United States v. Shenika Graves

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHENIKA GRAVES, a/k/a Shenika Nicole Graves,
Defendant - Appellant.
No. 12-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOXLY JOHNSON, a/k/a Desmond Williams,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:10-cr-00799-WDQ-3; 1:10-cr-00799-WDQ-1)
Argued: September 18, 2013 Decided: November 6, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Howard Margulies, Columbia, Maryland, for Appellant
Shenika Graves. Gary Allen Ticknor, Columbia, Maryland, for
Appellant Loxly Johnson. Joshua L. Kaul, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Philip S. Jackson,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a jury trial, Appellants, Loxly Johnson (Johnson)
and Shenika Graves (Graves), were convicted of conspiracy to
import one kilogram or more of heroin and 500 grams or more of
cocaine, 21 U.S.C. §§ 960(a)(1) and 963, pursuant to a one-count
superseding indictment returned on January 4, 2011 by a federal
grand jury sitting in the District of Maryland. The district
court sentenced Graves to a term of twelve months and one day of
imprisonment, and Johnson to 240 months’ imprisonment. On
appeal, Appellants raise a host of challenges to their
respective convictions. We affirm.
I
Johnson and Graves first challenge the district court’s
denial of their respective motions to suppress. When
considering the denial of a motion to suppress, our review of
the district court’s factual findings is for clear error and our
review of its legal conclusions is de novo. United States v.
Lewis, 606 F.3d 193, 197 (4th Cir. 2010). Because the district
court denied the Appellants’ respective motions below, we
construe the evidence in the light most favorable to the
government. United States v. Branch, 537 F.3d 328, 337 (4th
Cir. 2008).
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The district court held a suppression hearing for the
Appellants on December 6, 2011. The credible evidence
introduced at that hearing demonstrated as follows.
On December 17, 2010, a ship security officer for the Royal
Caribbean M/V Enchantment of the Seas told United States
Immigration and Customs Enforcement (ICE) agents that Gavin
Excell (Excell) and other crew members might be smuggling
narcotics on the ship. The next day, agents of the ICE Homeland
Security Investigations (HSI) Seaport Group coordinated with
Customs and Border Protection to inspect the ship’s crew members
when they arrived in Baltimore, Maryland.
At about 9:00 a.m. on December 18, 2010, the crew of the
Enchantment of the Seas was allowed to disembark. Searching
Excell, agents found three packages: one wrapped in duct tape in
his pants and two molded to fit into his shoes. The package in
his pants contained about 700 grams of heroin. The packages in
his shoes contained a total of about 300 grams of cocaine.
After he was arrested and waived his Miranda 1 rights, Excell
stated that he had picked up the drugs in Jamaica or the
Dominican Republic with fellow crew members John Swart Garth
(Garth) and an individual he knew as Kishurn, later identified
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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as Kishurn Neptune (Neptune), and he was to deliver them to
someone called “Tony” at a nearby Wal–Mart. 2 Excell indicated
that “Tony’s” cell phone number was 757–236–6211. At some point
while Excell was in custody, he received a call from cell phone
number 757–576–2843, which was linked in a national database to
Latoya Johnson. 3 The 757 area code is for Norfolk, Virginia.
Ronald Copeland (Detective Copeland), a detective with the
Baltimore City Police Department and an ICE Task Force Officer,
went to the Wal–Mart parking lot and found a black GMC Envoy
(the Envoy) with Virginia plates. The Envoy was the only
vehicle in the parking lot with Virginia plates. A check of the
license plates revealed that the Envoy was registered to Latoya
Johnson. A male, later identified as Johnson, and a female,
later identified as Graves, were seen inside the Envoy.
At about 10:15 a.m., another male, later identified as
Garth, walked up to the driver’s window of the Envoy, spoke with
the driver for a moment, then walked around to the rear
passenger door, opened it, and entered the vehicle. Detective
Copeland saw Garth, sitting in the back seat, bend his torso
2
Excell, Garth, and Neptune were also charged in the one-
count superseding indictment alleging a conspiracy to import
heroin and cocaine. They pleaded guilty prior to Johnson and
Graves’s trial.
