United States v. Dean Beckford ( 2000 )

CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4924
DEAN ANTHONY BECKFORD, a/k/a
Smiles, a/k/a Smiley, a/k/a Daniel
Davis, a/k/a Milo,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4925
CLAUDE GERALD DENNIS, a/k/a Jerry
Lubin, a/k/a Jerry, a/k/a G-Man,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONEL ROMEO CAZACO, a/k/a Jimmy
No. 97-4926
Fingers, a/k/a Frank Nisbett, a/k/a
James Romeo Nelson, a/k/a Phil,
a/k/a Scott,
Defendant-Appellant.
_________________________________________________________________
CHANGE MADE ON PAGE 2 TO CORRECT
PANEL INFORMATION
_________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4927
RICHARD ANTHONY THOMAS, a/k/a
Spooky, a/k/a Richie, a/k/a Mark
Andrew Taylor,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-96-66)
Argued: January 28, 2000
Decided: May 3, 2000
Corrected Opinion Filed: April 28, 2000
Before WILKINSON, Chief Judge, and MICHAEL
and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Cadwallader Jones, Jr., Providence Forge, Virginia;
Amy Milton Curtis, BOWEN, BRYANT, CHAMPLIN & CARR,
Richmond, Virginia; Richard Dwight Biggs, LAW OFFICE OF
MARCIA G. SHEIN, P.C., Atlanta, Georgia, for Appellants. David
John Novak, Assistant United States Attorney, Richmond, Virginia,
for Appellee. ON BRIEF: Marcia Gail Shein, LAW OFFICE OF
2
MARCIA G. SHEIN, P.C., Atlanta, Georgia, for Appellant Beckford;
Joseph W. Kaestner, KAESTNER & PITNEY, P.C., Richmond, Vir-
ginia, for Appellant Thomas. Helen F. Fahey, United States Attorney,
Stephen W. Miller, Assistant United States Attorney, James B.
Comey, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dean Anthony Beckford ("Beckford"), Claude Gerald Dennis
("Dennis"), Leonel Romeo Cazaco ("Cazaco"), and Richard Anthony
Thomas ("Thomas") appeal from their convictions on various drug-
related charges, including convictions for murders committed in con-
nection with their drug activities. We affirm.
I.
The record reveals the following facts. Appellants, along with
approximately twenty other individuals, were named in a multi-count
indictment arising out of their association with a violent "crack" dis-
tribution organization known as the "Poison Clan." The organization
originated in 1987 in Brooklyn, New York. Beginning in the fall of
1988, however, the drug operations were expanded along the East
Coast and, in particular, migrated into the Richmond, Virginia area.
In connection with their crack distribution activities, the Richmond
members of the organization, including appellants, engaged in various
threats and acts of violence. Of particular relevance to this appeal are
four incidents: the "Tifton Court" murders, the Tracy Lavache shoot-
ing, the "Sugar Bottom" murders, and the Bellemeade robbery.
3
A. The Tifton Court Murders
According to the evidence, the Richmond drug operation was origi-
nally set up at a Bowe Street apartment by Dean Beckford, Oliver
Wiltshire, Delroy Smith, Sherman Ambrose, Dasmond Miller, Andy
O'Brien, and Terry Johnson. Wiltshire and Ambrose were primarily
responsible for transporting the drugs from New York to Richmond.
Beckford, who was the source of the drugs, cooked powder cocaine
into crack. Other members, primarily Ambrose and Johnson, sold the
crack from the Bowe Street location. Smith's role was to collect the
money from Bowe Street and make sure that enough drugs were on-
hand at the location. The money collected was turned over to Beck-
ford, who paid the New York suppliers and generally ran the opera-
tion.
After the Bowe Street apartment was set up, an additional apart-
ment at Tifton Court was rented to serve as a safe house for Beckford,
Smith, Miller, and Wiltshire. Ambrose and Johnson, described as
"workers," continued to live in and sell drugs from the Bowe Street
apartment. At trial, Smith confirmed that he traveled with Beckford
and Miller to Richmond in August 1988 to set up the Bowe Street
apartment, and that members returned in September to begin selling
drugs from this spot. Smith also confirmed that Beckford was the
source of the drugs, manufactured the crack, and took care of the
financial aspects of the business, and that the Tifton Court apartment
was rented in October 1988 as a safe house for Beckford, Smith, Mil-
ler, and Wiltshire.
The murders at Tifton Court took place on December 3, 1988, dur-
ing the early months of the Poison Clan's Richmond operation. By
November 1988, Miller had become dissatisfied with the amount of
money he was receiving for his efforts in the drug operation. Beck-
ford's attempts to placate Miller led to arguments and eventually Mil-
ler, Ambrose, and Smith began making plans to leave Beckford's
organization. Beckford, however, began to suspect the others' plans
to strike out on their own and, at about the same time, brought his
associate Claude Dennis to Richmond.
On December 3, Beckford and Dennis went to the Bowe Street
apartment to find Ambrose and Miller. Unable to find them, Beckford
4
and Dennis returned to the Tifton Court apartment to wait. Wiltshire
was home at the time. As it turns out, Ambrose, Miller, and Smith had
been checking out locations in Norfolk to start their own drug distri-
bution spot. Smith's girlfriend, Sarajoni Clayton, was with Smith,
Miller, and Ambrose that evening. She confirmed that Smith and Mil-
ler were planning to leave Beckford's group and that the trip to Nor-
folk that evening was to look for a new place to sell drugs. Ambrose
also planned to leave the Richmond operation, although there was
some testimony that he, unlike Miller and Smith, may have planned
to return to New York and leave the business altogether.
