United States v. Garcia ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5117
GUALBERTO GARCIA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5118
JORGE MORERA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5119
MARSHALL ALLEN SLATER,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-90-115)
Argued: December 6, 1995
Decided: February 9, 1996
Before WILKINSON and WILLIAMS, Circuit Judges, and
THORNBURG, United States District Judge for the Western
District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
ARGUED: Robert Alan Rosenblatt, Miami, Florida, for Appellant
Garcia; Gregory William Bowman, CHASLER, ADRIAN & BOW-
MAN, P.L.C., Winchester, Virginia, for Appellant Slater; William
Frederic Jung, BLACK & JUNG, P.A., Tampa, Florida, for Appellant
Morera. Ray B. Fitzgerald, Jr., Assistant United States Attorney, Roa-
noke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Gualberto Garcia, Jorge "George" Morera, and Marshall
Slater appeal their convictions for conspiracy to possess with intent
to distribute and to distribute cocaine, in violation of 21 U.S.C.A.
§ 846 (West Supp. 1995). They challenge numerous rulings by the
district court during their trial. Additionally, Garcia challenges his
sentence and the forfeiture of his interest in his residence and business
under 21 U.S.C.A. § 853(a) (West Supp. 1995). Because we find that
all of Appellants' challenges lack merit, we affirm their convictions
and reject Garcia's challenges to his sentence and order of forfeiture.
2
I.
We recount the facts in the light most favorable to the Government.
Glasser v. United States, 315 U.S. 60, 80 (1942). In early 1989, Spe-
cial Agents of the Drug Enforcement Administration investigating an
extensive cocaine distribution conspiracy in Northern Virginia dis-
covered that Osvaldo Castanon, a cocaine broker in Naples, Florida,
was supplying the Virginia network through intermediaries. Eventu-
ally, the investigation revealed that Castanon was a common link
between Garcia, Morera, and Slater, among other coconspirators. By
identifying and interviewing various coconspirators, the Government
learned that, between approximately 1987 and 1988, Castanon
obtained about two to three kilograms of cocaine weekly from Garcia
through two couriers. The Government also learned that Morera, a
deputy sheriff in Collier County, Florida, protected Castanon from
detection on several occasions in 1987 by warning him of police
activity in his neighborhood. Finally, the agents discovered that
Castanon sold cocaine to Slater, who resided in Ohio, on several
occasions in 1987 at Castanon's home in Florida.
In August 1992, a grand jury for the Western District of Virginia
returned a one-count indictment charging Garcia, Morera, and Slater
with conspiracy to possess with the intent to distribute and to distrib-
ute cocaine, in violation of 21 U.S.C.A. § 846. In addition, the grand
jury charged that Garcia's interest in the residence and the business,
B&G Ceramics, that Garcia and his wife jointly owned were subject
to forfeiture under 21 U.S.C.A. § 853(a) because he used them to
facilitate the conspiracy.
After a twelve-day trial featuring Castanon as the Government's
central witness, the jury convicted all three Appellants. Over Garcia's
objections, the district court subsequently ordered forfeiture of Gar-
cia's interest in his residence and business and sentenced him to 220
months imprisonment. The district court sentenced Morera to 97
months imprisonment and Slater to 84 months imprisonment.
Challenging their convictions on numerous grounds, Garcia, Mor-
era, and Slater appeal. We address each assignment of error in turn,
including Morera's claim that he was denied the effective assistance
of counsel, Appellants' challenges to various trial rulings, their
3
assignments of error relating to the district court's jury instructions,
their contention that the evidence against them is insufficient to sup-
port their convictions, and Garcia's challenge to his sentence and the
district court's forfeiture order.
II.
Morera first contends that his retained trial counsel, Jeffrey Quinn,
provided ineffective assistance of counsel because of multiple undis-
closed conflicts of interest. After the jury returned a guilty verdict,
Morera hired new counsel, who moved the district court under Fed-
eral Rule of Criminal Procedure 33 for a new trial based on Quinn's
alleged conflicts of interest. After a hearing, the district court denied
the motion, concluding that Quinn had "pursued Mr. Morera's
defense zealously, with no hint of being burdened by any conflict of
interest." (J.A. at 2265.) On appeal, Morera challenges the denial of
his Rule 33 motion and argues that Quinn's conflicts of interest preju-
diced Morera's defense, thereby denying him his Sixth Amendment
right to counsel.
Because we conclude that the district court lacked jurisdiction to
entertain Morera's Rule 33 motion for a new trial, we dismiss this
portion of Morera's appeal. See United States v. Smith, 62 F.3d 641,
651 (4th Cir. 1995) (holding that a defendant must move for new trial
based on ineffective assistance of counsel within seven days of ver-
dict). Federal Rule of Criminal Procedure 33 provides that a "motion
for a new trial based on any [grounds other than newly discovered
evidence] shall be made within 7 days after verdict or finding of
guilty." In Smith, we recently confirmed that information supporting
a claim of ineffective assistance of counsel is not"newly discovered"
evidence under Rule 33. 62 F.3d at 648. We therefore held that a Rule
33 motion based on ineffective assistance must be filed within seven
days after the verdict. Morera filed his Rule 33 motion more than
seven days after the jury returned a guilty verdict. 1 The district court
therefore lacked jurisdiction to hear the motion.
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1 In its January 10, 1994 order disposing of Morera's Rule 33 motion,
the district court noted that Morera filed the motion more than seven
days after the verdict. The district court nevertheless heard the motion,
finding that evidence concerning the extent of Quinn's conflicts of inter-
est was "newly discovered" and that the motion therefore was timely
filed under Rule 33. Of course, the district court did not have the benefit
of this Court's ruling in Smith when it heard Morera's motion.
4
Moreover, in view of the record before us, we decline to review
Morera's ineffective-assistance claim under the Sixth Amendment on
direct appeal. See United States v. Tatum, 943 F.2d 370, 379 (4th Cir.
