United States v. Celestine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 97-4219
BERNARD TROY CELESTINE, a/k/a
Beaver, a/k/a Speed,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 97-4220
BARKLEY GARDNER, a/k/a Black Dog,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DUSHAWN LEVERT GARDNER, a/k/a  No. 97-4221
Shawn, a/k/a Black, a/k/a Michael
Archer,
Defendant-Appellant.

2 UNITED STATES v. CELESTINE
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 97-4238
RANDOLF MOORE, a/k/a Booney,
a/k/a Randy,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DUSHAWN LEVERT GARDNER, a/k/a  No. 98-4222
Shawn, a/k/a Black, a/k/a Michael
Archer,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-95-41-H)
Argued: June 3, 2002
Decided: August 9, 2002
Before WIDENER and TRAXLER, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
UNITED STATES v. CELESTINE 3
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant Barkley Gard-
ner; Wayne James Payne, Shallotte, North Carolina, for Appellant
Dushawn Gardner; Joseph Michael McGuinness, Elizabethtown,
North Carolina, for Appellant Moore; Joseph L. Bell, Jr., Rocky
Mount, North Carolina, for Appellant Celestine. John Eric Evenson,
II, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: John Stuart Bruce, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, J. Frank Bradsher,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a month-long trial, appellants were convicted of violat-
ing the federal Racketeer Influenced and Corrupt Organizations stat-
ute, 18 U.S.C. § 1962 (1995) (RICO), by promoting an interstate drug
ring, of conspiracy to commit that offense in violation of 18 U.S.C.
§ 1962(d), and of narcotics conspiracy in violation of 21 U.S.C. § 846(1995). Individual appellants also were convicted of murder in aid of
racketeering and aiding and abetting in violation of 18 U.S.C. §§ 2 &
1959(a)(1) (1995), conspiracy to murder in aid of racketeering in vio-
lation of 18 U.S.C. § 1959(a)(5), carjacking resulting in death in vio-
lation of 18 U.S.C. §§ 2 & 2119(3) (1995), using and carrying a
firearm to further a crime of violence causing death in violation of 18
U.S.C. §§ 2 & 924(i) (1994), conspiracy to kidnap in violation of 18
U.S.C. § 1201(c) (1995), and kidnaping resulting in death in violation
of 18 U.S.C. §§ 2 & 1201(a)(1). On appeal, they contend that various
trial errors, including evidentiary rulings, improper jury instructions,
4 UNITED STATES v. CELESTINE
and improper prosecutorial comments during closing arguments, man-
date a reversal of their convictions. The court finds no prejudicial
error in the jury instructions, admission of hearsay statements, or
denial of appellant Randolf Moore’s request to proceed pro se. There
is substantial evidence to support the appellants’ convictions, and
their sentences do not violate Apprendi. Accordingly, we affirm the
convictions.
I.
In 1993, a large drug-trafficking enterprise began doing business in
North Carolina and New York and later extended its activities into
Maryland. The group began in Brooklyn, where many of the members
grew up together and sold drugs on Brooklyn’s Argyle Street.
Various group members made periodic trips back and forth from
New York where they bought drugs, to North Carolina where they
sold drugs. Friends and girlfriends assisted by allowing the group’s
car titles, insurance, and telephone accounts to be put in their names,
and by renting apartments which were used for selling drugs and for
storing guns, drugs, and money.
In 1994, an independent third party named Bam Bam Ellis shot
Tremayne Hubbard, an associate of the drug enterprise. Appellant
Dushawn Gardner and enterprise member Lamont Fleming attempted
to get revenge on Ellis, but they shot the wrong person. Gardner and
Fleming attempted several more times to kill Ellis but were never suc-
cessful.
In 1995, enterprise members Jack Washington and Brian Linton
killed a friend of the group’s from Brooklyn, Joseph Brooks. Wash-
ington told other members of the group that an independent drug
dealer, Lateisha Beaman, had hired him to kill Brooks. Other asso-
ciates then began plotting to kill Beaman in retaliation, and arranged
a phony drug deal to trick her into meeting them. After meeting her,
associate members returned with her to an apartment, where appel-
lants Dushawn and Barkley Gardner, Randolf Moore, and additional
associates were waiting. They car-jacked her, took her to a rural,
wooded area, and shot her. They buried the weapons. Group member
UNITED STATES v. CELESTINE 5
Lamont Fleming eventually killed Washington in retaliation, and
again the group buried the weapon.
