United States v. Cargill , 17 F. App'x 214 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 95-5740
FREDERICK ANTHONY CARGILL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 95-5741
WILBERT ANTHONY NEAL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 95-5777
RONALD CHRISTOPHER NEAL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 95-5871
CHRISTOPHER LEE NEAL,
Defendant-Appellant.

2 UNITED STATES v. CARGILL
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 97-4428
CHRISTOPHER LEE NEAL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 97-4429
WILBERT ANTHONY NEAL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 97-4430
RONALD CHRISTOPHER NEAL,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 97-4434
FREDERICK ANTHONY CARGILL,
Defendant-Appellant.

UNITED STATES v. CARGILL 3
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.
WILBERT ANTHONY NEAL;  No. 99-4671
CHRISTOPHER LEE NEAL; RONALD
CHRISTOPHER NEAL; FREDERICK
ANTHONY CARGILL,
Defendants-Appellees.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-94-300)
Argued: September 27, 2000
Decided: September 6, 2001
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Reversed in part, affirmed in part, vacated in part, and remanded by
unpublished per curiam opinion. Judge Widener wrote a dissenting
opinion.
COUNSEL
ARGUED: Lawrence Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for United States. John Joseph Korzen,
SMITH, HELMS, MULLISS & MOORE, Greensboro, North Caro-
lina, for Cargill, et al. ON BRIEF: Walter C. Holton, Jr., United
States Attorney, Clifton T. Barrett, Assistant United States Attor-
ney/Chief, Criminal Division, Paul A. Weinman, Assistant United
States Attorney, Greensboro, North Carolina, for United States. Lisa
4 UNITED STATES v. CARGILL
S. Costner, TISDALE, GRACE, MENEFEE & COSTNER, P.A.,
Winston-Salem, North Carolina; James B. Craven, III, Durham, North
Carolina, for Ronald Neal; Lawrence J. Fine, Winston-Salem, North
Carolina; Anne R. Littlejohn, Greensboro, North Carolina, for Wilbert
Neal; Danny T. Ferguson, Winston-Salem, North Carolina; Brian M.
Aus, Durham, North Carolina, for Christopher Neal.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony Neal, Ronald Neal, Christopher Neal, and Frederick Car-
gill (the defendants) were convicted of conspiring to distribute
cocaine base (crack). Christopher Neal was also convicted of three
separate drug-related offenses. At trial the government introduced the
testimony of Lee Marvin Settle who gave false testimony regarding
his involvement in a different drug conspiracy. Although the govern-
ment knew or should have known that this aspect of Settle’s testi-
mony was false, the government failed to inform the defendants or the
district court of the falsity of this testimony and attempted to bolster
Settle’s credibility on redirect examination and in closing argument.
The defendants moved the district court for a new trial on the grounds
that the government knowingly allowed false testimony to pass uncor-
rected. The district court entered an order denying the motion for a
new trial, and the defendants appealed. Thereafter, we vacated the
order and remanded with instructions that the district court conduct
additional factfinding. See United States v. Cargill, No. 95-5740,
1998 WL 39394, at *5 (4th Cir. Feb. 2, 1998) (per curiam).
On remand the district court found that the government permitted
Settle’s false testimony to pass uncorrected and concluded that there
was a "reasonable likelihood that the jury could have reached a differ-
ent verdict if Settle’s false testimony had been brought to the attention
UNITED STATES v. CARGILL 5
of the jury." The court, as a result, granted the defendants’ motion for
a new trial. The government filed a timely notice of appeal. We agree
with the district court that the government allowed Settle’s false testi-
mony to pass uncorrected. We hold, however, that the district court
abused its discretion when it granted the defendants a new trial.
Because we find that it was clear beyond a reasonable doubt that a
jury would have found the defendants guilty without Settle’s testi-
mony, we conclude that there is no reasonable likelihood that Settle’s
false testimony could have affected the judgment of the jury. Accord-
ingly, we reverse the district court’s new trial order with instructions
to reinstate the defendants’ judgments of conviction.
We also have before us an appeal from the defendants. Christopher
Neal’s arguments are without merit, and the district court is instructed
to reinstate his sentence. We conclude, however, that the district court
improperly applied a two-level enhancement to Frederick Cargill’s
sentence under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1).
We also conclude that the district court should reconsider a two-level
enhancement that was applied to Anthony Neal’s sentence pursuant
to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) because the
enhancement was based on the testimony of Lee Marvin Settle, whose
credibility is subject to question. In addition, we hold that Frederick
Cargill’s, Anthony Neal’s, and Ronald Neal’s sentences are in viola-
tion of Apprendi v. New Jersey, 530 U.S. 466 (2000). For all of these
reasons, we remand for resentencing as to Cargill, Anthony Neal, and
Ronald Neal.
I.
The defendants, Anthony Neal, Christopher Neal, Ronald Neal, and
Frederick Cargill, were indicted along with Thomas Neal, James
King, Daryl Simpson, Milton Faircloth, and Kevin Jones, for conspir-
acy to distribute crack in violation of 21 U.S.C. §§ 846, 841(b)(1)(A).
In addition, Christopher Neal was indicted for distributing crack in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;
using a person under eighteen years of age to distribute crack in viola-
tion of 21 U.S.C. §§ 861(a)(1), 841(b)(1)(B); and carrying and using
a firearm during and in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1), (2).
6 UNITED STATES v. CARGILL
At the defendants’ trial in this case the government relied heavily
on the testimony of Lee Marvin Settle. In an earlier case Settle pled
guilty to an indictment that charged him with participating in a drug
conspiracy with Larry Angelo "Todd" Johnson. Johnson was also
indicted, and he was prosecuted by the same Assistant United States
Attorney who later prosecuted the defendants in this case. (We will
refer to this Assistant United States Attorney as the "AUSA.") At
Johnson’s trial the AUSA introduced evidence, including the testi-
mony of two witnesses, that established Settle’s involvement in John-
son’s drug operations. The first witness, Robert Reid, testified that
Settle and Johnson conducted drug operations and were "hanging
partners." Reid also said that both Settle and Johnson warned him not
to testify against Johnson and threatened him with physical harm
when he said that he wanted to get out of the drug business. The sec-
ond witness, Tracy Taylor, said that Settle collected money from her
to pay a drug debt to Johnson and that the two men took turns making
drug runs. In addition, Johnson’s presentence report contained a state-
ment from one of Settle and Johnson’s coconspirators, Charles Wil-
liamson, who said that he had witnessed Johnson obtain crack from
Settle on several occasions. Finally, Settle admitted to a federal agent
that he had accompanied Johnson on trips to Florida to establish drug
connections, that he had aided Johnson in a shooting incident, and
that he had provided cocaine to Johnson at wholesale prices.
When Johnson appealed his sentence to this court, the AUSA
argued forcefully that Settle was a member of Johnson’s conspiracy.
The AUSA argued to us that Johnson’s sentence enhancement for
leading a conspiracy of five or more people was appropriate because
Settle was one of the five members of the conspiracy. The AUSA
argued that Reid’s and Taylor’s testimony regarding Settle’s involve-
ment with Johnson was credible. "While [Settle] was described as
[Johnson’s] ‘hanging partner,’ the evidence showed that his role went
well beyond that," according to the AUSA. Finally, the AUSA noted
that "when [Johnson] visited Reid to warn him what would happen if
Reid were to testify against [Johnson], [Settle] was with [Johnson]."
After Johnson’s appeal was over, Settle testified against the defen-
dants in this case, hoping to obtain a substantial assistance motion
from the government. According to Settle, he became involved in the
defendants’ conspiracy in 1993. He testified that he relocated from
UNITED STATES v. CARGILL 7
Pennsylvania to Reidsville, North Carolina, in June 1993. He had
been implicated in a shooting in Harrisburg, Pennsylvania, and fled
to North Carolina to escape aggravated assault and reckless endanger-
ment charges. Settle quickly became involved in the local drug busi-
ness and met the defendants. Anthony Neal told Settle that he and his
brothers (Christopher, Ronald, and Thomas) were in the drug business
and that they had the town of Reidsville, North Carolina, "locked
down."
Settle testified that he began pooling his money with Anthony
Neal, Thomas Neal, Ronald Neal, Christopher Neal, Frederick Car-
gill, Milton Faircloth, and others to fund drug runs to New York.
According to Settle, he, Anthony and Christopher Neal, and Cargill
would drive up Interstate 81 through Harrisburg and then go on to
New York City via Interstate 78. They would begin the trip with a car
with North Carolina plates and then switch to a car with Pennsylvania
plates at the house of Settle’s girlfriend (Christine Ness) in Harris-
burg. Settle testified that they switched cars and avoided Interstate 95
and the New Jersey Turnpike to escape police detection. During their
return from New York, the men would store the drugs in a spare tire.