3
Latoya Johnson is Johnson’s daughter.
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forward and reach toward the floorboard. According to Detective
Copeland, Garth appeared to be “messing with his shoes or
something.” After a few minutes, Garth exited the Envoy and
walked into the Wal–Mart. Later, he left the Wal–Mart and
boarded a van used by cruise ship crew members to return to the
ship.
At about 10:45 a.m., Johnson left the Envoy, entered the
Wal–Mart, and was followed ten minutes later by Graves. Over
the next hour, Johnson and Graves stayed inside the Wal–Mart,
periodically scanning the parking lot from the entrance to the
store. Graves once returned to the Envoy, sat in the driver’s
seat for about fifteen to twenty minutes, and then walked back
to the Wal–Mart.
At about 11:30 a.m., Graves returned to the Envoy and moved
it to another part of the parking lot while talking on her cell
phone. Law enforcement officers saw Neptune wearing a Royal
Caribbean jacket in the Wal–Mart parking lot. He walked around
Detective Copeland’s unmarked patrol car and stared directly at
him. Detective Copeland understood him to be conducting
counter-surveillance. Soon after, Detective Copeland saw
Neptune, Graves, and possibly Johnson standing with their backs
to each other for several minutes just outside the entrance to
the Wal–Mart.
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At about 12:30 p.m., Excell made two controlled calls to
“Tony.” The first call, to 757-236-6211, went to voicemail.
The second call, to 757-576-2843, “Tony” answered. Excell told
him that he had been delayed by an immigration check, but that
he could be at the Wal–Mart in fifteen minutes. “Tony”
responded that he was at the Wal–Mart, but he had to leave and
could not accept drugs there because the area was “hot.” “Tony”
said he would call Excell back.
A few minutes later, Johnson left the Wal–Mart, got into
the Envoy, and drove to a nearby gas station, with the law
enforcement officers following the Envoy to such station. At
this time, Graves was in the foyer of the Wal-Mart. Johnson
stayed in the Envoy at the gas station for about five to ten
minutes, then drove north on Hanover Street. He held his cell
phone to his ear as he drove. At the same time, Excell, who was
in an unmarked patrol car, received a call.
Law enforcement officers stopped the Envoy a few blocks
later. Johnson was ordered out of the Envoy and handcuffed. At
the time, Johnson had a cell phone to his ear, which was seized. 4
HSI Special Agent Roger Cochran (Special Agent Cochran) examined
the call log to Johnson’s cell phone and discovered that, at
4
The cell phone number of the cell phone seized from
Johnson was 757-576-2843. The cell phone corresponding to cell
phone number 757-236-6211 was never recovered.
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12:36 p.m. that day, Johnson’s cell phone had received a call
from “Shp-Gavn,” cell phone number 757-576-0399, a cell phone
number that Special Agent Cochran recognized as Excell’s cell
phone number. Johnson initially consented to a search of the
Envoy, but soon said the vehicle was not his and revoked his
consent.
A Baltimore City Police Department canine sniffed the Envoy
with negative results. Law enforcement officers then searched
the Envoy, finding $8,000 in cash under the lining of a child
safety seat in the backseat.
Meanwhile, two HSI Special Agents, Alex Feres (Special
Agent Feres) and Harry Freeman (Special Agent Freeman), and
Detective Copeland, approached Graves in the Wal–Mart foyer and
identified themselves. Special Agent Feres asked Graves if she
would speak to them “in private.” Graves agreed and walked with
the law enforcement officers to Special Agent Freeman’s unmarked
patrol car. Prior to getting into Special Agent Freeman’s
patrol car, Graves was told she was not under arrest, she did
not have to engage in the conversation if she did not want to do
so, and she could “stop the conversation.” The law enforcement
officers were not wearing bullet-proof vests or showing their
weapons, and they did not touch Graves. Special Agent Feres
asked for Graves’s consent to quickly look through her Wal–Mart
bag and purse to check for weapons. Special Agent Freeman then
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checked these items, removing only Graves’s wallet to look for
identification.
