United States v. Turnbull ( 2000 )

Case remanded and vacated by
Supreme Court order dated 12/4/00
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4532
LUDENCE ALFORD TURNBULL, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITHROY NOEL CLARKE, a/k/a
No. 98-4583
Michael St. Clair Davis, a/k/a
Tyrone Roberts, a/k/a Capone, a/k/a
"T", a/k/a Khadafi,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-97-166)
Argued: March 3, 2000
Decided: May 2, 2000
Before WILKINSON, Chief Judge, and WILLIAMS
and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Paula Xinis, Assistant Federal Public Defender, Balti-
more, Maryland, for Appellant Clarke; Stanley E. Sacks, SACKS &
SACKS, Norfolk, Virginia, for Appellant Turnbull. Robert Edward
Bradenham, II, Assistant United States Attorney, Norfolk, Virginia,
for Appellee. ON BRIEF: James Wyda, Federal Public Defender,
Baltimore, Maryland, for Appellant Clarke. Helen F. Fahey, United
States Attorney, Laura Pellatiro Tayman, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ludence Turnbull and Keithroy Clarke were convicted by a jury of
conspiracy to import cocaine and cocaine base, conspiracy to distrib-
ute cocaine and cocaine base, conspiracy to launder money, and
related offenses. Turnbull and Clarke appeal their convictions and
resulting sentences, alleging error at various aspects of the pretrial,
trial, and sentencing phases of the criminal proceeding against them.
For the reasons that follow, we find no merit to their challenges. We,
therefore, affirm Turnbull's and Clarke's convictions and sentences.
I. FACTUAL BACKGROUND
Viewed in the light most favorable to the Government, see Evans
v. United States, 504 U.S. 255, 257 (1992), the evidence adduced at
trial showed the following facts. In September 1994, Eugene Smalls
(Eugene), Angel Ventura, and other co-conspirators began importing
cocaine from St. Thomas to the Norfolk, Virginia area. Initially, the
conspirators transported the cocaine on commercial flights through
unaccompanied baggage placed on the plane by a member of the St.
2
Thomas National Guard, and they sent couriers to baggage claim to
pick up the cocaine once it arrived in Virginia. Once the cocaine
arrived in Virginia, it was converted into crack cocaine and provided
to local distributors.
One of Eugene's local distributors was Ludence Turnbull. Accord-
ing to Ventura, Eugene gave Turnbull a discount because Turnbull
was from the Virgin Islands. In January 1995, Ernest McNair, another
one of Eugene's distributors, went to Eugene's residence in Virginia
Beach to purchase crack cocaine from Eugene. Eugene told McNair
to wait. While McNair was waiting, Turnbull arrived, carrying a little
brown purse. According to McNair, Turnbull went into the back room
and Eugene followed. After four or five minutes, Eugene returned and
gave McNair a kilogram of crack cocaine. McNair testified that
because Eugene told him that he would have to wait, he surmised that
Eugene did not have any crack cocaine prior to Turnbull arriving.
When some of the cocaine was stolen from a bag placed on a plane
from St. Thomas to Virginia, the conspirators began to look for alter-
native methods to transport the cocaine. At the suggestion of Keithroy
Clarke and Eugene's brother, Mitchell Smalls (Mitchell), the conspir-
ators began in early 1995 to use women's purses to hide the cocaine
before shipping the cocaine via Federal Express. Matters soon took
a turn for the worse. In September 1995, unbeknownst to the conspir-
ators, McNair began to cooperate with the Virginia Beach Police
Department. Over the next several months, McNair recorded conver-
sations with Eugene concerning purchases of cocaine. McNair also
participated in a videotaped purchase of a kilogram of crack cocaine
from Eugene and other co-conspirators. Shortly thereafter, law
enforcement officials arrested Eugene and three other co-conspirators
at Eugene's home.
Despite the arrest of Eugene, importation of cocaine from St.
Thomas into Virginia continued in 1996, with the means of importa-
tion shifting to body-smuggling by human couriers. In early 1996,
Yvette Westbrook agreed to make a trip to St. Thomas to obtain drugs
for the conspiracy. Clarke and Mitchell explained to Westbrook that
she would be paid $1,300 for bringing back one kilogram of cocaine.
In May 1996, Turnbull obtained Westbrook's airplane ticket and
drove her to the airport. After Westbrook successfully smuggled the
3
cocaine on her body, Turnbull picked up Westbrook at the Norfolk
airport and took her to her apartment. While Turnbull waited in the
living room of Westbrook's apartment, Westbrook placed the cocaine
into a duffel bag. Westbrook gave the duffel bag containing cocaine
to Turnbull, who then left the apartment. Later that day, Clarke came
by Westbrook's apartment and paid her the agreed-upon $1,300 for
smuggling the cocaine.
After witnessing Westbrook successfully smuggle drugs, Quichelle
Martin, Westbrook's roommate, agreed to smuggle drugs for the con-
spiracy. Clarke gave Martin the money for the airline tickets, and
Clarke and Turnbull drove Martin to the airport to purchase the tick-
ets. The morning of her trip, Turnbull drove Martin to the airport.
Unfortunately for the conspirators, Martin's trip to St. Thomas was
not as successful as Westbrook's. At the St. Thomas airport, Customs
officials pat-searched Martin, discovered the kilogram of cocaine, and
arrested Martin.
At the same time that the conspirators were importing drugs from
St. Thomas into Virginia, they were wiring money via Western Union
between those two places to facilitate the purchase of drugs in St.
Thomas and the operations of the conspiracy in the United States.
