United States v. Xavier Eccleston

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER D. ECCLESTON, a/k/a Xavier Daniel Eccleston, a/k/a X,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cr-00567-AW-3)
Argued: March 25, 2015 Decided: July 31, 2015
Before MOTZ and GREGORY, Circuit Judges, and Mary Geiger LEWIS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge Lewis joined.
ARGUED: Anthony Douglas Martin, I, ANTHONY D. MARTIN, PC,
Greenbelt, Maryland, for Appellant. David Ira Salem, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
In this federal drug conspiracy case, the defendant-
appellant, Xavier Eccleston, alleges that the district court
made numerous errors before and during trial, as well as during
sentencing. Because the district court did not abuse its
discretion or err in its pretrial, trial, or sentencing rulings,
we affirm.
I.
A.
Eccleston and nineteen co-defendants were charged in a
criminal complaint on September 22, 2011 with one count of
conspiracy to posses with intent to distribute five kilograms or
more of a mixture or substance containing a detectable amount of
cocaine and 280 grams or more of a mixture or substance
containing a detectable amount of cocaine base, commonly known
as crack cocaine. The complaint was based in part on evidence
obtained through execution of a warrant issued pursuant to Title
III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. §§ 2510-2522 (“Title III”).
Eccleston appeared before the district court on September
28, 2011 and a magistrate judge signed an “order of detention by
agreement” on that same day. He was indicted on the charges set
forth in the criminal complaint on October 26, 2011. On
2
November 2, 2011, he was arraigned and entered a plea of not
guilty. The district court initially set a motions hearing date
of December 16, 2011 and a trial date of January 3, 2012.
On November 2, 2011, the government filed, and none of the
defendants opposed, a motion to exclude time under the Speedy
Trial Act, 18 U.S.C. §§ 3161-3174. In support of its motion,
the government cited: “(1) . . . two charged defendants who
have been fugitives for approximately one month; (2) . . .
voluminous discovery the government must produce and defense
counsel must analyze; and, (3) the unusual and complex nature of
the case.” J.A. 1128. In granting the motion, the district
court found that it was necessary to toll the speedy trial clock
not only pursuant to 18 U.S.C. § 3161(h)(6) due to the
fugitives, but also pursuant to 18 U.S.C. § 3161(h)(7) because
the “interests of justice” outweighed the interest in a speedy
trial. The court stated that it was necessary to toll the clock
to “provide the defendants and defense counsel sufficient time
to review fully all of the voluminous discovery materials and to
prepare and file pretrial motions” and to give “defense counsel
and the [g]overnment the reasonable time necessary for effective
preparation.” J.A. 116 (observing that the case “involve[s]
wiretap evidence, including more than 10,000 pertinent calls
captured from at least three different wiretapped phone lines”).
The order excluded from the speedy trial clock the time between
3
the date of the order, November 21, 2011, and the date of the
initial appearance of the last fugitive defendant. The order
further excluded any time between the date of the initial
appearance of the last fugitive defendant and the trial date,
which the court planned to set at a later date.
On December 15, 2011, the government filed a motion to take
the December 16, 2011 motions hearing date off of the calendar,
and to convert the January 3, 2012 trial date to a status
conference. Defense counsel consented to the motion. Though no
order granting the motion appears on the docket, the district
court apparently did so; it issued an informal January 3, 2012
letter order stating that pretrial motions were due by April 17,
2012 and that trial would commence on August 21, 2012.
Eccleston had previously written to his counsel on November
9, 2011 indicating that he did not want to waive his speedy
trial rights. He wrote to counsel again on December 22, 2011,
reiterating that he objected to a speedy trial waiver. On
January 3, 2012, Eccleston’s attorney filed a motion for a
speedy trial pursuant to both the Sixth Amendment and the Speedy
Trial Act. 1 In addition to his speedy trial motion, Eccleston
filed several pretrial motions on January 21, 2012, among
1
Although the docket text reflects that the government was
to respond by January 20, 2012, no response was filed on that
date.
4
others: (1) a motion for Disclosure by Government of Intent to
Use Uncharged Misconduct and Prior Convictions (the “404(b)
Motion”); and (2) a motion for sequestration of witness. 2
On January 23, 2012 Eccleston sent a letter to the district
court; the letter was dated January 10, 2012. His letter
stated: “[s]ince day one, I have been adamant about my desire
for a speedy trial. . . . I haven’t consented to any delays
and never gave any inclination to my attorney that I would.”
J.A. 1112. He argued also that (1) the fugitive defendants were
not named on the indictment and thus could not be properly
considered his co-defendants for purposes of tolling the speedy
trial clock; (2) the case was not complex, but rather an
ordinary street crime; (3) the government had failed to provide
complete discovery despite promises to do so; and (4) the
factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), which
courts use to determine whether a defendant has suffered
prejudicial delay in bringing his case to trial, weighed in his
favor. Eccleston sent the district court another letter on
April 9, 2012 (dated April 8, 2012) indicating that he had not
authorized counsel to enter into a discovery agreement with the
government, and that in any event, he believed that the
2 The government responded to these motions on January 30,
2012.
5
government had breached the agreement. He sent a third letter
to the court on June 1, 2012, again requesting “independent
access to my discovery so I can properly prepare my defense.” 3
J.A. 1119.
On April 17, 2012, Eccleston’s counsel filed additional
pretrial motions, among which were: (1) a second motion for a
speedy trial; (2) a motion to suppress the Title III wiretaps;
and (3) a motion to dismiss the indictment on speedy trial
grounds. The government filed a response to these motions on
May 14, 2012. The government’s May 14 filing was the first time
that it responded to Eccleston’s speedy trial motions.
Eccleston’s pretrial motions hearing took place on July 25,
2012. During the hearing, the district court granted the
government’s request to delay the beginning of trial to
September 11, 2012, due to a government counsel’s health
concerns. The court then ruled on Eccleston’s pending motions.
As relevant here, the court granted his motions for notice of
the government’s intent to use 404(b) evidence and for
sequestration of witness, and denied his speedy trial motion,
3
Counsel explained during the pretrial motions hearing that
Eccleston requested personal copies for his review while in
jail. However, counsel represented that the discovery agreement
prevented him from giving Eccleston such copies, because it
allowed only for Eccleston to review discovery during meetings
with counsel.
6
motion to suppress evidence obtained from the Title III
warrants. The court also denied his request for a Franks
hearing concerning the Title III warrant application. 4
On August 8, 2012, the grand jury returned a fourth
superseding indictment. 5 The indictment removed certain
defendants, and also included new charges against Eccleston.
Specifically, the fourth superseding indictment added two counts
of possession with intent to distribute cocaine (counts nine and
eleven) in violation of 21 U.S.C. § 841, as well as two counts
of using a telephone in furtherance of a drug trafficking
offense (counts eight and ten) in violation of 21 U.S.C.
§ 842(b). Eccleston was arraigned on the fourth superseding
indictment on the first day of trial, September 11, 2012.
B.
The trial took place from September 11-19, 2012. The
government called several witnesses, including co-defendants and
others who were cooperating with the government:
Christopher Rainey, Decarlos Bryant, Antonio Marshall,
Kenneth Smith, and Gavin Wallis.
4 Franks v. Delaware, 438 U.S. 154 (1978).
5Previous indictments had added a forfeiture allegation,
and added or removed defendants.
7
Rainey testified that he sold drugs in the Kentland,
Maryland area in concert with co-defendant Phillip Whitehurst,
who ran the operation. According to Rainey, “it was a 24/7
operation” that was managed from three different stash houses in
the Kentland area. J.A. 462-63. The drug ring sold both crack
and powder cocaine. He witnessed Eccleston and other co-
defendants purchase distribution quantities of powder cocaine
from Whitehurst on several occasions. However, he disclaimed
personal knowledge of what Eccleston did with the powder.