Once in the patrol car, Graves indicated that she had come
to Baltimore from Virginia that morning with Johnson, a drug
trafficker, to meet someone from a cruise ship. Graves said
that an unknown man had entered the Envoy earlier that day and
had given them three packages in return for $4,000 and that the
“stuff” was in her purse. Graves began to cry as she was
arrested. Special Agent Feres read Graves her Miranda warnings
after she stopped crying, about ten minutes later. She waived
her rights orally and in writing. The law enforcement officers
searched her purse after the arrest and found three duct-taped
packages, similar to the ones Excell had, containing about 700
grams of heroin and 300 grams of cocaine.
Graves received several phone calls while she was with the
law enforcement officers. Following her arrest, Special Agent
Feres asked if she could answer them, and when she said yes, he
told her to answer. The first call was from a person in
Virginia, stating that he was worried “about Johnson’s status.”
The second call was from a person apparently using an overseas
phone, asking Graves if she had “the stuff.” She told the
caller she had it, but was stuck at the Wal–Mart. The person on
the other end of the call said that he would have someone pick
her up.
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A
Johnson contends that the law enforcement officers lacked
probable cause to arrest him, search his cell phone, and search
the Envoy. We disagree.
The Fourth Amendment provides in relevant part that the
people are “to be secure in their persons . . . against
unreasonable searches and seizures . . . and no Warrants shall
issue, but upon probable cause.” U.S. Const. amend. IV. Under
the Fourth Amendment, if supported by probable cause, an officer
may make a warrantless arrest of an individual in a public
place. Maryland v. Pringle, 540 U.S. 366, 370 (2003).
“Probable cause” sufficient to justify an arrest requires “facts
and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
Determining whether an officer has probable cause involves
an inquiry into the totality of the circumstances. Pringle, 540
U.S. at 371. This inquiry does not involve the application of a
precise legal formula or test but the commonsense and streetwise
assessment of the factual circumstances. Id. at 370-71. The
Court in Pringle emphasized that the probable-cause standard is
“a practical, nontechnical conception that deals with the
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factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Id. at
370 (citations and internal quotation marks omitted). In
assessing the totality of the circumstances, it is appropriate
to consider an officer’s practical experience and the inferences
the officer may draw from that experience. Ornelas v. United
States, 517 U.S. 690, 700 (1996).
In this case, there was probable cause to arrest Johnson.
When Johnson was arrested, the officers knew that Excell, who
had been caught with about one kilogram of drugs on his person,
was planning to deliver the drugs to a man called “Tony” in the
Wal–Mart parking lot and claimed that other crew members were
making similar deliveries. One of the contact numbers for
“Tony” was a Norfolk, Virginia cell phone number registered to a
Latoya Johnson. The Envoy, the only vehicle in the Wal-Mart
parking lot with Virginia license plates, was also registered to
Latoya Johnson. Johnson and Graves had been sitting in the
Envoy in the Wal–Mart parking lot or looking at the parking lot
from the store for almost two hours at about the time Excell was
to deliver the drugs. While they were in the Envoy, an unknown
man, who later got into a cruise ship van, entered the Envoy for
a few moments bent over as if to remove something from his
shoes, and then quickly left the vehicle. Shortly thereafter,
Graves moved the Envoy to another part of the parking lot.
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Neptune, wearing Royal Caribbean apparel, conducted counter-
surveillance on the parking lot and was seen standing next to
Johnson and Graves at the Wal–Mart entrance. On the heels of
this activity, “Tony” told Excell that he was leaving the Wal–
Mart, and Johnson drove away from the parking lot. Johnson
drove to a gas station, but never bought gas or used the
convenience store. All of these facts provided the law
enforcement officers the necessary probable cause to arrest
Johnson. Because Johnson’s arrest was lawful, the seizure and
search of his cell phone was lawful as well. See United States
v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that
officers may seize cell phones incident to an arrest and
retrieve text messages and other information without a search
warrant).