Roneka Jackson was a sometimes girlfriend of appellant Dushawn
Gardner and a mother of one of his children. She occasionally sold
drugs for the group and was involved in the details of its operations.
In August 1995, Dushawn and Barkley Gardner asked her to help
them get Dushawn’s van to New York. They were avoiding authori-
ties in North Carolina who were investigating the group’s criminal
activities, and they wanted to return to New York undetected. Appel-
lant Bernard Celestine then suggested that while they were staying
away from North Carolina, they could sell drugs in Baltimore for a
while to make money. Celestine, Jackson, and Dushawn Gardner
spent several days there before returning to New York for more drugs.
They made several trips between Baltimore and New York.
During that time, Jackson phoned her mother and said that she was
in New York with Dushawn Gardner. Jackson later reported to her
mother and to a detective with whom she had worked in the past that
she had gone to New York with the Gardners and Celestine because
she was promised a car, new clothes, and money for her own apart-
ment in exchange for her assistance. She said she wanted to leave but
that the group was watching her and following her to the bathroom
with a gun at her back, and that she did not have enough money to
get home to North Carolina. When the group was in Baltimore again,
she got away and a friend paid for her to stay in a motel for two
nights. Dushawn Gardner and Celestine tracked her down, removed
her from the motel room at gunpoint, and returned to New York
where they decided to kill her. Because they could not find a gun,
they broke her neck, doused her with gasoline, and lit her on fire. All
the while, she pleaded for mercy and promised not to tell.
Key enterprise members were arrested shortly thereafter. Some
members of the conspiracy plead guilty and testified against the oth-
ers. The remaining defendants went to trial in 1996, and were con-
victed on most counts charged.
II. Jury Instructions
First, appellants allege several errors in the jury instructions. They
argue that the district court improperly instructed the jury regarding
6 UNITED STATES v. CELESTINE
the elements of a RICO offense and regarding the law on the other
conspiracy counts. We review the district court’s jury instructions in
their entirety, and focus on whether the district court instructed the
jury regarding the elements of the offense and the defendant’s
defenses. See United States v. Wilson, 198 F.3d 467, 469 (4th Cir.
1999). Where appellants properly object, the specific formulation of
instructions is reviewed for abuse of discretion. United States v.
Helem, 186 F.3d 449, 454 (4th Cir. 1999). Where an objection is not
preserved, review is for plain error. United States v. Nicolaou, 180
F.3d 565, 569 (4th Cir. 1999).
A.
RICO requires the Government to prove "a pattern of racketeering
activity." 18 U.S.C. § 1962(c). To do so, it must establish that at least
two predicate acts are related, and that the acts amount to, or other-
wise constitute, a threat of continuing racketeering activity. H.J. Inc.
v. Northwestern Bell Tel. Co., 492 U.S. 229, 240-42 (1989). The con-
tinuity in combination with the relationship produces the pattern
required under the statute. Id. at 239.
Appellants argue that the district court failed to instruct the jury
that the government was required to prove beyond a reasonable doubt
that the racketeering acts charged in the indictment were both hori-
zontally related and vertically related. Their objection to this instruc-
tion was properly preserved, and so will be reviewed for abuse of
discretion. See J.A. 2441. The court finds that the instructions ade-
quately convey the meaning of both terms.1 The "third" point covers
1
The district court’s instruction on the RICO count included, in rele-
vant part:
The term "pattern of racketeering activity" requires at least two
acts of "racketeering activity," sometimes called predicate
offenses, which must have been committed within 10 years of
each other, within a space of 10 years from the start to the finish,
one of which must have occurred after October 1, 1970 . . . . So
in order to establish that the Defendants named in Count One of
the indictment, or any one of them you may be considering,
committed the offense charged in Count One, there are five spe-
cific acts which must be proved beyond a reasonable doubt:
UNITED STATES v. CELESTINE 7
horizontal relatedness by requiring the jury to find that the acts are
related to each other. The "fourth" point requires the acts to be related
to the criminal enterprise and thus covers the vertical element. This
instruction satisfies the requirements of H.J. Inc.
