United States v. Bens ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4736
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WENDY BENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-04-40)
Submitted: June 7, 2006 Decided: June 15, 2006
Before WILKINS, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Harry D. McKnett, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Michael J. Leotta, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Defendant Wendy Bens raises various challenges to his drug-
related convictions. Finding no error, we affirm.
I.
Wendy Bens was a Coast Guard petty officer stationed in
Boston, Massachusetts, whose duties included preventing drugs from
entering the United States from the Caribbean. Defendant was also,
however, involved in trafficking narcotics from the Caribbean to
the United States. In January 2004, Bens arranged for Alison
Alexander to travel to Curacao, Netherlands Antilles, to pick up
cocaine from two of Bens’s associates. On January 27, 2004,
Alexander returned to the United States with 2.4 kilograms of
cocaine stashed in a suitcase, and was promptly arrested at the
Baltimore/Washington International Airport.
Alexander cooperated with authorities, and while law
enforcement agents listened in, he arranged for Bens to retrieve
the suitcase containing the cocaine. On January 31, 2004, Bens and
a fellow Coast Guard officer traveled from Boston to Baltimore and
found the suitcase, its contents since replaced with fake cocaine
by law enforcement. They were later arrested. At the time of his
arrest, defendant was carrying two suits of Coast Guard-issued
bullet-proof body armor, as well as a .45 caliber handgun.
2
Defendant was charged with conspiracy to import cocaine, see
21 U.S.C. §§ 952(a), 960(a), 963 (2000), importing cocaine, see id.§§ 952(a), 960(a), possession with intent to distribute cocaine,
see id. § 841(a), conspiracy to possess with intent to distribute
cocaine, see id. §§ 841(a), 846, and possession of a firearm in
furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)
(2000). On October 26, 2004, a jury found Bens guilty on all
counts.
II.
Bens first argues that the district court improperly submitted
to the jury a verdict form requesting special findings of fact
designed to serve as the basis for various sentencing enhancements.
The district court’s selection of verdict forms is reviewed for
abuse of discretion, see, e.g., United States v. Hedgepeth, 434
F.3d 609, 612 (3d Cir. 2006); United States v. Martinson, 419 F.3d
749, 753 (8th Cir. 2005), and we find no error here. The special
findings were charged in the indictment, and the district court
required the jury to determine them beyond a reasonable doubt.
Bens does not contend that his sentence violated the Sixth
Amendment or that the verdict form was otherwise prejudicial. The
sentencing in this case moreover took place during the period of
uncertainty between Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), and indeed, had the
3
district court found the facts itself, this may well have resulted
in Booker error warranting resentencing. Submitting a special
verdict form to the jury was thus not improper under these
circumstances. See Hedgepeth, 434 F.3d at 613-14.
Bens next argues that insufficient evidence supported the
jury’s conclusion that he possessed a firearm in furtherance of a
drug trafficking crime, see 18 U.S.C. § 924(c). “[W]hen a
defendant challenges the sufficiency of the evidence on appeal, the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005) (internal quotation marks omitted). In this case,
a reasonable jury could conclude that Bens possessed a firearm in
furtherance of a drug trafficking crime when the evidence showed
that he brought a gun with him to Baltimore on a trip to acquire
cocaine, and that he was carrying the gun at the time of his
arrest.
Bens next contends the district court abused its discretion in
refusing to declare a mistrial on the ground that the government’s
contact with his fiancée, Lovenska Antoine, impeded his ability to
call her as a witness. According to Bens, Antoine would have
testified that Bens never arranged for Alexander to travel to
Curacao to obtain cocaine, but government investigators deterred
4
her from doing so by visiting her and inquiring about Bens, serving
a subpoena upon her for certain documents, and allegedly acting as
though they worked on Bens’s behalf.
“A criminal defendant’s due process rights are violated if
governmental intimidation of a witness amounts to substantial
government interference with a defense [witness’s] free and
unhampered choice to testify.” United States v. Moore, 11 F.3d
475, 479 (4th Cir. 1993) (internal quotation marks omitted). If a
defendant can make this showing, “the inquiry moves to the question
of whether it was prejudicial or harmless error.” See United
States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991). In this
case, even if the government’s interactions with Antoine somehow
qualify as substantial interference as opposed to standard
investigative work, any error was harmless. Antoine’s prospective
testimony, which pertained to only a single conversation between
Bens and Alexander, would have done little to refute the
government’s evidence at trial, namely, that Alexander returned
from Curacao with drugs and contacted Bens to pick them up, and
that Bens armed himself and traveled to Baltimore for the purpose
of doing so. The district court’s denial of Bens’s motion for a
mistrial was thus not an abuse of discretion.
5
III.
Bens raises other assignments of error, which we have reviewed
with care and find to be without merit. We accordingly affirm
Bens’s convictions and sentence, and dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before us and argument would not aid the decisional
process.
AFFIRMED
6