Cleon Procope testified that in 1995 he received checks in St. Thomas
from Turnbull and Mitchell in Virginia. Procope also testified to
sending checks to Turnbull in Virginia on four separate occasions in
1995. In 1996, the conspirators began to recruit individuals to transfer
money to St. Thomas via Western Union in order to conceal the true
identity of the sender and receiver of the money. Monica Tucker testi-
fied to receiving money from Turnbull and sending it to various indi-
viduals in St. Thomas, including Akebo Thomas and Milton Barnes,
and to receiving money on Turnbull's behalf. Tonya Watts, Shara
Hawley, and Linda Cannon also testified to sending money to St.
Thomas for Turnbull. Akebo Thomas testified that on numerous occa-
sions in 1995 and 1996 he would receive Western Union wire trans-
fers in St. Thomas from various individuals, including Monica
Tucker, which he would cash and deliver to Mitchell. Milton Barnes
and Aisha Snipes also testified to receiving money for Mitchell. The
majority of these testified-to transactions occurred around and during
May 1996, the same time period as the trip by Westbrook to St.
Thomas to smuggle drugs for the conspiracy.
4
In November 1997, Turnbull was arrested by federal law enforce-
ment officials in Norfolk for his involvement in the drug conspiracy.
One month later, federal law enforcement officials arrested Clarke in
New York. Turnbull and Clarke were charged in a twenty-five count
indictment in the United States District Court for the Eastern District
of Virginia along with eleven co-defendants.1 Count One charged
1
Turnbull, Clarke, and eight co-defendants with conspiracy to import
cocaine and cocaine base from St. Thomas, U.S. Virgin Islands, in
violation of 21 U.S.C.A. § 963 (West 1999); Count Two charged
Turnbull, Clarke, and nine co-defendants with conspiracy to distribute
cocaine and cocaine base, in violation of 21 U.S.C.A. § 846 (West
1999); and Count Three charged Turnbull, Clarke, and six co-
defendants with conspiracy to launder money, in violation of 18
U.S.C.A. § 1956(h) (West Supp. 1999). In addition, Count Twenty-
Three and Twenty-Four charged Turnbull and Clarke with importa-
tion of cocaine from St. Thomas, in violation of 21 U.S.C.A. §§ 952,
960 (West 1999), and attempted importation of cocaine from St.
Thomas, in violation of 21 U.S.C.A. §§ 952, 960, 963, respectively.
Count Twenty-Five charged Clarke with an additional count of
attempted importation of cocaine from St. Thomas. Turnbull was also
charged with six counts of money laundering (Counts Seven, Nine,
Twelve, Thirteen, Seventeen, and Nineteen) and Clarke was also
charged with nine counts of money laundering (Counts Eight, Ten,
Eleven, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, and Twenty-
Two), in violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp.
1999).
The trial commenced on March 16, 1998. At trial, the district court
denied Turnbull's motion for judgment of acquittal on Counts One,
Two, and Three. On April 6, 1998, the jury returned its verdict. The
jury convicted both Clarke and Turnbull of Counts One, Two, Three,
and Twenty-Three. The jury also convicted Clarke of Counts Twenty-
Four and Twenty-Five, but acquitted him on all the money laundering
counts for which he was indicted.2 The jury also convicted Turnbull
2
_________________________________________________________________
1 According to the Government, nine of the co-defendants pleaded
guilty, one died, and one is a fugitive. Turnbull and Clarke are the only
defendants to appeal their convictions or sentences.
2 The district court granted Clarke's motion for judgment of acquittal
on Count Ten.
5
on all the money laundering counts for which he was indicted, but
acquitted him on Count Twenty-Four. The district court sentenced
Turnbull to 400 months of imprisonment and Clarke to 293 months
of imprisonment. Turnbull and Clarke filed timely notices of appeal.
In a consolidated brief, Turnbull and Clarke assert a number of
grounds for reversal on appeal. With regard to the pretrial proceed-
ings, Turnbull argues that the district court erred in denying his
motion for severance and Clarke argues that the district court erred in
denying his motion to substitute retained counsel. As to the trial,
Turnbull argues that the evidence was insufficient to sustain his con-
viction on Counts One, Two, and Three of the indictment, which
charged a single conspiracy, and that the district court erred in admit-
ting several Western Union wire transactions to which neither the
sender nor receiver testified.3 Clarke argues that the prosecutor
3
impaired Clarke's substantial rights by vouching for, and bolstering
_________________________________________________________________
3 Turnbull also argues that the district court erred in admitting the fol-
lowing evidence: (1) Ernest McNair's testimony that Turnbull provided
drugs to Eugene Smalls to sell to McNair, (2) Quichelle Martin's testi-
mony that Yvette Westbrook gave drugs to Turnbull, (3) a letter written
from jail by Martin to Westbrook, and (4) Customs Agent Tom
Radermacher's testimony, offered as background for explaining his
actions during the investigation, that Turnbull was residing with Mitchell
Smalls at the St. Croix Apartments in Virginia Beach. Turnbull also
argues that the district court erred in allowing the Government, in its
cross-examination of law enforcement officers who were called for the
limited purpose of establishing a prior inconsistent statement of Govern-
ment witnesses, to exceed the scope of direct examination. We have
carefully considered these arguments and find them meritless. See Fed.
R. Evid. 701 (inferences rationally based upon perception of witnesses
and helpful to a clear understanding of these witnesses' testimonies and
to the determination of a fact in issue are admissible); Fed. R. Evid.
801(d)(2)(E) (co-conspirator exception to hearsay rule); United States v.
Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (holding that an out-of-court
statement offered for the purpose of explaining why a government inves-
tigation was undertaken was not hearsay); Fed. R. Evid. 106 ("When a
writing or recorded statement or part thereof is introduced by a party, an
adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.").