After they reached Ness’s house, they would transfer the spare tire to
the North Carolina car. Once they arrived at home, they would
remove the drugs with a tire changer at an auto shop owned by
Anthony Neal’s father at Moyer Lane. The drugs were then stored in
the woods until they were cooked into crack. The men would then
divide the drugs based on their financial contribution and would usu-
ally distribute the drugs individually.
In addition, Settle testified that a house owned by Ronald Neal at
709 Edwards Street in Reidsville was the nerve center of the drug
operation. On one occasion, Anthony Neal held a meeting at 709
Edwards and decided to send a woman on a drug run to New York.
The drug run was funded by the Neals (Anthony, Thomas, Ronald,
and Christopher), Settle, and Cargill, among others. Anthony told Set-
tle that the woman lost the money and did not buy the drugs. When
the woman returned to North Carolina, Anthony assaulted her and
forced her to return to New York with him, Thomas Neal, Settle, and
Cargill in an effort to retrieve the money. After the men realized that
she had lied about losing the money, all four of them beat her and
then returned to North Carolina.
8 UNITED STATES v. CARGILL
Settle also testified that in December 1993 Frederick, Thomas,
Christopher, and Anthony Neal met at 709 Edwards and planned
another drug run to New York. A few days later, Anthony was
arrested for drug possession in Louisville, Kentucky. Anthony called
Settle from jail and told him that he, Christopher, and an anonymous
drug supplier had picked up Vanetta Totten in Florida and had gone
from there to the Bahamas expecting to arrange a deal for a cheap
source of cocaine. The deal in the Bahamas fell through, but the anon-
ymous supplier indicated that he had other sources in Louisville.
Before going to Kentucky, Anthony dropped Christopher off in North
Carolina and then traveled with Totten and the supplier to New York
where Anthony bought cocaine powder. The three (Anthony, Totten,
and the supplier) traveled directly from New York to Louisville to
obtain more cocaine powder, but Anthony and Totten were arrested
in a McDonald’s parking lot before they made an additional buy.
After Settle’s testimony the defendants’ lawyers inquired into his
history of drug dealing in an effort to impeach his credibility. Settle
repeatedly denied that he was Todd Johnson’s partner or that he was
involved in Johnson’s drug ring. For example, on cross-examination
by Anthony Neal’s and Frederick Cargill’s lawyers, Settle asserted
that he was not a member of Johnson’s conspiracy and that he only
dealt drugs with Johnson on one occasion. On redirect examination
the AUSA asked Settle to describe his involvement in Johnson’s drug
operations. Settle replied, "Basically none. At one point [Johnson]
made bail or something, and he needed to get some weight to keep
him going until he went to Florida and got his own connection, and
I just gave him an ounce of cocaine to keep his workers going until
he got back from Florida." On recross Settle again insisted that he was
not Johnson’s partner. In addition, he suggested that it was "simply
a coincidence" that both he and Johnson were named in the same
indictment.
Although the AUSA was aware of Reid’s and Taylor’s testimony
from the Johnson case, which implicated Settle in Johnson’s conspir-
acy, the AUSA never informed the defense or the district court that
Settle’s testimony might have been false. Instead, the AUSA made
several attempts to bolster Settle’s credibility. The AUSA’s first effort
to shore up Settle’s credibility was on redirect examination:
UNITED STATES v. CARGILL 9
AUSA: Now [Christopher Neal’s lawyer] asked you and
you responded that you would lie to shorten your
sentence?
Settle: Yes.
AUSA: Is lying in this case going to shorten your sen-
tence?
Settle: No.
AUSA: What’s going to happen to you if you lie in this
case?
Settle: I was notified that I would be—that perjury
charges would be brought against me, and I would
be prosecuted.
In his closing arguments the AUSA also indicated that Settle’s testi-
mony was credible because the opportunity to receive a substantial
assistance motion gave him an incentive to tell the truth. The AUSA
argued:
Why should you believe Lee Marvin Settle? Because he
came in here and placed his left hand on the Bible and raised
his right and swore to tell the truth? I would submit you
should believe him for two reasons; one is for perhaps the
first and only time in his life it is in his own selfish interest
to tell the truth. You had a chance to examine his plea agree-
ment. If you want, you can look at it again. Any benefit that
Mr. Settle hopes to derive in this case is not from getting
Anthony Neal, and it’s not from getting Chris Neal or Ron
Neal or Frederick Cargill. Any benefit that Lee Marvin Set-
tle hopes to gain in this case is from telling the truth — from
testifying truthfully. The second reason is all the evidence
. . . that supports, corroborates his testimony.
The jury convicted the defendants of conspiring to distribute crack.
In addition, Christopher Neal was found guilty on the separate sub-
10 UNITED STATES v. CARGILL
stantive counts. The defendants received sentences ranging from 292
months to life imprisonment.
The defendants moved the district court for a new trial on the basis
of newly discovered evidence, specifically, that the government
allowed Settle’s false testimony to pass uncorrected.1 The district
court denied the motion, and the defendants appealed to this court.
See United States v. Cargill, No. 95-5740, 1998 WL 39394 (4th Cir.
Feb. 2, 1998) (per curiam). In that first appeal we vacated the district
court’s order and remanded with instructions that the court conduct
additional factfinding. In particular, we asked the district court to
determine whether Settle testified falsely about his involvement in the
Johnson conspiracy, whether the AUSA knew about the falsity of Set-
tle’s testimony, and whether the AUSA informed the defense that Set-
tle had testified falsely. See id. at *5. We said that if the district court
concluded that the AUSA knowingly allowed false testimony to pass
uncorrected, the district court should determine whether Settle’s
"false testimony could . . . in any reasonable likelihood have affected
the judgment of the jury." Id. at *5 (quoting Giglio v. United States,
405 U.S. 150, 154 (1972)) (internal quotation marks and citation
omitted).
On remand the district court conducted a thorough hearing and ulti-
mately granted the defendants a new trial. First, the court found that
Settle’s testimony was false and created a false impression regarding
the extent of his involvement in Johnson’s drug operations. Second,
the court found that the AUSA knew or should have known that Set-
tle’s testimony was false and that the AUSA failed to inform the
defense about the situation. Third, the court found that Settle was "the
Government’s primary witness" who "described the internal workings
of the Defendants’ organization and their method of operation." It
also noted that "[w]ithout Settle’s testimony, the Government’s case
would not have been as overwhelming." Finally, the district court
concluded that there was a "reasonable likelihood that the jury could
have reached a different verdict, if they had known . . . that Settle was
1
The defendants did not learn of the existence of Reid’s and Taylor’s
testimony in the earlier, Johnson case until after the defendants’ trial had
concluded.
UNITED STATES v. CARGILL 11
giving false testimony." As a result, the court granted the defendants’
motion for a new trial. The government appeals that ruling.
II.
We review questions of law, such as whether the district court
applied the proper legal standards, de novo. Church v. Attorney Gen.
of Va., 125 F.3d 210, 215 n.5 (4th Cir. 1997); see also United States
v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999); United States v.
Boyd, 55 F.3d 239, 242 (7th Cir. 1995); United States v. Thornton, 1
F.3d 149, 158 (3d Cir. 1993). If the district court applied the proper
legal standards, its decision to grant a new trial is reviewed for an
abuse of discretion. See United States v. Singh, 54 F.3d 1182, 1190
(4th Cir. 1995); see also Huddleston, 194 F.3d at 218.
The government raises four challenges to the district court’s deci-
sion. First, the government argues that the defendants have to prove
that Settle committed perjury. Second, it argues that the defendants
must demonstrate that it intentionally used Settle’s perjured testimony
to obtain a conviction. Third, it claims that it properly informed the
defense of Settle’s false testimony. Finally, it claims that there was no
reasonable likelihood that the jury could have reached a different ver-
dict if it had known that Settle testified falsely.
A.
The government argues that the district court used the wrong stan-
dard to evaluate Settle’s testimony. The court said that the defendants
had to show that Settle’s testimony "was in fact false or created a
false impression regarding a material fact." The government claims,
however, that the defendants must prove that Settle committed per-
jury. In any case, the government claims that reasonable minds could
dispute whether Settle testified falsely and that a "close reading" of
the record demonstrates that his testimony was accurate.
The government’s view notwithstanding, the defendants must only
show that Settle proffered false testimony, not that he committed per-
jury. See Giglio v. United States, 405 U.S. 150, 154 (1972) (holding
that a new trial is required when the government’s knowing use of
12 UNITED STATES v. CARGILL
"false testimony" could affect the judgment of the jury); Napque v.