1991) (observing that questions about the competency of trial counsel
typically are "best left for collateral review"). In Tatum, we recog-
nized that the effective performance of counsel guaranteed by the
Sixth Amendment means "meaningful compliance with the duty of
loyalty and the duty to avoid conflicts of interest." Id. at 375.
Although Morera's claims about Quinn's alleged conflicts of interest
are not frivolous, we nevertheless cannot review them on appeal
because the record presently before us does not demonstrate conclu-
sively the existence of unacceptable conflicts of interest. See Smith,
62 F.3d at 651; United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.
1994) (noting ineffective assistance claim should be raised by motion
under 28 U.S.C.A. § 2255 (West 1994)). In fact, in considering Mor-
era's ineffective-assistance claim under Rule 33, the district court
found no conflict of interest. On this record, we conclude that Mor-
era's Sixth Amendment claim is best left for collateral review.2
III.
We turn now to Appellants' challenges to various rulings by the
district court during their trial. Appellants contend that the district
court committed reversible error by admitting evidence against them
in violation of Federal Rules of Evidence 404(b) (other crimes) and
802 (hearsay). Moreover, they complain that they were entitled to a
mistrial because the Government committed prosecutorial misconduct
during its closing argument. We address each contention in turn.
A.
Appellants contend that the district court abused its discretion
under Rule 404(b) by permitting Government witnesses to testify
about events that occurred before the relevant dates of the charged
conspiracy.3 Due to the five-year statute of limitations, see 18
_________________________________________________________________
2 Morera may choose to raise this issue by moving the district court to
set aside his conviction under 28 U.S.C.A. § 2255 (West 1994).
3 Federal Rule of Evidence 404(b) provides that
5
U.S.C.A. § 3282 (West 1985) (providing five-year limitations period),
the indictment handed down in August 1992 charged the defendants
with participating in a conspiracy beginning in September 1987. As
before the district court, Appellants urge us to hold that Rule 404(b)
precluded testimony about drug transactions that took place before
September 1987. Appellants also contest the admission of "other
crimes" evidence on the ground that the Government failed to give
them reasonable pretrial notice of the nature of the evidence, as Rule
404(b) requires.
We review the district court's evidentiary rulings for an abuse of
discretion. See United States v. Francisco, 35 F.3d 116, 118 (4th Cir.
1994) (per curiam), cert. denied, 115 S. Ct. 950 (1995); United States
v. Greenwood, 796 F.2d 49, 53 (4th Cir. 1986) (noting that the district
court's decision to admit evidence under Rule 404(b) will not be
overturned unless it was arbitrary or irrational). As set out below, we
find that the district court did not abuse its discretion in ruling that
most of the challenged testimony was admissible as background
information or as evidence that was probative of a material issue other
than character; we therefore affirm.
1.
Garcia protests the admission of testimony by various coconspira-
tors that, between 1984 and June 1987, Garcia participated in cocaine
transactions, was present during other cocaine transactions, and pos-
sessed cocaine. Garcia also objects to testimony regarding his sale of
ounce quantities of cocaine in Naples, Florida, on the theory that
_________________________________________________________________
[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial
. . . of the general nature of any such evidence it intends to intro-
duce at trial.
6
those quantities are not relevant evidence of participation in a conspir-
acy to distribute cocaine in Northern Virginia.
Morera disputes the district court's admission of alleged Rule
404(b) evidence in several instances, including (1) testimony that he
bought cocaine for his personal use in 1985, before becoming a police
officer; and (2) testimony that he once permitted a friend of Castanon
to travel in Morera's patrol car while carrying marijuana, as well as
other statements.
The district court admitted much of the challenged evidence as
background material to show "how the conspiracy operated" during
the relevant period (J.A. at 571), and it twice instructed the jury to
view the evidence in that light. During its jury charge, the district
court further admonished the jury "not [to] consider any of this [pre-
September 1987] evidence in deciding if the defendants committed
the acts charged in the indictment." (J.A. at 2079.)
Appellants vigorously contend that evidence about events outside
the scope of the indictment is inadmissible, but we take a more realis-
tic view of conspiracies, whose duration rarely will coincide with the
dates alleged in the indictment. As we ruled in United States v.
Kennedy, 32 F.3d 876 (4th Cir. 1994), cert. denied, 115 S. Ct. 939(1995), the district court has discretion to admit"evidence of
uncharged conduct . . . if it ``arose out of the same . . . series of trans-
actions as the charged offense, . . . or if it is necessary to complete
the story of the crime.'" Id. at 885 (quoting United States v. Towne,
870 F.2d 880, 886 (2d Cir.), cert. denied, 490 U.S. 1101 (1989)). For
this reason, most of the testimony that Garcia and Morera challenge
did not constitute "other crimes" evidence under Rule 404(b). Rather
than character evidence, it was "predicate evidence necessary to pro-
vide context to the . . . drug distribution scheme that took place within
the charged time frame." Kennedy, 32 F.3d at 885-86. The testimony
either concerned events that arose out of the conspiracy, which in
reality began long before September 1987, or was necessary to
explain to the jury the roles Garcia and Morera played in the charged
conspiracy: Garcia as supplier, and Morera as protector. This evi-
dence thus was admissible background information that helped the
jury to understand how the complex distribution scheme operated. See
id. at 886. Moreover, as noted, the district court instructed the jury to
7
view the evidence as background material, and we presume that juries
follow limiting instructions. Francisco, 35 F.3d at 119. The district
court thus did not abuse its discretion in admitting the background
testimony because the evidence did not fall within the scope of Rule
404(b).
2.
Morera also claims that other statements were inadmissible under
Rule 404(b) because they were not background material, but rather
impermissible character evidence. He objects to testimony that: (1) he
attempted to coerce Castanon and his wife into falsely accusing an
innocent man of committing a hit and run; and (2) he warned a known
crack dealer, who was not a participant in the conspiracy, to "be care-
ful." (J.A. at 1216.)
On Rule 404(b) grounds, Slater likewise contends that the district
court abused its discretion. Over objection, the prosecutor elicited
Slater's testimony on cross-examination that he previously had testi-
fied as an expert witness on the subject of marijuana "[c]ultivation,
handling, selling, quantity, [and] quality." (J.A. at 1738.) According
to Slater, the evidence served no purpose other than to convey his bad
character to the jury, in violation of Rule 404(b).