6
the testimony of, Government witnesses during rebuttal argument.
Finally, with regard to sentencing, Clarke argues that the district court
erred in enhancing his offense level by two levels pursuant to
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with
the drug conspiracy. Turnbull and Clarke assert error during the pre-
trial, trial, and sentencing proceedings. We address each argument in
turn.
II. PRETRIAL PROCEEDINGS
A.
Turnbull argues that the district court erred in denying his pretrial
motion for severance. Turnbull contends that being tried jointly with
his co-defendants severely prejudiced him because the substantial evi-
dence introduced by the Government that the co-defendants partici-
pated in the single conspiracy alleged in the indictment, in addition
to the Government's evidence of lawful association between Turnbull
and these co-defendants, led the jury to find Turnbull "guilty by asso-
ciation," even though the evidence showed that Turnbull was only
involved in a separate, independent conspiracy. Turnbull asserts that
this prejudice greatly outweighed the possible inconvenience and
expense to the Government and witnesses of trying him separately.
The rule in this Circuit is that "[d]efendants who have been charged
in the same conspiracy indictment should ordinarily be tried
together." United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.
1992). Federal Rule of Criminal Procedure 14 provides an exception
to this rule in allowing severance of trials where"prejudice" would
result from a joint trial. See Fed. R. Crim. P. 14. "Such prejudice may
be shown only where there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence."
United States v. Smith, 44 F.3d 1259, 1266 (4th Cir. 1995) (internal
quotation marks omitted). "The fact that the evidence against one
defendant is stronger than the evidence against other defendants does
not in itself justify severance." Brooks, 957 F.2d at 1145. We review
a district court's denial of a motion for severance for abuse of discre-
tion. See id.7
Turnbull's argument is essentially that he was convicted on the
basis of "spillover" evidence. We do not find this argument persua-
sive. While the Government's evidence against Turnbull may not
have been as strong as the evidence against some of his co-
defendants, the evidence was surely strong enough to implicate him
in the conspiracy to import and distribute drugs and the conspiracy to
launder money. See infra Part III.A. Turnbull presents no evidence
that the jury was not properly instructed that it was not to consider the
evidence against one defendant when deciding the guilt or innocence
of another defendant, or that the jury improperly considered evidence
implicating his co-defendants against him. In sum,"[t]his is not a case
in which a defendant was convicted simply by innuendo because his
associates were plainly guilty." Brooks, 957 F.2d at 1145 (internal
quotation marks omitted). The district court, therefore, did not abuse
its discretion in denying Turnbull's pretrial motion for severance.
B.
Clarke argues that the district court erred in denying his pretrial
motion to substitute one privately retained counsel, Paulette
Taliaferro, for another, Charles Malone. Clarke asserts that (1) he
filed his motion almost one month before trial and the district court
had sufficient time to address the motion without radically changing
the trial schedule, (2) the district court's inquiry was inadequate,
because it failed to inquire thoroughly into Clarke's dissatisfaction
with Malone, and ignored completely the issue of whether granting
the motion would delay the trial, and (3) Clarke and Malone both rep-
resented that a "breakdown in communication" had occurred. Clarke
contends that the record indicates that this communication breakdown
remained unchanged at trial and that Taliaferro's presence as addi-
tional counsel failed to remedy the situation because Taliaferro's role
was minor.
Although the Sixth Amendment to the Constitution guarantees a
criminal defendant the right to assistance of counsel, a defendant does
not have an absolute right to the lawyer of his or her choice. See
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). We review
a district court's denial of a defendant's motion to substitute counsel
for abuse of discretion. See id. In determining whether a district court
has abused its discretion in denying such a motion, this Court consid-
8
ers three factors: (1) the "[t]imeliness of the motion," (2) the "ade-
quacy of the court's inquiry into the defendant's complaint," and (3)
"whether the attorney/client conflict was so great that it . . . resulted
in total lack of communication preventing an adequate defense." Id.(internal quotation marks omitted).
In addition to arguing that the district court abused its discretion
under the familiar Mullen standard, Clarke also urges us to follow the
lead of the Ninth Circuit and adopt a different standard for reviewing
a district court's denial of a motion to substitute retained counsel. The
Ninth Circuit, however, applies the equivalent of the Mullen test
where granting a motion to substitute retained counsel would require
a continuance. See United States v. D'Amore, 56 F.3d 1202, 1204-07
(9th Cir. 1995), overruled on other grounds by United States v. Gar-
rett, 179 F.3d 1143, 1145 (9th Cir. 1999). Although Clarke now con-
tends that substitution here would not require a continuance, he never
informed the district court of this before the court ruled on his substi-
tution request. Indeed, by his words and omissions, Clarke gave the
district court strong reason to believe that substitution of retained
counsel would require a continuance. His pro se motion seeking sub-
stitution of counsel was actually titled "Motion for Continuance" and
asked that the trial be continued for "not more than six weeks and not
less than four weeks" so that he could "acquir[e] new counsel." (J.A.
