United States v. West , 90 F. App'x 683 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4525
KEYSTON JAMORY WEST, a/k/a D,
a/k/a D-Man, a/k/a Alonzo Green,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
ANDREW CHARLES JACKSON, a/k/a  No. 02-4526
Sway, a/k/a Ricky Antonio Bady,
a/k/a William Benbow,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-6; CR-00-46)
Argued: December 5, 2003
Decided: March 15, 2004
Before NIEMEYER and TRAXLER, Circuit Judges,
and Richard D. BENNETT, United States District Judge for the
District of Maryland, sitting by designation.
2 UNITED STATES v. WEST
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Eric S. Black, TRUMP & TRUMP, Martinsburg, West
Virginia, for Appellant Jackson; William Carroll Gallagher, CAS-
SIDY, MYERS, COGAN, VOEGELIN & TENNANT, L.C., Whee-
ling, West Virginia, for Appellant West. Paul Thomas Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee. ON BRIEF: William Cipriani, CIPRIANI & PAULL, L.C.,
Wellsburg, West Virginia, for Appellant West. Thomas E. Johnston,
United States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Defendants/Appellants, Keyston Jamory West and Andrew
Charles Jackson, were found guilty by a jury in the Northern District
of West Virginia of conspiracy to distribute crack cocaine in violation
of 21 U.S.C. § 841(a)(1),1 the killing of an individual in furtherance
of a continuing criminal enterprise (CCE) in violation of 21 U.S.C.
§ 848(e)(1)(A) (Count 3), and distribution of crack cocaine in viola-
tion of 21 U.S.C. § 841(a)(1) (Count 10). West was also convicted
1
The conspiracy charged in Count 2 of the first indictment was dis-
missed by the trial court, and the Government proceeded on the conspir-
acy charged in a second indictment. That second indictment had been
returned alleging the same conspiracy as the first indictment but added
a specific designation as to 50 grams or more of crack cocaine in compli-
ance with the mandates of Apprendi v. New Jersey, 530 U.S. 466 (2000).
UNITED STATES v. WEST 3
under a separate count with distribution of crack cocaine in violation
of 21 U.S.C. § 841(a)(1) (Count 11). Jackson was also convicted of
engaging in a continuing criminal enterprise (CCE) in violation of 21
U.S.C. § 848 (Count 1), distribution of crack cocaine in violation of
21 U.S.C. § 841(a)(1) (Counts 4, 6, and 9), and the use and carrying
of a firearm during and in relation to a drug trafficking crime in viola-
tion of 18 U.S.C. § 924(c) (Count 5).
The Defendants/Appellants claim that the District Court erred in
(1) failing to sever Count 3 (the CCE murder charge) from the
remaining counts and to grant separate trials; (2) failing to grant
motions for judgments of acquittal as to the CCE murder charge
(Count 3) because of insufficient evidence; and (3) abusing its discre-
tion by permitting the Government to rehabilitate a witness by having
the witness read portions of his prior statement. Jackson separately
claims that the District Court abused its discretion in denying his
motion for a continuance on the morning of trial. West separately
claims that the District Court erred in (1) failing to sever the Defen-
dants’ trials; (2) permitting the Government to impeach him with evi-
dence of his conviction of a crime carrying a penalty of more than one
year; (3) permitting the Government to impeach him with evidence of
false statements; and (4) improperly adjusting his sentence under Sec-
tion 2D1.1(d)(1) of the United States Sentencing Guidelines by con-
sideration of the homicide as relevant conduct of West’s drug dealing.
Finding no prejudicial error in the trial or sentencing, we affirm.
I.
Andrew Charles Jackson was a drug dealer in Martinsburg, West
Virginia. From 1995 until 2000, he engaged in the distribution of
crack cocaine by obtaining the drug in New York, New York and then
using "runners" to sell the drug in the Martinsburg area. Keyston Jam-
ory West joined with Jackson in the drug dealing operation in 1999.
By this time Jackson was under investigation by law enforcement
authorities. Corporal Ted Snyder, a West Virginia law enforcement
officer, met with a confidential informant named Flora ("Sissy") Ray
who assisted in the investigation by making controlled purchases of
crack cocaine from Jackson in April and May of 1999 under the
observation of law enforcement authorities.