The Government concedes that the instruction failed to specifically
refer to the continuity requirement that a defendant’s racketeering acts
amount to, or threaten, the likelihood of continued criminal activity.
See H.J. Inc., 492 U.S. at 240-42. It contends, however, that continu-
ity is not, strictly speaking, an element of a RICO offense, but is
instead characteristic of the evidence used to prove the broader pat-
tern element. The Government cites United States v. Boylan, in which
the First Circuit held that where an instruction "adequately invinced
[sic] the concept that continuity requires ‘a series of related predicate
extending over a substantial period of time,’ reflective of a ‘regular
way’ of conducting the enterprise’s affairs," it was not plain error to
fail to mention "continuity" as an element of proving racketeering
activity. United States v. Boylan, 898 F.2d 230, 250-51 (1st Cir.
1990). The Government overstates the holding of Boylan. While Boy-
lan states in dicta that "continuity is not an element of a RICO
offense, stricto senso," the court still required the instructions to
reflect the concept of continuity. 898 F.2d at 250-51.
. . . Third: That the two predicate offenses, the two racketeering
acts allegedly committed by the Defendant were connected with
each other by some common scheme, plan, or motive, so as to
be a pattern of criminal activity, and not merely a series of sepa-
rate, isolated, or disconnected acts.
Fourth: That through the commission of the two or more con-
nected offenses, the racketeering acts, the Defendant conducted
or participated in the conduct of the enterprise’s affairs. . . .
. . . . You are further instructed that you must unanimously agree,
that is, all 12 of you in your deliberations must agree concerning
each Defendant under consideration, as to which of the two pred-
icate offenses, the acts of racketeering he committed. . . . You
must all agree upon the same two predicate offenses, in order to
find a particular Defendant guilty of Count One.
J.A. 2023-26.
8 UNITED STATES v. CELESTINE
To satisfy the requirements of H.J. Inc., the jury instruction at least
must incorporate the concept of continuity. See H.J. Inc., 492 U.S. at
240-42. The court finds that the instant instruction does so. The Elev-
enth Circuit approved an almost identical instruction which failed to
specifically mention continuity, but stated that there must be a pattern
of activity and not just a series of separate isolated or disconnected
acts. See United States v. Kotvas, 941 F.2d 1141, 1144-45 (11th Cir.
1991). Here, the jury was instructed that the acts had to be "connected
with each other by some common scheme, plan or motive so as to be
a pattern of activity, and not merely a series of separate, isolated, or
disconnected acts." The term "pattern" requires a showing of the
threat of continuing activity. See Kotvas, 941 F.2d at 1144-45. Thus
by requiring the jury to find a pattern of activity, and not just isolated
acts, the district court instructed the jury on continuity. See id. More-
over, the defendants’ proposed jury instructions do not contain any
greater elaboration on the continuity requirement than the instruction
given by the district court.2 The court therefore finds that the district
court did not abuse its discretion in instructing the jury on this count.
B.
Racketeering Acts Two A, Three A, and Four A in the RICO count
alleged conspiracy to commit murder and murder in violation of N.C.
Gen. Stat. § 14-17 (2002). Appellants argue that the district court
failed to instruct the jury on the North Carolina definitions of conspir-
acy and murder.
On the instruction for the first racketeering act of the narcotics con-
spiracy, the district court stated, "I will instruct you on the definition
and elements of conspiracy later in these instructions." J.A. 2028. It
then did so four times: on Count Two (RICO conspiracy), Count
Three (narcotics conspiracy); Counts Four and Eight (murder conspir-
acy), and Count Ten (kidnaping conspiracy). J.A. 2037-38; 2046-47;
2050-51; & 2063-64. The district court also gave a long instruction
on the definition of murder under North Carolina law. J.A. 2052-54.