In any event, when Smith, Miller, and Ambrose returned to Tifton
Court later that night, Ambrose went into the kitchen to call his girl-
friend in New York, and Wiltshire went upstairs where he joined
Clayton. Beckford, who was still in the living room, demanded that
Miller explain where the three men had been. This time, however, the
ensuing argument between Beckford and Miller escalated into the
shootings of Smith, Miller, and Ambrose.
According to the testimony, Beckford took Miller's .32 caliber
Derringer handgun during the argument and refused to give it back to
Miller. When the two began scuffling, Smith tried to break them up,
but Dennis pointed a .38 caliber handgun at Smith's head. At that
point, Beckford nodded to Dennis and went into the kitchen where
Ambrose had gone to call his girlfriend. Dennis then shot Miller in
the chest, turned, and shot Smith in the chest. Smith played dead for
a time, but managed to retrieve his 9mm Smith & Wesson handgun
from the back of his pants and get up on his knees. When Smith
looked out the front door, he saw Dennis, Beckford, and Wiltshire.
Dennis, however, saw that Smith was alive and the two men began
to exchange gunfire until Smith shot Dennis on the staircase, where
Dennis dropped the .38 caliber handgun. Dennis then ran upstairs,
where he encountered Wiltshire and Clayton, and began to crawl out
of the upstairs window. Wiltshire ran down the stairs and out of the
apartment, where he saw Beckford and Dennis leaving in Beckford's
car. Smith also left the apartment and headed towards a nearby conve-
nience store, dropping his 9mm handgun along the way.
In response to calls about the shootings at Tifton Court and of a
shooting victim at a nearby convenience store, police officers were
5
dispatched to the area. Upon their arrival, they found Miller lying
dead in the living room and Ambrose lying dead in the kitchen. Miller
had been shot once in the chest with the .38 caliber revolver and
Ambrose had been shot twice with the .32 caliber Derringer, once in
the chest and once in the back. The third victim, Smith, was found
alive at the convenience store and transported to the hospital. The .38
caliber revolver was found on the steps in the Tifton Court apartment
and the .32 caliber Derringer was found in the front yard. Six 9mm
shell casings were also recovered.
An ATF report identified a 9mm Smith & Wesson pistol that had
been purchased by Delroy Smith of Tifton Court in November 1988,
and an expert in firearm ballistics testified that this pistol could have
fired the 9mm bullets found at the crime scene. Another ATF report
identified a .32 caliber Derringer pistol that had been purchased by
Dasmond Miller, also in November 1988. In a safe in the upstairs
bedroom, officers found a tupperware container of clear plastic bags
containing crack cocaine and an envelope containing powder cocaine.
Several days later, police located an additional hidden compartment
at the bottom of the safe which contained $1,000 in currency.
After the Tifton Court shootings, Beckford returned to New York.
According to the testimony of Poison Clan member Winston Gordon,
Beckford admitted that he shot Ambrose and said that Dennis shot
Miller. Similarly, Dennis told Andrew O'Brien that he shot Smith and
Miller and that Beckford shot Ambrose.
B. The Tracy Lavache Shooting
In early 1989, Poison Clan member Tracy Lavache also transferred
from the New York operation to the Richmond operation and began
selling drugs at a Rose Avenue distribution spot. By October, how-
ever, Lavache began talking to Beckford about leaving the organiza-
tion and going out on his own. On the evening of October 9, 1989,
Beckford led Lavache into an alley behind the distribution spot to
"talk." Instead, Beckford shot Lavache twice, once in the arm and
once in the chest, attracting the attention of Dennis, Heston Benjamin,
and James Phillips to the alley. Dennis and Benjamin put Lavache in
the trunk of Beckford's automobile and they, along with Beckford,
dumped Lavache's body in a wooded location. Although left for dead,
6
Lavache managed to drag himself to a highway and lived to name his
assailants.
C. The Sugar Bottom Murders
In 1993, Dean Beckford sent his brother Devon Beckford to Rich-
mond to handle the crack distribution business there. Collin Joseph,
whom Dean Beckford had earlier sent to Richmond to sell crack,
eventually began to operate as Devon Beckford's right-hand man.
Closely associated with these men were Peter Paul, appellant Richard
Thomas and appellant Leonel Cazaco. Thomas had also been sent to
Richmond to sell drugs there for the Poison Clan, and was eventually
supplied drugs by Peter Paul and Cazaco. By 1993, Joseph, Paul,
Cazaco, and Thomas were all distributing crack for Devon Beckford
from the Bellemeade Apartments in Richmond.
On January 12, 1994, Anthony Baylor, his nephew Marco Baylor,
and Anthony Merrit were shot and killed in the Sugar Bottom area of
Richmond. A fourth victim, Charles Meekins, was also shot and
severely wounded. Collin Joseph provided testimony concerning the
drug operation at the time and the Sugar Bottom murders. Specifi-
cally, Joseph testified that, during a trip to New York shortly before
the Sugar Bottom murders, Dean and Devon Beckford discussed
expanding the Richmond operation into the Sugar Bottom area of
Richmond. Anthony Baylor sold marijuana from an apartment in
Sugar Bottom, a place frequented by Thomas, Cazaco, and the others,
and Devon Beckford wanted to sell crack cocaine at the same spot.