4 UNITED STATES v. WEST
In the summer of 1999, Jackson and West traveled to North Caro-
lina with Vernel Newell (Jackson’s girlfriend), Ricky Nelson, Tim
Patterson and a nineteen year old girl named Vatressa Miller. Upon
their return to Martinsburg from North Carolina, Jackson discussed in
the presence of both Nelson and Patterson that Miller was a "snitch"
and "something had to be done about her." An individual named
Casey Holt was present at a conversation on July 18, 1999 between
West and Jackson in which West expressed concern that Miller knew
his real name.
On July 19, 1999, Jackson, West, Newell and Holt traveled with
Miller in Holt’s vehicle to an isolated area in Berkeley County, West
Virginia, where they beat Miller with an axe handle and log, punched
and kicked her, and left her to die. Subsequently, the daughter of the
confidential informant Flora Ray advised her mother that West had
admitted to her that he participated in the murder of Vatressa Miller.
When Ray confronted West, he stated that Miller "was a snitch" and
suspected of informing law enforcement authorities of Jackson’s and
West’s drug operation.
In January of 2000, indictments were returned against Jackson,
West, Newell and Holt. Pursuant to plea agreements, Newell and Holt
cooperated with authorities and provided information with respect to
the murder and the drug distribution ring. Both testified at the trial of
the case, as did other witnesses who testified as to the distribution of
crack cocaine by Jackson and West, as well as Jackson’s possession
of a handgun in connection with drug transactions.
After his arrest, Jackson was provided with counsel pursuant to the
Criminal Justice Act of 1964, 18 U.S.C. § 3006A (2000). On March
3, 2000, the District Court ordered that the first attorney be removed
and appointed attorney Jeffery Harris to represent Jackson. Three
weeks later, the Court issued an order granting Jackson’s motion to
have Harris replaced by attorney Keith Wheaton, whom Jackson had
privately retained. However, on July 20, 2000, the District Court once
again appointed Harris because of the possibility that the death pen-
alty could be imposed. Attorney Wheaton remained in the case as co-
counsel for Jackson. One and a half years later, on the eve of trial in
January of 2002, Wheaton advised the Court that he believed that he
had a conflict of interest because he had previously represented three
UNITED STATES v. WEST 5
of the Government witnesses in the case. In light of the fact that Mr.
Harris was lead counsel, the District Court agreed with the suggestion
of Harris that a second attorney could be appointed to replace Whea-
ton to assist him in the representation of Jackson. Accordingly, the
Court appointed James Zimarowski as new counsel on January 11,
2002 to assist Harris. The case proceeded to trial on January 15, 2002.
The District Court denied Jackson’s motion for a continuance on the
morning of trial.
At the trial of the case, West testified and admitted to the distribu-
tion of crack cocaine charged in the indictment. West denied any
involvement in the murder of Vatressa Miller and attempted to pro-
vide an alibi for both himself and Jackson. At the conclusion of the
trial, West and Jackson were convicted on all pending counts of the
first indictment as well as the single count of conspiracy in the second
indictment.
II.
West and Jackson jointly raise three challenges to their convictions.
First, they contend that the District Court abused its discretion by not
severing the continuing criminal enterprise ("CCE") murder count
(Count 3) from the remaining counts and conducting separate trials.
Second, they challenge the sufficiency of the evidence with respect
to the CCE murder count. Third, they contend that the District Court
abused its discretion by permitting a Government witness to be reha-
bilitated by reading portions of a prior statement.
A.
Pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure,
there may be joinder of offenses in an indictment where they "are of
the same or similar character, or are based on the same act or transac-
tion, or are connected with or constitute parts of a common scheme
or plan". If this joinder of offenses in an indictment "appears to preju-
dice a Defendant . . . the Court may order separate trials of counts . . .
or provide any other relief that justice requires." Fed. R. Crim. P. 14.
The second indictment in this case, in charging a conspiracy to pos-
sess with intent to distribute and to distribute 50 grams or more of
cocaine base (crack cocaine), specifically alleged a series of overt acts
6 UNITED STATES v. WEST
in furtherance of the conspiracy. Overt act #19 specifically charged
that Jackson, West and others "physically assaulted and killed . . .