2
The proposed instruction stated only that the jury must find beyond
a reasonable doubt that "each defendant participated in the affairs of the
Enterprise through a pattern of Racketeering activity as described in the
Indictment through the knowing and willful or deliberate commission of
at least two Racketeering acts within ten years of each other." J.A. 1909.
UNITED STATES v. CELESTINE 9
These instructions do not omit any element required by North Caro-
lina law. The court finds that the district court did not abuse its discre-
tion in formulating these instructions.
C.
For first degree kidnaping, North Carolina law requires a jury to
find beyond a reasonable doubt that a felony was committed prior to
the kidnaping. Defendants requested an instruction that read, in rele-
vant part:
You may not find that [the defendants] committed racketeer-
ing act 5A, unless you first find that the Government has
proved beyond a reasonable doubt each of the following
essential elements: 1. On or about between August 16, 1995
and September 23, 1995, two or more persons reached an
agreement to kidnap Roneka Jackson for the purpose of
facilitating the flight of [defendants] following the commis-
sion of a felony, that being narcotics trafficking.
J.A. 1944. The district court told the jury that the Government had to
prove, "that the Defendant removed [a person] for the purpose of
facilitating his or another person’s flight after committing a narcotics
trafficking crime." J.A. 2032. Appellants now argue that a "narcotics
trafficking crime" does not constitute a "specifically defined felony"
as required by North Carolina law. According to them, narcotics traf-
ficking is not a crime that exists under North Carolina law.
The invited error doctrine prevents a criminal defendant from com-
plaining of error which he himself has invited. United States v. Her-
rera, 23 F.3d 74, 75 (4th Cir. 1994). Because the district court used
the language suggested by the defendants, they cannot now claim
error based on that very phrasing. Id. Moreover, many North Carolina
statutes refer specifically to "narcotics trafficking crimes." See, e.g.,
N.C. Gen. Stat. §§ 148-4.1(a) (2002); 15A-533(d)(2) (2002); 15A-
290(a)(1)a (2002). For those reasons, the court finds that the district
court did not abuse its discretion in formulating this instruction.
Appellants also argue that the instructions on multiple states’ kid-
naping laws allowed the jury to convict them of a crime that does not
10 UNITED STATES v. CELESTINE
exist, because they could evaluate the conduct in one state under the
elements for proof required by the law of a different state. This argu-
ment is without merit, however, because the district court clearly and
thoroughly discussed each state’s kidnaping law and told the jury,
"You must unanimously agree as to which state, and the elements
under that state." J.A. 2032.
D.
Counts Four, Five, and Eight charged murder and murder conspir-
acy in violation of 18 U.S.C. § 1959 (1995). To prove a violation of
this statute, the Government had to prove 1) that the organization was
a RICO enterprise; 2) that the enterprise was engaged in racketeering
activity as defined by RICO; 3) that the defendant has a position in
the enterprise; 4) that the defendant had committed the alleged crime
of violence; and 5) that his general purpose in so doing was to main-
tain or increase his position in the enterprise. United States v. Fiel, 35
F.3d 997, 1003 (4th Cir. 1994).
Appellants argue that the judge failed to instruct as to the third and
fifth Fiel elements — that the defendant had a position in the enter-
prise and that the purpose in committing the crime of violence was
to maintain or increase his position in the enterprise.3 Because defen-
3
The district court instructed the jury:
The law is the same on both Count Four and Eight; so I will only
explain it one time. Count Four, now, in the indictment, charges
[the Gardners and Moore] with conspiring to murder Lateisha
Beaman in order to maintain and increase their position in a
"criminal enterprise,["], as that term was explained in Count
One. Count Eight charges Dushawn Gardner and Randolf Moore
only with violating federal law by conspiring to murder Jack
Washington in order to maintain and increase their position in a
criminal enterprise.
