United States v. Ashley

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-4015

VAN CLEVE ASHLEY, a/k/a Q,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, Senior District Judge.

(1:06-cr-00034-MJG-1)

Argued: March 25, 2010

Decided: June 1, 2010

Before WILKINSON and MOTZ, Circuit Judges, and

Joseph R. GOODWIN, Chief United States District Judge

for the Southern District of West Virginia,

sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Motz and Judge Goodwin joined.

COUNSEL

ARGUED: Andrew Howard Baida, ROSENBERG, MAR-

TIN, GREENBERG, LLP, Baltimore, Maryland, for Appel-

2 UNITED STATES v. ASHLEY

lant. Christopher John Romano, OFFICE OF THE UNITED

STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF: Rod J. Rosenstein, United States Attorney, Bal-

timore, Maryland, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Van Cleve Ashley was indicted on three federal charges in

connection with his efforts to have a government informant

and witness murdered. A jury convicted him on all three

counts and he now appeals from two of those convictions.

Because each of Ashley’s claims on appeal is without merit,

we affirm his convictions.

I.

Ashley’s convictions arise out of the attempted murder of

one Thomas Dixon, a drug dealer turned government infor-

mant. Ashley’s role was essentially that of a broker, orches-

trating a deal between Frank Caruso, a drug dealer whose

arrest Dixon had facilitated, and Ramaine "Ra-Ra" York, who

was hired to kill Dixon.

The story begins on November 14, 2000, with the arrest of

Dixon by members of a federal drug task force working in the

Baltimore area. Dixon was carrying more than a million dol-

lars’ worth of ecstasy pills. Faced with serious penalties, he

immediately agreed to cooperate with federal investigators.

The very day of his arrest, Dixon let the government record

telephone conversations between him and Caruso, his sup-

plier. Caruso later testified that he came to suspect Dixon was

working with investigators during the calls and that his suspi-

cions were confirmed the next day when he learned of

Dixon’s arrest. His intuitions notwithstanding, Caruso was

arrested on federal drug charges in June 2001.

UNITED STATES v. ASHLEY 3

Caruso thereafter hired an attorney who, as it happened,

also represented Ashley. Caruso would later testify that he

met Ashley for the first time at their attorney’s office when

Ashley overheard Caruso complaining about Dixon. Ashley

approached Caruso, saying that he might know someone with

connections to Dixon. Caruso responded that he "would love

to be able to discredit, you know, dismantle a witness against

me. He’s out there selling drugs and living a normal life."

Ashley reiterated that he might know someone who could

help. Following this initial encounter, Caruso and Ashley had

several subsequent discussions and became, as Caruso put it,

"friendly."

At some point during a meeting at their attorney’s office,

Caruso provided Ashley the file kept on his case. It is unclear

whether this occurred before or after Caruso had received dis-

covery from the government, which definitively revealed

Dixon’s role in bringing about his arrest. Caruso also gave

Ashley a picture of Dixon, directions to Dixon’s home, and a

Glock 9mm semiautomatic handgun. In early 2002, Ashley

met with York, a long-time associate, telling him that Caruso

"had a problem down in Baltimore." On February 24, 2002,

York travelled to Baltimore, found Dixon in front of his

home, and shot him about six times. Dixon was hospitalized

for several months and underwent more than sixty operations

but miraculously survived the attack, albeit with permanently

debilitating injuries. For these efforts, Caruso paid Ashley

$10,000, half of which Ashley passed on to York.

The scheme eventually came to light, and Caruso was

charged with retaliating against a federal informant under 18

U.S.C. § 1513(a)(1), while York was charged with conspiracy

to retaliate. Both pled guilty. In January 2006, a federal grand

jury indicted Ashley on three counts. Count One charged Ash-

ley with conspiring to kill a witness in order to prevent his

attendance in court proceedings, in violation of 18 U.S.C.

§§ 1512(a)(1)(A) and (k). Count Two charged Ashley with

conspiring to kill an informant in retaliation for providing

4 UNITED STATES v. ASHLEY

information to a law enforcement officer, in violation of 18

U.S.C. §§ 1513(a)(1)(B) and (e). Count Three charged Ashley

with the firearms offense set forth in 18 U.S.C. § 924(c).