Illinois, 360 U.S. 264, 269 (1958) (recognizing the "principle that a
State may not knowingly use false evidence, including false testi-
mony, to obtain a tainted conviction"). Prosecutorial misconduct
occurs "not only where the prosecution uses perjured testimony to
support its case, but also where it uses evidence which it knows
creates a false impression of a material fact." Hamrick v. Bailey, 386
F.2d 390, 394 (4th Cir. 1967). This court has recognized that "[m]ere
inconsistencies in testimony by government witnesses do not establish
the government’s knowing use of false testimony." United States v.
Griley, 814 F.2d 967, 971 (4th Cir. 1987). Settle’s testimony is there-
fore false if it was perjured or "create[d] a false impression of facts
which are known not to be true." Hamrick, 386 F.2d at 394. See also
United States v. Boyd, 55 F.3d 239, 243 (7th Cir. 1995); United States
v. Iverson, 637 F.2d 799, 805 n.19 (D.C. Cir. 1980); 5 Wayne R.
LeFave, et al., Criminal Procedure 497 (1999) ("As lower courts have
noted, it matters not whether the witness giving false testimony was
mistaken or intentionally lying. If the prosecution knows that the wit-
ness’s statement is untrue, it has a duty to correct it.").
We agree with the district court that Settle’s testimony was false
and gave the jury a false impression of material fact. The record
shows that Settle testified falsely when he stated that he was "not
partners with" Larry Angelo Johnson and that his involvement in
Johnson’s drug ring was "basically none." At Johnson’s trial Robert
Reid testified that Johnson and Settle were "hanging partners" and ran
a drug operation together. Reid also said that Settle accompanied
Johnson to Reid’s house to threaten Reid with physical harm when
Reid indicated that he wanted out of their drug ring. Another witness
at Johnson’s trial, Tracy Taylor, testified that Settle collected drug
money for Johnson, that Johnson and Settle had "business dealings
together as far as the drugs," and that Settle and Johnson would take
turns making drug runs to Florida. Johnson’s presentence report con-
tains a statement from Charles Williamson that he observed Johnson
obtain drugs from Settle on at least three occasions. Finally, Settle
admitted to a government agent that he participated in Johnson’s drug
operations.
In addition, litigation statements and testimony of the AUSA indi-
cate that Settle’s trial testimony was false. When Johnson appealed
UNITED STATES v. CARGILL 13
his conviction, the AUSA argued to this court that Settle was involved
in Johnson’s conspiracy. Johnson had appealed the upward adjust-
ment of his sentence, which was made on the ground that he orga-
nized five or more people in a drug ring. The AUSA urged this court
to credit Reid’s and Taylor’s testimony about Johnson’s relationship
with Settle. The AUSA contended, "While [Settle] was described as
[Johnson’s] ‘hanging partner,’ the evidence showed that his role went
well beyond that." Furthermore, the AUSA conceded at the district
court hearing in this case that Settle’s trial testimony was contrary to
the earlier testimony of Reid and Taylor. At the hearing the AUSA
was asked if he thought Settle’s testimony was consistent with the tes-
timony of Reid and Taylor. He responded:
If you accept as entirely true, absolutely true, the answers
that Reid and Taylor gave in the Johnson trial and that the
one . . . question that Settle was asked about his involvement
with Todd Johnson as being all of his involvement with
Todd Johnson, then no, they would not be consistent.
The preceding evidence is more than sufficient to support the dis-
trict court’s finding that Settle testified falsely and gave a false
impression of material fact. The testimony and statements of several
persons, including the AUSA, demonstrate that Settle’s involvement
in Johnson’s drug ring was more than "basically none." We therefore
reject the government’s argument that reasonable minds could differ
about whether Settle testified falsely.
B.
The government contends that the district court applied the wrong
standard in determining whether the AUSA knew that Settle offered
false testimony. The district court said that the government engaged
in prosecutorial misconduct if it either "knew or should have known
that Settle’s testimony was false." According to the government, how-
ever, the defendants must show that it intentionally offered false testi-
mony to secure their convictions. In any event, the government argues
that it did not knowingly allow Settle’s false testimony to pass uncor-
rected. The government notes that Settle admitted on cross-
examination that he had pled guilty to conspiring with Johnson. Thus,
it asserts that it did not have any reason to believe that Settle had testi-
14 UNITED STATES v. CARGILL
fied falsely because he responded candidly to the defendants’ line of
questioning. We reject the government’s arguments.
We have never required a defendant to prove that the government
deliberately used false testimony. In United States v. Kelly, 35 F.3d
929, 933 (4th Cir. 1994), we held that a violation of due process
occurs when the government solicits testimony that it "knew or
should have known to be false or simply allowed such testimony to
pass uncorrected." In addition, the AUSA’s conduct here belies the
government’s assertion that he did not know or had no reason to know
that Settle’s testimony was false. At Johnson’s trial the AUSA took
steps to prove that Settle was a part of Johnson’s drug ring. For exam-
ple, he offered the testimony of Reid and Taylor who claimed that
Settle was Johnson’s partner. And, when Johnson appealed his con-
viction to this court, the AUSA claimed that Settle was thoroughly
immersed in Johnson’s drug operations. His brief said that Settle was
more than Johnson’s "hanging partner" and urged that Johnson’s sen-
tencing enhancement for an aggravating role was appropriate because
Settle counted in the group of five or more that was organized or led
by Johnson. The AUSA’s strategy and arguments at Johnson’s trial
and appeal demonstrate that he knew (or should have known) that
Settle testified falsely at the defendants’ trial. Based on the all of the
foregoing, we have no basis for disturbing the district court’s finding
that the AUSA "knew or should have known at the time of Defen-
dants’ trial that Settle’s testimony was false and created a false
impression of fact for the jury."
C.
The government next argues that the district court erroneously
found that the government failed to inform the defendants of Settle’s
false testimony. The district court noted that the government had a
duty to inform the defendants of the falsity of Settle’s testimony after
Settle had testified. The government claims, however, that it fulfilled
this duty. The government points out that the AUSA made several
disclosures to the defendants’ lawyers at a pretrial conference. At the
conference the AUSA gave the defendants’ lawyers a binder contain-
ing Settle’s statements to government agents. In addition, the govern-
ment says that the AUSA told the lawyers at the conference that they
could inspect the entire Johnson file. Because the AUSA offered the
UNITED STATES v. CARGILL 15
defendants information before trial that contradicted Settle’s trial tes-
timony, the government asserts that it fulfilled its duty to inform the
defendants of Settle’s false testimony under the rule in United States
v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) (noting that the "Brady
rule does not apply if the evidence in question is available to the
defendant from other sources") (internal citations and quotation marks
omitted)).
The government’s reasoning is flawed. The rule announced in Wil-
son is simply not applicable here. In Wilson the defendants alleged a
violation of the Brady rule, which prohibits the government from sup-
pressing evidence favorable to the defense. See Wilson, 901 F.2d at
380. This court indicated that Brady does not apply when a defendant
has access to the undisclosed evidence from other sources. See id. As
the district court correctly noted, however, this case is not a "run-of-
the-mill Brady claim." The defendants have alleged that the govern-
ment knowingly offered the false testimony of a material witness,
and, as we said in the first appeal, this is a claim of "greater serious-
ness." United States v. Cargill, No. 95-5740, 1998 WL 39394, *5 (4th
Cir. Feb. 2, 1998) (per curiam). The government is always under a
strict duty to inform a defendant of false testimony by one of its wit-
nesses. See, e.g., California v. Trombetta, 467 U.S. 479, 485 (1984)
(imposing "upon the prosecution a constitutional obligation to report
to the defendant and to the trial court whenever government witnesses
lie under oath"); United States v. Kelly, 35 F.3d 929, 933 (4th Cir.
1994) (violation of due process occurs when government allows false
"testimony to pass uncorrected"); United States v. Foster, 874 F.2d
491, 495 (8th Cir. 1988) ("The fact that defense counsel was also
aware of the [evidence] but failed to correct the prosecutor’s misrep-
resentation is of no consequence. This did not relieve the prosecutor
of her overriding duty of candor to the court, and to seek justice rather
than convictions.").
We agree with the district court that the government failed to fulfill
its duty to inform the defendants of Settle’s false testimony. Although
the AUSA gave the defendants’ lawyers a binder containing Settle’s
earlier statements (along with other materials) and suggested that the
lawyers look at the Johnson file, these pretrial disclosures were insuf-
ficient. Once Settle testified falsely, the AUSA was under a duty to
inform the defendants of that fact. The AUSA simply failed in that
16 UNITED STATES v. CARGILL
duty. At the hearing the AUSA admitted that he did not disclose Set-
tle’s false testimony to the defendants and that he did not direct
defense counsel to relevant evidence in the Johnson file:
Defense lawyer: During or after Settle’s testimony, did you
inform the Court or defense counsel about
the testimony of Reid and Taylor or the
statement of Williamson in the Johnson
case?
