F.3d at 1159–60 (actual
knowledge not required where there is a “strong showing of
foreseeability”).
Finally, to the extent Barahona argues that the two-level
enhancement was improper because it was not applied to some of
his co-defendants, this argument must be rejected. Barahona
cites no authority indicating that failure to apply an
enhancement to one conspirator bars application of that
enhancement to other conspirators. Indeed, in “jointly
undertaken criminal activity,” “relevant conduct is not
necessarily the same for every participant,” and thus sentencing
enhancements may apply to one conspirator but not another.
U.S.S.G. § 1B1.3 cmt. n.2(B). In sum, the district court’s
application of the two-level enhancement under § 2D1.1(b)(1) did
not result from a clear error of fact or otherwise an abuse of
discretion.
III.
For the foregoing reasons, the judgments are
AFFIRMED.
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