Ashley was convicted on all three counts. He does not

appeal his witness tampering conviction, but he does appeal

his conviction on the retaliation and firearms charges, claim-

ing insufficient evidence on Count Two and a constructive

amendment of the indictment on Count Three.

II.

We begin with Ashley’s sufficiency of the evidence claim

on Count Two. His task here is a daunting one. In assessing

a sufficiency challenge, a reviewing court must uphold a

jury’s verdict "if there is substantial evidence, taking the view

most favorable to the Government, to support it." United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

"[S]ubstantial evidence is evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a con-

clusion of a defendant’s guilt beyond a reasonable doubt." Id.

A defendant bringing a sufficiency challenge bears "a heavy

burden." United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.

1995). The government must be given the benefit of every

reasonable inference. Id. Reversal for insufficient evidence is

reserved for "the rare case where the prosecution’s failure is

clear." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997) (citation and internal quotation marks omitted).

Count Two charged Ashley with conspiring to violate 18

U.S.C. § 1513(a)(1)(B), which punishes anyone who "kills or

attempts to kill another person with intent to retaliate against

any person for . . . providing to a law enforcement officer any

information relating to the commission . . . of a Federal

offense." 18 U.S.C. § 1513(a)(1)(B). The term "law enforce-

ment officer" refers to federal officers. 18 U.S.C.

§ 1515(a)(4). Ashley argues that the government failed to pro-

duce evidence that he had the requisite state of mind to sus-

UNITED STATES v. ASHLEY 5

tain a conviction under the provision. See United States v.

Feola, 420 U.S. 671, 686 (1975). He asserts there was no evi-

dence he knew Caruso’s purpose in having Dixon killed was

to retaliate against Dixon for giving information to law

enforcement. More specifically, he claims there was no evi-

dence he even knew Dixon was a government informant and

that, even if there was, there was no indication he knew the

law enforcement officers to whom Dixon had provided infor-

mation were federal officers.1

Ashley makes much of the fact that the government failed

to establish whether Caruso had already received discovery

from the government at the time he gave Ashley his case file.

But this is a red herring. There was ample evidence that

Caruso knew Dixon had provided information to federal

agents even before discovery took place. Caruso testified that

he "had a very good feeling" that Dixon had been cooperating

within a day of Dixon’s having been arrested. According to

Caruso, after Dixon’s arrest "there were several phone calls

made to me from Tom Dixon from a, I guess it would be, an

FBI phone, and he tried to draw me out to say certain things

on the phone."

This statement would have allowed the jury to conclude not

only that Caruso suspected Dixon was cooperating but that

Caruso suspected he was cooperating in a federal investiga-

tion, especially since Caruso was later arrested on federal

charges. Nor was there anything unreasonable in inferring that

Caruso’s file, assembled in connection with his upcoming

federal prosecution, reflected his view of the sources and ori-

gins of his predicament, including its federal aspects. We also

reject Ashley’s claim that the government was required to

offer direct evidence that Ashley read the file. It seems

1

We shall assume for purposes of argument that Ashley is correct that

Section 1513 requires that a defendant know that the officer with whom

an informant is communicating is a federal one. See United States v. Den-

ham, 663 F.Supp.2d 561, 566-71 (E.D. Ky. 2009).

6 UNITED STATES v. ASHLEY

entirely reasonable to suppose that he was given the file so

that he could read it and that he naturally did so. After all,

Ashley was provided the case file after he had volunteered to

Caruso that he could help.

If the case file weren’t enough, these inferences find sup-

port from other evidence in the record. Both Caruso and York

testified that they had pled guilty to federal retaliation

charges. Since Ashley was the link between them, the jury

could reason that he shared their state of mind. Caruso told

Ashley he wanted to "dismantle a witness against me. He’s

out there selling drugs and living a normal life." A jury could

infer that Caruso was upset that Dixon was "leading a normal

life" because Dixon had traded information in exchange for

his liberty. Caruso also testified that he had not one, but a

number of conversations with Ashley about the matter and

that "we became friendly," making it all the more likely Ash-

ley understood exactly what the planned assassination of

Dixon was all about. Moreover, Caruso did not give Ashley

a picture of Dixon, directions to his home, and a semiauto-

matic handgun in order to foster amicable relations between

the two. As Caruso testified, he gave Ashley the gun "[t]o do

whatever he had to do to help me with my case."