When Baylor refused Devon Beckford's invitation to sell crack for
the Beckford organization, Devon Beckford and his associates
hatched a plan to rob Baylor and take over the spot. On January 12,
they set the plan in motion. Peter Paul drove Joseph, Cazaco, and
Thomas to Baylor's Sugar Bottom apartment. Anthony Merritt
answered the door and Joseph and Cazaco entered the apartment.
Cazaco put a gun to Anthony Baylor's head and demanded money
and "weed," and Joseph locked the door. Anthony Baylor and Marco
Baylor were seated. Charles Meekins was asleep on the couch. At that
point, Thomas knocked on the door and Joseph let him in. Joseph
gave his .41 caliber revolver to Thomas, began searching the apart-
ment, and took marijuana, guns, cash, and jewelry. Joseph testified
that he then tried to get Cazaco and Thomas to leave, but they started
7
shooting. Thomas fired a shot at Anthony Baylor, and Cazaco turned
and shot Merritt in the head. Joseph left, hearing more gunshots on
the way out. Cazaco and Thomas followed with the .41 caliber
revolver and a pump shotgun taken from the apartment. The four men
then returned to Devon Beckford's apartment, where Cazaco reported
that "everybody [sic] dead." According to the medical examiner,
Marco Baylor had seven gunshot wounds, Anthony Baylor had three
gunshot wounds, and Anthony Merritt had two gunshot wounds.
Meekins had been shot three times, but survived.
D. The Bellemeade Robbery
Christopher Harris and Corry Woody also sold crack for the Poison
Clan in the Bellemeade area of Richmond. In April 1994, Jose Hinton
contacted Harris and arranged to meet him to pick up crack cocaine.
Harris and Woody, however, planned to rob Hinton instead, and
enlisted the aid of Cazaco and Thomas. Unfortunately, the robbery
attempt went awry and Walter Twitty, who was not involved in the
robbery attempt or the drug trade, was shot three times in the back
and killed. Although ultimately convicted of participating in the con-
spiracy to rob Hinton and of various gun charges in connection with
the incident, Cazaco and Thomas were acquitted of the murder charge
associated with this incident.
E. Convictions
After a joint trial, Beckford, Dennis, Cazaco, and Thomas were
each convicted of a substantive violation of the Racketeering Influ-
enced and Corrupt Organizations Act ("RICO"), see 18 U.S.C.A.
§ 1962(c) (West 1984), and of conspiracy to distribute "crack" and
powder cocaine, see 21 U.S.C.A. § 846 (West 1999). In addition,
Beckford was convicted of engaging in a Continuing Criminal Enter-
prise ("CCE"), see 21 U.S.C.A. § 848 (West 1999), and Beckford and
Dennis were each convicted of two counts of committing murder in
furtherance of a CCE for the murders of Sherman Ambrose and Das-
mond Miller at Tifton Court, see 21 U.S.C.A.§ 848(e) (West 1999).
In addition to their RICO and conspiracy convictions, Thomas and
Cazaco were each convicted of three counts of committing murder in
furtherance of a CCE, see 21 U.S.C.A. § 848(e), one count of conspir-
8
acy to murder in aid of racketeering activity, see 18 U.S.C.A.
§ 1959(a)(5) (West Supp. 1999), and three counts of murder in aid of
racketeering activity, see 18 U.S.C.A. § 1959(a)(1) (West Supp.
1999), in connection with the murders of Anthony Baylor, Marco
Baylor, and Anthony Merrit at Sugar Bottom; one count of assault
with a dangerous weapon in aid of racketeering activity, see 18
U.S.C.A. § 1959(a)(3) (West Supp. 1999), in connection with the
shooting of Charles Meekins at Sugar Bottom; and one count of using
and carrying a firearm during a violent crime, see 18 U.S.C.A.
§ 924(c) (West Supp. 1999), in connection with the Sugar Bottom
incident. Thomas and Cazaco were also convicted of one count of
conspiracy to interfere with commerce by robbery, see 18 U.S.C.A.
§ 1951(a) (West Supp. 1999), in connection with the Bellemeade rob-
bery of Jose Hinton. Finally, Cazaco and Thomas were each con-
victed of three firearm offenses connected with the Sugar Bottom and
Bellemeade incidents, and Thomas was convicted of two additional
offenses arising from a November 19, 1993 assault with a deadly
weapon upon Maurice Robinson.
Although timely sought by the government, the jury declined to
impose the death sentence for the murder convictions, and all appel-
lants received sentences of life imprisonment. They appeal their con-
victions on numerous grounds. For the reasons enunciated below, we
find no reversible error and affirm.
II.
We first address appellants' challenge to the district court's refusal
to continue the trial for 30 days due to pretrial publicity. We review
the district court's decision for abuse of discretion. See United States
v. Bailey, 112 F.3d 758, 770 (4th Cir. 1997).
The adverse publicity primarily concerns a newspaper article which
appeared in The Richmond Times-Dispatch on the morning that jury
selection was to begin. Entitled "Just Business: Everybody Dead," the
article referred to the appellants as members of the Poison Clan and
referenced the willingness of members to kill their own and others.1
_________________________________________________________________
1 The "Poison Clan" name apparently originated from a karate movie,
entitled "The Five Deadly Venoms," in which the members of a fictional
martial arts organization habitually kill their own members.
9
The contents of the article were gleaned from the prior testimony of
two witnesses who were scheduled to appear and testify at trial.
Apparently, one juror brought the article into the jury assembly
room and there was some discussion among the potential jurors as to
whether it was referring to the case for which they were present. Con-
cerned that the article might have influenced the jury pool, the
defense requested a 30-day continuance of the trial. The trial court,
although agreeing with the government's assertion that there was a
legitimate question as to whether the article was substantially prejudi-
cial in the first instance, nevertheless conducted voir dire to assure
that neither the article, nor broadcast media reports of it, actually
biased the potential jurors.