Even accepting Morera and Slater's position that the foregoing evi-
dence was "other crimes" evidence under Rule 404(b), much of it was
admissible because it was probative of a material issue other than
character. See United States v. Madden, 38 F.3d 747, 753 (4th Cir.
1994) (quoting Huddleston v. United States, 485 U.S. 681, 686
(1988)). The testimony regarding Morera's warnings to a known
crack dealer and the Government's cross-examination of Slater about
his stated expertise in a controlled substance were probative of Appel-
lants' knowledge of drug dealing and absence of mistake regarding
their actions in furtherance of the conspiracy. See Francisco, 35 F.3d
at 119 (affirming admission of Rule 404(b) evidence regarding prior
drug-related activity on these and other grounds); see also United
States v. Rawle, 845 F.2d 1244, 1247-48 (4th Cir. 1988) (affirming
admission of "prior bad acts" testimony to show knowledge, common
scheme or plan, and a business enterprise in connection with drug
8
charges). Thus, the district court did not abuse its discretion in admit-
ting this evidence.
With respect to the testimony that Morera attempted to implicate
an innocent man in a hit-and-run car accident, we first note that Mor-
era failed to object to this testimony at trial. We therefore review
solely for plain error. See Fed. R. Crim. Proc. 52(b); see also United
States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993). During the
course of direct examination regarding Morera's visits to the
Castanon home, Castanon testified:
A: [Morera] went to my home. He showed me some pic-
tures of a black man, and told me to go to the highway
patrol and to show those photos.
Q: What did he ask you, if anything, about the photo-
graph?
A: That I should show it as the man who had the accident
with my car.
Q: What did you say?
A: I couldn't do it because I didn't know him.
(J.A. at 471.) Assuming this line of questioning elicited improper
character evidence under Rule 404(b), we nevertheless will not
reverse Morera's conviction on this basis because the error did not
affect Morera's substantial rights, a prerequisite to reversal for plain
error. See id. at 1434-35 (citing United States v. Olano, 113 S. Ct.
1770, 1777-78 (1993)). Reviewing for plain error, we are not to exer-
cise our discretion to correct a forfeited error unless it "seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings." Olano, 113 S. Ct. at 1776 (alteration in original) (internal
quotation marks omitted). We conclude that the error here did not
have such a grave effect on the overall fairness of Morera's trial. The
testimony concerning the car accident was a brief portion of
Castanon's examination, which lasted for many hours and otherwise
contained very compelling evidence of Morera's guilt. We therefore
affirm.
9
3.
Lastly, we reach Appellants' contentions that the district court
erred in admitting the foregoing evidence because the Government
failed to give reasonable notice under Rule 404(b). Rejecting this con-
tention as well, we reiterate that the bulk of the challenged testimony
was background information not within the scope of Rule 404(b), and
thus did not require notice.
Although we agree, however, with Morera and Slater that the Gov-
ernment failed to notify them about certain specific instances of Rule
404(b) evidence, we conclude that the district court's admission of
that evidence was harmless error. The pretrial notice included an
unreasonably broad catch-all paragraph, indicating that the Govern-
ment intended to present evidence of cocaine transactions "[a]t vari-
ous times and places" before September 1987. (J.A. at 82.) That
notice does not constitute fair warning of some of the Rule 404(b)
evidence that was presented--for example, the testimony regarding
the hit-and-run incident, Morera's tips to the unrelated crack dealer,
and Slater's expertise with marijuana. Given the overwhelming evi-
dence of Morera's and Slater's guilt, however, we can state with "fair
assurance" that the jury's verdict was not swayed by that evidence.
United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980) (hold-
ing reversal of a conviction because of nonconstitutional error is not
warranted if the court can say "``with fair assurance, after pondering
all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the error.'")
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). In
view of the foregoing reasoning, we affirm the district court's admis-
sion of the challenged evidence.
B.
We next consider Garcia's challenge to the alleged hearsay testi-
mony of five Government witnesses. The witnesses testified about
conversations in which various declarants identified Garcia as a
source of cocaine on different dates between 1984 and 1987. Garcia
urges us to find that the declarants' statements were inadmissible
hearsay under Federal Rule of Evidence 802. According to Garcia, the
statements were not made in furtherance of the conspiracy because
10
they took place before September 1987, the date set forth in the
indictment as the commencement of the conspiracy. Under his theory,
the statements thus were not admissible under Federal Rule of Evi-
dence 801(d)(2)(E) as admissions by coconspirators"during the
course and in furtherance of the conspiracy."
Reviewing the district court's admission of the challenged state-
ments for abuse of discretion, see United States v. Russell, 971 F.2d
1098, 1104 (4th Cir. 1992), cert. denied, 113 S. Ct. 1013 (1993), we
conclude that the statements were admissible under Rule
801(d)(2)(E). Under Rule 801(d)(2)(E), coconspirators' statements
made in furtherance of the conspiracy are admissible as if they were
the defendant's admissions. See United States v. Urbanik, 801 F.2d
692, 697 (4th Cir. 1986). To determine whether the statements were
made "during the course" of a conspiracy, we first must evaluate
whether the Government proved by a preponderance of evidence that
a conspiracy existed between Garcia and the declarants at the time the
statements were made. See Bourjaily v. United States, 483 U.S. 171,
181 (1987) (holding that consideration of the challenged statements,
in addition to independent evidence, is proper). And, to reiterate, we
take a realistic view of the true life of the conspiracy, which, a pre-
ponderance of the evidence showed, began long before September
1987. After reviewing the record, we conclude that the declarants
engaged in cocaine trafficking with Garcia in connection with the
charged conspiracy at the time the statements were made.