AUSA: During or after, no, I did not.
Defense lawyer: Did you inform the Court or defense coun-
sel of the Fourth Circuit brief that had been
filed in April ’95, one month before trial,
and the Government’s position about Settle
in that brief?
AUSA: No.
The district court did not err in its finding that the government knew
or should have known that Settle testified falsely and that it failed to
inform the defendants of Settle’s false testimony. As the district court
said, the AUSA simply let Settle’s testimony "pass to the jury uncor-
rected."
D.
The foregoing discussion establishes that the government has
engaged in prosecutorial misconduct. The government nevertheless
argues that the district court improperly granted the defendants a new
trial. Again, the district court’s decision to grant a new trial is
reviewed for an abuse of discretion. See United States v. Singh, 54
F.3d 1182, 1190 (4th Cir. 1995).
Because the district court held that the government knowingly per-
mitted Settle’s false testimony to pass uncorrected, it applied the
Giglio test to determine whether a new trial was appropriate. The
court correctly noted that under Giglio the defendants would be enti-
UNITED STATES v. CARGILL 17
tled to a new trial if Settle’s false testimony could "in any reasonable
likelihood" have affected the judgment of the jury. See Giglio v.
United States, 405 U.S. 150, 154 (1972). The district court added that
the Giglio standard is "less strict than the test used for violations of
Brady v. Maryland, under which defendants must establish a ‘reason-
able probability’ that with favorable evidence the defendant would
have obtained a different result at trial." The court then found that
Settle was the government’s primary witness and that knowledge of
his false testimony could have swayed the jury. According to the dis-
trict court:
Settle was the Government’s primary witness who provided
information about the recent activities of the Defendants’
drug conspiracy. Settle also explicitly described the internal
workings of Defendants’ organization and their method of
operation. Without Settle’s testimony, the Government’s
case would not have been as overwhelming. . . .
The fact that Settle provided false testimony about his rela-
tionship with Johnson could have created a credibility con-
cern for the jury as to the truthfulness of Settle’s testimony
regarding his relationship with Defendants and the nature of
their drug operations . . . . [T]he jury could have disbelieved
him altogether in his description of the significant level of
Defendant’s drug activities.
Based on these observations, the district court concluded that there
was a reasonable likelihood that knowledge of Settle’s false testimony
could have affected the judgment of the jury.
The district court applied the correct standard, as the government
concedes, when it said that the defendants are entitled to a new trial
if Settle’s "‘false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury.’" Giglio, 405 U.S. at 154(quoting Napque v. Illinois, 360 U.S. 264, 271 (1959)). The district
court is also correct when it notes that the Giglio standard is less oner-
ous than the Brady one. Under Brady a new trial is granted only when
"there is a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to
18 UNITED STATES v. CARGILL
undermine confidence in the outcome." United States v. Wilson, 901
F.2d 378, 380 (4th Cir. 1990) (internal quotation marks and citation
omitted). Because the government’s knowing use of false testimony
is more serious than a Brady violation and "involves ‘a corruption of
the truth-seeking function of the trial process,’" the "reasonable likeli-
hood" standard is proper. United States v. Bagley, 473 U.S. 667, 680
(1985) (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)).
Under the reasonable likelihood test the government’s knowing use
"is considered material unless failure to disclose it would be harmless
beyond a reasonable doubt." Id. at 679-80. Most courts have agreed
that the "reasonable likelihood" test is more favorable to defendants
than the Brady "reasonable probability" standard. See United States
v. Rodriguez, 162 F.3d 135, 146 (1st Cir. 1998); United States v.
Steinberg, 99 F.3d 1486, 1490-91 (9th Cir. 1996); United States v.
Gonzales, 90 F.3d 1363, 1368 n.2 (8th Cir. 1996); United States v.
Gambino, 59 F.3d 353, 365 (2d Cir. 1995); United States v. Alzate,
47 F.3d 1103, 1110 (11th Cir. 1995); Kirkpatrick v. Whitely, 992 F.2d
491, 497 (5th Cir. 1993); United States v. O’Dell, 805 F.2d 637, 641
(6th Cir. 1986); United States v. Kluger, 794 F.2d 1579, 1582 n.4
(10th Cir. 1986). But see United States v. Boyd, 55 F.3d 239, 245 (7th
Cir. 1995).
The government makes three arguments in support of its position
that there is no reasonable likelihood that a jury could have reached
a different verdict if it had been informed of Settle’s false testimony.
First, the government claims that evidence of Settle’s false testimony
does not bear a direct relationship to the defendants’ guilt or inno-
cence. Second, it claims that the defendants’ line of impeachment was
effective and that evidence of Settle’s false testimony would have
been cumulative. Finally, it claims that even if the jury had discred-
ited Settle’s testimony, there was sufficient evidence for the jury to
convict the defendants.
1.
The government asserts that the district court erred in granting a
new trial because Settle’s testimony did not "bear a direct relationship
to the defendants’ guilt or innocence." The government bases this
argument on the fact that Settle’s false testimony only pertains to his
UNITED STATES v. CARGILL 19
involvement in the Johnson conspiracy, which did not bear a direct
relationship to what the defendants did or did not do in this case.
The government is wrong to argue that false testimony must be
directly related to the guilt or innocence of a defendant. In United
States v. Kelly, 35 F.3d 929, 933 (4th Cir. 1994), we held that a defen-
dant does not have to show a direct relationship between a witness’s
false testimony and a defendant’s guilt or innocence:
Even if the false testimony relates only to the credibility of
a Government witness and other evidence has called that
witness’ credibility into question, a conviction must be
reversed when "there is any reasonable likelihood that the
false testimony could have affected the judgment of the
jury."
Id. (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). Thus,
a new trial is proper if the false testimony undermines a witness’s
credibility and there is any reasonable likelihood that the false testi-
mony could have affected the jury’s verdict.
2.
The government further asserts that evidence of Settle’s false testi-
mony about his involvement with Johnson’s drug ring would have
been cumulative and would not have bolstered the defendants’ line of
impeachment. The government begins by noting that Settle admitted
in his testimony that he had pled guilty to an indictment that named
him and Johnson as coconspirators in a drug operation. In addition,
the government claims that the defendants’ impeachment of Settle
was extensive. Specifically, the defendants brought out information
about Settle’s dubious past and his prior convictions.
The government underestimates the significance of Settle’s false
testimony. In Kelly we held that even if other evidence impeached the
credibility of the witness, false testimony is ultimately material if it
had any reasonable likelihood of affecting the judgment of the jury.
See Kelly, 35 F.3d at 933. In this case if the jury had been informed
that Settle lied on the stand, it might have discredited his testimony.
20 UNITED STATES v. CARGILL
Although the defendants’ lawyers elicited other impeachment evi-
dence at trial, evidence of false testimony is a powerful form of
impeachment. See United States v. Wallach, 935 F.2d 445, 457 (2d
Cir. 1991) ("It was one thing for the jury to learn that [the witness]
had a history of improprieties; it would have been an entirely different
matter for them to learn that after having taken an oath to speak the
truth he made a conscious decision to lie."). The government’s know-
ing use of Settle’s false testimony seriously impaired the jury’s ability
to assess his credibility. See United States v. Bagley, 473 U.S. 667,
680 (1985) (acknowledging that the government’s knowing use of
false testimony corrupts "‘the truth seeking function of the trial pro-
cess’" (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)));
United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000) ("All per-
jury pollutes a trial, making it hard for jurors to see the truth.").
Again, if the jury had known about Settle’s false testimony, it could
have been a critical factor in the jury’s credibility determination.
The AUSA directly countered the defendants’ efforts to impeach
Settle when he urged the jury to credit Settle’s testimony and insisted
that Settle testified truthfully. During his closing argument the AUSA
insisted that Settle had to testify truthfully in order to obtain a sub-
stantial assistance motion. The AUSA said specifically, "[a]ny benefit
that Mr. Settle hopes to gain in this case is from telling the truth—
from testifying truthfully." If the jury had known that Settle lied on
the stand, the AUSA’s efforts to rehabilitate him might have been
futile. Because the AUSA essentially vouched for Settle’s credibility
and failed to inform the jury of Settle’s false testimony, the govern-
ment effectively prejudiced the jury’s assessment of Settle’s credibil-
ity. In these circumstances, we conclude that the district court was
correct to reject the government’s argument that juror knowledge of
Settle’s testimony would simply have been cumulative impeachment
evidence.