Rainey further testified that Eccleston stopped by the stash
houses to watch TV, do drugs, drink, and socialize. While
Eccleston was at the stash houses, others would often stop by to
purchase both crack and powder cocaine. The government also
introduced several audio recordings of phone calls through
Rainey. The audio was obtained pursuant to the Title III
wiretap warrant. During the phone calls, Eccleston and
Whitehurst discussed purchases of powder cocaine.
During Rainey’s testimony, Eccleston’s counsel approached
the bench to report that witnesses had been speaking with one
another in holding cells and in the hallway. He asked the
district court to direct government counsel to remind witnesses
of the sequestration order. However, counsel did not make any
representation that the conversations were about the trial or
about trial testimony. The district court ruled that there was
8
no evidence of a violation of the sequestration order. The
court nonetheless reminded government counsel to admonish
witnesses not to speak with each other about the case.
Later, Smith testified that he also had sold distribution
quantities of powder cocaine to Eccleston. Additional audio
recordings concerning Eccleston’s purchases were also introduced
through Smith. On these recordings, Whitehurst stated that
Eccleston was purchasing powder, cutting it with baking soda or
other substances, and then selling it.
Marshall similarly testified that he had sold distribution
quantities of powder cocaine to Eccleston.
Wallis was granted immunity for his testimony. He and
Eccleston met in high school, and more recently, Eccleston had
agreed to provide personal training sessions to Wallis free of
charge. Wallis testified that he had purchased cocaine from
Eccleston five to ten times, each time between one and ten
grams. He was not charged as part of the conspiracy, and
testified that he had never been convicted of a crime.
The government also introduced testimony from Montgomery
County Police Detective Robert Grims, who arrested Eccleston
pursuant to an arrest warrant. He searched Eccleston and found
two cell phones. He then searched one of these cell phones
without first obtaining a warrant for that search.
9
Months after Detective Grims searched the phone, and
shortly before trial, the FBI obtained a search warrant and
searched the phone. Eccleston objected during trial to the
introduction of certain evidence obtained in connection with the
searches and moved to suppress that information. The district
court took a trial recess in order to allow counsel to do legal
research. The court then held a suppression hearing and took
testimony from Detective Grims. The district court ultimately
denied the motion to suppress, finding that then binding
appellate law permitted the warrantless search. The district
court further found that the subsequent warrant application was
based on information known prior to the search and seizure of
the phones, and that the subsequent search was not tainted by
the first search.
Near the end of trial, the following colloquy took place
between defense counsel and FBI Special Agent Mark E. James:
Q. Well you knew he was staying there [at the
residence where Eccleston was living], didn’t you?
A. We suspected that he was staying there based on
some physical surveillance and records, I believe,
we got from parole and probation. Yes.
J.A. 977. Despite Agent James’ reference to “parole and
probation,” Eccleston did not object or request a curative jury
instruction either at the time or during a later discussion with
the court about jury instructions.
10
After the government rested its case, Eccleston moved for a
judgment of acquittal, arguing that there was insufficient
evidence to convict him for conspiracy with intent to distribute
cocaine and cocaine base. He further argued that the evidence
supported multiple conspiracies revolving around lead defendant
Whitehurst and requested a jury instruction for multiple
conspiracies. The motion for judgment and request for the
multiple conspiracy instruction were denied.
C.
The case was then submitted to the jury. During the course
of deliberations, the jury sent a note to the court, which read:
“Is it possible to alter the [verdict] form from ‘and crack
cocaine’ to ‘and/or’?” J.A. 1039. The district court provided
the following written response:
In response to your note, I am clarifying Instruction
No. 47,[6] a copy of which I am providing to you. I
instruct you that in order to find the defendant
guilty of Count One of the Fourth Superseding
Indictment, you must find that the government has
proved beyond a reasonable doubt the two elements of
the offense of conspiracy. With respect to the first
element of conspiracy, you must find that two or more
people entered into an unlawful agreement to
distribute and possess with intent to distribute a
controlled substance and you must also unanimously
agree which controlled substance -- powder cocaine,
crack cocaine, or both -- was involved in the
6 Instruction No. 47 addressed what the government must
prove with respect to the first element of conspiracy: the
existence of an unlawful agreement.
11
conspiracy. You may find the defendant guilty of
Count One if you find that the conspiracy involved
powder cocaine or crack cocaine or both, but you must
be unanimous as to which form of cocaine was involved.
Accordingly, I am submitting to you a slightly revised
verdict form to reflect this instruction.
J.A. 1040. The two verdict forms were identical, except that
the revised form required the jury to identify which drug (or
drugs) it unanimously agreed was involved in the conspiracy.
Compare J.A. 1042 (original verdict form for count one), with
J.A. 1045 (altered verdict form for count one).
On September 21, 2012, the jury returned a verdict, finding
Eccleston guilty of conspiracy to distribute and possess with
intent to distribute both powder and crack cocaine. The jury
attributed to Eccleston 500 grams to 5 kilograms of powder
cocaine, and less than 28 grams of crack cocaine. Eccleston was
further found guilty of counts eight, nine, ten, and eleven of
the Fourth Superseding Indictment.
Eccleston was sentenced to concurrent sentences of 210
months’ imprisonment on count one, 96 months’ imprisonment on
count eight, 210 months’ imprisonment on count nine, 96 months’
imprisonment on count ten, and 210 months’ imprisonment on count
eleven, to be followed by 8 years of supervised release. He was
also assessed a $500 criminal monetary penalty. In sentencing
Eccleston, the district court “var[ied] down from the guidelines
235 [months’ imprisonment] for Count 1.” J.A. 1100.
12
This appeal followed. Eccleston advances numerous
arguments on appeal. First, he contends that delay between his
arrest and the commencement of his trial was unconstitutionally
lengthy in violation of the Sixth Amendment, and that the delay
also constituted a violation of the Speedy Trial Act. He also
contends that it was error for the district court to admit the
evidence obtained from his cell phone. He argues that the
district court abused its discretion in finding that its
sequestration order had not been violated. He also argues that
he suffered prejudice under Federal Rule of Evidence 404(b) when
a case agent referred to obtaining information from a parole or
probation office about his address. Eccleston additionally
contends that the district court constructively amended the
indictment in this case when it altered the jury verdict form in
response to a jury question. He further challenges the district
court’s refusal to instruct the jury on multiple conspiracies.
And finally, Eccleston contends that the district court erred in
the amount of cocaine and cocaine base it attributed to him for
purposes of sentencing. For the reasons that follow, we reject
each of these arguments.
II.
Eccleston argues that both his constitutional and statutory
speedy trial rights were violated. We address each in turn.
13
A.
First, Eccleston alleges that the delay between his arrest
and the commencement of his trial violated his right to a speedy
trial under the Sixth Amendment. We review de novo a district
court’s constitutional speedy trial determination. United
States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).
The Supreme Court has directed federal courts to consider
four factors when addressing Sixth Amendment speedy trial
claims: “Length of delay, the reason for the delay, the
defendant’s assertion of his right, and the prejudice to the
defendant.” Barker, 407 U.S. at 530. “To prevail on [his]
speedy trial claim, [a] [d]efendant[] [is] obliged, under
Barker, to establish ‘that on balance, [the] four separate
factors weigh in his favor.’” Hall, 551 F.3d at 271 (final
alteration in original).
There are two components to the first Barker factor. Id.,
551 F.3d at 271 (citing Doggett v. United States, 505 U.S. 647,
651-52 (1992)). “First of all, a reviewing court must decide
whether the length of the delay triggers a speedy trial inquiry.
In that respect, the Court has suggested that we should conduct
a full inquiry when such a delay approaches one year.” Id., 551
F.3d at 271 (citing Doggett, 505 U.S. at 651-52). The relevant
time period to consider is that between indictment and the
commencement of trial. Id. (citing United States v. MacDonald,
14
456 U.S. 1, 7 (1982)). Notably, “the delay that can be
tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge.” Barker, 407 U.S. at
531.
Eccleston was first indicted on October 26, 2011, and his
trial commenced less than a year later, on September 11, 2012.