at 90.) Although the district court treated the motion as one to substi-
tute counsel, the court clearly understood the relief requested to
encompass a four to six week delay of trial in order for new counsel
to prepare. Indeed, Clarke's counsel at the time, Malone, advised the
court at the hearing on the motion, "I think he[Clarke] would have
to give his argument with regard to why he wants me removed and
why he wants a continuance." (J.A. at 95.) Although Clarke, in
response to the district court's inquiry into his dissatisfaction with
Malone, went into great detail as to the asserted deficiencies in
Malone's representation, Clarke did not at any time inform the court
that he was no longer requesting a four to six week continuance. The
court subsequently twice asked Clarke whether he had anything else
to say and Clarke twice responded in the negative. Even after the
prosecutor argued that the substitution of counsel"could not meet the
deadline of the trial" and "would obviously be a great imposition on
the government because we've got at this time five other co-
defendants that are going to be tried" and the court asked Clarke and
9
Malone whether they had anything further to say, Malone replied,
"No, Your Honor." (J.A. at 99-100.) On this record, the district court
certainly did not abuse its discretion in concluding that granting
Clarke's motion to substitute retained counsel would require a contin-
uance, and, therefore, even under Ninth Circuit precedent, the Mullen
inquiry applies.4
4
With regard to the first Mullen factor,"the court is entitled to take
into account the . . . public interest in proceeding on schedule." Id.(internal quotation marks omitted). Clarke filed his pro se motion on
February 20, 1998, nearly one month before the trial was scheduled
to begin. The motion was not heard until March 4, 1998, twelve days
before trial, and the district court cited the proximity to trial as one
of the reasons why the motion was denied. Because that delay cannot
be attributed to Clarke, however, the timeliness factor should favor
him. See United States v. Johnson, 114 F.3d 435, 443 (4th Cir. 1997)
(finding that timeliness factor favored the defendant because he raised
the issue of counsel's withdrawal in pro se motion filed over a month
and a half before trial, and the motion was never forwarded to the dis-
trict court judge, the prosecutor, or defense counsel); Mullen, 32 F.3d
at 896 (finding that the timeliness factor favored the defendant
because she had filed her motion to dismiss counsel twenty-seven
days before trial, and the motion would have been heard in adequate
time had the government not forgotten to file a response).
_________________________________________________________________
4 On appeal, Clarke maintains that in his motion for reconsideration, he
"indicat[ed] substitution would not cause delay." (Appellants' Br. at 18.)
In that motion, Clarke stated: "I presently have employed more experi-
enced Counsel ready to assume my business before Your Honorable
Court, if your Honor will grant me the freedom to terminate old counsel
and activate new counsel, we can proceed." (J.A. at 91.) Taken alone, at
least arguably, this statement does "indicate" an ability to "proceed"
without a continuance. However, when considered in conjunction with
Clarke's immediately preceding motion (for a four to six week continu-
ance), which was filed less than a month earlier, this statement hardly
constitutes a sufficient basis to alert the court that Clarke no longer
sought a continuance. Moreover, we note that Clarke points to no place
in the transcript where he or counsel directly told the court that he no
longer requested a continuance.
10
With regard to the second factor, "[a]n inquiry into the reasons for
a defendant's dissatisfaction with his or her lawyer is necessary for
the trial court to determine whether good cause for substitution of
counsel exists." Id. At the hearing on the motion, the district court
asked Clarke for his reasons for wanting to remove Malone. Clarke
essentially complained that he suspected Malone had been working
with the Government, that Malone had failed to file certain motions
requested by Clarke, and that Malone had only visited Clarke twice
in jail. The district court pressed Clarke on his suspicion that Malone
was working with the Government, and Clarke replied that he had no
evidence supporting his suspicion and could not reveal more without
incriminating himself. The court subsequently twice asked Clarke
whether he had anything else to say and Clarke twice responded in
the negative. As for the motions not filed by Malone, the district court
heard from Malone that, in his professional opinion, the motions
requested by Clarke were frivolous. We conclude that this inquiry
into Clarke's complaint was adequate. See id. The court did not abuse
its discretion in failing to inquire further into the breakdown in com-
munication between Clarke and Malone, in light of the lack of evi-
dence in the record that this issue was reasserted during the trial or
that it impaired Malone's performance as counsel. 5 See United States
v. Gallop, 838 F.2d 105, 108-09 (4th Cir. 1988).
The final factor we must consider is whether there was a total lack
of communication preventing an adequate defense. At the hearing,
Clarke stated that Malone "was not doing the right thing as far as get-
ting involved in my case or going over my case with me," (J.A. at 97),
and that Malone had visited him only twice in jail; Malone agreed that
communications broke down when Clarke was transferred from Ports-
mouth to Williamsburg. From January until the time of the hearing in
early March, Malone did not see Clarke in person, although he did
talk with Clarke on the phone. From this course of events, Clarke
attempts to analogize his case to the factual situation of Mullen. Mul-
_________________________________________________________________
5 On March 13, 1998, Clarke moved for reconsideration of his motion
to substitute counsel. The district court denied this motion for reconsider-
ation on the morning of trial, concluding that Clarke "ha[d] the best of
all worlds" in being represented by both Malone and Taliaferro. (J.A. at
111.) There is no evidence in the record that Clarke made any further
attempts to get rid of Malone.
11
len is readily distinguishable, however, because in that case, the
defendant repeatedly refused to consult with her attorney during the
trial, with the result being that the attorney was unable to provide any
assistance. See 32 F.3d at 896-97. By contrast, the record in this case
indicates that Malone, assisted by Taliaferro, aggressively defended
Clarke. As such, we believe that this case is more analogous to cases
in which we have found no total lack of communication. See Johnson,
114 F.3d at 443-44 (no total lack of communication where, despite
communication problem between defendant and attorney, attorney
acted on behalf of his client and filed relevant motions); United States
v. Hanley, 974 F.2d 14, 17 (4th Cir. 1992) (no total lack of communi-
cation where attorney assisted defense by vigorously cross-examining
government witnesses); Gallop, 838 F.2d at 109 (no total lack of
communication where attorney assisted defendant during trial and
cross-examined government witness).