Vatressa Maria Miller. The purpose of the killing was because defen-
dants . . . Jackson [and] West . . . believed that the said Vatressa
Maria Miller was cooperating with law enforcement officers and
defendants . . . wanted to protect their crack cocaine distribution
activities."
This Court in United States v. Foutz, 540 F.2d 733 (4th Cir. 1976),
analyzed the balancing of Rules 8 and 14 in reviewing the joinder of
offenses. In Foutz, we noted that:
In the instant case, joinder was initially permissible only
because the offenses were of the same or similar character.
When two or more offenses are joined solely on this theory,
three sources of prejudice are possible which may justify the
granting of a severance under Rule 14 . . . .
Id. at 736. Because the joinder of two separate bank robberies in one
indictment was based solely on their being of the same or similar
character, this Court in Foutz held that there was prejudice which
mandated a severance under Rule 14. Id. at 737-38.
In this case, the CCE murder charge in Count 3 was also charged
as an overt act in furtherance of the conspiracy charged in the second
indictment. There was specific testimony linking the murder of
Vatressa Miller to the protection and security of the drug distribution
ring. The murder was part of the conspiracy, and part of the common
scheme or plan. As we noted in Foutz,
When offenses are joined under Rule 8 on the ground that
they ‘are based on the same act or transaction or on two or
more acts or transactions connected together or constituting
parts of a common scheme or plan’, it is manifest that evi-
dence of one offense would ordinarily be admissible at a
separate trial for the other.
Id. at 737. In the present case, the conspiracy to operate the drug dis-
tribution ring in Martinsburg, West Virginia, the specific acts of dis-
UNITED STATES v. WEST 7
tribution and the murder of a suspected "snitch" are clearly
intertwined. Furthermore, the District Court correctly noted that, in
light of Foutz and the existence of a common plan, evidence of one
criminal offense would be admissible at the trial of the other criminal
offenses.
The evidence of the murder of Vatressa Miller would have been
admissible at a separate trial on the drug charges in this case. This
Court has previously held that evidence of discussion of an uncharged
murder-for-hire was properly admitted and was "inextricably inter-
twined with [the] crime of selling heroin and conducting an ongoing
criminal enterprise." United States v. Chin, 83 F.3d 83, 88 (4th Cir.
1996). This evidence was not even deemed to be evidence submitted
pursuant to Rule 404(b) of the Federal Rules of Evidence relating to
prior bad acts. In Chin, we noted that such an act was "intrinsic to the
crime charged" and that "[k]illing people was an integral part of [the]
criminal enterprise, . . . and the threat of killing viewed as necessary
to ensure deals were completed . . . ." Id.The District Court also noted this Court’s opinion in United States
v. Tipton, 90 F.3d 861 (4th Cir. 1996), where a CCE murder charge,
similar to that charged in this case, was deemed to be admissible at
the trial of any other offenses as intrinsic to drug cases. The District
Judge in this case correctly ruled that the evidence with respect to the
murder charge would have been admissible in any separate prosecu-
tion and that there was appropriate joinder of offenses.
West and Jackson argue that they were "confounded" in asserting
their defenses to the CCE murder charge while also facing the joined
drug charges. West places heavy reliance upon Cross v. United States,
335 F.2d 987 (D.C. Cir. 1964), which held that there was prejudicial
joinder when a defendant desired to testify as to one count and to
remain silent as to the other. As the District Court correctly noted in
its analysis, this Court in United States v. Goldman, 750 F.2d 1221,
1225 (4th Cir. 1984), has noted that a Defendant must make a "strong
showing of prejudice." In Goldman, we reviewed the opinion of the
United States Court of Appeals for the District of Columbia Circuit
in Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968), cert. denied,
400 U.S. 965 (1970), which followed that Court’s earlier ruling in the
Cross case. This Court specifically noted in Goldman:
8 UNITED STATES v. WEST
A defendant making a motion for severance pursuant to
Rule 14 has the burden of demonstrating a strong showing
of prejudice, . . . and it is not enough to simply show that
joinder makes for a more difficult defense. . . . The fact that
a separate trial might offer a better chance of acquittal is not
a sufficient ground for severance.
Id. at 1225 (citations omitted).