Indeed, although there was a delay between Eccleston’s September
28, 2011 arrest on the criminal complaint and the October 26,
2011 indictment, even the time between the arrest and the trial
was less than one year. Moreover, he was charged as part of a
large drug conspiracy. Accordingly, the first factor does not
weigh in his favor.
Based on the foregoing, we need not consider the remaining
factors. See Barker, 407 U.S. at 530 (“Until there is some
delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.”);
United States v. Woolfork, 399 F.3d 590, 597 (4th Cir. 2005)
(“One year is the ‘point at which courts deem the delay
unreasonable enough to trigger the Barker [i]nquiry.” (citing
Doggett, 505 U.S. at 652 n.1)). The first Barker factor “acts
as a threshold requirement,” and “[i]f the delay is not
uncommonly long, the inquiry ends there.” United States v.
Grimmond, 137 F.3d 823, 827 (4th Cir. 1998). Having failed to
15
clear the threshold requirement, Eccleston cannot show a
violation of his Sixth Amendment right.
Our conclusion would be the same even if we were to
consider the remaining factors under Barker. The second factor
addresses “the reasons for the delay.” Barker, 407 U.S. at 530.
“The reasons for a trial delay should be characterized as either
valid, improper, or neutral. On this factor, a reviewing court
must carefully examine several issues, specifically focusing on
the intent of the prosecution.” Hall, 551 F.3d at 272 (citation
omitted). Here, the district court stated that the delay
stemmed from the complexity of the case. Indeed, as we will
discuss in more detail below, the complexity of the case led the
court to grant the government’s motion to exclude time under the
Speedy Trial Act. Moreover, Eccleston caused delay by filing
numerous pretrial motions, all of which by definition had to be
resolved prior to the commencement of trial. We find that there
were valid reasons for the trial delay.
The third Barker factor addresses whether the defendant
timely asserted his right to a speedy trial. Barker, 407 U.S.
at 532. Eccleston did so, and this factor thus weighs in his
favor.
The final Barker factor requires us to consider the
prejudice to Eccleston. Id. Courts assess prejudice “in the
16
light of the interests of defendants which the speedy trial
right was designed to protect.” Id. at 532. There are
three such interests: (i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of
these, the most serious is the last, because the
inability of a defendant adequately to prepare his
case skews the fairness of the entire system.
Id. As to the first prejudice interest, we note per the first
Barker factor that the delay in this case was not presumptively
prejudicial and there is no allegation that Eccleston’s
detention was otherwise oppressive. As to the second prejudice
interest, Eccleston has asserted generalized concerns that would
affect any individual who is detained. See Opening Br. of
Appellant 41 (complaining of economic harm, damaged credit, the
inability to advance his skills at work, embarrassment, and
missed birthdays). Finally, Eccleston has not argued that his
defense was impaired by the delay. 7 See Grimmond, 137 F.3d at
830 (determining that the defendant had not shown impairment of
7Eccleston argues before this Court that the government
refused “to permit him access to discovery materials thus
denying him the opportunity to play a more active role in his
own defense.” Opening Br. of Appellant 42. However, Eccleston
did have access to the materials. As counsel explained during
the pretrial hearing, the discovery agreement in this case
prevented counsel from leaving copies of the discovery material
with Eccleston to keep and review while he was in prison.
Rather, the agreement allowed Eccleston to review discovery only
during meetings with counsel.
17
his defense where he failed to “identif[y] any witness that was
unavailable as a result of the delay,” did not “allege[] that
any witness was unable accurately to recall the events in
question,” and did “not contend that any exculpatory evidence
was lost” or that “any evidence . . . was unavailable because of
the delay”).
Because only one of the Barker factors weighs in
Eccleston’s favor, we find that his Sixth Amendment right to a
speedy trial was not violated.
B.
Eccleston also alleges that the district court erred in
excluding time from the speedy trial clock when it granted the
government’s tolling motion under the Speedy Trial Act.
Specifically, he faults the district court for adopting the
government’s assertion that fugitive co-defendants remained at
large, and claims that the fugitive co-defendants were
fabricated. He further contends that the government simply was
not ready to proceed with trial.
“We review the legal standards applied by the district
court in making its ends of justice determination de novo and
review the district court’s findings under the Speedy Trial Act
. . . 18 U.S.C. § 3161, under the clearly erroneous standard.”
United States v. Keith, 42 F.3d 234, 236 (4th Cir. 1994). The
Speedy Trial Act provides that a defendant’s trial must commence
18
within seventy days from the filing of the indictment unless one
of several exceptions applies. 18 U.S.C. §§ 3161(c)(1), (h).
Among other types of excusable delay, those delays attributable
to an appropriate “ends of justice” order can be excluded from
the speedy trial clock. Id. § 3161(h)(7)(A) (providing for the
exclusion of time when a continuance is granted sua sponte or
upon a motion by counsel “if the judge granted such continuance
on the basis of his findings that the ends of justice served by
taking such action outweigh the best interest of the public and
the defendant”).
Here, the speedy trial clock commenced on November 2, 2011,
when Eccleston was arraigned and pleaded not guilty. On that
same day, the government filed a motion to toll the speedy trial
clock. None of the defendants opposed the motion at that time.
In granting the motion, the district court found that
this case involves complex issues, particularly as
they involve wiretap evidence, including more than
10,000 pertinent calls captured from at least three
different wiretapped phones lines, and thus it would
be unreasonable to expect adequate preparation for
pretrial proceedings or for the trial itself within
the time limits established by the Speedy Trial Act.
J.A. 116. The court further explicitly found that the delay was
necessary to ensure continuity of counsel, as well as to ensure
that the parties -- both the defendants and the government --
had adequate time to review the discovery materials. J.A. 116;
cf. 18 U.S.C. §§ 3161(h)(7)(B)(ii), (iv). Given the nature of
19
the case, as described by the district court and based upon our
own review of the record, we hold that the district court did
not clearly err in granting the government’s motion and tolling
the speedy trial clock until August 21, 2012.
We further reject Eccleston’s challenge to the delay
occurring between the original August 21, 2012 trial date and
the actual start of trial on September 11, 2012. Eccleston
apparently takes issue with government counsel’s request for
this additional delay, even though government counsel indicated
that he was willing to go forward with trial on August 21 if the
court so ordered. The district court granted the government’s
request due to counsel’s serious medical situation. Unavoidable
health concerns are a valid reason for granting a reasonable
delay. United States v. Trotman, 406 F. App’x 799, 805 (4th
Cir. 2011) (unpublished); see also United States v. Hale, 685
F.3d 522, 535 (6th Cir. 2012); United States v. DiTommaso, 817
F.2d 201, 210 (2d Cir. 1987) (holding that a seven week
suspension of the speedy trial clock was warranted under the
“ends of justice” provision where the chief prosecutor was ill
and new assistant prosecutors required time to prepare for
20
trial). The district court did not clearly err in delaying the
commencement of trial from August 21 to September 11. 8
III.
Eccleston makes several arguments considering the use and
admissibility of wiretap evidence in his case. None of his
arguments are availing.
A.
Eccleston first faults the government for failing to
exhaust “normal investigative procedures” prior to filing its
wiretap warrant application. He contends that this failure
violated his rights under the Fourth Amendment, and that the
evidence obtained from the wiretaps thus should have been
suppressed.
“We review for clear error the factual findings underlying
a district court’s ruling on a motion to suppress, and we review
the court’s legal conclusions de novo.” United States v.
Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Additionally, “we
review for abuse of discretion determinations of necessity
under” Title III. Id. As we have previously noted, “wiretaps
are necessary tools of law enforcement, . . . particularly where
8Because we find no error in the district court’s “ends of
justice” ruling, we need not address its other bases for tolling
the clock.
21
crimes are committed by large and sophisticated organizations,”
and “[c]ourts must be careful not to read the statute in an
overly restrictive manner.” Id. at 281.
The government bears the burden of demonstrating the
necessity of a wiretap “via a full and complete statement as to
whether ‘normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous.’” Id. at 281 (quoting 18 U.S.C.