Turning to Johnson’s challenge to the search of the Envoy,
that search was valid under the automobile exception to the
warrant requirement because the government had probable cause to
believe the Envoy contained drugs. See United States v. Ross,
456 U.S. 798, 825 (1982) (noting that a warrant is unnecessary
for an automobile search supported by probable cause); United
States v. Dickey-Bey, 393 F.3d 449, 456 (4th Cir. 2004) (same).
In addition to the evidence set forth above that provided
probable cause to arrest Johnson, the law enforcement officers
knew from Johnson’s cell phone call log that he had just
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received a call from Excell. The totality of the circumstances
amply support the conclusion that there was probable cause to
search the Envoy. Id.B
For her part, Graves argues that the district court erred
when it refused to suppress certain statements she made to the
law enforcement officers. According to Graves, the law
enforcement officers procured these statements in violation of
Miranda.
“Statements obtained from [a] defendant during custodial
interrogation are presumptively compelled,” in violation of the
Fifth Amendment, unless the government shows “that law
enforcement officers (1) adequately informed the defendant of
her Miranda rights and (2) obtained a waiver of those rights.”
United States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005)
(footnote omitted). To determine whether a defendant was in
custody for Miranda purposes, courts are to determine “first,
what were the circumstances surrounding the interrogation; and
second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the
interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112
(1995) (footnote omitted). In other words, “[a]n individual is
in custody when, under the totality of the circumstances, a
suspect’s freedom from action is curtailed to a degree
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associated with formal arrest.” United States v. Colonna, 511
F.3d 431, 435 (4th Cir. 2007) (citation and internal quotation
marks omitted). In conducting the custody inquiry, it is
important to remember that “[a]ny interview of one suspected of
a crime by a police officer will have coercive aspects to it,
simply by virtue of the fact that the police officer is part of
a law enforcement system which may ultimately cause the suspect
to be charged with a crime.” Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (per curiam).
In support of her argument, Graves seems to emphasize that
she was questioned in a patrol car by three law enforcement
officers and the law enforcement officers were vigorously
pursuing a drug investigation. However, the Supreme Court has
made clear that neither the location nor the purpose of the
interview is dispositive of whether a suspect is in custody.
See Yarborough v. Alvarado, 541 U.S. 652, 656-66 (2004)
(upholding state court determination that the respondent, a
juvenile, was not in custody during his two-hour interview,
despite the fact that he was dropped off at the police station
by his parents at police request and was not told that he was
free to leave); Stansbury v. California, 511 U.S. 318, 325
(1994) (holding that a clear statement by a police officer that
the person being questioned is a suspect does not alone
determine custody, but is only “one among many factors” that
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bear on an assessment of whether a reasonable person would feel
free to depart); California v. Beheler, 463 U.S. 1121, 1125
(1983) (“But we have explicitly recognized that Miranda warnings
are not required simply because the questioning takes place in
the station house, or because the questioned person is one whom
the police suspect.”) (citation and internal quotation marks
omitted); Mathiason, 429 U.S. at 495 (holding that Miranda
warnings are not required when a suspect voluntarily accompanies
the police to the police station, answers questions, and then is
allowed to leave). Moreover, the number of law enforcement
officers present here, three, does not bolster Graves’s
argument. See, e.g., United States v. Nishnianidze, 342 F.3d 6,
12–14 (1st Cir. 2003) (holding no custody despite the presence
of three law enforcement officers); United States v. Quinn, 815
F.2d 153, 157-61 (1st Cir. 1987) (holding no custody despite the
presence of five officers).