Second, to determine whether the statements were made "in fur-
therance of the conspiracy," we must examine the context in which
the statements were made. See, e.g., United States v. Capers, 61 F.3d
1100, 1106 (4th Cir.) (holding that statements were made in further-
ance of the conspiracy where Williams, the testifying witness, stated
that during a conversation about purchasing drugs, the declarant made
inculpatory statements about the defendant), petition for cert. filed,
___ U.S.L.W. ___ (U.S. Dec. 4, 1995) (No. 95-7022); cf. Urbanik,
801 F.2d at 698 (holding that statement that Urbanik was a source for
marijuana was inadmissible because the declarant made it as "a casual
aside" during a conversation about weightlifting). With the exception
of one conversation between Pedro Pinero and his teenage daughter,
Magdelina Pinero, each of the conversations during which the chal-
lenged statements were made centered on cocaine and its source, Gar-
11
cia. Those statements were not casual asides in conversations
unrelated to the conspiracy, as in Urbanik. They were made in fur-
therance of the conspiracy and were admissible.
Regarding Pinero's conversation with his daughter during which,
she later testified, Pinero stated that Garcia was a cocaine courier, the
record does not reflect whether this statement was made in further-
ance of the conspiracy. Assuming it was not, the trial court's admis-
sion of the statement over Garcia's objection, however, was harmless.
See Fed. R. Crim. Proc. 52(a). We shall not disturb that evidentiary
ruling because it did not affect Garcia's substantial rights, given the
compelling evidence against him. See United States v. Heater, 63
F.3d 311, 325 (4th Cir. 1995) (finding no reversible error because "a
wealth of [other] testimony linked Heater to the drug conspiracy"),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Dec. 8, 1995) (No. 95-
7090); Nyman, 649 F.2d at 211-12 (no reversible error if the Court
can say with fair assurance that the error did not substantially sway
the verdict). Based on the foregoing, we reject Garcia's challenge to
the admission of the statements under Rule 801(d)(2)(E).
C.
Appellants next claim reversible error because of alleged miscon-
duct by the Assistant United States Attorney who prosecuted them.
Specifically, (1) Garcia contends that the prosecutor improperly com-
mented during closing argument on his failure to testify, (2) Morera
asserts that the prosecutor improperly commented during closing
argument about his conduct in court, as well as that of his family, and
(3) each Appellant claims that the prosecutor improperly commented
during closing argument about the supposed dishonesty of the defense
attorneys. We address each argument in turn.
In reviewing the prosecutor's alleged misconduct, we bear in mind
that the verdicts must stand if, under all of the circumstances, the
defendants received a fair trial. See Darden v. Wainwright, 477 U.S.
168, 181 (1986). We shall not reverse their convictions unless
improper remarks or conduct by the Government "prejudicially
affected the defendant[s'] substantial rights so as to deprive [them] of
a fair trial." Francisco, 35 F.3d at 120. Under this standard, we con-
12
clude that none of the prosecutor's allegedly improper remarks
requires reversal.
1.
Garcia claims that various statements by the prosecutor during his
closing argument adversely referred to Garcia's silence during the
trial, in violation of the Fifth Amendment privilege against self-
incrimination and the Due Process Clause. See Doyle v. Ohio, 426
U.S. 610, 618 (1976) (holding comments on defendant's silence after
arrest violate due process); Griffin v. California, 380 U.S. 609, 615
(1965) (holding the Fifth Amendment forbids comment by the prose-
cutor on accused's failure to testify). Garcia cites several such state-
ments by the prosecutor, including a remark alluding to his lawyer's
conveying an idea "without going through the inconvenience of a wit-
ness testifying," (J.A. at 1840), and the comment that a coconspirator
"didn't have to testify, because he has the privilege, like any defen-
dant has, to not incriminate himself in an ongoing case before it's
resolved." (J.A. at 2052.)
The test for determining whether those and other comments were
improper is whether the remarks were "``manifestly intended to be, or
[were] of such character that the jury would naturally and necessarily
take [them] to be a comment on the failure of the accused to testify.'"
United States v. Whitehead, 618 F.2d 523, 527 (4th Cir. 1980) (quot-
ing United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973),
aff'd, 417 U.S. 211 (1974)). We find that a reasonable jury would not
view the prosecutor's statements as a comment on Garcia's failure to
testify, and thus the challenged comments were not improper. Initially
we note that Garcia did not object to the challenged statements at
trial, a fact suggesting that even he did not view them as irregular at
the time. See United States v. Jenkins, 544 F.2d 180, 181 (4th Cir.
1976) (per curiam) (reviewing Government's comment that its wit-
ness was "uncontradicted" in context of closing argument and finding
no plain error where defendant failed to object to comment and dis-
trict court instructed jury to draw no inferences from defendant's fail-
ure to testify), cert. denied, 431 U.S. 931 (1977). Additionally, the
statements on their face do not appear to refer to Garcia's exercise of
his privilege against self-incrimination. Finally, the district court
explicitly instructed the jury not to draw any adverse inferences from
13
Garcia's and Morera's failure to testify. See James v. Kentucky, 466
U.S. 341, 350 (1984) (upon request, trial court is obliged to instruct
jury not to draw an adverse inference from accused's failure to tes-
tify).
Finding that the comments were not improper, we likewise cannot
say that the statements "so infected the trial and sentencing with
unfairness that the ultimate conviction and sentence constituted a
denial of due process." Gaskins v. McKellar , 916 F.2d 941, 951 (4th
Cir. 1990) (finding no prosecutorial misconduct in saying the Govern-
ment's evidence was undisputed because defendant could have con-
tradicted that evidence without testifying), cert. denied, 500 U.S. 961(1991). We therefore reject Garcia's view of the prosecutor's state-
ments.
2.
Morera assigns as error the district court's overruling his objections
to the prosecutor's comments about the nontestimonial conduct of
Morera and his family. During closing argument, the Assistant United
States Attorney remarked,
You know, as I do, that throughout this trial, family mem-
bers of the co-defendants have been very visible in the
courtroom. Even children, little baby children have been in
the courtroom paraded for your consideration.
....
My suggestion to you is to be aware of that, be aware of
the way that you've been manipulated or that manipulation
has been attempted on you. There is no other reason for
them to be here.