3.
The government’s final argument is that even if the jury had com-
pletely disbelieved Settle’s testimony, there was more than sufficient
evidence to convict the defendants. To analyze this argument, we
must review the evidence introduced against the defendants. Because
the reasonable likelihood standard essentially calls for harmless error
UNITED STATES v. CARGILL 21
review, we must determine whether it is "‘clear beyond a reasonable
doubt that a rational jury would have found the defendant[s] guilty
absent the error.’" United States v. Brown, 202 F.3d 691, 699 (4th Cir.
2000) (quoting Neder v. United States, 119 S. Ct. 1827, 1838 (1999)).
Although Settle was an important witness, the government offered
the testimony of several other witnesses who also implicated the
defendants in a sizeable crack cocaine conspiracy. In addition to Set-
tle, Monte Dean Padgett and Thomas Williamson were the primary
witnesses used to prove the conspiracy. The testimony of Christine
Ness, Vanetta Totten, and several law enforcement officers also fig-
ured prominently in the government’s case. Discounting Settle’s testi-
mony, we will summarize the evidence offered against the
defendants.
Monte Dean Padgett testified that in 1989 he traveled to Moyer
Lane (Southeast of Reidsville, North Carolina) with his friend, Ricky
Shoemaker. Padgett said that Anthony, Christopher, Thomas, and
Kevin Neal owned several trailers along Moyer Lane and also main-
tained (with their father) a small auto repair shop with a tire changing
machine. Shoemaker introduced Padgett to Anthony Neal, who sold
Padgett some powder cocaine. Thereafter, Padgett returned to Moyer
Lane on a regular basis to buy cocaine powder and sometimes crack.
Padgett typically purchased his drugs from Anthony, Thomas, Kevin,
and Christopher Neal.
Padgett testified that he frequented the Moyer Lane area fairly
often. He was present when a man named Brian Wilson traded a
motorcycle to Anthony and Christopher Neal for crack. Padgett also
witnessed Wilson trade a handgun to Anthony Neal (with Christopher
Neal present) for cocaine. In addition, whenever Padgett sought to
buy cocaine, Anthony, Christopher, Thomas, or Kevin Neal would go
into the woods behind Moyer Lane and return with a quantity of the
product. The drugs were stored in Mason jars that contained rice or
beans to keep the drugs dry. Moreover, Anthony Neal told Padgett
that he obtained his drugs from New York and Greensboro, North
Carolina. Padgett also testified that he saw Christopher Neal cook
cocaine in a trailer owned by James King, a coconspirator who was
named in the defendants’ indictment. On another occasion, Padgett
entered a trailer on Moyer Lane and found Anthony and Christopher
22 UNITED STATES v. CARGILL
Neal watching crack cocaine cool down at the end of the cooking pro-
cess. After it had cooled, Padgett witnessed Anthony and Christopher
Neal distribute the drugs on Pennsylvania Avenue in Reidsville,
North Carolina.
Another witness, Thomas Williamson, testified that he met the
Neals in February 1993, shortly before he became a drug dealer. Wil-
liamson said that he went to Darren Gwynn’s house one evening,
where he was introduced to Anthony, Thomas, and Ronald Neal. He
saw Anthony Neal and Gwynn cooking crack, and he saw Anthony
and Thomas Neal and Gwynn weigh it. Later in the evening William-
son saw Anthony Neal leave with the crack. Williamson testified that
soon after he met the Neals, he started working as a drug distributor.
He obtained quantities of crack from Anthony Neal until Anthony
was arrested in Louisville. Williamson also bought a quantity of
cocaine from Frederick Cargill. He frequently sold cocaine at and
around 709 Edwards Street, which he said was the home of Ronald
Neal. In addition, Williamson paid Ronald Neal a five- to ten-dollar
commission on every sale he made. Williamson also bought crack
from Faircloth, Ronald Neal, and Thomas Neal.
Christine Ness and Vanessa Totten also provided incriminating tes-
timony. Christine Ness, Settle’s girlfriend, testified that Anthony
Neal, Christopher Neal, Frederick Cargill, and Settle would stop at
her house in Harrisburg, Pennsylvania, on their way to New York
City to buy drugs. Vanetta Totten testified that she accompanied
Christopher and Anthony Neal on a drug-related trip to the Bahamas,
Louisville, and New York. (The specific purpose of the trip to the
Bahamas was to look for cheaper sources of cocaine.) Totten testified
that she was arrested along with Anthony Neal in Louisville, Ken-
tucky, after the police discovered that Anthony was in possession of
powder cocaine.
In addition to the preceding witnesses, law enforcement officers
testified that they conducted an extensive investigation that led to the
arrest of the defendants and implicated them in the conspiracy. Reids-
ville police raided Ronald Neal’s house at 709 Edwards Street on
February 17, 1994, and seized quantities of crack cocaine that were
discovered in several rooms. The police also found and arrested Mil-
ton Faircloth at the house, and they recovered scales, a police scanner,
UNITED STATES v. CARGILL 23
a large amount of cash, and two firearms. On March 22, 1994, Ed
Ragaukas, a New Jersey State Trooper, stopped Faircloth and Cargill
heading south on the New Jersey Turnpike. When Trooper Ragaukas
ordered Cargill out of the car, the Trooper noticed a bulge in his mid-
section, which turned out to be crack.
Working with law enforcement officials, Monte Dean Padgett
bought crack from Christopher Neal on May 26, 1994. Padgett and
Christopher Neal drove to 709 Edwards Street where Christopher
walked into an area behind the house and returned to the car with over
twenty-eight grams of crack. Several days later Padgett bought sev-
eral grams of cocaine from Christopher by Moyer Lane in the com-
pany of an undercover officer. Padgett also helped set up an
undercover bust of Christopher Neal that took place on October 6,
1994. He picked up Christopher Neal and Gerald Jones, a 16-year-
old, in Reidsville. Padgett then dropped Christopher off near Moyer
Lane. Christopher returned to the car and sold crack to Padgett for
$700. They then proceeded to drive toward the Royal Inn where
Christopher had intended to sell an ounce and a half of crack to an
individual (the undercover officer) in exchange for firearms and cash.
Christopher, however, abruptly ordered Padgett to drop him off at a
Taco Bell. Christopher then told Jones to drive with Padgett to the
Royal Inn and sell the cocaine. The exchange was made at the Inn and
Jones was arrested. Christopher Neal was later apprehended near the
Taco Bell, and the police found the $700 in his pocket.
On January 5, 1995, Frederick Cargill was arrested on this indict-
ment at a young woman’s residence. The police found crack near his
feet and also an additional quantity that he had dropped out of a bed-
room window.
Based on the foregoing evidence, we conclude that the district
court’s grant of a new trial for the defendants was an abuse of discre-
tion. Even absent Settle’s testimony, it is clear beyond a reasonable
doubt that the jury would have found the defendants guilty of the drug
conspiracy and Christopher Neal guilty of the separate counts against
him. This becomes clear when the evidence against each defendant is
collected from the witnesses other than Settle.
24 UNITED STATES v. CARGILL
a.
Several witnesses other than Settle linked Anthony Neal to the con-
spiracy. Both Monte Dean Padgett and Williamson provided damag-
ing testimony. Padgett testified that Anthony Neal, along with
Christopher and Thomas Neal, would go into the same wooded loca-
tion behind Moyer Lane to retrieve cocaine whenever Padgett wanted
to make a purchase. Padgett also said that he saw Anthony and Chris-
topher Neal wait for crack cookies to cool, and he then followed them
to Pennsylvania Avenue in Reidsville, North Carolina, where they
sold the crack. In addition, Padgett witnessed Anthony and Christo-
pher Neal trade crack for a motorcycle on one occasion and for a fire-
arm on another occasion. Another witness, Williamson, also
implicated Anthony Neal in the conspiracy. He said that Anthony and
Thomas Neal cooked and weighed crack at Gwynn’s house, and
Anthony left the house with the crack that they had made. Vanetta
Totten also supported the government’s case against Anthony Neal.
She testified that she accompanied Christopher and Anthony Neal on
the drug-related trip to the Bahamas and said that she witnessed the
police arrest Anthony in Louisville for crack possession after the trip
to the Bahamas. Totten’s testimony corroborated the government’s
theory that Christopher and Anthony traveled to the Bahamas in
search of new sources of crack.
b.
Much of the independent testimony that supports Anthony Neal’s
conviction also supports the conviction of Christopher Neal. The testi-
mony of Padgett, the law enforcement officers, and Totten confirm
that Christopher Neal was a member of the conspiracy. Padgett said
that Christopher Neal, along with Anthony and Thomas Neal, went to
the same location in the woods behind Moyer Lane to retrieve drugs.