In our view, Graves was not in custody so as to trigger the
Miranda requirements. Special Agent Feres asked Graves if she
would speak to the law enforcement officers “in private.” Prior
to getting into Special Agent Freeman’s patrol car, Graves was
told that she was not under arrest, she did not have to answer
questions if she did not want to do so, and she could “stop the
conversation.” Cf. Colonna, 511 F.3d at 435 (holding that
informing a suspect that he was not under arrest was a factor in
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assessing the totality of the circumstances). The law
enforcement officers did not wear bullet-proof vests, show their
weapons, or touch Graves. Cf. United States v. Street, 472 F.3d
1298, 1309 (11th Cir. 2006) (noting that “whether the officers
brandished weapons, touched the suspect, or used language or a
tone that indicated that compliance with the officers could be
compelled” were factors in the custody analysis) (citation and
internal quotation marks omitted). Under the totality of the
circumstances, a reasonable person in Graves’s shoes would have
felt that she was at liberty to terminate the questioning at any
time and leave. Keohane, 516 U.S. at 112. 5
5
Graves also argues that, even assuming she was not in
custody for Miranda purposes, her statements to the law
enforcement officers were inadmissible because they were
procured in violation of the Due Process Clause of the Fifth
Amendment, which provides in relevant part “[n]o person . . .
shall be compelled in any criminal case to be a witness against
himself . . . without due process of law.” U.S. Const. amend.
V. A statement is involuntary under the Due Process Clause of
the Fifth Amendment if it was extracted by “any sort of threats
or violence, [or] obtained by any direct or implied promises,
however slight, [or] by the exertion of any improper influence.”
Hutto v. Ross, 429 U.S. 28, 30 (1976) (citations and internal
quotation marks omitted). In our view, Graves’s due process
argument fails because no coercive police activity was present.
See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that
“coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning
of the Due Process Clause”).
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II
Johnson also raises three trial-related issues on appeal.
The evidence presented by the government at trial was similar to
the evidence presented by the government at the suppression
hearing. Detective Copeland, Special Agent Cochran, and Special
Agent Feres were the government’s three witnesses at the
suppression hearing, and they all testified at the trial.
Excell, who did not testify at the suppression hearing, was the
government’s only other witness at the trial. He testified
extensively about the particulars of the importation scheme. Of
note, the government’s use of Graves’s statements to the law
enforcement officers was limited by the dictates of Bruton v.
United States, 391 U.S. 123, 126 (1968) (holding a defendant is
deprived of his rights under the Confrontation Clause when a
codefendant’s incriminating confession is introduced at their
joint trial, even if the jury is instructed to consider that
confession only against the codefendant). Neither Johnson nor
Graves argue that their respective convictions run afoul of
Bruton.
A
Johnson contends that the district court, during the trial,
should have sua sponte severed his trial from Graves’s trial.
The failure to order a severance sua sponte is reviewed for
plain error. United States v. Hart, 273 F.3d 363, 369-70 (3d
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Cir. 2001). To demonstrate plain error, a defendant must show
that: (1) there was an error; (2) the error was plain; and (3)
the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). Even if these elements are
established, the decision to correct the error lies within our
discretion, and we exercise that discretion only if “the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 732 (citation, alteration, and
internal quotation marks omitted).
At the suppression hearing on December 6, 2011, Special
Agent Cochran testified that he did not know the cell phone
number of the cell phone seized from Johnson on the day of his
arrest. That evening, Special Agent Cochran retrieved the cell
phone number (757-576-2843) from the cell phone seized from
Johnson and conveyed this information to the Assistant United
States Attorney (the AUSA) handling the case. The AUSA promptly
notified Johnson’s counsel the following day, the first day of
trial, who responded with an oral motion in limine to prevent
the government from introducing this evidence. The district
court granted the motion, concluding that the government’s
disclosure to Johnson was late.
At trial, counsel for Graves introduced into evidence the
records of Graves’s cell phone activity around the time of her
arrest (December 18, 2010). These records showed that there was
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a common cell phone number called by both Excell’s and Graves’s
cell phone on December 18, 2010. Graves’s counsel was able to
elicit testimony from Special Agent Cochran that the common cell
phone number was attributable to the cell phone seized from
Johnson on the day of his arrest.