On the second day of voir dire, the substance of the article was dis-
cussed and commented upon to a degree by a member of the jury pool
in the presence of other potential jurors. When brought to the atten-
tion of the district court, the court again inquired into the matter and,
in an abundance of caution, excused every potential juror who had
participated in or overheard the comments -- virtually the entire
panel. The remaining days of voir dire were handled in a similar man-
ner. Those who had read the article or heard a broadcast media report
of it were allowed to remain on the panel, but only if the district court
was assured through questioning that each juror could ignore the
information contained in the publicity and give each defendant a fair
and impartial trial.
The court applies a two-step analysis to claims that a jury was so
tainted by potentially prejudicial publicity as to deprive a defendant
of a fair and impartial trial. First, the court must determine "whether
the publicity is so inherently prejudicial that trial proceedings must be
presumed to be tainted." United States v. Bakker, 925 F.2d 728, 732
(4th Cir. 1991). Prejudice from pretrial publicity, however, will be
presumed "`[o]nly in extreme circumstances.'" Id. (quoting Wells v.
Murray, 831 F.2d 468, 472 (4th Cir. 1987)).
When prejudice may not be presumed, the district court is to "take
the second step of conducting a voir dire of prospective jurors to
determine if actual prejudice exists." Id. ; see also Bailey, 112 F.3d at
769. "Save in that rare case where there is a showing of `inherently
10
prejudicial publicity which has so saturated the community, as to have
a probable impact upon the prospective jurors[,]' . . . the trial court's
primary responsibility in dealing with allegedly prejudicial pre-trial
publicity -- whether in connection with a motion for continuance or
for a change of venue -- is [to determine] whether, as a result of such
publicity, it is reasonably unlikely that the defendant can secure a fair
and impartial trial." United States v. Jones , 542 F.2d 186, 193 (4th
Cir. 1976) (footnote omitted). "[T]rial courts must be vigilant to
ensure that jurors are not biased and trials are not compromised by
media attention surrounding a case." Bakker , 925 F.2d at 734. How-
ever, "`it is not required . . . that jurors be totally ignorant of the facts
and issues involved. . . . It is sufficient if the juror can lay aside his
impression or opinion, and render a verdict based on the evidence
presented in court.'" Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722-23
(1961)).
Appellants assert that the article was inherently or presumptively
prejudicial, and that they were entitled to a continuance regardless of
the juror responses to the court's voir dire. Alternatively, they assert
that the district court's voir dire on the publicity issue was deficient.
We disagree. The limited publicity involved here cannot seriously be
said to have so saturated the community as to raise a presumption of
prejudice. And the appellants themselves level no charge that the
information contained in the article was not ultimately presented at
trial. Furthermore, setting aside the legitimate question as to whether
the article was prejudicial in the first instance, we are satisfied that the
district court's voir dire examination of the article's influence upon
the jury panel was more than sufficient to ensure that there was no
actual prejudice from the pretrial publicity. The court examined all
potential jurors concerning their exposure to the publicity, if any, and
the effect upon them. Nearly an entire jury panel was excused when
the court learned that the article had become a subject of discussion
in their jury room. And every other potential juror who expressed any
hesitancy about the ability to be fair and impartial was excused.
Under the circumstances, we conclude that the district court did not
abuse its discretion in denying appellants' motion for a continuance
due to pretrial publicity.
11
III.
A.
Beckford appeals the district court's decision to allow an investi-
gating officer to use a computer-generated diagram of the
Ambrose/Miller murder scene at Tifton Court. We review the district
court's evidentiary rulings for abuse of discretion. See United States
v. Grimmond, 137 F.3d 823, 831 (4th Cir.), cert. denied, 525 U.S. 850(1998).
As part of the investigation of the Tifton Court murders, one of the
investigating detectives inserted a pencil into bullet holes found in the
Tifton Court apartment to ascertain the angle of the bullet path. From
this and crime scene photographs, the government created a
computer-generated diagram which utilized red lines to trace the bul-
let path suggested by the pencil angle. Over Beckford's objection, the
diagram was used as a demonstrative aid to the detective's testimony
concerning his lay observations of the bullets, bullet holes, and
angles. The exhibit itself, however, was not admitted into evidence.
Beckford does not take issue with the diagram's depiction of the loca-
tion of the bullets, the bullet holes or the angles of the bullet holes.
Nor does Beckford claim that the bullet paths depicted on the diagram
were inaccurate. Rather, Beckford asserts that depictions of a bullet's
trajectory require expert testimony, see Fed. R. Evid. 702, and that the
officer's demonstrative use of the diagram at trial was unfairly preju-
dicial, see Fed. R. Evid. 403.
After careful consideration, we conclude that the district court was
well within its discretion in allowing the detective to utilize the
computer-generated diagram to illustrate his investigative findings.
Federal Rule of Evidence 701 provides that a lay witness may offer
opinion testimony if the "opinions or inferences . . . are (a) rationally
based on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a fact
in issue." Id. In this case, the district court reasonably concluded that
the detective's testimony concerning his findings, as aided by the dia-
gram, was rationally based on his perceptions and helpful to a clear
understanding of his investigation and observations.