The District Judge conducted an appropriate analysis relying on
this Court’s directions in Goldman. Jackson made no proffer other
than to suggest that he would deny being at the scene of the murder.
West, who ultimately chose to testify, similarly made no proffer other
than a denial of being present. The trial judge noted that either defen-
dant could withhold any decision until the last moment prior to testi-
fying. There was no showing by either West or Jackson that there was
any important testimony to offer as to the murder charge other than
their blanket denial. There was no showing as to the need to refrain
from testifying as to the drug charges. There were no specific alibis
proffered. Indeed, West ultimately testified that he was in his vehicle
alone traveling from West Virginia to North Carolina at the approxi-
mate time of the murder. Jackson and West did not proffer any specif-
ics as to any alibis. Ultimately, West’s testimony at trial was not
corroborated by any other witnesses. Thus, West and Jackson failed
to make the showing necessary for the granting of severance as to the
CCE murder charge.
B.
Both West and Jackson challenge their convictions on the CCE
murder charge (Count 3) claiming insufficiency of the evidence. "The
verdict of a jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942). The evidence in this
case, viewed in the light most favorable to the Government, was over-
whelming not only as to the murder charge, but also as to the fact that
the murder was perpetrated in furtherance of the criminal enterprise
of illegal drug distribution. Two of the participants in the murder of
Vatressa Miller, Newell and Holt, testified not only as to the partici-
pation of West and Jackson but also as to their joint concern that Mil-
UNITED STATES v. WEST 9
ler was an informant for the Government. Flora Ray testified that
West made admissions to her concerning the murder and evidenced
concern that the victim was a "snitch." Two witnesses, Tim Patterson
and Ricky Nelson, testified as to West’s concern that Miller was pro-
viding information to law enforcement authorities and West’s specific
comment that "something had to be done about her."
The standards of this Court for reviewing the sufficiency of the evi-
dence to support any conviction are well established. The question is
whether "any rational trier of facts could have found the defendant
guilty beyond a reasonable doubt." United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982)(citations omitted). As Chief Judge
Ervin of this Court noted in subsequent opinions in United States v.
Baker, 985 F.2d 1248, 1251 (4th Cir. 1993), cert. denied, 510 U.S.
1040 (1994), and United States v. Reavis, 48 F.3d 763, 771 (4th Cir.
1995), the question "is not whether the appellate court is convinced
beyond a reasonable doubt." West and Jackson bear a heavy burden
in challenging the sufficiency of the evidence after a jury verdict, and
they fail to meet this burden. The convictions of both on the CCE
murder count are affirmed.
C.
Both West and Jackson contend that the District Court abused its
discretion by permitting the Government witness, Ricky Nelson, to be
rehabilitated by reading portions of prior statements into the record.
Nelson provided significant testimony for the Government. He testi-
fied that he spoke with West after West returned from North Carolina.
According to Nelson’s testimony, West had stated that he believed
that "something had to be done" about Vatressa Miller. He further tes-
tified that West was holding a knife in his hand during this conversa-
tion. He also testified that Tim Patterson was not present during this
conversation.
On cross-examination, Nelson was subjected to rigorous and
aggressive cross-examination. Counsel for West impeached Nelson
with a prior statement where Nelson had made no mention of West
holding a knife. Nelson was also challenged with a prior statement in
which he had stated that Patterson was present when West made com-
10 UNITED STATES v. WEST
ments to him. Portions of cross-examination by West’s counsel pro-
ceeded as follows:
Q.: You don’t know what the truth is, do you Mr. Nelson?
A.: Yeah, I know what the truth is.
Q.: The truth is you were in trouble with drugs, and you
were cooperating with the police to try to get off the
hook? Isn’t that true, Mr. Nelson?
A.: No sir.
Q.: Isn’t it true, Mr. Nelson, that when we met with you,
you said "I’m sticking to my story". Isn’t that true?
You told us that?
A.: No sir.
During his cross-examination, counsel for Jackson referred to the
"added features" of Nelson’s testimony and the "favorable treatment"
Nelson had received. After this cross-examination, the District Court
permitted the witness to read prior statements and prior Grand Jury
testimony which were consistent with West’s testimony at trial.