Johnson timely objected to Special Agent Cochran’s
testimony, but the district court overruled the objection.
Johnson now claims that, if the district court was going to
permit the introduction of this evidence, it was required to sua
sponte sever his trial from Graves’s trial. According to
Johnson, the introduction of this evidence rendered his defense
mutually antagonistic to Graves’s defense.
Two or more defendants may be charged in the same
indictment if they are alleged to have “participated in the same
act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” Fed. R.
Crim. P. 8(b). Generally, we adhere to the principle that
defendants indicted together should be tried together, and a
defendant must show that he was prejudiced by the denial of a
severance motion in order to establish that the district court
abused its broad discretion in that regard. United States v.
Strickland, 245 F.3d 368, 384 (4th Cir. 2001); see also Zafiro
v. United States, 506 U.S. 534, 539 (1993) (noting that courts
should grant severance “only if there is a serious risk that a
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joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence”); United States v. Harris,
498 F.3d 278, 291 (4th Cir. 2007) (noting that a district court
abuses its discretion “only where the trial court’s decision to
deny a severance deprives the defendants of a fair trial and
results in a miscarriage of justice”) (citation and internal
quotation marks omitted); Fed. R. Crim. P. 14(a) (“If the
joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to prejudice a
defendant or the government, the court may order separate trials
of counts, sever the defendants’ trials, or provide any other
relief that justice requires.”). Moreover, a defendant is not
entitled to severance merely because he might have had a better
chance of acquittal in a separate trial. Zafiro, 506 U.S. at
540.
The presence of conflicting or antagonistic defenses alone
does not require severance under Rule 14(a). Id. at 538. “The
mere presence of hostility among defendants . . . or the desire
of one to exculpate himself by inculpating another [are]
insufficient grounds to require separate trials.” United States
v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986) (citation,
alterations, and internal quotation marks omitted). The
antagonistic defenses must involve more than “finger pointing.”
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United States v. Najjar, 300 F.3d 466, 474 (4th Cir. 2002).
Instead, “[t]here must be such a stark contrast presented by the
defenses that the jury is presented with the proposition that to
believe the core of one defense it must disbelieve the core of
the other, . . . or that the jury will unjustifiably infer that
this conflict alone demonstrates that both are guilty.” Id.(citation and internal quotation marks omitted).
Johnson’s defense at trial was that the government
introduced no evidence suggesting that he had any knowledge of
the drugs found in Graves’s purse. In asserting this defense,
Johnson’s counsel emphasized that: (1) the cell phone seized
from Johnson on the day of his arrest was never introduced into
evidence; (2) the cell phone corresponding to cell phone number
757-236-6211 was never recovered; (3) the canine did not alert
on the Envoy; (4) there was no evidence that he had any
knowledge of the $8,000 found in the Envoy, including the lack
of any fingerprint evidence; (5) there was no evidence that a
transaction took place after Garth entered the Envoy because his
hands were not seen handing drugs over; and (6) nothing sinister
could be drawn from Johnson’s actions at the Wal-Mart because
they were innocuous and done in a crowded place in broad
daylight.
Graves’s defense was similar to that of Johnson’s. Her
defense was that, like Johnson, she had no knowledge of the
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drugs found in her purse. According to Graves’s counsel, the
drugs could have gotten into her purse in any number of ways
without her knowledge. This point, according to her counsel,
was underscored by the fact that drugs were not found in the
protective search of the purse. Counsel for Graves also
emphasized that Excell was supposed to deliver the drugs to a
man named “Tony” and not to a woman. This point was underscored
by the calls Excell made to “Tony” and the absence of evidence
that Excell ever contacted Graves. As for her statements to the
law enforcement officers, Graves’s counsel posited that Graves
did not make the statements and, even if she did, such
statements were involuntary under the circumstances. Counsel
for Graves also downplayed the significance of the calls
received by Graves while she was in the company of the law
enforcement officers, suggesting that “somebody that knew her
number and knew she was there had suggested to somebody that
they call her just to check the status.” Finally, counsel for
Graves emphasized that Graves’s actions at the Wal-Mart, though
a little unusual, were not indicative of criminal activity,
especially since Graves was not in a position to return to
Virginia on her own and, given the time of year, it probably was
warmer in the Wal-Mart than in the Envoy.