In addition, Padgett said that he witnessed Christopher Neal cooking
crack in a trailer owned by one of the conspirators. He also testified
that he watched Anthony and Christopher Neal wait for crack cookies
to cool and then followed them to Pennsylvania Avenue where they
distributed the crack. In addition, Padgett said that he witnessed
Christopher and Anthony Neal trade crack for a motorcycle and a
firearm. Padgett and law enforcement officers testified that they par-
ticipated in several controlled drug purchases involving Christopher
UNITED STATES v. CARGILL 25
Neal; and, on one occasion the purchase also involved Anthony Neal.
Again, Vanetta Totten testified that she accompanied Christopher
Neal and Anthony Neal on a trip to the Bahamas, where they went
in search of cheaper cocaine sources.
c.
The government offered a substantial amount of independent evi-
dence to show that Frederick Cargill was a member of the conspiracy.
Christine Ness, Williamson, and Trooper Ragaukas all testified
against him. Ness (Settle’s girlfriend) testified that Cargill regularly
accompanied Settle, Anthony Neal, and Christopher Neal on trips to
New York City to obtain drugs. Trooper Ragaukas testified that he
arrested Cargill on the New Jersey Turnpike along with Faircloth, an
indicted coconspirator. The arrest ties Cargill to the conspiracy
because he was found with crack while he was traveling from New
York City with Faircloth. In addition, Williamson indicated that he
regularly bought crack from several members of the conspiracy,
including Cargill.
d.
Discounting the testimony of Settle, the government offered a sub-
stantial amount of evidence against Ronald Neal. Thomas Williamson
testified that Ronald Neal was present on an occasion when William-
son saw Anthony and Thomas Neal cooking and preparing crack for
distribution. Williamson also indicated that Ronald Neal’s house at
709 Edwards Street served as a center for crack cocaine distribution.
Williamson bought drugs from Ronald Neal and sold the drugs out-
side of 709 Edwards Street. Williamson brought Ronald Neal a five-
to ten-dollar commission on each of his drug sales. Other evidence
also tied Ronald Neal to the conspiracy. Monte Dean Padgett testified
that he purchased crack cocaine from Christopher Neal at Ronald
Neal’s residence. On one occasion, Padgett and Christopher Neal
drove to 709 Edwards Street where Christopher walked behind the
house and returned to the car with over twenty-eight grams of crack.
In addition, law enforcement officers testified about a raid that they
conducted at Ronald Neal’s 709 Edwards Street residence. When the
police searched the house, they arrested Milton Faircloth, an indicted
coconspirator, and found crack cocaine throughout the house, includ-
26 UNITED STATES v. CARGILL
ing the den, the bathroom, the kitchen floor, a back room, and a bed-
room. The police also recovered a police scanner, over $4,000 in
cash, a .380 caliber handgun, a Tech Nine firearm, and scales. Thus,
the combined testimony of Williamson, Padgett, and law enforcement
connected Ronald Neal to the conspiracy and established that he was
more than an individual drug pusher acting on his own.
e.
Setting aside Settle’s testimony, we conclude that it is clear beyond
a reasonable doubt that a rational jury would have found the defen-
dants guilty of the charged drug conspiracy and Christopher Neal
guilty of the separate charges against him. Because there was no rea-
sonable likelihood that the jury’s verdict could have been different,
we hold that the district court abused its discretion when it granted the
defendants a new trial. This does not mean, however, that we condone
in any way the government’s conduct in dealing with Settle’s testi-
mony about his involvement with Johnson. We emphasize that we do
not.
III.
For the foregoing reasons, we reverse the district court’s order
granting a new trial to the defendants and remand to the district court
with instructions to reinstate their convictions. This disposition of the
government’s appeal requires us to consider the merits of the defen-
dants’ appeal.
IV.
Frederick Cargill makes two separate challenges to his conviction
and sentence. First, he asserts that the district court erred in failing to
grant his motion to suppress the crack cocaine that was recovered
from him by a New Jersey State Trooper. Second, he asserts that the
district court’s application of a two-level sentence enhancement pur-
suant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) was in
error. We address these arguments in turn.
A.
We review the denial of Cargill’s suppression motion de novo. See
United States v. Ward, 171 F.3d 188, 193 (4th Cir. 1999). As we have
UNITED STATES v. CARGILL 27
previously recounted, New Jersey State Trooper Ragaukas stopped
Milton Faircloth and Cargill as they were traveling from New York
City to North Carolina on the New Jersey Turnpike. Ragaukas pulled
the car over because Faircloth, who was driving, failed to maintain a
safe lane in violation of N.J. Stat. Ann. § 39:4-88(b). Faircloth told
Ragaukas that his license had been suspended and that Cargill was the
owner of the car. Ragaukas ordered Faircloth out of the car and
instructed him to sit on the guardrail. Ragaukas then began question-
ing Cargill, who was still sitting in the passenger’s seat. Cargill fur-
nished his license and registration and told Ragaukas that he and
Faircloth were traveling from New York to North Carolina. Accord-
ing to Ragaukas, Cargill exhibited a nervous demeanor and was unre-
sponsive to some of his questions. Based on Cargill’s nervous and
unresponsive behavior and the fact that no other troopers were in the
area, Ragaukas ordered Cargill out of the car. As Cargill was getting
out, Trooper Ragaukas observed a large bulge in Cargill’s midsection.
Cargill turned away from Ragaukas and tried to conceal the bulge.
Upon seeing the bulge, Ragaukas was concerned that Cargill could be
carrying a weapon. As a result, Ragaukas patted down Cargill’s mid-
section. The Trooper felt a substance in Cargill’s groin area, and
based on his experience, he concluded that the substance was crack
cocaine.
Cargill argues that Ragaukas did not have reasonable suspicion to
order him out of the car, and therefore he was subjected to an unrea-
sonable seizure under the Fourth Amendment. Cargill points out that
nervousness and unresponsiveness alone cannot give rise to reason-
able suspicion of criminal activity. See United States v. Gooding, 695
F.2d 78, 83-84 (4th Cir. 1982) (holding that defendant’s "distraught"
and "nervous" demeanor as he exited the plane did not constitute rea-
sonable suspicion to justify investigative stop). Cargill’s argument,
however, is foreclosed by Maryland v. Wilson, 519 U.S. 408 (1997).
In Wilson the Supreme Court held that a law enforcement officer may
order passengers out of a vehicle pending the completion of a traffic
stop regardless of whether the officer faces any special danger. See
id. at 415. Thus, although Ragaukas did not have an articulable suspi-
cion of danger at the time he ordered Cargill out of the car, his order
did not run afoul of the Fourth Amendment.
28 UNITED STATES v. CARGILL
B.
Cargill also challenges the factual finding underlying the district
court’s application of a two-level sentence enhancement for posses-
sion of a dangerous weapon. We review this question for clear error.
See United States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992). The
district court enhanced Cargill’s sentence under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1), which provides for a two-level
increase in the base offense level if "a dangerous weapon (including
a firearm) was possessed" in the commission of a drug offense. A
defendant’s sentence may be enhanced pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) based on a coconspirator’s posses-
sion of a dangerous weapon if the possession was in furtherance of
the conspiracy and was reasonably foreseeable to the defendant. See
U.S. Sentencing Guidelines Manual § 1B.3(a)(1).
The district court’s application of the enhancement was based
solely on its finding that Cargill was present at a meeting with Lee
Marvin Settle, Kevin Jones, and Anthony Neal. Specifically, the court
found:
The Court will find as it found with the defendant Wilbert
Anthony Neal that the defendant Fred Cargill was a part of
the meeting discussing taking care of Cecilia Settle because
of her contacting the police concerning drug activity in
which the defendant was involved. The Court finds the evi-
dence presented during the course of the trial established by
a preponderance of the evidence that the defendant was —
or the defendant could reasonably foresee that his involve-
ment within the meeting and the activity could result in the
type of injury [a severe gunshot wound to the head] to Ceci-
lia Settle.
The district court’s finding, that Cargill was present at the meeting,
is clearly erroneous. The only witness who provided testimony about
the meeting was Settle. Settle testified, however, that only Jones,
Anthony Neal, and himself were present at the meeting. Because the
two-level enhancement was based on a clearly erroneous finding of
fact, we vacate Cargill’s sentence and remand for him to be resen-
tenced.
UNITED STATES v. CARGILL 29
V.
Anthony Neal challenges his conviction and sentence on three
grounds. First, Neal claims that the government proved two conspira-
cies instead of the single conspiracy charged in the indictment. Sec-
ond, he contends that the court erred by enhancing his sentencing
guideline range four levels for being an organizer or leader pursuant
to U.S. Sentencing Guidelines Manual § 3B1.1(a). Finally, Neal
argues that the district court erred by enhancing his sentence two
levels for possession of a dangerous weapon under U.S. Sentencing
Guidelines Manual § 1B.3(a)(1).