Title 18, United States Code, Section 1959, makes it a separate
federal crime for anyone to attempt or to conspire to commit
murder in violation of state or federal law, in an effort to gain
entrance to or maintain or increase their [sic] position in an
enterprise engaged in racketeering activity. To determine
UNITED STATES v. CELESTINE 11
dants did not object to the instructions on these counts, they are
reviewable only for plain error. United States v. Olano, 507 U.S. 725,
731 (1993).
The jury found that the defendants committed RICO offenses. They
could not have so decided without finding that the defendants were
involved in the enterprise. For those reasons, the court finds that there
was no plain error in this instruction.
III. Sufficiency of Evidence
The appellants next argue that there is insufficient evidence to sup-
port their convictions on Counts One, Two, and Three. Appellant
whether an enterprise existed which engaged in racketeering
activity, you are to apply the same meaning to those terms, as I
explained in more detail in Count One.
J.A. 2048-49. The court then instructed the jury on the specific offense
charged in Counts Four and Eight.
On Count Five, the district court told the jury:
Count Five charges [both the Gardners and Moore], together
with others, with violating [18 U.S.C. § 1959], a federal law, by
murdering Lateisha Beaman and/or aiding and abetting each
other in so doing, in order to gain entrance to and maintain and
increase their position in a criminal enterprise as that term was
explained to you in Count One. . . . In order to prove that the
Defendant violated this section, you must find the Government
has proved beyond a reasonable doubt, the following three
things, as to Count Five: First, that each of the defendants
charged in this count intentionally and with malice killed Late-
isha Beaman. . . . Second, that the Defendant then under consid-
eration, that Defendant’s acts were a proximate cause of the
victim’s death. And I tell you that a proximate cause is a real
cause, a cause without which the victim’s death would not have
occurred. That’s the meaning of proximate cause. Third and
final, that the defendant intended — the defendant then under
consideration intended to kill Lateisha Beaman, the victim.
J.A. 2052-54. The court repeated the statutory language and again stated,
"To determine whether an enterprise existed which engaged in racketeer-
ing activity, you are to apply the same meaning to those terms as I have
previously defined them." Id.12 UNITED STATES v. CELESTINE
Barkley Gardner also challenges the evidence on his convictions on
Counts Four, Five, Six, and Seven. In determining whether the evi-
dence was sufficient to prove the offense charged, we must consider
— viewing the evidence in the light most favorable to the Govern-
ment — whether any rational trier of fact could find guilt beyond a
reasonable doubt. United States v. Rahman, 83 F.3d 89, 93 (4th Cir.
1996).
A.
Appellants claim that the Government failed to prove 1) that racke-
teering acts two, three, and four were related horizontally to one
another and vertically to the enterprise, and 2) that it failed to link any
defendant to the attempt to murder Ellis or to any of the other murders
for the purposes of furthering the goals of the enterprise. According
to them, the plan to kill Ellis was a manhood test for Tremayne Hub-
bard or revenge for the attempt Ellis had made on Hubbard’s life;
Beaman’s murder was revenge for the killing of Brooks. Thus neither
murder, they claim, was related to the criminal enterprise.
The Government’s theory at trial was that the violence related to
and served the purposes of the enterprise. The Government presented
evidence that 1) various members of the enterprise had attempted to
kill Ellis; 2) Hubbard sold drugs in Durham, North Carolina, as did
Ellis; 3) Ellis shot and tried to kill Hubbard; 4) the group’s attempts
to kill Ellis in retaliation perpetuated its reputation in the community
for violence and strengthened the bonds of loyalty and duty among
members of the enterprise. It also presented evidence that 1) Beaman
was an independent drug dealer who hired enterprise members Jack
Washington and Brian Linton to murder Brooks, a Brooklyn associate
of enterprise members; 2) Washington and Linton murdered Brooks,
setting in motion the chain of events that led to the murders of Bea-
man and Washington and the attempted murder of Linton. One wit-
ness, for example, testified that Washington was killed "for the
cause." J.A. 875. This evidence tends to show the domino effect of
each act of violence. We find that there is enough substantial evidence
on this count to sustain appellants’ convictions.