§ 2518(3)). But this burden “is not great, and the adequacy of
such a showing is to be tested in a practical and commonsense
fashion that does not hamper unduly the investigative powers of
law enforcement agents.” Id. (quoting United States v. Smith,
31 F.3d 1294, 1298 (4th Cir. 1994)). In Wilson, this Circuit
found that the government adequately demonstrated the necessity
of a wiretap by submitting a detailed affidavit in support of
its wiretap application. 484 F.3d at 281. The affidavit
“span[ned] 64 pages in the Joint Appendix.” Id. The Circuit
observed of the affidavit:
In exhaustive fashion, [the government] set forth the
techniques that had been used up to that point. Those
techniques included confidential informants,
undercover agents, surveillance, trash searches,
interviews, search warrants, telephone records,
reverse buys, GPS trackers, and financial and public
records. The affiants then explained that despite the
information they had been able to gain from these
traditional sources, they believed that those sources,
standing alone, were insufficient to achieve the goals
of the investigation and prove the extent of the
22
conspiracy. For example, they explained that
confidential informants were unable to identify the
higher-ups of the conspiracy. The traditional sources
also failed to uncover the conspiracy’s cocaine source
and the extent to which the coconspirators distributed
it for resale.
Id. (citation omitted).
The government has satisfied its burden here. In
Eccleston’s case, as in Wilson, the government has presented a
detailed affidavit concerning “whether ‘normal investigative
procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous.’”
Id. at 281 (quoting 18 U.S.C. § 2518(3)). The forty-five page
Affidavit in Support of an Application for an Order Authorizing
the Interception of Wire Communications was submitted by FBI
Special Agent Mark E. James to a district judge on March 3,
2011. The Affidavit details the normal investigative techniques
used during the course of the investigation, including:
physical surveillance, confidential informants, cooperating
sources, undercover agents, interviews of subjects or
associates, search warrants, pen registers/toll records, and
trash cover. For each investigative category, James set forth
whether the normal techniques had been used; how well they had
worked; and whether there was additional information needed for
the investigation that was unavailable from further use of that
technique. He also was forthcoming about which techniques, such
23
as physical surveillance, had been fruitful and would continue
to be used going forward. J.A. 1177 (discussing success with
physical surveillance, but observing that heavy foot traffic in
the area, as well as the targets’ use of different vehicles
registered in others’ names, thwarted efforts at identification
of additional conspirators). For techniques that had not been
used, such as grand jury subpoenas, he explained why they would
not be useful or would be counterproductive. J.A. 1177-78
(explaining that the use of subpoenas would alert the
conspirators to the investigation and might cause them to flee
or to threaten potential witnesses). We find that the level of
specificity in the Affidavit sufficient to meet the government’s
burden, and thus the issuing court did not abuse its discretion
in authorizing the wiretap, and the district court did not err
in denying Eccleston’s motion to suppress.
B.
Eccleston separately contends that there was insufficient
and “misleading” probable cause to support the wiretap
application. “The probable cause required for issuance of a
wiretap order is the same as that which is necessary to obtain
the issuance of a search warrant.” United States v. Talbert,
706 F.2d 464, 467 (4th Cir. 1983). And the probable cause
determination is a “practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before
24
[the judge] . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Courts look to the
“totality-of-the-circumstances” in making their decisions. Id.
Reviewing courts “must accord great deference to the
magistrate’s assessment of the facts presented to him.” United
States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (internal
quotation marks and citation omitted).
Here, given the nature and specificity of the information
in the Affidavit, we find that there was probable cause to grant
the wiretap application. James stated that the facts set forth
in the Affidavit were based in part on his personal knowledge
and in part on information and belief. He based his information
and belief on, among other things, reports received from other
field agents and law enforcement officials, his review of
various telephone records and consensually recorded interviews,
his review of evidence, and debriefings. Information from a
number of confidential sources was incorporated into the
Affidavit where specified. The Affidavit set forth several
detailed, specific facts to support the existence of probable
cause to believe that several individuals, known and unknown,
were engaged in a conspiracy to distribute cocaine and cocaine
base in Kentland. For example, the Affidavit discussed
controlled purchases of crack cocaine carried out by
25
confidential sources at the direction of law enforcement.
Moreover, it set forth specific facts suggesting that there was
probable cause to believe that the target phone numbers would
yield information concerning the alleged drug conspiracy. For
example, the Affidavit included excerpts from wiretaps executed
earlier in the investigation, and also described information
obtained from pen registers concerning numbers known to be
associated with the conspiracy. Because there was probable
cause to authorize the wiretaps, the district court did not
abuse its discretion in refusing to suppress the evidence
obtained from the wiretaps.
C.
Finally, Eccleston argues that the district court erred by
denying him a Franks hearing. In particular, he alleges that
two of the five confidential sources whose information formed
part of the basis of James’ Affidavit were engaging in
unauthorized drug dealing activity and that one of these two
informants was killed during the unauthorized activity.
Moreover, Eccleston contends that “the task force knew or should
have known that the lead defendant [Whitehurst] was a murder
suspect and had an outstanding warrant for his arrest.” Opening
Br. of Appellant 25. Eccleston faults the government for
failing to include this information in the Affidavit and argues
26
that the district court would have denied the wiretap
application had the information been included.
The Supreme Court held in Franks that,
where the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant’s request.
438 U.S. at 155-56. In addition to false statements, “Franks
protects against omissions that are designed to mislead, or that
are made in reckless disregard of whether they would mislead,
the magistrate.” United States v. Colkley, 899 F.2d 297, 301
(4th Cir. 1990) (emphasis deleted).
This Court reviews the legal determinations underlying a
district court’s denial of a Franks hearing de novo, and its
factual findings for clear error. United States v. Allen, 631
F.3d 164, 171 (4th Cir. 2011). To warrant a Franks hearing, a
defendant’s preliminary “showing ‘must be more than conclusory’
and should include affidavits or other evidence to overcome the
‘presumption of [the warrant’s] validity.’” United States v.
Clenney, 631 F.3d 658, 663 (4th Cir. 2011) (quoting Franks, 438
U.S. at 171). Where a defendant “rel[ies] on an omission,
rather than on a false affirmative statement,” his “burden
increases yet more.” United States v. Tate, 524 F.3d 449, 454
27
(4th Cir. 2008). “[M]erely showing an intentional omission of a
fact from a warrant affidavit does not fulfill Franks’
requirements.” Id. at 455. Rather, “[t]o satisfy the Franks’
intentional or reckless falsity requirement for an omission, the
defendant must show that facts were omitted ‘with the intent to
make, or in reckless disregard of whether they thereby made, the
affidavit misleading.’” Id. (quoting Colkley, 899 F.2d at 300).
Here, Eccleston offers only a conclusory showing that a
Franks hearing would be appropriate. Despite Eccleston’s
insistence that the lead defendant in the conspiracy was subject
to an outstanding warrant, he has presented no documentary proof
to that effect. And though he questions the reliability of the
information in James’ Affidavit, he does not demonstrate that
Special Agent James had any intent to mislead the court. See
Colkley, 899 F.2d at 301 (“Here Johnson made no showing, and the
district court possessed no evidence, that agent Moore had the
requisite intent to mislead.”). While some courts have inferred
intent where “the omitted material was ‘clearly critical’ to the
finding of probable cause,” id., that showing cannot be made
here. James’ Affidavit relied on information from three
additional confidential sources aside from those challenged
here. At least one of these additional confidential sources
participated in controlled purchases of crack cocaine at the
direction of law enforcement. Furthermore, the Affidavit relied
28
on reports from law enforcement officials, review of pen
register and documentary evidence, and personal knowledge.