We note too that the district court clearly pointed out the

difference between tampering with witnesses and retaliation

against informants in its instructions to the jury, telling it that

"in the one case, the allegation is the intent of the conspiracy

was to prevent testimony," while in the other, "the intent of

the conspiracy is to retaliate for having provided informa-

tion." The district court also drew attention to the federal

dimension of the charge, instructing the jury that to find Ash-

ley guilty, it must determine that Ashley acted "with specific

intent to retaliate against Mr. Dixon for providing to law

enforcement officers information about the criminal activities

of Fred Caruso in the case of U.S. v. Fred Caruso," which it

had described a moment earlier as "an official federal pro-

ceeding."

UNITED STATES v. ASHLEY 7

We are mindful that retaliation against informants and wit-

ness tampering are distinct offenses. While the difference

between them should not be blurred, the two offenses are

often related. Providing information and serving as a witness

often go hand-in-hand, and the proof used to support a con-

viction on one offense will frequently underlie a conviction

on another, notwithstanding the differences between the two

statutes. In United States v. Brown, 937 F.2d 32, 37 (2d Cir.

1991), for instance, the court rejected the defendant’s sugges-

tion that his threat to "erase" an informant demonstrated only

an intent to prevent a witness from testifying and not to retali-

ate against an individual for having informed against him. Id.

at 37. The same holds for the desire to "dismantle" Dixon.

In short, the evidence here satisfied constitutional require-

ments. Ashley’s argument seems premised on the view that

juries cannot draw reasonable inferences, but that is precisely

what juries are empanelled to do. Though a jury may not con-

vict on the basis of "rank speculation," it is entitled to deduce

and to infer. Goldsmith v. Witkowski, 981 F.2d 697, 703 (4th

Cir. 1992). Our system of lay juries is designed to allow

jurors to draw upon common experience and to rely upon rea-

sonable intuitions, and it is not the province of an appellate

court to undermine these virtues by picking apart a properly

instructed verdict. "[W]hile it is important that we not permit

a verdict based solely on the piling of inference upon infer-

ence, it is also imperative that we not rend the fabric of evi-

dence and examine each shred in isolation." United States v.

Johnson, 903 F.2d 1084, 1087 (7th Cir. 1990) (upholding

retaliation conviction under § 1513(a)).

Here the "fabric of the evidence" supports the jury’s deci-

sion. Given the contacts between Caruso and Ashley, it seems

entirely reasonable to posit that Ashley knew exactly what

Caruso was willing to pay for and precisely what Caruso

wanted done. Retaliation against informants, like witness tam-

pering, strikes at the heart of our criminal justice system. It

not only disrupts the peace of the community but threatens the

8 UNITED STATES v. ASHLEY

very instruments by which that peace is maintained. Direct

evidence of retaliatory intent is "usually unavailable" to pros-

ecuting attorneys. Id. But "[i]n a case of witness retaliation,

the government need not adduce direct evidence of Appel-

lant’s knowledge of a witness’s informant status in order for

the jury to infer his intent to retaliate." Brown, 937 F.2d at 36.

In prior retaliation prosecutions, we have not required the

government to produce a "smoking gun" that explicitly

reveals the contents of defendant’s mind, see United States v.

Cofield, 11 F.3d 413, 419-20 (4th Cir. 1993), and we decline

to do so today.

III.

We turn now to Ashley’s contention that the grand jury’s

charge on Count Three, which charged Ashley with violating

18 U.S.C. § 924(c), was constructively amended.2 The indict-

ment alleged that Ashley:

during and in relation to crimes of violence for

which he may be prosecuted in a court of the United

States, to wit: Conspiracy to Tamper With A Wit-

ness and Conspiracy To Retaliate Against A Wit-

ness, as set forth in Counts One and Two of this

Indictment, which are incorporated herein by refer-

ence, did knowingly possess and discharge a firearm

in furtherance of said crimes of violence.