You saw, as I did, a defendant crying during this trial
from time to time. Tears welled up, looked like crab apples
rolling down, big old tears.
(J.A. at 1840-41.) According to Morera, these comments not only
introduced impermissible character evidence against him, but
14
deprived him of his Fifth Amendment right not to be convicted except
on the evidence adduced at trial. See United States v. Carroll, 678
F.2d 1208, 1209-10 (4th Cir. 1982). During arguments on appeal, the
Government urged us to find the comments were not grounds for
reversing Morera's conviction. We agree.
In Carroll, we reversed a conviction because the prosecutor sug-
gested that the defendant's in-court nontestimonial behavior--the
defendant's pointing to a photograph of the crime scene and confer-
ring with his lawyer--was evidence of guilt. Id. That comment clearly
had a prejudicial effect on the defendant's constitutional rights, and
reversal was required.
On the contrary, the prosecutor's comments about Morera's emo-
tional state and his family's presence at trial did not deprive Morera
of a fair trial. Here, the remarks were not as egregious as the declara-
tion in Carroll that the defendant was familiar with the crime scene
in the photograph because he had been there. Moreover, the impact
of the prosecutor's comments here was lessened because the state-
ments lasted only about twenty seconds out of a nearly two-hour sum-
mation. Finally, the prosecutor here implied that the jury should
disregard the in-court conduct, rather than consider it as evidence of
guilt, the misguided suggestion in Carroll. We thus conclude that the
comments do not require reversal of Morera's conviction.
3.
Lastly, Appellants allege that their trials were unfair because the
Assistant United States Attorney made certain disparaging remarks
during his closing argument concerning the defense lawyers' sup-
posed heckling, laughing, snickering, and telling falsehoods during
the trial. The district court overruled objections to the statements and
later, on motions for mistrial, concluded that the challenged remarks
properly rebutted particular assertions by defense counsel during their
closing arguments. We agree with the district court that the prosecu-
tor's comments were not improper and thus reject Appellants' chal-
lenge on this basis.
IV.
Next, we consider Appellants' assignments of error regarding the
district court's jury instructions. Appellants contest the district court's
15
refusal to include in its jury charge a definition of reasonable doubt
and a multiple conspiracy instruction. Appellants further posit that the
district court committed reversible error by instructing the jury that
"slight evidence" would be sufficient to connect the defendants to the
charged conspiracy. We consider these arguments seriatim.
A.
Morera and Slater first assign as error the district court's refusal to
define the phrase "reasonable doubt" for the jury. Aware of contrary
Fourth Circuit precedent, Appellants moved the district court to
instruct the jury on the meaning of reasonable doubt. On appeal,
Appellants claim that a question from the jury asking the court to
define "knowingly and willingly" demonstrated the jury's confusion
over the Government's burden of proof. We hold, however, that the
district court correctly refused to give a reasonable doubt instruction.
We have "consistently and vigorously condemned the attempts of
trial courts to define reasonable doubt." United States v. Reives, 15
F.3d 42, 45 (4th Cir.) (holding that district court did not err in refus-
ing definition when jury requested one), cert. denied, 114 S. Ct. 2679(1994). Moreover, on its face, the question that the jury posed to the
district court in this case sought clarification of the intent element of
conspiracy, rather than of the Government's burden of proof. The dis-
trict court was correct in denying the requested instruction.
B.
Next, in related assignments of error, Appellants claim that the evi-
dence at trial impermissibly varied from the allegations in the indict-
ment and that the district court erred in refusing to deliver a multiple
conspiracy instruction to the jury. Appellants claim that they were
entitled to the instruction to support their defense that, while they may
have participated in a smaller, Naples-based conspiracy, they had no
connection with the larger network alleged by the indictment.
1.
Considering first the alleged variance, we find no basis for revers-
ing the convictions. A variance may occur "when the evidence at trial
16
establishes facts materially different from those alleged in the indict-
ment." United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994),
cert. denied, 115 S. Ct. 934 (1995). If a defendant shows "actual prej-
udice stemming from a multiple conspiracy variance," we will reverse
his conviction. Id. To demonstrate actual prejudice, Appellants must
prove that the presence of multiple defendants and evidence of multi-
ple, separate conspiracies likely confused the jury, causing it to
"transfer evidence from one conspiracy to a defendant involved in an
unrelated conspiracy." Id. In Kennedy , we found no possibility of
such an improper transfer taking place, even given the eight defen-
dants and three related conspiracies involved in the case. Id.Likewise, we find no possibility here that the jury transferred evi-
dence among the three Appellants or between the two possible con-
spiracies (as alleged by Appellants), one in Naples, Florida and the
larger, Northern Virginia conspiracy extending from Florida to Vir-
ginia. The evidence against each defendant was quite distinct from
that against the others; we find no reason to suspect that the jury was
confused about their respective roles in the conspiracy. Furthermore,
as we discuss below, the evidence at trial supported the existence of
the single conspiracy charged in the indictment. In short, there was no
material variance. Even if it there were a material variance, Appel-
lants were not prejudiced by it. Cf. United States v. Miller, 471 U.S.
130, 145 (1985) (concluding that the "variance complained of added
nothing new to the grand jury's indictment and constituted no broad-
ening"); Heater, 63 F.3d at 319 n.1 (noting that variance is harmless
unless it affected defendant's substantial rights).
2.
For similar reasons, we reject the Appellants' claim that they were
entitled to a multiple conspiracy instruction. Upon a request for jury
instructions, a district court must assess whether the evidence pres-
ented by any of the parties at trial supports the defense contained in
the proposed instructions. United States v. Gray , 47 F.3d 1359, 1369
(4th Cir. 1995). A multiple conspiracy instruction is required only if
the "proof at trial demonstrates that [A]ppellants were involved . . .
in ``separate conspiracies unrelated to the overall conspiracy charged
in the indictment.'" Kennedy, 32 F.3d at 884 (quoting United States
v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir. 1994)).