Eccleston points to two other pieces of information missing
from the Affidavit: the unauthorized criminal activity by one
of the confidential sources and the murder and unauthorized drug
dealing activity of another of the confidential sources. This
information is not “critical” to the probable cause
determination. We note first that we cannot with certainty say
that the information with which Eccleston takes issue was not
contained in the Affidavit, because much of the Affidavit is
redacted. Even so, the Affidavit stated that the information
from the sources had been independently corroborated through
other investigative techniques. And though it did not go into
detail, the Affidavit also acknowledged that one confidential
source died during the course of the investigation. The
information about the killing and the unauthorized drug dealing
was later disclosed to the district court in Special Agent
Garrett Swick’s “Affidavit in Support of Criminal Complaint and
Arrest Warrants.”
Even without information about the murder or the
unauthorized illegal activity, there is sufficient, independent
probable cause outlined in the James’ Affidavit for the issuance
of the wiretap warrant. We find that Eccleston has not made a
29
preliminary showing sufficient to warrant a Franks hearing. The
district court properly denied his request.
IV.
Eccleston argues that the district court erred in admitting
evidence obtained from his cell phone. In particular, he
contends that the warrantless search of his cell phone at the
time of his arrest violated the Fourth Amendment, and that the
later application for and issuance of a search warrant for the
phone did not cure the violation.
“This Court reviews evidentiary rulings for an abuse of
discretion, and ‘will only overturn an evidentiary ruling that
is arbitrary and irrational.’” United States v. Cone, 714 F.3d
197, 219 (4th Cir. 2013) (citation omitted). “A court has
abused its discretion if its decision ‘is guided by erroneous
legal principles’ or ‘rests upon a clearly erroneous factual
finding.’” United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010) (citation omitted).
A.
The United States Supreme Court recently held that, upon
lawful arrest, “officers must generally secure a warrant before
conducting” a search of a cell phone. Riley v. California, --
U.S. ---, 134 S. Ct. 2473, 2485 (2014). There is no dispute
that Riley applies to this case. However, while “the
30
retroactive application of a new rule of substantive Fourth
Amendment law raises the question whether a suppression remedy
applies[,] it does not answer that question.” Davis v. United
States, --- U.S. ---,131 S. Ct. 2419, 2431 (2011) (citing United
States v. Leon, 468 U.S. 897, 906 (1984)). Rather, “[w]hether
the exclusionary sanction is appropriately imposed in a
particular case . . . is an issue separate from whether the
Fourth Amendment rights of the party seeking to invoke the rule
were violated by police conduct.” Leon, 468 U.S. at 907
(internal quotation marks and citation omitted); see also
Davis,131 S. Ct. at 2431 (2011) (“Retroactive application does
not . . . determine what ‘appropriate remedy’ (if any) the
defendant should obtain.”).
The exclusionary rule “cannot be expected, and should not
be applied, to deter objectively reasonable law enforcement
activity.” Leon, 468 U.S. at 919; see id. (“If the purpose of
the exclusionary rule is to deter unlawful police conduct, then
evidence obtained from a search should be suppressed only if it
can be said that the law enforcement officer had knowledge, or
may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” (quoting United
States v. Peltier, 422 U.S. 531, 542 (1975))); see also Davis,
131 S. Ct. at 2431. Thus, “[b]ecause suppression would do
nothing to deter police misconduct” in cases where “the police
31
conduct a search in compliance with binding precedent that is
later overruled,” and “because [suppression] would come at a
high cost to both the truth and the public safety, . . .
searches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule.”
Davis, 131 S. Ct. at 2423-24.
At the time of Eccleston’s arrest, binding appellate
precedent from this Circuit permitted the warrantless search of
his cell phone incident to his arrest. See United States v.
Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009). In Murphy, the
defendant argued that the warrantless search of his cell phone
was unlawful “because there was no evidence of the volatile
nature of the cell phone’s information,” and also because the
search “was not contemporaneous with his arrest.” Id. at 411.
We rejected the defendant’s arguments, observing that “this
Court ha[d] held on at least two prior occasions, albeit in
unpublished opinions, that officers may retrieve text messages
and other information from cell phones and pagers seized
incident to an arrest.” Id. (citing United States v. Young, 278
F. App’x 242, 245-46 (4th Cir. 2008), cert. denied, 555 U.S.
1006 (2008), and United States v. Hunter, No. 9604259, 1998 WL
887289, at *3 (4th Cir. Oct. 29, 1998)). This Court further
observed that “the initial search of the cell phone occurred in
Murphy’s presence and at his direction,” and another search
32
occurred at the police station “during the course of the
inventory search.” Id. at 412. Accordingly, we held that the
district court committed no error when it refused to suppress
the contents of the defendant’s cell phone.
Prior to the Supreme Court’s decision in Riley, Murphy
served as binding appellant precedent permitting the search of
Eccleston’s cell phone incident to his arrest without a warrant.
Because the search was “conducted in objectively reasonable
reliance on [then-]binding appellate precedent,” it is “not
subject to the exclusionary rule.” Davis, 131 S. Ct. at 2423-
24. We therefore hold that the district court did not abuse its
discretion in refusing to suppress the evidence obtained from
Eccleston’s cell phone.
B.
Regardless of the applicability of Murphy at the time of
Eccleston’s arrest, and as the district court held, the same
information was later lawfully obtained by the FBI pursuant to a
search warrant. Eccleston did not challenge the validity of the
warrant below. He argues here that the district court did not
address whether the initial search tainted the warrant.
It is well established that where the government can show
“by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful
means . . . then the deterrence rationale [for the exclusionary
33
rule] has so little basis that the evidence should be received.”
Nix v. Williams, 467 U.S. 431, 444 (1984); see also United
States v. Whitehorn, 813 F.2d 646, 650 n.4 (4th Cir. 1987)
(“[T]he premise of the inevitable discovery doctrine is that the
illegal search played no real part in discovery of incriminating
evidence. Only then, if it can be shown that the taint did not
extend to the second search, would the product of the second
search be admissible.”); Simmons v. Poe, 47 F.3d 1370, 1378 (4th
Cir. 1995) (finding, in the 42 U.S.C. § 1983 context, that
defendant’s challenge to the validity of a warrant was meritless
where there “existed sufficient independent evidence in the
warrant application to justify the magistrate’s finding of
probable cause”).
Here, the district court explicitly stated: “[T]here’s no
indication at all that the alleged unlawful search, if it was an
unlawful search, . . . tainted the subsequent application for a
search warrant. In fact, [the government] read portions of the
application. It had no reference at all to what occurred back
on” the date of Eccleston’s arrest. J.A. 626; see also J.A. 622
(discussing contents of warrant application). We agree.
Eccleston did not challenge the warrant on any grounds, and does
not meaningfully do so before this Court. In fact, when asked
by the district court if the warrant had been challenged,
Eccleston’s counsel stated: “I’m not trying to say that because
34
of what [Grims] did everything after that is tainted, because I
think at some point the government realized, yeah, we do need a
warrant. And so, they went and they got it, and they did the
right thing.” J.A. 623. Because the government presented
evidence that the search did not taint the warrant, and because
Eccleston presented no evidence or arguments to the contrary,
the second search of Eccleston’s cell phone pursuant to the FBI
warrant was not tainted by the initial warrantless search. The
district court did not abuse its discretion by refusing to
suppress the evidence obtained from the search of Eccleston’s
cell phone.
V.
Eccleston argues that the district court’s sequestration
order was violated due to cohabitation of witnesses in a holding
cell, which in turn undermined his Fifth Amendment due process
rights. As noted above, we review a trial court’s evidentiary
rulings for abuse of discretion. Cone, 714 F.3d at 219.
This Court has not directly addressed this type of
challenge to a sequestration order, but case law from the First
and Eleventh Circuits is instructive. In United States v.
Sepulveda, the First Circuit stated that cohabitation of
witnesses did not equate to an automatic violation of the trial
court’s sequestration order. 15 F.3d 1161, 1176-77 (1st Cir.
35
1993). In that case, the district court granted the defendants’
motion for sequestration. The motion did not “indicat[e] to the
court what level of restraint [the defendants] thought
appropriate.” Id. at 1176. Accordingly, “[t]he court granted
the motion in its simplest aspect, directing counsel ‘to monitor
sequestration’ and ordering ‘that witnesses who are subject to
[the court’s] order are not to be present in the courtroom at
any time prior to their appearance to render testimony.’” Id.