12
Furthermore, even were we to conclude that the district court ran
afoul of its broad discretion in allowing the detective to testify utiliz-
ing the diagram, the error was harmless. "[I]n order to find a district
court's error harmless, we need only be able to say with fair assur-
ance, after pondering all that happened without stripping the errone-
ous action from the whole, that the judgment was not substantially
swayed by the error." United States v. Heater , 63 F.3d 311, 325 (4th
Cir. 1995) (internal quotation marks omitted). Here, the government
presented strong evidence of the events on the night of the Tifton
Court murders, most notably the testimony of eyewitnesses Delroy
Smith and Oliver Wiltshire, and we believe it untenable that the jury's
verdict was "substantially swayed" by the detective's testimony
regarding bullet paths found at the scene.
B.
Beckford also challenges his conviction for engaging in a continu-
ing criminal enterprise. See 21 U.S.C.A.§ 848(c). In order to estab-
lish a conviction for engaging in a CCE, the government must prove
the following five elements:
(1) defendant committed a felony violation of the federal
drug laws; (2) such violation was part of a continuing series
of violations of the drug laws; (3) the series of violations
were undertaken by defendant in concert with five or more
persons; (4) defendant served as an organizer or supervisor,
or in another management capacity with respect to these
other persons; and (5) defendant derived substantial income
or resources from the continuing series of violations.
United States v. Wilson, 135 F.3d 291, 303 (4th Cir.), cert. denied,
523 U.S. 1143 (1998) (quoting United States v. Ricks, 882 F.2d 885,
890-91 (4th Cir. 1989)) (emphasis added).
The district court instructed the jury that "`a continuing series of
violations' means three or more violations of the federal narcotics
laws which share a single or substantially similar or related purpose."
J.A. 1186. The jury, however, was not instructed that it must unani-
mously agree upon the three specific acts that make up the "continu-
ing series." Nor was such required under the then-existing precedent
13
of this court. See United States v. Hall, 93 F.3d 126, 129 (4th Cir.
1996) (holding that unanimity with respect to particular violations is
not required for a CCE conviction).
In Richardson v. United States, 119 S.Ct. 1707, 1713 (1999), how-
ever, the Supreme Court held that a jury in a CCE case must unani-
mously agree that the defendant committed a continuing series of
violations and agree upon the specific violations that make up the
continuing series. Recently, in United States v. Brown, 202 F.3d 691,
699 (4th Cir. 2000), we recognized the abrogation of Hall by Rich-
ardson. We further held that a Richardson error is not a structural
error, but rather is subject to harmless error analysis. Id. at 699. "In
conducting a harmless error analysis, our task is to determine whether
`the guilty verdict actually rendered [at] trial was surely unattributable
to the error.'" Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 279
(1993)). And we noted in Brown that a Richardson error "may be
harmless even if we cannot determine that the jury necessarily found
the omitted element." Id. at 700. If we"`conclude[ ] beyond a reason-
able doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been
the same absent the error, the erroneous instruction is properly found
to be harmless.'" Id. (quoting Neder v. United States, 119 S.Ct. 1827,
1837 (1999)).
Beckford asserts that, pursuant to the change wrought by Richard-
son, the district court's failure to instruct the jury that they must unan-
imously agree upon the specific acts comprising the continuing series
warrants a reversal of his conviction for engaging in a CCE. How-
ever, because Beckford did not timely object to the lack of the una-
nimity instruction at trial, we consider in this case whether the lack
of the unanimity instruction constitutes plain error that warrants a
reversal or remand. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). Under the Olano plain error
standard, Beckford must demonstrate that there is"(1) error; (2) that
is plain; and (3) that affect[s] substantial rights." United States v.
David, 83 F.3d 638, 641 (4th Cir. 1996) (alteration in original) (inter-
nal quotation marks omitted). If all three prerequisites are met, we
may then exercise our discretion to notice the error if it "seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
14
ceedings." Id. (quoting Olano, 507 U.S. at 732) (alteration in original)
(internal quotation marks omitted).
In light of the Supreme Court's decision in Richardson, the district
court's failure to give a unanimity instruction was plain error. See
United States v. Hastings, 134 F.3d 235, 239-40 (4th Cir. 1998) (not-
ing that an intervening Supreme Court decision rendered firearm
instruction, although consistent with the law of this circuit at the time,
plain error). Beckford, however, is not entitled to relief from his CCE
conviction because he has failed to show that the error affected his
substantial rights, and because the error did not"seriously affect the
fairness, integrity or public reputation of judicial proceedings."
Olano, 507 U.S. at 732 (internal quotation marks omitted).
First, Beckford has failed to show "that the error affected his sub-
stantial rights, i.e., that it was prejudicial." Hastings, 134 F.3d at 240.
"On harmless-error review, a defendant is entitled to reversal of his
conviction unless the Government can establish that the error does not
affect substantial rights." Id. (internal quotation marks omitted). How-
ever, "on plain-error review, a defendant is entitled to reversal only
upon a showing that the error does affec[t] substantial rights, that is,
that the error actually affected the outcome of the proceedings." Id.(internal quotation marks omitted) (alteration in original). Thus,
"harmless error and plain error are not the same, and the fact that an
error is not harmless does not necessarily mean it affected the defen-
dant's substantial rights." Id. (internal quotation marks omitted). And
we do not "simply review to determine whether the instructional error
was harmless beyond a reasonable doubt." Id. at 243. Rather, Beck-
ford's burden of showing that his substantial rights were affected by
the error required him to show that the error actually resulted in his
conviction. See id.Beckford has not satisfied this burden. At trial, Beckford did not
contest that he was involved in three or more drug trafficking transac-
tions and the evidence substantiating such involvement was over-
whelming. Indeed, Beckford's entire trial strategy was not to claim
that he was innocent of dealing drugs in the face of overwhelming
evidence to the contrary, but to dispute that he was the "organizer or
supervisor, or in another management capacity with respect to the[ ]
other persons" involved in the enterprise, Wilson, 135 F.3d at 303,
15
and instead paint himself as a mere minion in the organization.2 In
view of the overwhelming, and indeed uncontested, evidence of
Beckford's drug dealing, we are satisfied that the outcome of Beck-
ford's conviction for engaging in a CCE would have been the same
even if the court had instructed the jury that unanimity on three
offenses comprising the continuing series was required.