A.
We turn first to Anthony Neal’s claim that the government’s evi-
dence showed two conspiracies and varied impermissibly from the
indictment, which charged a single conspiracy. "In a conspiracy pros-
ecution, a defendant may establish the existence of a material vari-
ance by showing that the indictment alleged a single conspiracy but
that the government’s proof at trial established the existence of multi-
ple, separate conspiracies." United States v. Kennedy, 32 F.3d 876,
883 (4th Cir. 1994). Here, Anthony Neal argues that the government’s
introduction of evidence concerning his activities that led to his arrest
in Louisville constituted a separate conspiracy. As noted previously,
Anthony Neal, Christopher Neal, Vanetta Totten, and an anonymous
supplier traveled to the Bahamas in search of a cheaper cocaine
source. Upon returning from the Carribean without any cocaine, Tot-
ten, Anthony Neal, and the supplier went to New York and obtained
two kilograms of cocaine powder. Anthony Neal claims that these
events constituted a separate conspiracy for three reasons: (1) the pur-
pose of the separate conspiracy was to obtain powder cocaine (as
opposed to crack), (2) he intended to distribute the cocaine in Ken-
tucky (as opposed to Reidsville, North Carolina), and (3) the opera-
tion in Kentucky involved different coconspirators.
The district court instructed the jury on multiple conspiracies, and
Anthony Neal does not challenge the propriety of the instruction.
Because the jury was properly instructed and found Neal guilty of a
single conspiracy, the jury’s finding "must stand unless the evidence,
taken in the light most favorable to the government, would not allow
30 UNITED STATES v. CARGILL
a reasonable jury so to find." United States v. Lozano, 839 F.2d 1020,
1023 (4th Cir. 1988). After viewing the evidence in the light most
favorable to the government, we hold that a reasonable juror could
have found that the government proved a single conspiracy. A juror
could have concluded that the Kentucky operation was merely an
extension of the North Carolina conspiracy and was part of an attempt
to find new markets and sources for the Neals’ drug business. In fact,
several members of the conspiracy pooled money to fund the trip to
the Bahamas and New York, and the cocaine was purchased in New
York, where the conspirators regularly obtained wholesale quantities
of cocaine. Although the North Carolina conspiracy’s goal was to dis-
tribute crack, the conspiracy dealt extensively with cocaine powder,
the necessary raw material for crack. Because a rational jury could
have concluded that the Kentucky operation was a part of Anthony
Neal’s North Carolina conspiracy, the jury’s single conspiracy finding
should not be disturbed.
B.
Anthony Neal next asserts that the district court erred by enhancing
his sentence pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.1(a) for being an organizer or leader of a criminal activity
involving five or more participants. Neal’s argument is essentially
that he was not the leader of the organization. He points out that the
conspiracy continued after he was arrested in Louisville. Before
applying an enhancement under U.S. Sentencing Guidelines Manual
§ 3B1.1(a), a court should consider "the exercise of decision making
authority, the nature of participation in the commission of the offense,
the recruitment of accomplices, the claimed right to a larger share of
the fruits of the crime, the degree of participation in planning or orga-
nizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others." U.S. Sentenc-
ing Guidelines Manual § 3B1.1 cmt. n.4. Substantial evidence sup-
ports the district court’s finding that Neal played a significant
leadership role in the conspiracy. For example, testimony at trial indi-
cated that Anthony Neal approved the shooting of Cecilia Settle, pre-
sided over the meetings of the conspirators, and recruited new
members for the conspiracy. Thus, we conclude that the district
court’s enhancement was not in error.
UNITED STATES v. CARGILL 31
C.
Anthony Neal also challenges the district court’s determination that
he should receive a two-level sentence enhancement for possessing a
dangerous weapon. A defendant’s sentence may be enhanced pursu-
ant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) based on a
coconspirator’s possession of a dangerous weapon if the possession
was in furtherance of the conspiracy and was reasonably foreseeable
to the defendant. See U.S. Sentencing Guidelines Manual
§ 1B.3(a)(1).
The district court’s application of the enhancement was based
solely on the testimony of Lee Marvin Settle. Settle testified that he,
Kevin Jones, and Anthony Neal met to discuss the planned murder of
Cecilia Settle and that Anthony Neal essentially ordered Jones to
"take care" of her. Based on Settle’s testimony, the district court
found "that Cecilia Settle was shot and wounded by a firearm at the
direction of [Anthony Neal] and others at a meeting to discuss and
decide what to do about her contacting the police."
The district court based this sentencing enhancement exclusively
on Settle’s testimony. After sentencing, however, the district court
found (in a separate proceeding) that Settle had testified falsely at trial
about his involvement in the Johnson conspiracy. At this stage, we
cannot tell whether the district court would have credited Settle’s tes-
timony about the meeting to plan the murder of Cecilia Settle if the
court had known that he lied about his involvement in the Johnson
conspiracy. Accordingly, we vacate Anthony Neal’s sentence because
of the § 2D1.1(b)(1) enhancement, and we remand for the court to
reconsider the issue and determine whether Settle’s testimony regard-
ing the meeting has "sufficient indicia of reliability to support its
probable accuracy." U.S. Sentencing Guidelines Manual § 6A1.3(a).
VI.
Christopher Neal also raises several challenges to his conviction
and sentence. He argues that there was insufficient evidence to sustain
his conviction, that the district court should have excluded the trial
testimony of Daryl Simpson, and that the district court’s drug calcula-
tions were in error.
32 UNITED STATES v. CARGILL
A.
Christopher Neal claims first that there was insufficient evidence
to convict him of conspiring to distribute drugs. We disagree. When
reviewing a sufficiency of the evidence claim, we are bound to sustain
the defendant’s conviction "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). As indicated in part II.D.3.d.,
several witnesses, including Monte Dean Padgett, testified that Neal
was deeply involved in the conspiracy and agreed to its ends. We
therefore conclude that there was substantial evidence to convict
Christopher Neal of conspiracy.
B.
Christopher Neal also contends that there was insufficient evidence
to convict him for carrying or using a firearm in relation to a drug
trafficking offense under 18 U.S.C. § 924(c). Neal’s claim, however,
is without merit. Padgett testified that Neal received a gun in
exchange for drugs. Section 924(c) proscribes this form of bartering.
See Bailey v. United States, 516 U.S. 137, 143 (1995). We therefore
affirm Christopher Neal’s conviction under § 924(c).
C.
Christopher Neal next argues that there was insufficient evidence
to prove that he employed a person under the age of eighteen to dis-
tribute cocaine in violation of 21 U.S.C. § 861(a)(1). Padgett testified
that he, Neal, and a teenager (Gerald Jones) drove to a motel to buy
guns and cocaine. Neal argues that the conviction is unsupportable
because Jones testified that Neal was not involved in the transaction,
and he claims that he did not know that Jones was under the age of
eighteen. Viewing the evidence in the light most favorable to the gov-
ernment, we hold that substantial evidence supports Neal’s convic-
tion. Padgett testified that Neal instructed Jones to go inside the hotel
and "not to take any less than a certain amount for the cocaine and
to check the guns out real good." Although the testimony of Jones and
Padgett conflict, the jury was entitled to credit Padgett’s testimony
and to reject Jones’s. See United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998) (holding that when a court evaluates the sufficiency
UNITED STATES v. CARGILL 33
of the evidence, it does not review the credibility of the witnesses, and
it assumes that the jury resolved all contradictions in the testimony in
favor of the government). In addition, 21 U.S.C. § 861(a)(1) does not
require that the defendant actually know that the individual he
employed was under the age of eighteen. See United States v. Cook,
76 F.3d 596, 602 (4th Cir. 1996). Therefore, we conclude that sub-
stantial evidence supports Neal’s conviction under § 861(a)(1).
D.
Christopher Neal contends that the district court should have
excluded the testimony of Daryl Simpson. Simpson was a known
drug dealer who regularly trafficked in crack cocaine and testified that
he purchased crack from Christopher Neal. Neal contends that Simp-
son did not have the expertise to testify that the substance Neal sold
to him was actually crack and that expert scientific testimony was
necessary to establish that fact. We review the admission of lay opin-
ion testimony for an abuse of discretion. See Mattison v. Dallas Car-
rier Corp., 947 F.2d 95, 110 (4th Cir. 1991). Lay opinion testimony
is admissible if it is "(a) rationally based on the perception of the wit-
ness and (b) helpful to a clear understanding of the witness’ testimony
or the determination of a fact in issue." Fed. R. Evid. 701. Because
Simpson was a known drug dealer who bought and sold crack for a
living and his testimony was helpful to the jury’s understanding, we
cannot conclude that the district court abused its discretion in admit-
ting the testimony. See United States v. Schrock, 855 F.2d 327, 333
(6th Cir. 1988).