In sum, although the timeliness factor favors Clarke, the record
indicates that the district court conducted an adequate inquiry and that
there was not a total breakdown in communication between Clarke
and Malone that prevented an adequate defense. We note that the dis-
trict court was caught in a difficult situation. If it denied Clarke's
motion to substitute counsel, Clarke could bring a claim that he was
denied his Sixth Amendment right to counsel of his choice, as he did
here. If the court granted Clarke's motion to substitute counsel, and
Taliaferro was unprepared to try the case, Clarke could bring a claim
of ineffective assistance of counsel on collateral attack. Under these
circumstances, the district court took the prudent approach, which
was to keep Malone in the case, while allowing Taliaferro to work
with Malone. Tellingly, Clarke makes no claim that Taliaferro was
precluded or hampered in the extent of her participation in the
defense. The district court, therefore, did not abuse its discretion in
denying Clarke's pretrial motion to substitute counsel.
III. TRIAL PROCEEDINGS
A.
Turnbull first argues that the evidence was insufficient to sustain
his conviction on Counts One, Two, and Three of the indictment,
which charged a single conspiracy to import cocaine and cocaine
12
base, to distribute cocaine and cocaine base, and to launder money,
respectively. Turnbull contends that there was a fatal variance
between the single conspiracy charged in the indictment and the proof
adduced at trial, which established multiple, separate, and indepen-
dent conspiracies. Turnbull asserts that the evidence only showed his
limited participation in one of those separate conspiracies and was
insufficient to show that he knew about, joined, or knowingly partici-
pated in the single conspiracy, which involved illicit activities in St.
Thomas, Georgia, North Carolina, Detroit, New York, and Virginia.
"A single conspiracy exists where there is one overall agreement
or one general business venture." United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988) (internal quotation marks and citations omit-
ted). "Whether there is a single conspiracy or multiple conspiracies
depends upon the overlap of key actors, methods, and goals." Id. "In
a conspiracy prosecution, a defendant may establish the existence of
a material variance by showing that the indictment alleged a single
conspiracy but that the government's proof at trial established the
existence of multiple, separate conspiracies." United States v. Ken-
nedy, 32 F.3d 876, 883 (4th Cir. 1994). Because"a conspiracy vari-
ance claim amounts to a challenge to the sufficiency of the evidence
supporting the jury's finding that each defendant was a member of the
same conspiracy," United States v. Townsend , 924 F.2d 1385, 1389
(7th Cir. 1991), we will sustain the jury's verdict"if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it," Glasser v. United States, 315 U.S. 60, 80 (1942).
"[S]ubstantial 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. Bur-
gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Applying the Leavis factors to this case, we are persuaded that the
jury's finding that a single conspiracy existed was supported by sub-
stantial evidence. The Government's proof established a significant
overlap of key actors: almost all of the activities of the co-
conspirators, both indicted and unindicted, involved Eugene, Mitch-
ell, or Clarke. Although the means of importing the cocaine from St.
Thomas into the United States varied over time, ranging from unac-
companied baggage to Federal Express packages to body-smuggling
by human couriers, the cycle of drugs smuggled into the United States
13
and drug proceeds wired back to St. Thomas via Western Union to
purchase more drugs remained constant over the course of the con-
spiracy. Finally, the goal of the conspiracy remained the same over
time: to import cocaine from St. Thomas into the continental United
States, transform it into crack cocaine, and distribute it. Viewed in the
light most favorable to the Government, this evidence supports the
jury's finding of a single conspiracy to import cocaine and cocaine
base, distribute cocaine and cocaine base, and launder money.6 6
Substantial evidence also supports the jury's conclusion that Turn-
bull participated in this single conspiracy. Two drug couriers, Yvette
Westbrook and Quichelle Martin, testified that Turnbull helped obtain
their airplane tickets to St. Thomas and transported them to the airport
for their flight to St. Thomas to pick up drugs. Angel Ventura testified
that Turnbull was one of Eugene's distributors, and McNair testified
that on one occasion he had to wait for Turnbull to arrive at Eugene's
residence before being able to purchase crack cocaine from Eugene.
Finally, numerous individuals testified to sending money from St.
Thomas via Western Union to Turnbull in Virginia, to receiving
money in St. Thomas via Western Union from Turnbull in Virginia,
and to being recruited by Turnbull to send money from Virginia via
Western Union to various individuals in St. Thomas. Viewed in the
light most favorable to the Government, this evidence is sufficient to
sustain Turnbull's convictions on Counts One, Two, and Three,
respectively. The fact that the Government did not introduce evidence
that Turnbull participated in pre-indictment drug distribution in
Detroit and Georgia, drug distribution in New York, or initial drug
distribution in Virginia is irrelevant because Turnbull may properly
be convicted of participation in the single conspiracy even without
taking part in the full range of the conspiracy's activities or without
being involved in the conspiracy over the whole period of its exis-
tence. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
_________________________________________________________________
6 The record indicates that the district court properly instructed the jury
on single versus multiple conspiracies, and Turnbull raises no challenge
to the jury instructions.
14
B.
Turnbull next argues that the district court erred in admitting sev-
eral Western Union exhibits documenting money transfers involving
Turnbull or Clarke where neither the actual sender nor actual recipient
of the funds testified, on the ground that these exhibits were hearsay.
The district court admitted these exhibits under Federal Rule of Evi-
dence 803(6) upon finding that the documents at issue were business
records that were trustworthy because the documents contained per-
sonal information to which only the sender and receiver, both mem-
bers of the conspiracy, would have been privy.7 Turnbull argues that
7
anyone could use his name or telephone number on a Western Union
to-send form and the mere fact that a recipient is required by Western
Union to show identification is insufficient to establish that the person
named in the record was the person who actually received the money.8 8
We review the district court's decision to admit these Western Union
exhibits for abuse of discretion. See United States v. Wells, 163 F.3d
889, 895 (4th Cir. 1998), cert. denied, 120 S. Ct. 109 (1999).