17
Recognizing the "superior position of the district court to evaluate
evidence and formulate the jury instruction, we normally defer to a
district court's decision to withhold" a requested instruction. Gray, 47
F.3d at 1368. In fact, once the district court has instructed on a single
conspiracy and the jury has found that a single conspiracy existed, the
Court should affirm "unless the evidence . . . would not allow a rea-
sonable jury so to find." Urbanik, 801 F.2d at 695.
Appellants restate their position that a single conspiracy could not
have existed because the conspirators did not share the common goal
of distributing narcotics in Virginia and Ohio, as alleged in the indict-
ment. We conclude, however, that the evidence in fact showed but a
single conspiracy. We observe first that one "may be a member of a
[single] conspiracy without knowing its full scope, or all its members,
and without taking part in the full range of its activities or over the
whole period of its existence." United States v. Banks, 10 F.3d 1044,
1054 (4th Cir. 1993), cert. denied, 114 S. Ct. 1850 (1994). Indeed, as
the Government emphasizes, under the chain theory of a conspiracy,
the Government "need not prove a direct connection between the all
the conspirators" in order to show a single conspiracy. United States
v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir. 1988), cert. denied, 488
U.S. 840 (1988). The Government, moreover, was not required to
show that the defendants possessed the specific intent to promote a
particular cocaine consumption market, in Virginia or anywhere else.
Instead, proof beyond a reasonable doubt that the conspirators shared
a common, unlawful objective, such as sustaining the flow of cocaine
through a distribution network, establishes a single conspiracy. See
United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir.), cert. denied,
116 S. Ct. 266 (1995) (affirming existence of single conspiracy
where, although appellants were unfamiliar with each other and occa-
sionally bought narcotics from sources unrelated to the conspiracy,
appellants shared common supply sources and dealers).
With the foregoing evidence in mind, we cannot say that a reason-
able jury could not have found that Appellants shared such a com-
mon, unlawful objective. See Urbanik, 801 F.2d at 696. Castanon was
the common link tying Appellants to the conspiracy and to each other.
Cf. id. (detailing the common supply sources of coconspirators).
According to Castanon, each Appellant had regular and recurrent
dealings with him over a period of years. Cf. Banks, 10 F.3d at 1054-
18
55 (noting that continuous course of dealing with conspirators demon-
strates shared purpose). In addition, the large quantities of cocaine
that changed hands between Garcia and Castanon and between
Castanon and Slater suggest that Appellants were well aware that the
cocaine network extended beyond their individual contacts with
Castanon. See Tarantino, 846 F.2d at 1392 (noting single conspiracy
may exist when "each conspirator knows of the existence of the larger
conspiracy and the necessity for other participants, even if he is igno-
rant of their precise identities."). We therefore affirm the district
court's refusal to deliver a multiple conspiracy instruction.
C.
Finally, we turn to Morera's challenge to the district court's jury
instruction regarding the evidence necessary to show a defendant's
voluntary participation in a conspiracy. Morera claims that the jury
charge impermissibly lowered the Government's burden of proof by
requiring only slight evidence of the defendant's participation.
The district court charged the jury:
If the Government proves to you the existence of a conspir-
acy beyond a reasonable doubt, you may find a particular
defendant guilty of participation in that conspiracy, even if
the evidence of his membership in the conspiracy is slight.
However, the evidence must still convince you beyond a
reasonable doubt that that particular defendant was indeed
a member of the conspiracy.
(J.A. at 2084.) We review the district court's formulation of the
instructions for an abuse of discretion and its statement of the law de
novo. See United States v. Piche, 981 F.2d 706, 711 (4th Cir. 1992)
(noting district court has "considerable discretion in choosing the spe-
cific wording of instructions"), cert. denied , 113 S. Ct. 2356 (1993).
In so doing, we must consider whether there is a reasonable likelihood
that the jury applied the instruction in an unconstitutional manner. See
Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994) (reviewing reason-
able doubt instruction).
19
The district court's instructions draw on our decision in United
States v. Brooks, where we held that "[o]nce it has been shown that
a conspiracy exists, the evidence need only establish a slight connec-
tion between the defendant and the conspiracy to support conviction."
957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505 U.S. 1228 (1992).
The Government, of course, must show the "slight connection"
between the defendant and the conspiracy beyond a reasonable doubt.
See In re Winship, 397 U.S. 358, 361 (1970). Although inexact, the
district court's instructions, read in their entirety, set forth that burden
of proof. We do not perceive a reasonable likelihood that the jurors
applied a lower standard than proof beyond a reasonable doubt that
the defendants were members of the conspiracy. We therefore reject
Morera's argument on this basis.
V.
We next turn to Appellants' contention that the district court erred
in not granting their motions for acquittal because the evidence was
insufficient as a matter of law to prove they participated in the
charged conspiracy. Because we conclude that a rational jury could
find Appellants guilty beyond a reasonable doubt on the evidence
adduced at trial, we affirm.
To obtain the conspiracy convictions, the Government had to show
beyond a reasonable doubt that Appellants "knew of the existence of,
and voluntarily participated in, the conspiracy." United States v.
Morsley, 64 F.3d 907, 919 (4th Cir. 1995), cert. denied, ___ U.S.L.W.
___ (U.S. Jan. 8, 1996) (No. 95-6942). Appellants' contentions focus
on the Government's alleged failure to demonstrate their voluntary
participation. In reviewing the sufficiency of evidence to support the
convictions, we assess the record in the light most favorable to the
Government, see Glasser v. United States, 315 U.S. 60, 80 (1942),
and we affirm the verdicts "unless no rational finder of fact could
have found the essential elements of the crime beyond a reasonable
doubt," United States v. Al-Talib, 55 F.3d 923, 932 (4th Cir. 1995).
Because substantial evidence supports the jury's finding that Appel-
lants participated in the known conspiracy, we must sustain that find-
ing. See Glasser, 315 U.S. at 80.
20
A.