The court additionally admonished witnesses not to discuss their
testimony with other witnesses. Id. The defendants later
sought to vacate their convictions based, in part, on alleged
violations of the sequestration order. In affirming the
district court’s denial of relief, the First Circuit indicated
that “[t]he crux of sequestration . . . is communication between
witnesses, not shared accommodations or geographic proximity.
. . . We assume that witnesses, like all other persons subject
to court orders, will follow the instructions they receive.”
Id. at 1177. And “if [the defendants] desired a more vigorous
sequestration regime, such as an edict that would have banned
cohabitation or other contact amongst prisoner-witnesses, they
had a duty to ask for it.” Id. Where the defendants failed to
do so, and where their claims of the prejudice from the alleged
violation of the sequestration order were “speculative,” the
36
district court did not err in refusing to vacate the
convictions. Id.
The Eleventh Circuit faced a more extreme situation. In
United States v. Eyster, at least two witnesses admitted to
discussing testimony with each other while confined together in
jail during trial. 948 F.2d 1196, 1210 (11th Cir. 1991). The
circuit court found a violation of the district court’s
sequestration order, and noted that “both the district court and
the government were lax in upholding the sequestration rule.”
Id. at 1211. However, because the district court had allowed
cross examination on the issue, the Eleventh Circuit held that
the district court had sufficiently cured the violation by
“giving the jury the opportunity to evaluate [the witnesses’]
credibility.” Id. Accordingly, the district court had not
abused its discretion in denying the appellants’ motion for a
mistrial. Id.
We need not rule on the entire universe of potential
sequestration violations in order to address Eccleston’s claims.
There is no admission or direct allegation in this case, as
there was in Eyster, that any of the witnesses actually
discussed testimony while confined together. Thus, we address
our inquiry to whether cohabitation alone is sufficient to
violate a district court’s sequestration order. With respect to
this question, we find the First Circuit’s analysis in Sepulveda
37
persuasive. We hold today that the cohabitation of witnesses in
a holding cell is ordinarily insufficient to constitute a
violation of a district court’s sequestration order where the
defendant has failed to request a sequestration order explicitly
banning cohabitation of witnesses, and where the defendant
presents only speculation that a sequestration order has been
otherwise violated.
Evaluated in this light, Eccleston’s challenge must fail.
Eccleston moved for sequestration of witnesses without making
any request for witnesses to be housed separately. See ECF No.
105, United States v. Xavier Eccleston, Case No. AW-11-CR-0567
(filed Jan. 21, 2012) (Motion for Sequestration of Witnesses).
The district court granted the motion without including any such
requirement. The court’s order provided: “the court will
sequester the witnesses and instruct them to remain outside the
courtroom and not discuss their testimony with one another and
we will hold the lawyers responsible for that.” J.A. 179.
Beyond cohabitation, Eccleston points to no evidence that
the sequestration order was otherwise violated. On the third
day of trial, Eccleston’s counsel, expressed sequestration
concerns to the court citing certain witnesses’ cohabitation, as
well as having seen two witness who had not yet testified
talking in the hallway. J.A. 577. The court directed
government counsel to notify the witnesses and the marshal’s
38
office once more that the witnesses were not to discuss their
testimony with one another, but added that it was “not sure what
[defense counsel] is alluding to when he says [the witnesses]
were talking. I mean, they could have been talking about
anything.” J.A. 578. The court stated further that it had not
heard any “representation that they’re talking about the
testimony.” J.A. 578. Defense counsel responded “I can’t make
that representation to the court because I don’t know that, Your
Honor.” J.A. 578. The court then stated that it found no
violation of the sequestration order. At no point during this
exchange or otherwise did defense counsel request that the
cooperating witnesses be physically separated from one another
in the holding cells.
Throughout the remainder of the trial, the court admonished
some of the witnesses, but not all, that they were not to
discuss their testimony with one anyone. Eccleston’s counsel
inquired of some witnesses, but not all, whether they had
discussed the trial with others. They testified that they had
not. Government counsel made similar inquiries. The witnesses
denied speaking with one another about their testimony, and
indicated that the holding cells were too loud and too public to
permit a private conversation. Some witnesses testified that
they were also eventually physically separated from one another.
39
In sum, Eccleston did not request physical separation of
witnesses in his motion or in his verbal exchange with the
court, and cohabitation alone did not violate the sequestration
order. In any event, Eccleston failed to present any evidence
to the court that the witnesses had in fact discussed their
testimony. The court repeatedly admonished witnesses to refrain
from discussing their testimony with other witnesses, and also
directed the government to so advise its witnesses.
Additionally, on cross examination, the witnesses who were asked
uniformly testified that they had not discussed their testimony
with one another. Bearing all of this in mind, we find that the
district court did not abuse its discretion in ruling that there
had been no violation of the sequestration order.
VI.
Eccleston argues that Federal Rule of Evidence 404(b) was
violated when a case agent made reference to Eccleston’s parole
and probation officer, thereby causing substantial prejudice.
He further contends that the district court compounded the
problem by its “refusal to give a curing instruction.” 9 Opening
Br. of Appellant 50.
9Eccleston seems to abandon his final point about
aggravation in his reply brief. See Reply Br. of Appellant 21
(“It was difficult if not impossible for the defense to recover
(Continued)
40
Rule 404(b) “prevents the government from using a
defendant’s prior bad conduct to suggest his propensity to
commit a crime.” United States v. Campbell, 935 F.2d 39, 44
(4th Cir. 1991). We review a district court’s admission of
evidence of prior bad acts for abuse of discretion. United
States v. McBride, 676 F.3d 385, 395 (4th Cir. 2012). “While we
have reversed convictions in cases where evidence of other
crimes had been improperly presented, in those cases the
inadmissible evidence was not only prejudicial, but had been
purposely introduced by the prosecution.” United States v.
Johnson, 610 F.2d 194, 197 (4th Cir. 1979); see also Campbell,
935 F.2d at 44 (“Certainly it was not error for the district
court to fail to exclude evidence elicited by [the defendant’s]
own counsel.”).
We find that the district court did not abuse its
discretion in allowing the testimony at issue. As discussed
above, the district court granted Eccleston’s 404(b) Motion
prior to trial, thereby requiring the government to notify him
of its intent to introduce evidence of uncharged conduct or
prior convictions. In setting forth his 404(b) argument before
from the impression left that the Appellant was a recidivist,
because the agent was the last witness called and any curing
instruction would have only highlighted the point.”).
41
this Court, Eccleston states that a case agent made reference to
Eccleston’s parole and probation officer on the last day of
trial. His challenge is aimed at the testimony from James,
specifically the following exchange between Eccleston’s counsel
and James:
Q. Well you knew he was staying there [at the
residence where Eccleston was living], didn’t
you?
A. We suspected that he was staying there based on
some physical surveillance and records, I
believe, we got from parole and probation. Yes.
J.A. 977. This testimony, which was elicited by Eccleston’s
counsel, does not implicate Rule 404(b). See Campbell, 935 F.2d
at 44. Moreover, although Eccleston faults the district court
for its “refusal” to give a curative instruction, we note that
he never requested such an instruction at the time. 10 Further,
when discussing the jury instructions after the conclusion of
all testimony, Eccleston noted his exception to instructions 21,
22, 36, 37, 38, 39, and 40. A review of those instructions
reveals that none addresses prior bad acts or uncharged conduct.
Given that the testimony was elicited by Eccleston’s counsel,
and given that there was no objection to the testimony, we find
10 Eccleston erroneously states in his opening brief that a
bench conference followed and addressed potential prejudice
stemming from James’ testimony. Rather, an unrelated bench
conference occurred prior to James’ testimony.
42
that the district court did not abuse its discretion in
permitting the testimony.