It is clear that a District Court’s evidentiary ruling will not be
reversed absent an abuse of discretion. United States v. Lancaster, 96
F.3d 734, 744 (4th Cir. 1996); United States v. Queen, 132 F.3d 991,
993 (4th Cir. 1997). A witness may be rehabilitated with a prior con-
sistent statement, which is not deemed to be hearsay, if the statement
is "consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication
or improper influence or motive." Fed. R. Evid. 801(d)(1)(B). It is
abundantly clear from the record that counsel for West and counsel
for Jackson made implied charges of improper influence or motive as
to the witness Nelson. Counsel for West directly charged fabrication
in his challenge to Nelson’s knowledge or lack thereof as to the truth.
Consistent with the principles set forth in Tome v. United States, 513
U.S. 150 (1995), the prior statements read to the jury predated any
UNITED STATES v. WEST 11
efforts with respect to alleged recent fabrication or motive to satisfy
Government authorities. See generally 1 McCormick on Evidence
§ 47 (5th ed. 1999).
The precise question not addressed by West and Jackson in their
briefs or in oral argument before this Court is whether all of the
admitted statements were consistent as required by Rule 801(d)(1)(B).
The record reflects that counsel for Jackson noted in his objection that
Nelson was merely "regurgitating his testimony." With respect to the
presence of the witness, Tim Patterson, during the discussions of the
problems with Vatressa Miller, the prior statements read by Nelson
did not state that Patterson was not present as Nelson had testified.
Thus, some of the admitted statements may not have been consistent
with Nelson’s trial testimony. Any error in admitting these statements
seems harmless, because other portions of the admitted statements
were consistent with Nelson’s testimony and were made well before
any alleged motive to create testimony at trial. The prior consistent
statements were offered to rebut an inference that Nelson fabricated
testimony to satisfy the Government. Therefore, the District Court did
not abuse its discretion in admitting Nelson’s prior statements.
III.
Jackson raises one additional challenge to his conviction. He con-
tends that the District Court abused its discretion in denying his
motion for a continuance on the morning of trial. It is clear from the
record that Attorney Jeffrey Harris represented Jackson for over one
and a half years prior to the trial of the case, having been appointed
by the District Court. Furthermore, Harris served as lead trial counsel
for Jackson throughout the trial. Attorney Keith Wheaton had acted
as co-counsel until advising the Court on the eve of trial that he
believed he had a conflict of interest because he had previously repre-
sented some of the Government’s witnesses. It was Harris’ suggestion
that a second lawyer, James Zimarowski, be appointed by the Court
to assist him at trial. The record reflects that Harris and Zimarowski
are both experienced criminal defense attorneys. Furthermore, the
record of the case clearly indicates that Jackson did not state any
objection or move for a continuance until the morning of trial.
The District Court in denying a continuance correctly relied upon
our holding in United States v. Robinson, 275 F.3d 371 (4th Cir.
12 UNITED STATES v. WEST
2001). In that case, this Court noted our earlier opinion in United
States v. Boone, 245 F.3d 352 (4th Cir. 2001), in which we held that
a defendant charged with a death-eligible crime is entitled to repre-
sentation by two attorneys regardless of the Government’s decision
not to seek the death penalty pursuant to 18 U.S.C. § 3005. Neverthe-
less, in Robinson, we declined to reverse the conviction of a non-
capital defendant entitled to representation by a second attorney
because the trial court’s error "did not affect the fairness, integrity, or
public representation of judicial proceedings." 275 F.3d at 384.
Despite the latitude accorded to the District Court by our opinion in
Robinson, the trial judge in this case appointed a second attorney for
the non-capital defendant Jackson to assist lead counsel in the case.
Furthermore, Jackson had the benefit of Attorney Wheaton in pre-trial
preparation until the eve of trial.
Jackson has failed to show any prejudice from the denial of his
motion for a continuance. The record reflects Harris’ role as lead
counsel. The second attorney, Zimarowski, vigorously conducted the
cross-examination of eleven Government witnesses. As this Court
noted in United States v. Lawrence, 161 F.3d 250, 254 (4th Cir.
1998):
A District Court is entitled to broad discretion with
respect to a decision to deny a continuance. . . . Specific
errors must be shown which "undermine confidence in the
outcome of the trial" to constitute reversible error. (Citations
omitted.)