E.
Finally, Christopher Neal challenges the district court’s calculation
of his base offense level. The district court found that at least 1.5 kg
of cocaine base was attributable to Neal, and therefore it determined
that his applicable base offense level was 38 pursuant to U.S. Sentenc-
ing Guidelines Manual § 2D1.1. Neal claims that the district court
erroneously held him responsible for more than 1.5 kg of cocaine. We
review the district court’s drug calculations for clear error. See United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). The record ade-
quately supports the district court’s quantity determinations. Several
of Christopher Neal’s coconspirators, including Frederick Cargill and
34 UNITED STATES v. CARGILL
Milton Faircloth, were arrested with amounts of cocaine base that
exceeded 1.5 kg. Because these amounts were "reasonably foresee-
able to him within the scope of" the conspiracy, we hold that the dis-
trict court’s drug quantity findings are not clearly erroneous. United
States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993).
VII.
Ronald Neal claims that there was insufficient evidence to support
his conspiracy conviction. As noted in part II.D.3.a., there was ample
evidence to convict Neal. The testimony of Thomas Williamson and
Monte Dean Padgett and the testimony about the police raid on 709
Edwards Street established that Ronald Neal was an active member
of the conspiracy.
VIII.
All of the defendants claim that their sentences violate Apprendi v.
New Jersey, 530 U.S. 466 (2000). Here, the indictment failed to allege
drug quantity, and the issue of drug quantity was not submitted to the
jury. At sentencing the district court determined that the defendants
conspired to distribute more than fifty grams of crack cocaine and
sentenced them under 21 U.S.C. § 841(b)(1)(A). In addition, the dis-
trict court found that Christopher Neal distributed between five and
fifty grams of crack cocaine and sentenced him under 21 U.S.C.
§ 841(b)(1)(B). The court also determined that he employed a person
under eighteen years of age to distribute between five and fifty grams
of cocaine base and sentenced him under 21 U.S.C. §§ 861(a)(1) and
841(b)(1)(B). Finally, Christopher Neal was due additional time for
his firearms conviction under 18 U.S.C. § 924(c)(1). The defendants
received sentences ranging from 292 months to life imprisonment as
follows: Anthony Neal was sentenced to life in prison and five years
of supervised release; Christopher Neal was sentenced to 300 months
(with a 60-month consecutive term) and eight years of supervised
release; Frederick Cargill was sentenced to 324 months and five years
of supervised release; and Ronald Neal was sentenced to 292 months
and five years of supervised release. The defendants argue that, in
light of Apprendi, because drug quantity was not submitted to the jury
and the indictment did not allege a specific quantity of crack cocaine,
they could not be convicted and sentenced under §§ 841(b)(1)(A) or
UNITED STATES v. CARGILL 35
(b)(1)(B). Instead, they contend that 21 U.S.C. § 841(b)(1)(C), which
imposes a twenty-year maximum sentence for the distribution of any
amount of crack cocaine, is the only section under which they could
be sentenced. Because their sentences exceed § 841(b)(1)(C)’s
twenty-year maximum, the defendants ask us to remand their cases
for resentencing under § 841(b)(1)(C). Because the defendants did not
raise their Apprendi argument in district court, our review is for plain
error. See United States v. Kinter, 235 F.3d 192, 199 (4th Cir. 2000).
To obtain relief under the plain error standard, the defendants must
show that (1) there is an error, (2) the error is plain, (3) it affected
their substantial rights, and (4) it seriously affected the fairness, integ-
rity, or public reputation of the proceedings. See United States v. Lip-
ford, 203 F.3d 259, 271 (4th Cir. 2000).
In United States v. Promise, No. 99-4737, 2001 WL 732389 (4th
Cir. June 29, 2001) (en banc), we held that the failure to charge drug
quantity in the indictment and to submit the quantity issue to the jury
constitutes plain error and affects a defendant’s substantial rights
when the defendant’s sentence for distributing a controlled substance
exceeds the twenty-year statutory maximum set forth in 21 U.S.C.
§ 841(b)(1)(C). More recently, we held in United States v. Cotton,
No. 99-4162(L), ___ F.3d ___, slip op. at 12 (4th Cir. Aug. 10, 2001),
that the failure to charge drug quantity in the indictment "also seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings." Thus, according to Cotton, the failure to charge drug
quantity in the indictment constitutes "reversible plain error" when-
ever the district court imposes a sentence in excess of
§ 841(b)(1)(C)’s twenty-year maximum. Cotton, slip op. at 14.
We will deal first with Anthony Neal, Frederick Cargill, and Ron-
ald Neal, each of whom received a sentence in excess of twenty years.
Because drug quantity was not charged in the indictment, the district
court committed plain error in sentencing these three defendants to
more than twenty years, and this error affected their substantial rights.
See Promise, 2001 WL 732389, at *8. Moreover, the error seriously
affected the fairness, integrity, or public reputation of the proceed-
ings. See Cotton, slip op. at 12. Accordingly, we vacate Anthony
Neal’s, Frederick Cargill’s, and Ronald Neal’s sentences and remand
for resentencing with instructions that they be sentenced to a term of
imprisonment not to exceed twenty years.
36 UNITED STATES v. CARGILL
Apprendi, however, does not require us to vacate Christopher
Neal’s sentence. Christopher Neal was convicted on four separate
counts. The district court sentenced him to a 300- month term of
imprisonment and eight years of supervised release on the first three
counts of the indictment, and it also imposed a sixty-month consecu-
tive sentence on the fourth count for his violation of 18 U.S.C.
§ 924(c)(1). Because drug quantity was not charged in the indictment,
the maximum penalties he could have received were 240 months on
count one (21 U.S.C. §§ 846, 841(b)(1)(C)), 240 months on count two
(21 U.S.C. § 841(b)(1)(C)), and 480 months on count three (21 U.S.C.
§§ 861(a)(1), 841(b)(1)(C)). Christopher Neal’s Apprendi claim ulti-
mately fails because he cannot establish that the failure to charge drug
quantity in the indictment affected his substantial rights, "i.e., that it
‘actually affected the outcome of the proceedings.’" Angle, 2001 WL
732124 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th
Cir. 1998)). We have said that "[i]n the case of multiple counts of
conviction, the sentencing guidelines instruct that if the total punish-
ment mandated by the guidelines exceeds the statutory maximum of
the most serious offense of conviction, the district court must impose
consecutive terms of imprisonment to the extent necessary to achieve
the total punishment." Angle, 2001 WL 732124 (citing U.S. Sentenc-
ing Guidelines Manual § 5G1.2(d)). Thus, notwithstanding any
alleged Apprendi error, the Guidelines require Christopher Neal to
serve partially consecutive sentences on the three counts for a total of
300 months. He has not demonstrated, therefore, that the error "af-
fected the outcome of the proceedings." Angle, 2001 WL 732124(quoting Hastings, 134 F.3d at 240). Because Christopher Neal has
failed to establish that he is entitled to relief, we affirm his sentence.2
IX.
In conclusion, we reverse the district court’s order granting the
defendants a new trial, affirm the sentence of Christopher Neal, and
vacate the sentences of Frederick Cargill, Anthony Neal, and Ronald
Neal. We remand for the district court to reinstate the judgments of
conviction for all defendants, reinstate the sentence of Christopher
2
The defendants also raise other arguments in their pro se supplemen-
tal briefs. We have considered each of these arguments and conclude that
they are without merit.
UNITED STATES v. CARGILL 37
Neal, and resentence Frederick Cargill, Anthony Neal, and Ronald
Neal in accordance with our instructions.
REVERSED IN PART, AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
As the majority relates, when the government used the perjured tes-
timony, either knowingly or when it should have known of its falsity,
the rule in Giglio v. United States, 405 U.S. 150, 154 (1972) should
apply: "A new trial is required if ‘the false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury . . . .’"
(quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). In my opinion,
the district court correctly noted that "[w]ithout Settle’s testimony, the
Government’s case would not have been as overwhelming" and that
"there was a ‘reasonable likelihood that the jury could have reached
a different verdict, if they had known . . . that Settle was giving false
testimony,’" as quoted by the majority at slip 10.
In view of these findings and conclusions of the district court, with
which I agree, I am of opinion that the granting of a new trial was not
an abuse of discretion.
Since I would grant a new trial, I would not reach the other ques-
tions mentioned in the majority opinion and express no opinion as to
them.