Second, even if Beckford could have shown that the error affected
his substantial rights, the court would decline to notice the error
because it does not "seriously affect the fairness, integrity, or public
reputation of judicial proceedings." Hastings , 134 F.3d at 244 (inter-
nal quotation marks omitted). "Central to this inquiry is a determina-
tion of whether, based upon the record in its entirety, the proceedings
against the accused resulted in a fair and reliable determination of
guilt." Id. (internal quotation marks omitted). Again, given the over-
whelming evidence of Beckford's involvement in drug transactions
and his admission of the same, we have no hesitancy in determining
that the CCE conviction was a fair and reliable verdict. See also
United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998) (declin-
ing to exercise discretion to notice an erroneous jury instruction
where evidence of guilt was overwhelming). Accordingly, Beckford's
CCE conviction is affirmed.
_________________________________________________________________
2 For example, Beckford's counsel argued:
[Beckford]'s selling drugs to Sherman Ambrose. It's a buyer and
a seller. It's a wholesaler and a retailer. They are doing their own
thing. They are out there selling. . . .
Tr. 7076.
Look, we don't dispute the fact that Dean Beckford sold drugs.
That's not the question here. . . . He sold drugs.
Tr. 7081.
Dean Beckford is selling drugs for a long time, and they haven't
shown by their own chart very much money. We don't have
houses. We don't have cars. We don't have boats. . .. You got
a couple of trips. You got some jewelry. It's hardly the expendi-
tures of a kingpin.
Tr. 7086-87.
16
C.
In addition to the above claims, Beckford contends that the district
court erred in allowing the government to use an organization chart.
A district court's decision to allow the use of"summary charts `will
not be overturned on appeal unless [the] decision is shown to be arbi-
trary or irrational.'" United States v. Loayza, 107 F.3d 257, 264 (4th
Cir. 1997) (quoting United States v. Johnson, 54 F.3d 1150, 1156 (4th
Cir. 1995)).
The chart, utilized by the government during its opening and case
presentation, consisted of photographs of alleged Poison Clan mem-
bers which were individually admitted into evidence. It utilized no
ranking information, but rather consisted of the photographs with the
names and aliases of each person underneath. The government used
the chart to identify members of the organization, who were referred
to throughout the trial by their various nicknames and aliases. Under
the circumstances, we find no abuse of discretion in the district
court's decision to allow the government to use the chart.
D.
Beckford's final assertion on appeal is that the government improp-
erly made remarks during the rebuttal portion of the closing argument
which placed a "new twist" or "different angle" on the Tifton Court
murders. Appellants' Brief at 84. This contention, which consists of
at best a vague and undefined complaint, is patently insufficient to
warrant reversal.
IV.
A.
Dennis appeals his convictions for RICO and murder in furtherance
of a CCE as violative of the Double Jeopardy Clause of the United
States Constitution because the basis for these convictions involved
conduct for which he was previously tried by the Commonwealth of
Virginia. Because it presents a legal question, we review this claim
de novo. See United States v. Imngren, 98 F.3d 811, 813 (4th Cir.
1996).
17
The conduct at issue involved the Tifton Court murder of Dasmond
Miller and attempted murder of Delroy Smith on December 4, 1988,
and the additional shooting incident involving Tracy Lavache. Dennis
was prosecuted in the Circuit Court of the City of Richmond in June
1989 for the Tifton Court crimes, but was acquitted. He was prose-
cuted in June 1990 for his role in assisting Beckford in the shooting
of Lavache, and convicted of abduction and accessory after the fact
to malicious wounding. Dennis now asserts that we must overturn his
convictions under the RICO and CCE statutes because the Tifton
Court and Lavache crimes were advanced as racketeering acts for the
RICO indictment and because the murder in furtherance of a CCE
was based upon the killing of Dasmond Miller.
While the Double Jeopardy Clause of the Fifth Amendment gener-
ally protects against successive prosecutions for the same offense, the
"dual or separate sovereigns" doctrine normally eliminates the Double
Jeopardy bar to a federal prosecution after a state prosecution. See
Heath v. Alabama, 474 U.S. 82, 89 (1985) ("[T]he Court has uni-
formly held that the States are separate sovereigns with respect to the
Federal Government because each State's power to prosecute is
derived from its own `inherent sovereignty,' not from the Federal
Government."). Dennis agrees, but relies upon the"sham prosecution"
exception advanced in Bartkus v. Illinois, 359 U.S. 121 (1959), to
argue his exception from the general rule. In Bartkus, the Court
rejected a claim that, because federal officials acted in cooperation
with state authorities, the state prosecution was used as "merely a tool
of the federal authorities" to avoid the Fifth Amendment bar and a
"sham and a cover for a federal prosecution." Id. at 123-24.