Jackson has failed to show any such errors in this case.
IV.
West raises four additional challenges to his convictions. First, he
contends that the District Court abused its discretion by not granting
him a severance from Jackson and that he was prejudiced by a joint
trial. Second, he says the District Court erred in permitting the Gov-
ernment to impeach him during his testimony with a conviction of a
crime carrying a penalty of more than one year. Third, he contends
that the District Court erred in allowing the Government to impeach
him with a false statement not disclosed to him prior to trial. Fourth,
UNITED STATES v. WEST 13
West says that the District Court erred when it applied Sentencing
Guideline section 2D1.1 to his conviction for drug law violations. We
address these additional separate claims by West in turn.
A.
West contends that the District Court erred in not granting his
motion for severance and granting him a separate trial from Jackson.
The trial judge found appropriate joinder of West and Jackson pursu-
ant to Rule 8(b) of the Federal Rules of Criminal Procedure and
denied a pretrial motion for severance made pursuant to Rule 14.
West argues that the evidence against Jackson was much stronger and
that he was prejudiced by a joint trial. West fails to meet the heavy
burden on this issue.
The Government’s evidence showed that West and Jackson
engaged in a series of drug transactions which constituted a continu-
ing criminal enterprise. The drug distribution of West and Jackson
was part of the same series of transactions that were connected with
the murder of Vatressa Miller. West and Jackson were jointly charged
in the drug conspiracy.
As this Court has noted in United States v. Brooks, 957 F.2d 1138,
1145 (4th Cir. 1992), "Defendants who have been charged in the same
conspiracy indictment should ordinarily be tried together." We also
have held in United States v. Roberts, 881 F.2d 95, 102 (4th Cir.
1989), that:
The issue of whether there is sufficient prejudice to war-
rant a severance is a question committed to the sound discre-
tion of the trial court. . . . A showing that a defendant would
have a better chance of acquittal in a separate trial does not
establish prejudice sufficient to require severance. (Citations
omitted.)
The record before the District Court at the time of its ruling showed
insufficient prejudice to warrant a severance. Furthermore, the com-
plete record of this case is replete with evidence of West’s guilt apart
from any evidence introduced against Jackson. Eyewitness testimony
14 UNITED STATES v. WEST
of West’s participation in the murder of Vatressa Miller was pre-
sented. West was separately convicted of illegal drug distribution.
Furthermore, the trial judge properly instructed the jury that it was to
give separate consideration to the evidence concerning each Defen-
dant, that each Defendant was entitled to receive separate treatment
and that the jury was to return a separate verdict for each Defendant.
A district court’s denial of a motion for severance "will not be
overturned absent a clear abuse of discretion." United States v. Haney,
914 F.2d 602, 606 (4th Cir. 1990). The District Court did not abuse
its discretion in this case in denying West’s motion for severance.
B.
West next argues that the District Court erred in permitting the
Government to impeach him with evidence of his conviction of a
crime carrying a penalty of more than one year.
West testified at trial and was cross-examined by the Government
with respect to his activities in Texas when he was eighteen years old.
He was then shown an arrest photograph of himself, at which time
defense counsel objected. The District Court conducted an in camera
evidentiary conference and subsequently admitted the photograph and
evidence of West’s Texas conviction for "unauthorized use of a vehi-
cle." West concedes that that crime carries a penalty of more than one
year. However, West contends that the District Court did not conduct
the appropriate balancing test noted in Rule 403 of the Federal Rules
of Evidence.
Rule 609(a) of the Federal Rules of Evidence provides that evi-
dence that "an accused has been convicted" of a crime punishable by
imprisonment in excess of one year "shall be admitted if the Court
determines that the probative value of admitting this evidence out-
weighs the prejudicial effect to the accused." Fed. R. Evid. 609(a).
The record of this case indicates that the District Court, at the eviden-
tiary conference, weighed the probative value of the Defendant seek-
ing to conceal his real name and the fact that he was concerned that
the murder victim, Vatressa Miller, knew that name. After conducting
the balancing test, and noting the standards set forth in Ohler v.
United States, 529 U.S. 752 (2002), the District Court admitted the
UNITED STATES v. WEST 15
evidence. The Court also gave an appropriate cautionary instruction
to the jury that the evidence was being offered as to credibility only.