The Western Union money transfer documents at issue are clearly
hearsay because they were offered by the Government to show that
Turnbull laundered the proceeds of the conspiracy's drug sales by
sending and receiving money via Western Union. See Fed. R. Evid.
801(c); United States v. McIntyre, 997 F.2d 687, 701 (10th Cir. 1993).
These money transfer documents are therefore inadmissible unless
they fall within an exception to the hearsay rule. The district court
admitted the records under Federal Rule of Evidence 803(6), which
allows admission of business records "unless the source of informa-
_________________________________________________________________
7 Each Western Union exhibit consisted of the to-send form, the to-
receive form, the draft copy of the check issued to pay the transfer, and
the computer record of the money transfer. A to-send form is a form
filled out by the customer at a Western Union counter that lists the send-
er's name, address, and telephone number, the name of the intended
recipient, and the amount of money being wired. A to-receive form is a
form completed by the payee that lists the sender's name, the recipient's
name, and other information needed to identify the transaction. See
United States v. Arteaga, 117 F.3d 388, 391 (9th Cir. 1997).
8 The exhibits challenged are 9H, 9J, 9Z, 9EE, 9FF, 9II, 10B, 10Z,
10BB, and 10DD.
15
tion or the method or circumstances of preparation indicate lack of
trustworthiness." Fed. R. Evid. 803(6). When the source of the infor-
mation in the business record is an outsider, however, this information
is excluded unless there is evidence that the business recipient had
adequate verification of the information provided by the outsider. See,
e.g., United States v. Reyes, 157 F.3d 949, 952-53 (2d Cir. 1998) (col-
lecting cases); United States v. Mitchell, 49 F.3d 769, 778 (D.C. Cir.
1995); United States v. Cestnik, 36 F.3d 904, 908 (10th Cir. 1994).
Adequate verification may be demonstrated by "(1) proof that the
business has a policy of verifying patrons' identities by examining
their credit cards, driver's licenses, or other forms of identification;
or (2) proof that the business possesses a sufficient self-interest in the
accuracy of the [record] to justify an inference of trustworthiness." Id.(internal quotation marks omitted and alteration in original).
In this case, a Western Union custodian of records, Jan Effinger,
testified that a test question would be used if the sender wanted the
recipient to receive the money without having to show identification.
Implicit in Effinger's testimony is that identification is required
absent a test question. Moreover, the Western Union forms stated that
the recipient of the wire transfer must show identification in order to
receive it. Because Western Union required the verification of identity
to receive money, either in the form of an answer to a test question
or identification, documents showing Turnbull as the recipient of wire
transfers were admissible. See McIntyre, 997 F.2d at 702. The district
court, therefore, did not abuse its discretion in admitting exhibits 9II
and 10Z, which documented Western Union transactions in which
Turnbull was the recipient and the sender did not testify.
By contrast, the record does not indicate that Western Union took
similar measures to ensure the accuracy of the information provided
by customers on the to-send forms. Effinger testified that Western
Union agents do not verify the information completed by the sender
unless the amount sent is $10,000 or greater.9 Effinger also conceded
9
that Western Union does not have any control over an individual pro-
viding a false name on a to-send form and does not keep any records
to verify who actually requested the transfer. Because Western Union
_________________________________________________________________
9 All of the money transfers at issue involved amounts less than
$10,000.
16
has no way to know from its records who actually requested the
money to be sent, the accuracy of the records depends upon the per-
son filling out the to-send form. As the district court noted, however,
the conspirators used fake names and fake IDs. Under these circum-
stances, Turnbull's name on the Western Union to-send forms was
not admissible for its truth under the business records exception to the
hearsay rule. See United States v. Vigneau, 187 F.3d 70, 77 (1st Cir.
1999), cert. denied, 120 S. Ct. 1200 (2000); Cestnik, 36 F.3d at 908.
Accordingly, the district court abused its discretion in admitting
exhibits 9H, 9J, 9Z, 9EE, 9FF, 10B, 10BB, and 10DD, which docu-
mented Western Union transactions in which Turnbull (or Clarke
using Turnbull's telephone number) was the sender and the recipient
did not testify.10
10
Having concluded that the district court abused its discretion in
admitting Western Union exhibits in which Turnbull was the alleged
sender and the recipient did not testify, we turn now to whether this
error mandates reversal of any of his convictions. A district court's
erroneous evidentiary ruling is harmless error if we can "say with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substan-
tially swayed by the error." United States v. Heater, 63 F.3d 311, 325
(4th Cir. 1995) (internal quotation marks omitted). Turnbull concedes
_________________________________________________________________
10 We are not persuaded by the Government's arguments that these
exhibits should be admitted because the recipient of the funds was
required to show identification and because the transfers fit into a general
pattern of sending money between Virginia and St. Thomas. Whether the
transfers could be admitted against the recipient is irrelevant to the issue
of whether they are admissible to show the identity of the alleged sender,
Turnbull. Moreover, we believe that admitting these exhibits simply
because they fit into a general pattern established by properly admitted
Western Union exhibits is impermissible bootstrapping. Had the Govern-
ment introduced independent evidence (such as eyewitness testimony
and handwriting exemplars) to establish that Turnbull was the actual
sender in these transactions, the to-send forms would arguably be the
admission of a party-opponent, and, therefore, non-hearsay. See United
States v. Vigneau; 187 F.3d 70, 74-75 (1st Cir. 1999), cert. denied, 120
S. Ct. 1200 (2000); United States v. Johnson , 28 F.3d 1487, 1498 (8th
Cir. 1994). The record does not indicate, however, that the Government
introduced such independent evidence.