Since Bartkus, we have noted that "[a]lthough a `tool of the same
authorities' exception is possible in some circumstances, that excep-
tion may only be established by proof that State officials had little or
no independent volition in their proceedings." In re Kunstler, 914
F.2d 505, 517 (4th Cir. 1990) (citation omitted); see also United
States v. Baptista-Rodriguez, 17 F.3d 1354, 1361 (11th Cir. 1994)
("To fit within the [sham prosecution] exception, the defendant must
show that one sovereign was so dominated, controlled, or manipu-
lated by the actions of the other that it did not act of its own voli-
tion."). Here, there was no federal involvement in the state
prosecutions, much less a federal domination of those prosecutions.
18
Years after the state trials were held, federal and state authorities
formed a "Richmond Cold Homicide Task Force" to investigate vari-
ous unsolved homicides in the City of Richmond. Even Dennis does
not go so far as to assert that the federal authorities were dominated
by the state sovereign on the task force, but rather seems to invite this
court to extend the "sham prosecution" exception to cases in which
there is this type of cooperation and interdependence of federal and
state authorities. We do not read the exception to the "dual sover-
eignty" doctrine so broadly.3 Accordingly, we affirm Dennis' RICO
and CCE convictions.
B.
Dennis also appeals the district court's refusal to admit a property
voucher into evidence, a decision that we review for abuse of discre-
tion. See United States v. Grimmond, 137 F.3d 823, 831 (4th Cir.),
cert. denied, 525 U.S. 850 (1998); Precision Piping & Instruments,
Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 619 (4th Cir.
1991).
In the days after the Tifton Court murders, Detective C.T. Woody
interviewed Delroy Smith at the hospital where he was taken. Also
during Smith's hospitalization, Officer Woody was given some cloth-
ing and other items, including .38 caliber bullets, by an unidentified
nurse or doctor. Detective Woody listed Smith as the source of the
items on the property voucher, but testified that he had no personal
knowledge of the source of the clothing or other items given to him
that day and that he listed Smith as the source based solely upon the
hearsay statement of the unidentified hospital personnel. Woody was
_________________________________________________________________
3 Other courts, we note, have virtually refused to recognize that Bart-
kus, in the course of rejecting the argument advanced there, intended to
create a "sham prosecution" exception in the first place. See, e.g., United
States v. Brocksmith, 991 F.2d 1363, 1366-67 (7th Cir. 1993) ("We have
questioned whether Bartkus truly meant to create such an exception, and
we have uniformly rejected such claims. In any event, conversations and
cooperative efforts between state and federal investigators of the kind
Brocksmith alleges are undeniably legal and are, in fact, a welcome inno-
vation in law enforcement techniques.") (citations and internal quotation
marks omitted).
19
also unable to provide the identity of the nurse or doctor, or the basis
for that person's knowledge of the source of the items. Smith denied
having any .38 caliber bullets in his clothing when he was taken to
the hospital.
Dennis sought to introduce the voucher under the business records
exception to the hearsay rule, Fed. R. Evid. 803(6), arguing that it
contained relevant, exculpatory evidence suggesting that Smith, rather
than Dennis, killed Dasmond Miller with a .38 handgun. The district
court excluded the voucher, ruling that the business records exception
did not apply because the information recorded in the voucher was
not recorded by someone with personal knowledge of the facts and,
therefore, did not possess the inherent reliability aspects which under-
lie the business records exception.
We agree. The business records exception to the hearsay rule
plainly allows for the admission of "reliable and accurate records,"
but only upon the valid presumption that the information contained
therein is inherently reliable. See Fed. R. Evid. 803(6). Also, hearsay
within hearsay is admissible only if it also comes within an exception
to the hearsay rule. See Fed. R. Evid. 805; Precision Piping, 951 F.2d
at 619; United States v. Portsmouth Paving Corp. , 694 F.2d 312, 321
(4th Cir. 1982). If it is shown that "the source of information or the
method or circumstances of preparation [of a business record] indi-
cate lack of trustworthiness," Fed. R. Evid. 803(6), the record should
not be admitted into evidence, see Timberlake Constr. Co. v. U.S.
Fidelity & Guar. Co., 71 F.3d 335, 341 (10th Cir. 1995).
The determination of whether the proponent of hearsay evidence
has met the requirements of the business records exception and
whether the circumstances indicate a lack of trustworthiness is left to
the sound discretion of the trial judge. In this case, the circumstances
surrounding the property voucher plainly suggested that the informa-
tion contained within the voucher was not trustworthy because it was
based solely upon the hearsay statement of an unidentified person.
Because "an essential link in the trustworthiness chain fail[ed]," id. at
342, we cannot say that the district court abused its discretion in
excluding the property voucher from evidence.4
_________________________________________________________________
4 Dennis also asserted that the evidence was admissible under the pub-
lic records exception to the hearsay rule, Fed. R. Evid. 803(8). For the
20
C.
Dennis next asserts that, even if the district court properly refused
to allow the voucher into evidence under Fed. R. Evid. 803, he is enti-
tled to a new trial because the government's failure to disclose the
existence and identity of the individuals who gave Detective Woody
the property listed on the voucher was a violation of Brady v. Mary-
land, 373 U.S. 83 (1963). Again, we disagree.
Under Brady, favorable evidence must be material in order for its
nondisclosure to violate due process and result in actual prejudice.
"[E]vidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the pro-
ceeding would have been different. A `reasonable probability' is a
probability sufficient to undermine confidence in the outcome."
United States v. Bagley, 473 U.S. 667, 682 (1985). However, "the
Brady rule does not apply if the evidence in question is available to
the defendant from other sources." United States v. Wilson, 901 F.2d
378, 380 (4th Cir. 1990) (internal quotation marks omitted); see
Barnes v. Thompson, 58 F.3d 971, 975 n.4 (4th Cir. 1995) (noting that
"Brady requires that the government disclose only evidence that is not
available to the defense from other sources, either directly or through
diligent investigation").