We first consider the evidence against Garcia. As Appellants have
contended throughout the course of the trial and this appeal, Garcia
asserts that although the evidence may have shown a series of small,
localized drug transactions in Naples, Florida, a rational jury could
not infer from that evidence that Garcia voluntarily became part of a
larger conspiracy to transport cocaine to Virginia and Ohio, the
charge set forth in the indictment.
We disagree with Garcia's characterization of the Government's
evidentiary burden in his case. Again, we reiterate that specific
knowledge of the drug's ultimate destination is not an element of the
crime of conspiracy. The Government thus was not required to show
that Garcia intended the cocaine that he sold in Naples to be trans-
ported to Virginia and Ohio. Rather, the Government showed that
Garcia voluntarily participated in the conspiracy even if he was
unaware of the location of the ultimate consumer market. Moreover,
as we have observed, members of a single conspiracy do not always
know its full scope. Banks, 10 F.3d at 1054. The indictment's refer-
ence to the resale of the cocaine in Virginia simply established a
proper venue for the trial; it did not add an element to the offense of
conspiracy.
Furthermore, the Government's chief witness, Castanon, testified
that the Florida distribution network in fact funnelled cocaine to
Northern Virginia, as well as distributing it locally in Naples, Florida.
Once the Government established the existence of the conspiracy, all
that was required to convict Garcia was proof of a slight connection
between Garcia and the conspiracy. See Brooks , 957 F.2d at 1147.
We conclude that substantial evidence supports the jury's finding
that Garcia knew of and voluntarily participated in the charged con-
spiracy. The Government elicited testimony that Garcia engaged in a
continuous course of large-scale cocaine dealing. For example,
Castanon testified that, at times, he bought one to three kilograms of
cocaine a week from Garcia through two of Garcia's couriers.
Castanon explained that Garcia disguised the cocaine in ceramic
items from the business that Garcia and his wife operated, B&G
Ceramics. Castanon and other coconspirators further testified that on
21
occasion they bought cocaine directly from Garcia at his home and at
B&G Ceramics. In total, Castanon estimated that he received at least
seventy-four kilograms of cocaine from Garcia during their two-year
association. And, Castanon reported that some of the cocaine pur-
chased from Garcia was sent to Virginia through couriers. Finding no
deficiency in this evidence linking Garcia to the conspiracy, we
affirm.
B.
Morera, in turn, challenges the sufficiency of the evidence because
he contends that he never agreed to participate in any unlawful act.
The district court, Morera emphasizes, expressly observed that he
never "dealt in or distributed personally any of the drugs," (J.A. at
2320), and there was "no evidence that he received any . . . financial
benefit" from the conspiracy (J.A. at 2320-21.) Finally, despite evi-
dence that he tipped Castanon to protect him from police detection,
Morera stresses that he never betrayed a search warrant, that is, no
warrant was executed during periods when Morera tipped the
Castanons.
We are unpersuaded by Morera's arguments and find substantial
evidence supports the jury's verdict. Although Morera insists that
"mere association with bad people who are committing crimes" is
insufficient to support a conspiracy conviction, Bell, 954 F.2d at 237,
we find that Morera had more than a "mere association" with
Castanon. Castanon testified that on four or five occasions, Morera,
while in his police uniform, warned Castanon and his wife to take
precautions because of impending police activity in their neighbor-
hood. In response to each warning, the Castanons briefly moved to a
hotel. Castanon's wife corroborated her husband's testimony. Another
coconspirator similarly recounted Morera's two warnings to him to
"cool it." This is substantial evidence of Morera's participation in the
conspiracy. We will not immunize his role in this conspiracy simply
because no warrants issued during the Castanons' hotel stays. In fact,
that no warrants issued while the Castanons were in hiding seems to
confirm Morera's success in protecting them from detection.
Moreover, a rational jury could conclude that Morera attempted to
shield the coconspirators and to facilitate the conspiracy; his warnings
22
thereby advanced the goals of the conspiracy. Regardless of whether
Morera personally profited from the conspiracy, once he joined it,
Morera became responsible for his coconspirators' actions. See
United States v. Boswell, 372 F.2d 781, 783 (4th Cir.) (sharing in the
profits is not an element of the offense of conspiracy), cert. denied,
387 U.S. 919 (1967). Having reviewed the testimony against Morera
in the Government's favor, we cannot find the evidence of Morera's
participation in the conspiracy insufficient.
C.
Finally, Slater argues that we should disbelieve Castanon, a paid
informant and convicted conspirator. Castanon was the only witness
to link Slater to the conspiracy, and Slater claims that Castanon's tes-
timony was vague, uncorroborated, and insufficient to show Slater's
participation in the charged conspiracy.
Castanon testified that Slater purchased one kilogram of cocaine on
each of four or five occasions in 1987 from Castanon at his home in
Naples. Castanon also recounted Slater's failed attempt in 1988 to
purchase a kilogram of cocaine from Castanon in Ohio. To refute
Castanon's testimony, Slater testified at trial that he had become the
Castanons' friend when Slater once assisted Mr. Castanon with car
trouble. Slater told the jury, however, that he never engaged in
cocaine transactions with the Castanons.
Even accepting Slater's contention that Castanon's testimony was
the only evidence against him, we find that it is substantial evidence
supporting the jury's verdict. Testimonial evidence alone may support
a conviction. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989). Moreover, we shall not undertake our own review of
Castanon's credibility; that assessment was for the jury to make. See
United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983), cert.
denied, 465 U.S. 1028 (1984). In convicting Slater, the jury appar-
ently rejected Slater's explanation and accepted Castanon's testi-
mony. We are bound by their determination. See id. Finally, under the
"slight connection" standard of Brooks, we find that a rational jury
could rely on Castanon's testimony to find that Slater voluntarily par-
ticipated in the charged cocaine conspiracy.
23
VI.
We come finally to Garcia's challenges to his sentence and the for-
feiture of his interest in his residence and business. For the reasons
that follow, we affirm.
A.