We stress that the fact that Eccleston’s counsel elicited
the testimony is not dispositive. Rather, we view that fact in
conjunction with the reality that Eccleston’s counsel failed to
request a curative instruction, the fact that the government did
not later refer to the challenged testimony in an attempt to
establish Eccleston’s general character, and the overwhelming
evidence presented by the government. Under these
circumstances, we cannot find that the district court abused its
discretion in permitting the testimony. Even if the district
court did abuse its discretion, we find that the weight of the
government’s case against Eccleston rendered any error harmless.
See, e.g., United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)
(“Furthermore, any error was at most harmless error. The
evidence of Chin’s guilt provided in government videotapes and
audio recordings was overwhelming.”).
VII.
Eccleston argues that the evidence presented by the
government did not support his conviction of the charges in the
indictment. He contends that the jury note at issue in this
case demonstrates that the jurors did not think he was involved
in the crack cocaine aspect of the conspiracy. Moreover, he
43
argues that the district court’s response to the jury note and
subsequent amendment of the verdict form resulted in an
impermissible constructive amendment of the indictment and
allowed the government “to have Mr. Eccleston convicted of a
conspiracy to distribute cocaine or crack; when he was charged
with conspiracy to distribute cocaine and crack.” Opening Br.
of Appellant 14 (emphasis added).
“We review a district court’s decision to respond to a
jury’s question, and the form of that response, for an abuse of
discretion.” United States v. Foster, 507 F.3d 233, 244 (4th
Cir. 2007). And “in responding to a jury’s request for
clarification on a charge, the district court’s duty is simply
to respond to the jury’s apparent source of confusion fairly and
accurately without creating prejudice.” United States v. Smith,
62 F.3d 641, 646 (4th Cir. 1995). Reversal is warranted only
where the district court’s response “is prejudicial in the
context of the record as a whole.” Foster, 507 F.3d at 244.
“A constructive amendment to an indictment occurs when
either the government (usually during its presentation of
evidence and/or its argument), the court (usually through its
instructions to the jury), or both, broadens the possible bases
for conviction beyond those presented by the grand jury.”
Foster, 507 F.3d at 242. Constructive amendments are “fatal
variances because ‘the indictment is altered to change the
44
elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the
indictment.’” Id. (quoting United States v. Randall, 171 F.3d
195, 203 (4th Cir. 1999)). We have stated that “[c]onstructive
amendments are 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.’” Id. (quoting United
States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)).
In determining whether an amendment has occurred, “it is the
broadening itself that is important—nothing more.” Floresca, 38
F.3d at 711. “The key inquiry is whether the defendant has been
tried on charges other than those made in the indictment against
him.” Foster, 507 F.3d at 242-43; see also Floresca, 38 F.3d at
710 (“The court’s instruction . . . was more than just a
misstatement of the law applicable to the indicted offense; it
stated a distinct, unindicted offense. It was by no means only
a slight defect in the charge [that] could be cured by other
circumstances.” (internal quotation marks and footnote
omitted)).
The district court’s amendment of the jury verdict form did
not create a variance. The fourth superseding indictment uses
the conjunctive term “and.” The thrust of Eccleston’s argument
is that the district court’s response to the jury note resulted
in a constructive amendment because it altered the language of
45
the verdict form from permitting only a finding of conspiracy to
distribute powder and crack cocaine, to instead allowing the a
finding of conspiracy to distribute powder and/or crack cocaine.
But this change does not appear so starkly in the record. The
original verdict form read:
How do you find the defendant, Xavier Eccleston, as to
Count One of the Fourth Superseding Indictment
(conspiracy to distribute and possess with intent to
distribute cocaine and/or crack cocaine), guilty or
not guilty?
Guilty ______ Not Guilty ______
If you find the defendant not guilty of Count One,
proceed to Question Two below. If you find the
defendant, Xavier Eccleston, guilty as to Count One,
how do you find as to the amount of cocaine
attributable to the defendant, Xavier Eccleston?
J.A. 1042 (emphasis added). The revised form read:
How do you find the defendant, Xavier Eccleston, as to
Count One of the Fourth Superseding Indictment
(conspiracy to distribute and possess with intent to
distribute cocaine and/or crack cocaine), guilty or
not guilty?
Guilty ______ Not Guilty ______
If you find the defendant not guilty of Count One,
proceed to Question Two below. If you find the
defendant, Xavier Eccleston, guilty as to Count One,
which drug do you unanimously agree was involved in
the conspiracy?
Powder Cocaine _______
Crack Cocaine _______
Both powder cocaine and crack cocaine ______
46
J.A. 1045 (underlined text appears in original indictment, and
bolded portion added to revised verdict form). Aside from the
bolded text above, the two verdict forms are identical.
As is clear from the text above, the verdict form always
provided a disjunctive option to the jury. This makes sense
because “[i]t is well settled that conjunctive indictment . . .
permits disjunctive consideration of guilt.” United States v.
Champion, 387 F.2d 561, 563 n.6 (4th Cir. 1967). The Supreme
Court has stated that “[t]he general rule is that when a jury
returns a guilty verdict on an indictment charging several acts
in the conjunctive, . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” Turner
v. United States, 396 U.S. 398, 420 (1970); see also United
States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001)
(reiterating that “[w]here a statute is worded in the
disjunctive, federal pleading requires the Government to charge
in the conjunctive. The district court, however, can instruct
the jury in the disjunctive” (citation omitted)).
Indeed, this Circuit rejected an argument identical to that
advanced by Eccleston, albeit in an unpublished opinion. See
United States v. Davis, 270 F. App’x 236, 242 n.2 (4th Cir.
2008) (unpublished). There, we observed that while the statute
prohibiting distribution of cocaine or cocaine base is written
in the disjunctive, the indictment was charged in the
47
conjunctive. Id. The jury instructions, like the statute,
“allowed conviction if either drug was found to be within the
scope of the conspiracy in the relevant amount.” Id. We
nonetheless determined that “this seeming discrepancy does not
actually pose a meaningful variance, and certainly does not
undermine Appellants’ convictions.” Id. (citing Turner, 396
U.S. at 420). Similarly, we do not find that the district
court’s amendment of the jury verdict form here posed a
meaningful variance. The amendment simply required the jury to
specify which drug or drugs were involved in the conspiracy. We
thus hold that the district court did not abuse its discretion
by amending the verdict form.
Aside from the verdict form, Eccleston mistakenly contends
that the district court amended Instruction No. 47 to read in
the disjunctive. The district court stated only that it had
amended the verdict form in order to clarify Instruction No. 47.
Accordingly, the court provided a copy of the existing
instruction, explained the instruction, and provided a revised
verdict sheet. By way of explanation, the district court
stated:
In response to your note, I am clarifying Instruction
No. 47, a copy of which I am providing to you. . . .
You may find the defendant guilty of Count One if you
find that the conspiracy involved powder cocaine or
crack cocaine or both, but you must be unanimous as to
which form of cocaine was involved. I am submitting
48
to you a slightly revised verdict form to reflect the
instruction.
J.A. 1040. The instruction itself was originally written in the
disjunctive, and thus the court’s explanation did not
meaningfully alter the instruction. See J.A. 1041 (Instruction
No. 47) (“The first element which the government must prove
beyond a reasonable doubt to establish the offense of conspiracy
is that two or more persons entered the unlawful agreement
charged, which is to distribute and possess with intent to
distribute cocaine or cocaine base.” (emphasis added)).
In any event, as discussed above, the statute at issue
prohibits the distribution of cocaine or cocaine base in the
disjunctive. See 21 U.S.C. § 841. Accordingly, it was
permissible for the government to charge in the conjunctive and
for the district court to instruct the jury in the disjunctive.
See Montgomery, 262 F.3d at 242; Davis, 270 F. App’x at 242 n.2.
The district court thus did not abuse its discretion by
clarifying Instruction No. 47.
VIII.
Eccleston argues that the district court erred in refusing
to give the jury an instruction on multiple conspiracies or an
instruction stating that mere presence or association is
insufficient for a conviction of a conspiracy charge. Similar
49
to his arguments about constructive amendment of the indictment,
he believes that the jury note at issue in this case
demonstrates that the jurors did not think he was involved in
the crack cocaine aspect of the conspiracy.