It is clear from the record, and from the District Court’s ruling on
post-trial motions, that the evidence was also admitted to show the
identity of the Defendant, which was related to other evidence involv-
ing Vatressa Miller. In addition, West was in possession of his crimi-
nal record prior to trial and made his decision to testify with full
knowledge of his prior conviction.
West has shown no prejudice from the admission of this evidence.
Indeed, West’s admission to drug activities is far more serious than
the unauthorized use of a motor vehicle when he was eighteen years
old. The record does not indicate an abuse of discretion by the District
Court in its ruling on this evidentiary issue.
C.
West next contends that the District Court erred in permitting the
Government to impeach him with evidence of a false statement not
made known previously to him.
During the cross-examination of West, the Government confronted
him with a photograph and a police report referencing an individual
named "Alonzo Green." Over objection of defense counsel, the Dis-
trict Court permitted the Government to question West about this pho-
tograph. West admitted that the photograph was of himself and that
he had lied to North Carolina law enforcement authorities to conceal
his own identity. Defense counsel contended that any statement by
West should have been disclosed to him in pre-trial discovery, as
required by Rule 16 of the Federal Rules of Criminal Procedure. Fur-
thermore, counsel for West argued that the evidence did not involve
a crime of dishonesty. The District Court admitted the evidence on the
issue of Defendant’s identity as well as his credibility.
West’s argument on this issue is without merit. First, Rule
16(a)(1)(A) of the Federal Rules of Criminal Procedure requires the
Government to disclose to a defendant "any relevant oral statement
made by the defendant, before or after arrest, in response to interroga-
16 UNITED STATES v. WEST
tion by a person the defendant knows was a Government agent." A
false statement made by a defendant offered in response to a question
in another matter with respect to routine information does not amount
to a statement within the purview of Rule 16. See, e.g., Pennsylvania
v. Muniz, 496 U.S. 582 (1990). Furthermore, the indictment in this
case listed the name of "Alonzo Green" as an alias of West. It was
not an abuse of the District Court’s discretion to admit direct evidence
of the alias used by West.
D.
Finally, West argues District Court error in the application of sec-
tion 2D1.1(d)(1) of the United States Sentencing Commission Guide-
lines.
With respect to drug offenses, section 2D1.1 provides base offense
levels for defendants convicted under 21 U.S.C. § 841. Section
2D1.1(d)(1) specifically provides for a cross-referencing of Guideline
section application "if a victim was killed under circumstances that
would constitute murder." The District Court accordingly adjusted the
sentence to a base offense level of 43 by applying section 2A1.1. As
we noted in United States v. Pauley, 289 F.3d 254, 258 (4th Cir.
2002), on a similar "murder cross-reference" Guideline question,
"whether a particular cross-reference should be applied depends on
whether the conduct to which the cross-reference refers is ‘relevant
conduct’" as defined in section 1B1.3. The District Court had previ-
ously ruled that the CCE murder count was part of the same acts and
in furtherance of the drug conspiracy. Accordingly, the murder was
found by the Court to be "relevant conduct" resulting in cross-
referencing at sentencing.
West acknowledges that his argument on this issue is essentially a
renewed challenge on the sufficiency of the evidence on his CCE
murder charge. He contends that, assuming arguendo that he was
involved with that murder, the evidence was insufficient to establish
that the murder was part of a drug conspiracy or in furtherance of a
continuing criminal enterprise. For the reasons set forth earlier,
West’s challenge to the sufficiency of the evidence is without merit.
There is abundant evidence to support the District Court’s finding that
West participated in the murder of Vatressa Miller because he feared
UNITED STATES v. WEST 17
she was a "snitch" and was a threat to the drug distribution conspir-
acy. The evidence is quite clear that West felt "something had to be
done" about Miller to protect the drug operation.
This factual determination by the District Court at sentencing is
reviewed by this Court for clear error. 18 U.S.C. § 3742; United
States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). Finding none, we
hold that the murder cross-reference was appropriate in the sentencing
of West and affirm that sentence.
V.
For the reasons set forth above, we affirm the convictions and sen-
tences of Jackson and West.
AFFIRMED.