Next, appellants claim that the convictions must be reversed
because it is impossible to tell if the jury based its conviction on at
UNITED STATES v. CELESTINE 13
least two permissible racketeering acts. They cite Yates v. United
States, 354 U.S. 298 (1957), for this proposition. In Yates, the general
verdict was supportable on one ground, but invalid on an alternate
ground because of constitutional limitations. Id. at 310. Because it
was impossible to tell on which ground the verdict was based, the
Court held that it must be set aside. Id. As Griffin v. United States
made clear, however, Yates stands only for the proposition that where
a provision of the Constitution forbids conviction on a particular
ground, the constitutional guarantee is violated by a general verdict
that may have rested on the same ground. 502 U.S. 46, 53 (1992).
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. Id. at 56-57. Here, the dis-
trict court instructed the jury that it had to "unanimously agree . . . as
to which of the two predicate offenses, the acts of racketeering he
committed . . . You must all agree on the same two predicate
offenses." J.A. 2026. The instant indictment charged eight racketeer-
ing acts. The jury thus could have returned guilty verdicts based on
any two acts, as long as they agreed on which two. Their verdict is
not defective because appellants can not determine on which acts they
were being convicted. See Griffin, 502 U.S. at 53.
Appellants also argue that the Government did not prove the exis-
tence of a single conspiracy, rather than proving only multiple smaller
conspiracies. A single conspiracy exists when there is one overall
agreement. United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988).
Whether there are multiple conspiracies or a single conspiracy
depends on the overlap of key actors, methods, and goals. Id. A
defendant can be involved in a conspiracy without being involved in
every phase of that conspiracy. Id. Indeed, a defendant can be con-
victed of conspiracy if the evidence shows his participation in only
one level. United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir.
1995).
The court finds that there is substantial evidence that a single con-
spiracy existed. The common goal was selling drugs for profit. Com-
mon actors were the Flemings and the Gardners, who all helped
establish the North Carolina operations and then led the retreat back
to New York, and the expansion into Maryland. Common methods
were traveling by car from North Carolina to New York to buy drugs,
14 UNITED STATES v. CELESTINE
using proxies to rent apartments and hotel rooms from which to dis-
tribute drugs, using alias names when confronted by police, and using
violence to intimidate and create loyalty.
B.
Appellant Barkley Gardner argues that there is insufficient evi-
dence relating him to the death of Beaman. The Government, how-
ever, presented evidence that Barkley helped hatch the plan to kill
Beaman, and then later looked for Beaman’s car keys so he and the
other associates could transport her elsewhere. J.A. 488-90; 630.
When she tried to run away, Barkley Gardner helped force her back
in the car. J.A. 629. Although it appears he did not participate in
every stage of the venture, evidence of his involvement is more than
enough to sustain his conviction.
IV. Admission of Hearsay Statements
Appellants argue that the district court improperly admitted hearsay
statements that Jackson made to various people on the phone during
her kidnaping and before her murder. The district court admitted the
statements pursuant to a "host of bases," specifically including Fed.
R. Evid. 803(3) (then existing mental, physical or emotional condi-
tion) and 804(b)(5)4 (statement more probative than other evidence
procurable through reasonable efforts). J.A. 1287. We review eviden-
tiary decisions by the district court for an abuse of discretion. United
States v. Robinson, 275 F.3d 371, 382 (4th Cir. 2002).
The Government points out that these hearsay statements are now
admissible under the new Rule 804(b)(6) (forfeiture by wrongdoing),
which codifies then-existing common law. See Fed. R. Evid.
804(b)(6) advisory committee’s note. The common-law doctrine of
forfeiture by misconduct held that where a party’s deliberate wrong-
doing or acquiescence thereto procured the unavailability of a hearsay
declarant as a witness, he forfeits the right to object on hearsay
grounds to the admission of the declarant’s prior statement. At the
time of the trial, every circuit that had addressed the issue recognized
4
This provision is now combined with former Rule 803(24) in Rule
807.
UNITED STATES v. CELESTINE 15
the doctrine. See, e.g., United States v. Houlihan, 92 F.3d 1271, 1280
(1st Cir. 1996); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir.