Garcia assigns as error the district court's calculation of his base
offense level. The district court calculated a base offense level of
thirty-six because Garcia introduced at least fifty kilograms of
cocaine into the conspiracy. See United States Sentencing Commis-
sion, Guidelines Manual, § 2D1.1(c)(4) (Nov. 1992). According to
Garcia, he was responsible for no more than eight kilograms of
cocaine because Castanon, Garcia's buyer, was held responsible for
only eight kilograms of cocaine for purposes of his sentencing.
The Government bore the burden of showing the quantity of
cocaine attributable to Garcia by a preponderance of the evidence.
United States v. Mark, 943 F.2d 444, 450 (4th Cir. 1991). Meeting
that burden, the Government elicited Castanon's testimony that he
bought two to three kilograms of cocaine from Garcia through inter-
mediaries on a weekly basis in 1987 and 1988. Castanon estimated
that he received a total of between seventy-four and one hundred kilo-
grams of cocaine from Garcia. (J.A. at 176.)
Based on that testimony, the district court attributed seventy-four
to one hundred kilograms of cocaine to Garcia for sentencing pur-
poses. We shall uphold the district court's computation of the quantity
of narcotics unless it was clearly erroneous. See Al-Talib, 55 F.3d at
932.
We conclude that the district court did not clearly err in its compu-
tation. Garcia is not entitled to receive the same sentence as his
coconspirator Castanon. See United States v. Gilliam, 987 F.2d 1009,
1012-13 (4th Cir. 1993) (observing that sentencing differentiation
among coconspirators is attributable to varying quantities of narcotics
for which participants may be accountable). Under the Sentencing
Guidelines, moreover, Garcia was responsible for all"reasonably
24
foreseeable acts" in furtherance of the conspiracy, including all rea-
sonably foreseeable quantities of cocaine. U.S.S.G.§ 1B1.3(a)(1)(B);
cf. United States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993) (noting that,
under Sentencing Guidelines, coconspirator is "accountable for the
quantity of drugs reasonably foreseeable to him within the scope of
his unlawful agreement."), cert. denied, 114 S. Ct. 1086 (1994). In
determining the "reasonably foreseeable" quantity when there is no
drug seizure, the district court must "approximate the quantity of the
controlled substance." U.S.S.G. § 2D1.1, comment. (n.12.).
Although the district court could have attributed to Garcia all of the
cocaine that he reasonably could have foreseen within the scope of
the conspiracy, the district court instead relied on Castanon's testi-
mony regarding Garcia's personal knowledge of at least seventy-four
kilograms of cocaine. Garcia thus was held accountable only for his
own unlawful deeds, not those of his coconspirators. He therefore has
no grounds to object to the district court's lenient computation, and
we reject the appeal of his sentence on that ground.
B.
Garcia also challenges the district court's order forfeiting his inter-
est in his home and ceramics business, B&G Ceramics, under 21
U.S.C.A. § 853(a) (West Supp. 1995) as a violation of the Excessive
Fines Clause and the Double Jeopardy Clause. Count Eighteen of the
Indictment contained an in personam criminal forfeiture allegation,
charging that Garcia used his single family residence and business to
facilitate the commission of the conspiracy. Returning special ver-
dicts, the jury concluded that Garcia's interest in his home and busi-
ness were subject to forfeiture.
Section 853(a)(2) provides that any person convicted under the
subchapter shall forfeit to the Government "any of the person's prop-
erty used, or intended to be used, in any manner or part, to commit,
or to facilitate the commission of, such violation." Under this section,
the Government must prove by a preponderance of the evidence that
the property to be forfeited facilitated the crimes for which the defen-
dant was convicted. See United States v. Tanner , 61 F.3d 231, 235
(4th Cir. 1995).
25
Several witnesses testified that Garcia arranged cocaine transac-
tions by telephone from his home and business. Others recounted
cocaine transactions with Garcia at his home and business. Still others
witnessed quantities of cocaine at Garcia's home or received cocaine
from Garcia in ceramic items manufactured at his business. In all,
more than a preponderance of the evidence thus supported the jury's
conclusion that Garcia's home and business facilitated the drug con-
spiracy and thus were subject to forfeiture under§ 853(a)(2).
Garcia, however, objects to the forfeiture because, he says, it con-
stitutes an unconstitutionally excessive fine under the Eighth Amend-
ment. Although criminal forfeitures are a form of punishment subject
to the limitations of the Eighth Amendment, see id. at 234, only in
"rare situations" will a criminal forfeiture under § 853(a)(2) violate
the Eighth Amendment, United States v. Wild, 47 F.3d 669, 676 (4th
Cir. 1995). Given the gravity of the cocaine conspiracy that Garcia
perpetrated, his central role in sustaining the flow of cocaine to
Castanon, who then ensured its entrance into the Virginia pipeline
over the course of at least two years, we are convinced that forfeiting
Garcia's home and business, in addition to fining him $5,000, is not
constitutionally excessive.
Garcia also claims that his sentence and the district court's forfei-
ture order impermissibly constituted two punishments for one offense.
See Libretti v. United States, 116 S. Ct. 356, 363 (1995) (noting that
criminal forfeiture under § 853 is an "element of the sentence" and
plainly intended by Congress to operate as punishment). The Double
Jeopardy Clause protects a defendant from multiple punishments for
the same offense. See United States v. Halper , 490 U.S. 435, 440
(1989). However, the Double Jeopardy Clause does not prevent the
Government from seeking "the full range of statutorily authorized
criminal penalties in the same proceeding." Id. at 450. Where, as here,
the punishments are imposed during the same proceeding, "the
multiple-punishment issue [is] limited to ensuring that the total pun-
ishment [does] not exceed that authorized by the legislature." Id.Thus, statutorily authorized cumulative punishments in a single trial
by the same judge and jury do not implicate the Double Jeopardy
Clause. Having been punished in such a proceeding, Garcia's double
jeopardy challenge is meritless.
26
VII.
For the foregoing reasons, we dismiss that portion of Morera's
appeal relating to the district court's denial of his Rule 33 motion for
a new trial, and we affirm the Appellants' convictions, Garcia's sen-
tence, and the forfeiture of Garcia's residence and business.
AFFIRMED IN PART AND DISMISSED IN PART
27