In this case, Dennis was in possession of the voucher in advance
of trial and was aware of Detective Woody's involvement in the
investigation of the Tifton Court murders, as well as his preparation
of the voucher. Although Dennis now claims that the evidence
excluded was critical to his defense, there is no indication that Detec-
tive Woody was interviewed in advance of trial or that Dennis ever
otherwise attempted to verify or ascertain the source of the property
listed on the voucher. Under the circumstances, we conclude that
Dennis has not established that the government's failure to disclose
the existence and identity of the person or persons who gave Detec-
_________________________________________________________________
same reasons, we reject this contention. See Fed. R. Evid. 803(8) (allow-
ing for admission of public records and reports"unless the sources of
information or other circumstances indicate lack of trustworthiness").
21
tive Woody the property inventoried on the voucher constitutes a
Brady violation.
V.
A.
Cazaco and Thomas challenge the sufficiency of the evidence to
support their convictions for the counts involving the Sugar Bottom
murders. "If there is substantial evidence to support the [jury's] ver-
dict, after viewing all of the evidence and the inferences therefrom in
the light most favorable to the Government," the court must affirm.
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Substan-
tial evidence is evidence that a "reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a defendant's
guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc).
The crux of Cazaco's and Thomas' challenge is that the testimony
of co-conspirator Collin Joseph should have been rejected because
there were some discrepancies in his testimony and he had been given
immunity from further charges. However, it is well-established that,
when reviewing sufficiency of the evidence claims,"we must remain
cognizant of the fact that `[t]he jury, not the reviewing court, weighs
the credibility of the evidence and resolves any conflicts in the evi-
dence presented, and if the evidence supports different, reasonable
interpretations, the jury decides which interpretation to believe.'" Id.
at 862 (alteration in original) (quoting Murphy , 35 F.3d at 148).
Furthermore, while "[t]he settled law of this circuit recognizes that
the testimony of a defendant's accomplices, standing alone and uncor-
roborated, can provide an adequate basis for conviction," United
States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993), Joseph's testi-
mony did not stand alone. It was corroborated at trial by both forensic
evidence and the testimony of various other witnesses connecting
Cazaco and Thomas to the spoils of the robbery and to the murders.
Accordingly, we conclude that the government presented sufficient
evidence to support the convictions obtained against Cazaco and
Thomas for their participation in the Sugar Bottom murders.
22
B.
Cazaco asserts that the district court erred in denying his motion to
quash the death penalty notice or for a continuance because the gov-
ernment failed to inform him upon his arrest that he had the right to
contact the French Consulate, as required by the Vienna Convention
on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101. The
Vienna Convention requires an arresting government to inform a for-
eign national who has been arrested of his right to contact his consul.
See id.Assuming, without deciding, that Cazaco has standing to raise this
issue,5 we conclude that he is not entitled to relief. The government
concedes that the Convention requires such notification and that
Cazaco was not informed of this right. However, rights created by
international treaties do not create rights equivalent to constitutional
rights. Cf. Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997)
(habeas corpus proceeding). Therefore, Cazaco must establish preju-
dice to prevail. Cf. Breard v. Greene, 118 S. Ct. 1352, 1355 (1998)
(habeas corpus proceeding); United States v. Ademaj, 170 F.3d 58, 67
(1st Cir.), cert. denied, 120 S.Ct 206 (1999) (harmless error); Wal-
dron v. INS, 17 F.3d 511, 518-19 (2d Cir. 1993) (deportation proceed-
ings).
On appeal, Cazaco admits that he was made aware of his rights
under the Vienna Convention by his trial counsel. He asserts, how-
ever, that this does not affect the government's responsibility to also
advise him of his rights and that, as a result of the government's fail-
ure to do so, he was entitled to either an order quashing the death pen-
alty notice or an order continuing the trial to allow the defense time
to seek and receive the assistance of the French consulate. Cazaco,
however, was not sentenced to death and he has not demonstrated
how the failure would have otherwise affected the outcome of his
_________________________________________________________________
5 See Breard v. Greene, 118 S. Ct. 1352, 1355 (1998) (stating that
"[t]he Vienna Convention . . . arguably confers on an individual the right
to consular assistance following arrest."); United States v. Lombera-
Camorlinga, No. 98-50347, 2000 WL 245374, at *2-3 (9th Cir. Mar. 6,
2000) (en banc) (declining to decide whether the Vienna Convention
creates individually enforceable rights in the first instance).
23
case. Accordingly, we conclude that the district court did not err in
rejecting his claim.
C.
In addition to the above claims, Cazaco argues that the district
court erred in denying his motion to sever the trial, that the district
court erred in denying his motion to dismiss the indictment based
upon a prior plea agreement and the Double Jeopardy Clause, that
there was insufficient evidence to support the charges stemming from
the Bellemeade robbery, and that the government failed to prove
proper venue and jurisdiction. Also, Thomas argues that the govern-
ment failed to sufficiently prove that he knowingly joined a racketeer-
ing enterprise. We have carefully considered these additional
challenges to the convictions and conclude that none are of sufficient
merit to warrant reversal.
VI.
For the foregoing reasons, the convictions of Dean Anthony Beck-
ford, Claude Gerald Dennis, Leonel Romeo Cazaco, and Richard
Anthony Thomas are affirmed in their entirety.
AFFIRMED
24