17
in his brief that "the six Counts in the indictment alleging money
laundering were sufficiently supported by the evidence," but argues
that the inadmissible exhibits were prejudicial"as to the extent of his
knowledge of the scope of the conspiracy charged and the extent of
his participation therein." (Appellants' Br. at 47.) We interpret this
argument as a challenge to the jury's conviction of Turnbull on Count
Three, the conspiracy-to-launder-money charge, and find it unpersua-
sive. The evidence of properly admitted Western Union exhibits,
taken cumulatively, is more than sufficient to support the jury's con-
clusion that Turnbull conspired to launder money. See Vigneau, 187
F.3d at 78. The district court's improper admission of exhibits docu-
menting transactions in which Turnbull was the sender and the recipi-
ent did not testify was, therefore, harmless error.
C.
Clarke challenges his conviction on the ground that during rebuttal
argument, the prosecutor impaired Clarke's substantial rights by
improperly vouching for, and bolstering the testimony of, Govern-
ment witnesses. During rebuttal argument, the Assistant United States
Attorney made the following statements:
In drug conspiracies the government ends up with a situa-
tion of having to utilize convicted felons, drug dealers, like
that, in order to get people at this particular level, because,
see, we can't find, you know, good citizens that witness
these things. We don't find any preachers and priests and
schoolteachers and Sunday school teachers that observe
these things going on. I have been doing this for a number
of years, and I have looked for those witnesses, but you
don't find them. You end up with the people that have testi-
fied for the government, the Watleys, the McNairs, the Clint
Williamses, the Fernandezes, the Venturas. That's what we
have to deal with.
(J.A. at 524-25.)
And furthermore, this agreement -- these are not agree-
ments where we sit down and have everybody in the drug
conspiracy sign a single document. I have been doing this
18
for a number of years, and I have been looking for that
agreement, but that never happens. It is a very informal
thing. You know, you do this, you do that, drugs come up
here, it is sold, money goes back down there. It is a very
loosely run, informal type of conspiracy.
(J.A. at 526-27.)
Look how the witnesses, how their testimony meshes
together. The ones that have plea agreements with the gov-
ernment, their plea agreements are based upon truthful
cooperation. If they don't testify truthfully, they have got
another series of problems to deal with.
(J.A. at 528.)
Because Clarke failed at trial to object to the statements made by
the prosecutor during rebuttal argument, we review Clarke's chal-
lenge to these statements on appeal for plain error. See Fed. R. Crim.
P. 52(b), United States v. Olano, 507 U.S. 725, 731-32 (1993). Under
Federal Rule of Criminal Procedure 52(b), a court of appeals cannot
correct an error not noted below unless the error was "clear under cur-
rent law" and was prejudicial in that it "affected the outcome of the
district court proceedings." Id. at 734. Although the decision whether
to correct a plain forfeited error that affects substantial rights is left
to the sound discretion of the court of appeals, the court should exer-
cise that discretion "if the error ``seriously affect[s] the fairness, integ-
rity or public reputation of judicial proceedings.'" Id. at 736(alteration in original) (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)).
It is improper for a prosecutor to vouch for, or bolster the testi-
mony of, its own witnesses. See United States v. Lewis, 10 F.3d 1086,
1089 (4th Cir. 1993). "Vouching generally occurs when the prosecu-
tor's actions are such that a jury could reasonably believe that the
prosecutor was indicating a personal belief in the credibility of the
witness." Id. "Consequently, the prosecutor may not, among other
things, make explicit personal assurances that a witness is trustworthy
or implicitly bolster the witness by indicating that information not
presented to the jury supports the testimony." Id. Impermissible
19
vouching and bolstering does not necessarily mandate retrial, how-
ever. Instead, "[t]he relevant question is whether the prosecutor[``s]
comments so infected the trial with unfairness as to make the result-
ing conviction a denial of due process." United States v. Sanchez, 118
F.3d 192, 198 (4th Cir. 1997) (internal quotation marks omitted). In
making this determination, this Court examines "(1) the degree to
which the comments could have misled the jury; (2) whether the com-
ments were isolated or extensive; (3) the strength of proof of guilt
absent the inappropriate comments; and (4) whether the comments
were deliberately made to divert the jury's attention." Id.Clarke first argues that the prosecutor's comment regarding how
the Government could not find witnesses such as school teachers and
religious leaders improperly vouched for the credibility of its wit-
nesses because it assured the jury that the witnesses were the most
truthful available. We disagree. Although it would have been prefera-
ble had the prosecutor not interjected, "I have been doing this for a
number of years," we believe that his comment did not suggest any
personal belief about the credibility of any witnesses, but merely
acknowledged that the witnesses in this case, like the witnesses in all
drug conspiracy cases, were not model citizens. Cf. United States v.
Adam, 70 F.3d 776, 780 (4th Cir. 1995) (noting that prosecutor's use
of the phrase "I think" in an innocuous, conversational sense "d[id]
not suggest an attempt to replace the evidence with the prosecutor's
personal judgments"). By stating "[t]hat's what we have to deal with"
at the end of the comment, the prosecutor left it to the jury to make
up its own mind about the credibility of the Government's witnesses.
Moreover, Clarke points to no case in which a similar comment has
been deemed improper vouching. See Sanchez, 118 F.3d at 198.
We are also not persuaded by Clarke's argument that the prosecu-
tor's comment that there is not a formal written agreement in a drug
conspiracy impermissibly bolstered the Government's case by telling
the jury that the evidence in this case was sufficient to convict Clarke.