1992); United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982);
Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982); United States
v. Balano, 618 F.2d 624, 629 (10th Cir. 1980); United States v. Carl-
son, 547 F.2d 1346, 1358-59 (8th Cir. 1976). The circuits adopted
varying tests for determining whether a forfeiture had occurred. Some
applied a clear and convincing evidence standard. See, e.g., Thevis,
684 F.2d at 630. Others used a preponderance of the evidence analy-
sis. See, e.g., Houlihan, 92 F.3d at 1280.
The evidence surrounding Jackson’s death indicates that she was
killed to prevent her from talking. As her killers tried to break her
neck, she screamed, "I’m not going to tell, I’m not going to tell." J.A.
1706. Under either a clear and convincing standard or a preponder-
ance standard, we cannot say the district court abused its discretion
in admitting the statements under the waiver-by-wrongdoing doctrine.
The court finds that the statements also were admissible under Rule
804(b)(5) because circumstantial guarantees of trustworthiness were
present. See United States v. Clarke, 2 F.3d 81, 84 (4th Cir. 1993).
Jackson made consistent statements regarding her kidnaping to her
mother and to a police detective, who took contemporaneous notes
during each conversation. Many of the calls were substantiated by
telephone records and by the testimony of other witnesses. There
appears to be no motive for Jackson to have lied, nor have appellants
identified one. The district court did not abuse its discretion in admit-
ting these statements.
V. Prosecutorial Comments During Closing Arguments
Appellants argue that in closing arguments, the prosecutor made
improper and prejudicial comments which deprived them of a fair
trial. Remarks by a prosecutor can constitute grounds for reversal
where 1) the remarks were improper, and 2) the remarks so prejudi-
cially affected the defendant’s substantial rights so as to deprive him
of a fair trial. United States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993).
Put another way, improper argument by the prosecutor is not grounds
for reversal unless there is substantial prejudice as well as error.
United States v. Whitehead, 618 F.2d 523, 528 (4th Cir. 1980). To
16 UNITED STATES v. CELESTINE
determine whether the remarks were prejudicial, this court looks to 1)
the degree to which the remarks tended to mislead the jury or preju-
dice the accused; 2) whether the remarks were isolated or extensive;
3) the strength of the evidence supporting guilt in the absence of the
remarks; and 4) whether the remarks were deliberately placed in front
of the jury to divert attention to extraneous matters. Curry, 993 F.3d
at 45-46. It also considers 5) whether the prosecutor’s remarks were
invited by improper conduct of defense counsel, and 6) whether cura-
tive instructions were given to the jury. United States v. Wilson, 135
F.3d 291, 299 (4th Cir. 1998). These factors are examined in the con-
text of the entire trial, and no one factor is dispositive. Id.The court finds that none of the prosecutor’s remarks were
improper. Appellant Randolf Moore first complains about comments
on his credibility:
You need to watch and listen to him. Why? Because he’s
got an interest in this lawsuit. And I contend to you because
he’s got an interest, and he so much as told you without
realizing it, he’ll come up here and tell you any type of
cooked-up, trumped-up, cock-and-bull story hoping you’re
naive enough to believe it, so he can walk out those doors
and avoid the consequences of his criminal conduct. You
watched him up there. . . . Well, ladies and gentlemen of the
jury, I’ll tell you one of biggest lies there is and that’s a half-
truth. And do you know what Randy Moore has shown
throughout this racketeering enterprise? He is a master at
telling half the truth.
J.A. 2305-07. A prosecutor may not directly express his opinion as to
the veracity of a witness, but he may stress the inconsistencies and
improbabilities in a witness’s testimony. United States v. Moore, 710
F.2d 157, 159 (4th Cir. 1983). Moore had admitted numerous times
during his testimony that he had lied. The prosecutor’s remarks serve
to highlight these admissions and to cast doubt on his credibility. The
remarks were prefaced by "I contend to you," which indicates routine
argument, and not the expression of the prosecutor’s personal opinion
of Moore as a man or as a witness. The court finds nothing improper
about these remarks, and thus need not reach the next step of the
Curry inquiry.