We review a district court’s decision to refuse to give a
jury instruction for abuse of discretion. United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009). The refusal to give
a requested instruction constitutes reversible error “only when
the instruction ‘(1) was correct; (2) was not substantially
covered by the court’s charge to the jury; and (3) dealt with
some point of the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s ability
to conduct his defense.’” Id. (quoting United States v. Lewis,
53 F.3d 29, 32 (4th Cir. 1995)). “Even if these factors are
met, however, failure to give the defendant’s requested
instruction is not reversible error unless the defendant can
show that the record as a whole demonstrates prejudice.” United
States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).
A.
Eccleston argues that the jury’s note shows that the jury
did not think he was selling crack cocaine. Even if this were
true, the jury properly could have found Eccleston guilty of
conspiracy to distribute either form of the drug, as was
50
discussed above. Thus, a multiple conspiracy charge would not
have cured the problem that he attributes to the jury’s note.
An instruction on multiple conspiracies is necessary only
“‘if such an instruction is supported by the facts.’ Hence,
‘[a] multiple conspiracy instruction is not required unless the
proof at trial demonstrates that appellants were involved only
in separate conspiracies unrelated to the overall conspiracy
charged in the indictment.’” Bartko, 728 F.3d at 344 (citation
omitted). Moreover, failure to give the instruction when
required “is not reversible error unless a defendant can show
that this caused him substantial prejudice.” United States v.
Tipton, 90 F.3d 861, 883 (4th Cir. 1996). Substantial prejudice
exists when “the evidence of multiple conspiracies” is “so
strong in relation to that of a single conspiracy that the jury
probably would have acquitted on the conspiracy count had it
been given a cautionary multiple-conspiracy instruction.” Id.
Moreover, we have held that “[w]hether there is a single
conspiracy or multiple conspiracies depends upon the overlap of
key actors, methods, and goals.” United States v. Stockton, 349
F.3d 755, 762 (4th Cir. 2003). On the other hand, “[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). There need not be continuous
activity to constitute a single conspiracy. Id. “Our focus
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must be not on the timing of the conspiracy’s operations, but on
whether it functioned as an ongoing unit.” Id. at 219.
Here, there was little to no evidence that Eccleston was
involved in a separate conspiracy unrelated to that charged in
the indictment. Rather, there was testimony that Eccleston was
involved in a cocaine enterprise that centered around his co-
defendant, Whitehurst. Several witnesses identified Eccleston
as purchasing amounts of powder cocaine in excess of that
typically obtained for personal use. Witnesses also placed
Eccleston in at least two of the drug ring’s stash houses during
the sale of crack cocaine. Additionally, audio tapes of
wiretapped phone calls detailing sales were played for the jury.
This evidence points to a single conspiracy.
B.
Eccleston additionally argues that mere presence or
association is insufficient to support a charge of conspiracy.
He contends that the evidence clearly shows that he was not part
of the charged conspiracy, and that the jury instead found him
guilty of conspiracy based solely on his presence in the stash
houses or his association with others who were engaged in
illegal activity.
In explaining why it rejected certain jury instructions,
the district court noted that Eccleston “had a request for a
separate instruction on association and presence which the Court
52
found was already contained in the conspiracy instructions.”
J.A. 995. We agree. The court instructed the jury that “the
government must prove that there was a mutual understanding,
either spoken or unspoken, between two or more people to
cooperate with each other to accomplish an unlawful act.” J.A.
1041 (Jury Instruction No. 47). The requirement that the
government prove a mutual understanding sufficiently
communicates that both Eccleston and any other person with whom
he allegedly conspired understood that Eccleston was part of the
conspiracy. The instructions given made clear that simple
presence or association was insufficient for conviction.
We hold that the district court did not abuse its
discretion in refusing the requested instructions.
IX.
Finally, Eccleston challenges his sentence. The jury
attributed to him less than 28 grams of crack cocaine, as well
as between 500 grams and 5 kilograms of powder cocaine to him.
Eccleston argues that the district court thus erred in
attributing to him for sentencing purposes more than 28 grams of
crack cocaine to him, and in attributing 16 kilograms of powder
cocaine. “We review the sentence imposed by a district court
under a ‘deferential abuse-of-discretion standard.’ We review
factual findings for clear error, and legal conclusions de
53
novo.” United States v. Davis, 679 F.3d 177, 182 (4th Cir.
2012) (citation omitted).
Contrary to Eccleston’s contention, the district court
attributed less than 28 grams of crack cocaine to him. 11 See
J.A. 1078. The district court then concluded that the
appropriate base offense level was 34. 12 Next, it raised the
offense level to 36 due to an obstruction of justice
11
Although Eccleston argued in the district court that no
amount of crack cocaine should be attributable to him as
relevant conduct, he does not explicitly advance that argument
here. Even if he did, we would review the district court’s
determination of the drug quantity attributable to him only for
clear error. United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999). For sentencing purposes, a defendant is accountable
for “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,” which
“occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” USSG
§ 1B1.3(a)(1)(B); see also United States v. Williams, 986 F.2d
86, 90 (4th Cir. 1993) (“A defendant convicted of conspiracy
should be sentenced not only on the basis of his conduct, but
also on the basis of conduct of coconspirators in furtherance of
the conspiracy that was known to the defendant or reasonably
foreseeable to him.”). Here, there is evidence in the record to
support the district court’s conclusion that it was foreseeable
to Eccleston that crack cocaine would be sold as part of the
conspiracy. Witness testimony established that he was present
in the stash houses while his coconspirators sold crack cocaine.
Indeed, Rainey’s testimony established that the conspiracy sold
crack cocaine at a rate of 3 ounces per day, or 2.25 kilograms
per month, for 16 months. Given this witness testimony, we find
that the district court did not clearly err in attributing less
than 28 grams of crack cocaine to Eccleston.
12
This base offense level incorporated both the powder and
crack cocaine.
54
enhancement. Eccleston’s trial counsel confirmed that the base
offense level of 34 was correct. See J.A. 1076-78 (arguing that
no crack cocaine at all should be attributed to Eccleston, but
conceding that if less than 28 grams of crack cocaine were
attributed him, the base offense level would be 34). We thus
reject Eccleston’s argument that the district court erred in
attributing to him less than 28 grams of crack cocaine.
In arguing that the district court erred in attributing 16
kilograms of powder cocaine to him, 13 Eccleston relies primarily
on Alleyne v. United States, 133 S. Ct. 2151 (2013), which
expressly overruled the Supreme Court’s decision in Harris v.
United States, 536 U.S. 545 (2002). Alleyne, 133 S. Ct. at
2155. Specifically, the Court held “that any fact that
increases the mandatory minimum is an ‘element’ that must be
submitted to the jury.” Id. Here, however, the facts at issue
-- the amount of powder cocaine attributable to Eccleston -- did
not serve to increase a mandatory minimum, and thus Alleyne does
13As indicated above, the jury attributed only between 500
grams and 5 kilograms of powder cocaine to Eccleston. In
attributing 16 kilograms to Eccleston for sentencing purposes,
the district court accepted the government’s analysis of
Rainey’s testimony. The government pointed to Rainey’s
testimony that the drug operation “moved about a kilogram a
month” during the course of the 16 month conspiracy. J.A. 1066.
Eccleston does not challenge these calculations except to say
that the amount is “clearly in excess of the jury’s finding.”
Opening Br. of Appellant 50.
55
not apply. See United States v. Benn, 572 F. App’x 167, 180
(4th Cir. 2014) (unpublished) (“The district court’s drug
quantity determinations at sentencing did not increase
Appellants’ statutory mandatory minimum sentences, but rather,
were used to determine their advisory Guidelines ranges (from
which, in any event, the district court varied downward).”) 14 We
thus reject Eccleston’s argument that the district court erred
in its attribution of powder cocaine during sentencing.
X.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
14 The district court here also varied downward.
56