In our view, Johnson’s and Graves’s defenses, while
conflicting on certain points, were not mutually antagonistic to
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the point where the jury was required to believe the core of one
defense and disbelieve the core of the other. In order to
convict Johnson, the jury was not required to believe Graves’s
defense that she was not a participant in the conspiracy.
Rather, to convict Johnson, the jury was required to find that
he knowingly participated in the conspiracy. Such a conviction
did not rest on the jury’s acceptance of Graves’s defense. In
other words, the jury was free to disbelieve both Johnson’s and
Graves’s versions of the events and conclude they both
participated in the conspiracy. Such a conclusion did not rest
on the belief of one defendant’s defense and the disbelief of
the other defendant’s defense. See id. (noting that defenses
were not mutually antagonistic where defendant’s guilt was not
dictated by the asserted innocence of his co-defendants). In
sum, in this case, “it is not so much that the defenses were
antagonistic to each other as it is that the evidence was
antagonistic to those defenses.” United States v. Frazier, 394
F.2d 258, 261 (4th Cir. 1968).
B
Johnson claims that the district court erred when it denied
his request for a missing witness instruction. We review the
district court’s refusal to grant a defendant’s request for a
jury instruction for an abuse of discretion. United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009).
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Prior to the instant trial, Garth pleaded guilty to the
charged conspiracy and entered into a plea agreement with the
government whereby he had agreed to testify truthfully if called
to testify. At the time of trial, Garth was in custody awaiting
sentencing. At trial, the government decided not to call Garth,
prompting Johnson to request a missing witness instruction in
his proposed jury instructions. The district court denied this
request, and Johnson argues this ruling was in error. According
to Johnson, Garth’s plea agreement with the government rendered
him unavailable to the defense and, in any event, Johnson could
not compel Garth to testify for the defense. Johnson further
posits, in a speculative fashion, that Garth’s testimony would
have been helpful to his defense.
The Supreme Court announced the underlying rationale for
“missing witness” instructions in Graves v. United States, 150
U.S. 118 (1893): “if a party has it peculiarly within his power
to produce witnesses whose testimony would elucidate the
transaction, the fact that he does not do it creates the
presumption that the testimony, if produced, would be
unfavorable.” Id. at 121. To qualify for such an instruction,
two requirements must be met. First, it must be shown that the
party failing to call the witness has it peculiarly within its
power to produce the witness. United States v. Brooks, 928 F.2d
1403, 1412 (4th Cir. 1991). This requirement can be satisfied
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by showing either (1) that the witness is physically available
only to the other party, or (2) that, because of the witness’s
relationship with the other party, the witness “pragmatically”
is only available to that party. United States v. Rollins, 862
F.2d 1282, 1297 (7th Cir. 1988); see also United States v.
Spinosa, 982 F.2d 620, 632 (1st Cir. 1992) (missing witness
instruction proper when the witness is “so ‘clearly favorably
disposed’ to the other party”). Second, the witness’s testimony
must elucidate issues important to the trial, as opposed to
being irrelevant or cumulative. Brooks, 928 F.2d at 1412.
In this case, Johnson cannot get beyond the first
requirement. A witness is not unavailable merely because he
cooperates with the government. See Rollins, 862 F.2d at 1298
(holding that an inmate equally available to both the government
and the defense is not pragmatically unavailable simply because
he was also a government informant); Spinosa, 982 F.2d at 632(holding that a witness is not pragmatically unavailable simply
because he is a paid government informant).
