United States v. Kilgore ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE KILGORE,
Defendant - Appellant.
No. 08-5200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY MOODY,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:06-cr-00066-RWT-11; 8:06-cr-00066-RWT-12)
Submitted: September 16, 2010 Decided: November 19, 2010
Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett
J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland,
for Appellants. Rod J. Rosenstein, United States Attorney,
Barbara S. Skalla, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Bruce Kilgore and
Timothy Moody appeal their convictions for one count of
conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine and 1000 kilograms or more of
marijuana, in violation of 21 U.S.C. § 846 (2006). Kilgore also
appeals his sentence. Finding no error, we affirm.
Both Appellants claim the district court erred by
admitting evidence of them discussing murdering a co-
conspirator. Moody also claims the court erred by admitting
evidence of his involvement in the conspiracy that extended
beyond the date indicated in the superseding indictment. Review
of a district court’s determination of the admissibility of
evidence under Rule 404(b) is for abuse of discretion. See
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). In
general, any evidence which tends to make the existence of a
fact of consequence to an issue in the case “more probable or
less probable” than without the evidence is relevant under Fed.
R. Evid. 401 and therefore generally admissible under Fed. R.
Evid. 402. Evidence of other crimes is not admissible to prove
bad character or criminal propensity. Fed. R. Evid. 404(b).
Such evidence is admissible, however, to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id.; see Queen, 132 F.3d at
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994. Rule 404(b) is an inclusive rule, allowing evidence of
other crimes or acts except that which tends to prove only
criminal disposition. See Queen, 132 F.3d at 994-95.
Evidence of prior acts is admissible under Rule 404(b)
and Fed. R. Evid. 403 if the evidence is (1) relevant to an
issue other than the general character of the defendant,
(2) necessary, (3) reliable, and (4) if the probative value of
the evidence is not substantially outweighed by its prejudicial
effect. Queen, 132 F.3d at 997. A limiting jury instruction
explaining the purpose for admitting evidence of prior acts and
advance notice of the intent to introduce evidence of prior acts
provide additional protection to defendants. See id.We conclude the district court did not abuse its
discretion by admitting the challenged evidence. In both
instances, the evidence was intrinsic to the charged conspiracy
and was relevant to the issues of intent, motive, and
opportunity. Furthermore, the evidence highlighted the extent
to which both Appellants were committed to the conspiracy.
Insofar as Moody claims that evidence of him
continuing in the conspiracy after the “on or about” date
charged in the indictment constructively amended the indictment
or was a fatal variance, we find no error. “A constructive
amendment to an indictment occurs when . . . the government
(usually during its presentation of evidence and/or argument),
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the court (usually through its instructions to the jury), or
both, broadens the possible bases for conviction beyond those
presented to the grand jury.” United States v. Floresca, 38
F.3d 706, 710 (4th Cir. 1994). “A constructive amendment is a
fatal variance because the indictment is altered to change the
elements of the offenses charged, such that the defendant is
actually convicted of a crime other than that charged in the
indictment.” United States v. Randall, 171 F.3d 195, 203 (4th
Cir. 1999) (internal quotation marks and citation omitted). A
constructive amendment is error per se, and, given the Fifth
Amendment right to be indicted by a grand jury, “must be
corrected on appeal, even when not preserved by objection.”
Floresca, 38 F.3d at 714.
When considering a constructive amendment claim, “it
is the broadening [of the bases for a defendant’s conviction]
that is important - nothing more.” Id. at 711. The key inquiry
is whether the defendant has been tried on charges other than
those made in the indictment. See id. The beginning and ending
dates of a conspiracy are not elements of the offense, so proof
of different dates could never raise the specter of conviction
for a different crime. See United States v. Hatten-Lubick, 525
F.3d 575, 581 (7th Cir. 2008); see also Queen, 132 F.3d at 999(dates of conspiracy are not substantive elements of the
offense). We conclude there was no constructive amendment to
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the superseding indictment. We further note the jury was
instructed that it could not convict Moody based solely on the
challenged evidence and that the evidence was admitted for the
purpose of providing context and more information about the
conspiracy. See United States v. Paredes-Rodriguez, 160 F.3d
49, 56 (1st Cir. 1998) (any potential prejudice by the admission
of pre-conspiracy evidence was prevented by the court’s jury
instruction); United States v. Gonzalez, 661 F.2d 488, 492 (11th
Cir. 1981) (no constructive amendment when jury was instructed
that it was limited to the conspiracy charged in the
indictment). We further conclude that there was no fatal
variance to the indictment. Moody failed to show his
substantial rights were violated. United States v. Kennedy, 32
F.3d 876, 883 (4th Cir. 1994).
Moody’s claim that he was entitled to a mistrial or a
severance based on Kilgore’s testimony is without merit. Moody
failed to show Kilgore’s testimony prevented the jury from
making a reliable judgment about his criminal conduct. See
United States v. Allen, 491 F.3d 178, 189 (4th Cir. 2007). Nor
did Kilgore’s testimony unveil a stark contrast in defenses
asserted by the two Appellants. See United States v. Najjar,
300 F.3d 466, 474 (4th Cir. 2002).
Kilgore argues that the district court erred at
sentencing when it considered the differences between himself
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and two co-defendants prior to finding that his sentence would
not result in an unwarranted disparity. See 18 U.S.C.
§ 3553(a)(6). We conclude the court did not abuse its
discretion as there was no “unwarranted” disparity.
Accordingly, we affirm the convictions and sentences.
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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