United States v. Pollino , 329 F. App'x 478 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4183
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMANZA JAMES POLLINO, a/k/a Jiggy,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:07-cr-00046-jpj-pms-1)
Submitted: March 30, 2009 Decided: May 1, 2009
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Joel C. Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant. Julia C. Dudley, Acting United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Amanza James Pollino of conspiracy to
possess with intent to distribute and to distribute five grams
or more of cocaine base, in violation of 21 U.S.C.
§§ 841(b)(1)(B), 846 (2006), and possession with intent to
distribute five grams or more of cocaine base, in violation of
21 U.S.C. § 841(b)(1)(B). He was sentenced to 120 months’
imprisonment. On appeal, Pollino argues: (1) the evidence was
insufficient to support the jury’s convictions; (2) the
admission of evidence relating to a traffic stop of Pollino on
April 12, 2007, created a prejudicial variance from the charges
in the indictment and, as “prior bad acts” evidence under Fed.
R. Evid. 404(b), it required a limiting instruction; and (3) the
sentencing scheme for cocaine base offenses under 21 U.S.C.
§ 841 violates the Due Process and Equal Protection clauses.
Finding no reversible error, we affirm.
Pollino first challenges the sufficiency of the
evidence to support the jury’s convictions. This court reviews
de novo a district court’s denial of a motion, made pursuant to
Rule 29 of the Federal Rules of Criminal Procedure, for judgment
of acquittal. United States v. Alerre, 430 F.3d 681, 693 (4th
Cir. 2005). In conducting such a review, the court is obliged
to sustain a guilty verdict if, viewing the evidence in the
light most favorable to the prosecution, the verdict is
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supported by substantial evidence. United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser v.
United States, 315 U.S. 60, 80 (1942)). This court has “defined
substantial evidence as 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.”
Alerre, 430 F.3d at 693 (internal quotation and citation
omitted); see Burgos, 94 F.3d at 862. This court “must consider
circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
In evaluating the sufficiency of the evidence, this
court does not assess the credibility of the witnesses and
assumes that the jury resolved all contradictions in the
testimony in favor of the Government. United States v. Brooks,
524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519(2008). This court “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal
quotation marks and citation omitted).
To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more
persons to engage in conduct that violates a federal drug law,
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(2) the defendant’s knowledge of the conspiracy, and (3) the
defendant’s knowing and voluntary participation in the
conspiracy. United States v. Strickland, 245 F.3d 368, 384-85
(4th Cir. 2001); see Burgos, 94 F.3d at 857. “By its very
nature, a conspiracy is clandestine and covert, thereby
frequently resulting in little direct evidence of such an
agreement.” Burgos, 94 F.3d at 857. Therefore, a conspiracy
generally is proved by circumstantial evidence. Id.“Circumstantial evidence tending to prove a conspiracy may
consist of a defendant’s relationship with other members of the
conspiracy, the length of this association, [the defendant’s]
attitude [and] conduct and the nature of the conspiracy.” Id.(internal quotations and citations omitted).
To convict a defendant of possession with the intent
to distribute, the government must prove: (1) possession of a
narcotic controlled substance; (2) knowledge of the possession;
and (3) the intent to distribute. United States v. Collins, 412
F.3d 515, 519 (4th Cir. 2005). “A defendant is guilty of aiding
and abetting if he has knowingly associated himself with and
participated in the criminal venture.” Burgos, 94 F.3d at 873(internal quotation marks and citation omitted).
Pollino’s main contention on appeal is that the
evidence linking him to crack cocaine was circumstantial, which
is admittedly permissible, but, in his case, too tenuous to
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establish beyond a reasonable doubt that he possessed the
requisite knowledge. We have reviewed the record and we find
sufficient evidence to sustain the jury’s verdict. Accordingly,
we find the district court did not err in denying Pollino’s
motion for acquittal as to both counts.
Next, Pollino claims the introduction of evidence
relating to the April 12, 2007 traffic stop created a
prejudicial variance from the indictment that violated his
rights to due process. The indictment charged Pollino with
conspiracy “on or about June 20, 2007.” The indictment cites
the same date for the second charge of possession with intent to
distribute. The traffic stop occurred on April 12, 2007.
Pollino argues that the admission into evidence of the April 12,
2007 stop and arrest constituted a prejudicial variance.
Pollino further claims that the admission of this “prior bad
acts evidence” under Fed. R. Evid. 404(b) required a limiting
instruction to the jury.
A variance occurs when the evidence presented at trial
differs materially from the facts alleged in the indictment.
United States v. Bollin, 264 F.3d 391, 405 (4th Cir. 2001).
Only when the evidence presented at trial changes the elements
of the crime charged, such that the defendant is convicted of a
crime other than that charged in the indictment, is the
difference fatal. United States v. Randall, 171 F.3d 195, 203
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(4th Cir. 1999). A variance that does not alter the crime
charged “does not violate a defendant’s constitutional rights
unless it prejudices [him] either by surprising him at trial and
hindering the preparation of his defense, or by exposing him to
the danger of a second prosecution for the same offense.” Id.The district court concluded that the April 12, 2007
traffic stop and subsequent arrest were not “prior bad acts
evidence” but rather “intrinsic evidence” providing “relevant
testimony” as to both counts. Pollino was charged with
conspiracy in count one and the alleged discrepancy in offense
dates does not affect the essential elements of the crime. See
United States v. Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997)
(specific dates are not elements of conspiracy offense). We
therefore find admission of the contested evidence did not
create a fatal variance.
Additionally, the district court properly admitted the
evidence as intrinsic to the charged offense and not subject to
404(b). Rule 404(b) only applies to acts extrinsic to the crime
charged. Where testimony is admitted as to acts intrinsic to
the crime charged, and is not admitted solely to demonstrate bad
character, it is admissible. United States v. Chin, 83 F.3d 83,
88 (4th Cir. 1996). Acts are intrinsic when they are
“inextricably intertwined or both acts are part of a single
criminal episode or the other acts were necessary preliminaries
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to the crime charged.” Id. (quoting United States v. Lambert,
995 F.2d 1006, 1007 (10th Cir. 1993)). Moreover, evidence of
other crimes or uncharged conduct is “not considered ‘other
crimes’” for Rule 404(b) purposes if it “‘arose out of the
same . . . series of transactions as the charged
offense, . . . or if it is necessary to complete the story of
the crime [on] trial.’” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d
880, 886 (2d Cir. 1989)). Accordingly, we find the admission of
the contested evidence did not require a limiting instruction.
Last, Pollino argues that the sentencing scheme under
21 U.S.C. § 841 as it relates to cocaine base is
unconstitutional because it is not proportional to sentences for
powder cocaine and violates his rights to due process and equal
protection. Pollino’s constitutional challenge is without
merit. This court has repeatedly rejected claims that the
sentencing disparity between powder cocaine and crack offenses
violates either equal protection or due process. See United
States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996)
(collecting cases); United States v. Thomas, 900 F.2d 37, 39-40
(4th Cir. 1990). We further note that Pollino’s reliance on
the Supreme Court’s decision in Kimbrough v. United States, 128
S. Ct. 558 (2007), is misplaced. Although the Court in
Kimbrough found that district courts are permitted to disagree
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with the policies underlying the Sentencing Guidelines, the
Court neither found § 841’s penalty provisions unconstitutional
nor overruled this court’s previous holdings rejecting
constitutional challenges to the 100:1 ratio. Id. at 572.
Accordingly, we affirm Pollino’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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