As with the previous comment, it would have been preferable had the
prosecutor not interjected, "I have been doing this for a number of
years." Nevertheless, we do not believe that any jury could reasonably
believe that the prosecutor was claiming that his experience from
prior trials supported the evidence of conspiracy presented at this
trial. Cf. Adam, 70 F.3d at 780. Rather, the prosecutor was instructing
20
the jury not to look for a formal written document, but to determine
whether the evidence established an "informal" conspiracy. Again,
Clarke points to no case in which a similar comment has been deemed
improper bolstering. See Sanchez, 118 F.3d at 198.
Finally, we reject Clarke's contention that the prosecutor imper-
missibly vouched for the veracity of witnesses when he commented
that the witnesses who testified pursuant to plea agreements would
have to testify truthfully or face additional problems. This Court has
held that a prosecutor may introduce the terms of a witness's plea bar-
gain, including the promise of truthfulness, in its case-in-chief so long
as the prosecutor does not imply that he has special knowledge of the
witness's veracity and does not make improper use of the plea bargain
promise of truthfulness in closing argument. See United States v. Hen-
derson, 717 F.2d 135, 138 (4th Cir. 1983). In this case, the prosecutor
did not imply in rebuttal argument that he had any special knowledge
of the veracity of witnesses who had entered into plea agreements, but
he merely recited the terms of the agreement. The prosecutor also did
not "disproportionately emphasize[ ] or repeat[ ]" the promise of
truthfulness in the agreements. Id. Accordingly, the prosecutor's com-
ment did not constitute impermissible vouching or bolstering.
Even assuming, arguendo, that the prosecutor's comments consti-
tuted impermissible vouching or bolstering, we do not believe that
these comments could have unfairly prejudiced Clarke, much less "se-
riously affect[ed] the fairness, integrity or public reputation of judicial
proceedings" as required by the plain-error standard. Olano, 507 U.S.
at 736 (internal quotation marks omitted). The prosecutor's comments
were not misleading, and the district court clearly instructed the jury
that "[s]tatements and arguments of counsel are not evidence in the
case." (J.A. at 1110.) The prosecutor's comments were three isolated
comments during a long rebuttal argument following an unobjection-
able closing argument. Although the Government's evidence against
Clarke consisted entirely of witness testimony, the proof of Clarke's
guilt was quite strong; indeed, Clarke does not attack the sufficiency
of the evidence. Finally, the prosecutor's comments were not deliber-
ately made to divert the jury's attention, but rather made to focus the
jury's attention on the relevant evidence. See Sanchez, 118 F.3d at
198-99 (applying prejudice standard and reaching same conclusion).
21
IV. SENTENCING PROCEEDINGS
Finally, Clarke argues that the district court erred in enhancing his
offense level by two levels pursuant to U.S.S.G.§ 2D1.1(b)(1) for
possession of a firearm in connection with the drug conspiracy.
Clarke contends that this enhancement was based solely upon the
hearsay testimony of Customs Agent Tom Radermacher at sentencing
relating the trial testimony of Lisa Zeigler, who testified that she saw
Clarke and other men counting money with guns beside them at
Eugene's home, where Clarke allegedly lived. Clarke asserts that
Radermacher's testimony was patently unreliable because Zeigler's
trial testimony was impeached by her prior sworn statements at
Eugene's trial, where she never mentioned seeing any men counting
money with guns beside them in Eugene's home, and because Rader-
macher conceded that the incident could have happened when Clarke
was still living in the Virgin Islands.
Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a
two-level increase in the offense level for a drug conviction if the
defendant possessed a firearm. See U.S.S.G.§ 2D1.1(b)(1). "The
adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1, comment. (n.3). The district court's finding that
Clarke possessed a firearm in connection with a drug offense is a fac-
tual determination that we review for clear error. See United States v.
Rusher, 966 F.2d 868, 880 (4th Cir. 1992). In reviewing the district
court's application of the Sentencing Guidelines, we give "due regard
to the opportunity of the district court to judge the credibility of the
witnesses." 18 U.S.C.A. § 3742(e) (West Supp. 1999).
Contrary to Clarke's contention, the district court did not rely
solely upon Agent Radermacher's testimony relating Zeigler's sworn
trial testimony in applying the enhancement, but it also relied upon
its own trial notes and recall of Zeigler's testimony. Zeigler testified
at trial that she witnessed Clarke, Eugene, Mitchell, and another co-
conspirator at Eugene's residence counting large amounts of currency
with guns beside them. Zeigler also testified that Clarke came to her
house after Eugene was arrested to tell her not to testify against
Eugene and that Clarke's statements made her scared. Although
Zeigler could not recall when she witnessed Clarke and others count-
22
ing money with guns beside them and testified at Eugene's trial that
she did not witness such an incident, the district court reasonably con-
cluded that Zeigler was an extremely reluctant witness who did not
want to testify because she was afraid of Clarke and that her testi-
mony was credible. Because the district court could find Zeigler's tes-
timony credible, see United States v. Hyppolite , 65 F.3d 1151, 1159
(4th Cir. 1995), and Zeigler's testimony established by a preponder-
ance of the evidence that Clarke possessed a firearm in connection
with a drug transaction, the district court did not clearly err in apply-
ing the two-level enhancement to Clarke's offense level pursuant to
§ 2D1.1(b)(1).
V. CONCLUSION
For the reasons discussed, we find no reversible error at the pre-
trial, trial, or sentencing phases of the criminal proceeding against
Turnbull and Clarke. We, therefore, affirm Turnbull's and Clarke's
convictions and sentences.
AFFIRMED
23