UNITED STATES v. CELESTINE 17
Appellants next complain that the prosecutor improperly vouched
for government witnesses:
I argue to you, we corroborated virtually every major piece
of evidence in this case. Why? So you wouldn’t have to
worry about that. So you wouldn’t have to lose any sleep
over this. Even Randy Moore told you — and he thought he
was fooling you, I contend to you, the witnesses told you the
truth.
J.A. at 2308.
It is impermissible for a prosecutor to vouch for or bolster the testi-
mony of government witnesses during arguments to the jury. United
States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). The court finds,
however, that these comments do not constitute vouching. Vouching
occurs when a prosecutor indicates a personal belief in the credibility
or honesty of the witness. Id. Here, the prosecutor prefaced his com-
ments with the phrases, "I argue to you" and "I contend to you." His
comments were argument, and not indication of a personal belief. As
such, they were proper.
Finally, appellants argue that the prosecutor made two improper
attacks on defense counsel during rebuttal. First, he said, "I would
argue to you that based on what [defense counsel] argued to you here
today, that perhaps some of them weren’t sitting in the same court-
room that you and I were." J.A. 2298. He also stated
And they talk about the Government parading witnesses in
here and trying to get you in a conviction mood. Well, you
know what? The last I looked, there was a Judge sitting in
this courtroom. Do you think this Judge has lost control to
the point we’re getting you in some kind of conviction
mood?
J.A. 2307. Counsel may not make unfounded and inflammatory
attacks on the opposing advocate. United States v. Young, 470 U.S.
1, 8 (1985). The instant statements, however, are not the sort of bla-
tant personal attack contemplated by the Court in Young.5 Instead,
5
Young dealt with the prosecutor’s remark, "I don’t know whether you
call it honor and integrity, I don’t call it that, [defense counsel] does,"
18 UNITED STATES v. CELESTINE
they are rhetorical devices of the kind employed routinely in court-
rooms across the country. The court finds nothing improper about
those remarks.
VI. Remaining Issues
The remaining claims may be briefly addressed. Appellant Moore
complains of the district court’s refusal to honor his request to repre-
sent himself. The assertion of the Sixth Amendment right to represent
onself must be 1) clear and unequivocal; and 2) knowing, intelligent,
and voluntary. United States v. Frazier-El, 204 F.3d 553, 558 (4th
Cir. 2000). The right is not absolute, and can be waived by failure to
timely assert it, or by subsequent conduct giving the appearance of
uncertainty. United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir.
1997). Thus, if a defendant proceeds to trial and asserts his right to
self-representation only after the trial has begun, he may have waived
that right, and the exercise of the right may be denied, limited, or con-
ditioned. Id. The record here does not reflect a timely request to pro-
ceed pro se, and Moore agreed during trial that his attorney would ask
questions. For those reasons, we find that the district court did not
abuse its discretion in denying Moore’s request to proceed pro se.
Finally, appellants argue that their life sentences on Count Three
violate Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug
quantity was neither specified in the indictment nor submitted to the
jury. Because they failed to raise this issue before the district court,
we review for plain error. See Olano, 507 U.S. at 731-32. Although
appellants’ convictions on this count subjected them to a maximum
statutory penalty of 20 years, each received a life sentence. This was
plain error. See United States v. Promise, 255 F.3d 150, 156-57 (4th
Cir. 2001). We may notice this error only if appellants demonstrate
that it substantially affected their substantial rights. See Olano, 507
U.S. at 732. Because defendants all received life sentences on other
counts which are to run concurrently, they cannot demonstrate that
their substantial rights were affected. See United States v. Hastings,
and the defense counsel’s response that, "I submit to you that there’s not
a person in this courtroom including those sitting at [prosecutor’s] table
who think Billy Young intended to defraud Apco." 470 U.S. at 4-5.
UNITED STATES v. CELESTINE 19
134 F.3d 235, 240 (4th Cir. 1998). Accordingly, we reject appellants’
Apprendi challenge to their convictions.
Conclusion
For the reasons stated above, and because none of the alleged
errors, singly or in combination, deprived appellants of a fair trial, the
convictions are
AFFIRMED.