Moreover, Johnson has produced no evidence that Garth was
accessible only to the government or that Garth could not have
been subpoenaed to testify at trial. Reduced to its essence,
then, Johnson’s claim of entitlement to the missing witness
instruction rests on his contention that, because Garth was in
federal custody, he was available only to the government. This
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contention, however, is incorrect. Johnson could have asked the
district court to issue a writ of habeas corpus ad
testificandum, thereby requiring Garth’s presence at trial to
testify. 28 U.S.C. § 2241(c)(5); see also Muhammad v. Warden,
Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988) (holding
that a writ of habeas corpus ad testificandum may be issued
extraterritorially by the district court). There is no
indication in the record that Johnson made such a request. And
the fact that Garth may have invoked his Fifth Amendment
privilege against self-incrimination is of no moment. United
States v. St. Michael’s Credit Union, 880 F.2d 579, 598 (1st
Cir. 1989) (holding that a “witness’[s] decision to invoke his
fifth amendment privilege against testifying makes him neither
peculiarly available to the government nor within the
government’s exclusive control”). There was no abuse of
discretion by the district court.
C
Finally, Johnson challenges the sufficiency of the evidence
to support his conviction. “A defendant challenging the
sufficiency of the evidence . . . bears a heavy burden.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation
and internal quotation marks omitted). We will uphold the
jury’s verdict “if, viewing the evidence in the light most
favorable to the government, it is supported by substantial
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evidence.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008). “Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. (citation and internal quotation marks omitted).
In reviewing for substantial evidence, we consider both
circumstantial and direct evidence and allow the government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008).
To be found guilty of conspiracy to import heroin and
cocaine, the government must prove: (1) an agreement to import
heroin and cocaine between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of the conspiracy. See
generally United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996) (en banc). The government may establish the existence of
a conspiracy wholly by circumstantial evidence. Id. at 858.
And “one may be a member of a conspiracy without knowing its
full scope, or all its members, and without taking part in the
full range of its activities or over the whole period of its
existence.” United States v. Banks, 10 F.3d 1044, 1054 (4th
Cir. 1993). “Once a conspiracy has been proved, the evidence
need only establish a slight connection between any given
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defendant and the conspiracy to support conviction.”
Strickland, 245 F.3d at 385.
A conspiracy conviction will be upheld by this court “even
if the defendant’s involvement is minimal.” United States v.
Allen, 716 F.3d 98, 103 (4th Cir. 2013). Consequently, “a
defendant may be convicted of conspiracy to [import] even if the
evidence shows participation in only one level of the conspiracy
charged in the indictment.” Id. (citation and internal
quotation marks omitted).
Whether there was a conspiracy to import heroin and cocaine
in this case is not in dispute. Excell and others were enlisted
to import heroin and drugs into the United States and did so.
The question is whether there is sufficient evidence in the
trial record to support the conclusion that Johnson knew of the
conspiracy and voluntarily became a part of it. In our view,
such sufficient evidence is in the trial record.
Under his dominion and control, Johnson possessed a large
sum of money. Such evidence supports the conclusion that some
of this money was to be paid to Excell. Although Johnson’s
presence at a Wal-Mart far away from home is not telling in and
of itself, the length of time he spent there and the actions he
took while there strongly suggest that he was participating in
the importation scheme. His interaction with Garth, first at
the driver’s side window of the Envoy and then in the vehicle as
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Garth appeared to remove something--such as a drug pack--from
his shoes further bolsters such a conclusion, as does the
furtive movements Johnson took while he was at the Wal-Mart.
Moreover, because Johnson did not leave once the Garth
transaction was concluded, the jury was free to conclude that
Johnson was waiting for a delivery from Excell. Finally, there
is plenty of evidence in the record to support the conclusion
that “Tony” and Johnson were the same person. In view of the
overwhelming evidence of guilt in the trial record, Johnson’s
sufficiency of the evidence challenge must be rejected.
III
For the reasons stated herein, the judgments of the
district court are affirmed.
AFFIRMED
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