It also cited 18 U.S.C. § 2, which provides generally for aid-

ing and abetting liability.

2

Section 924(c) punishes "any person who, during and in relation to any

crime of violence or drug trafficking crime . . . for which the person may

be prosecuted in a court of the United States, uses or carries a firearm, or

who, in furtherance of any such crime, possesses a firearm." 18 U.S.C.

§ 924(c)(1)(A). It includes a minimum sentence of five years, which

increases to ten years "if the firearm is discharged." 18 U.S.C.

§§ 924(c)(1)(A)(i), (iii).

UNITED STATES v. ASHLEY 9

In instructing the jury on Count Three, the district court

omitted any reference to the indictment’s "during and in rela-

tion to" language, telling the jury it could convict Ashley for

"possessing a firearm in furtherance of" a crime of violence,

which meant having "held a pistol and intentionally shot"

Dixon "to carry out the objectives" of the crimes charged in

the other counts of the indictment. It also instructed that if

York violated Section 924(c), the jury could convict Ashley

of that offense either under an aiding and abetting theory or

under the doctrine of vicarious co-conspirator liability estab-

lished in Pinkerton v. United States, 328 U.S. 640 (1946). The

government essentially repeated these theories in its closing

argument.

A.

Ashley first argues that his indictment was constructively

amended when, in describing Count Three to the jury, the dis-

trict court and the government omitted the indictment’s "dur-

ing and in relation to" language. "When the government,

through its presentation of evidence or its argument, or the

district court, through its instructions to the jury, or both,

broadens the bases for conviction beyond those charged in the

indictment, a constructive amendment—sometimes referred to

as a fatal variance—occurs." United States v. Malloy, 568

F.3d 166, 178 (4th Cir. 2009). To constitute a constructive

amendment, the variance must in essence "change the ele-

ments of the offense charged, such that the defendant is actu-

ally convicted of a crime other than that charged in the

indictment." Id. Any other variance "does not violate a defen-

dant’s constitutional rights unless it prejudices the defendant

either by surprising him at trial and hindering the preparation

of his defense, or by exposing him to the danger of a second

prosecution for the same offense." Id.

As Ashley acknowledges, Section 924(c) has two separate

prongs: a defendant can be convicted if he "uses or carries"

a firearm "during and in relation to" a crime of violence or if

10 UNITED STATES v. ASHLEY

he "possesses" a firearm "in furtherance of" a crime of vio-

lence. Either one is sufficient to allow a conviction. 18 U.S.C.

§ 924(c)(1)(A). Since "during and in relation to" is not an ele-

ment of the "possesses" version of the offense with which

Ashley was charged, it was simply surplusage and could be

omitted by the district court in its instructions. See Malloy,

568 F.3d at 178 (no constructive amendment where indict-

ment’s use of "knowingly" omitted from jury instructions

since knowledge was not element of charged offense).

Ashley argues, however, that presence of the word "dis-

charge" in the indictment indicates he was charged with vio-

lating the "uses-or-carries" version of the offense as well as

the "possesses" version. It seems more likely, however, that

the indictment was simply referring to the enhanced sentence

provided under the statute in cases where a firearm is "dis-

charged." 18 U.S.C. § 924(c)(1)(A)(iii). At any rate, Ashley’s

claim would fail even if he were correct that the indictment

charged both versions of Section 924(c). "Where an indict-

ment charges several offenses, or the commission of one

offense in several ways, the withdrawal from the jury’s con-

sideration of one offense or one alleged method of commit-

ting it does not constitute a forbidden amendment of the

indictment." United States v. Miller, 471 U.S. 130, 145

(1985).

Ashley’s argument is evidently based on the idea that leav-

ing out the "during and in relation to" language "broaden[ed]"

the bases upon which the jury could convict him, Malloy, 568

F.3d at 178, because it meant that there was one less thing the

government had to prove. But Ashley misconstrues what

impermissible broadening of an indictment is about. Broaden-

ing means instructing the jury that it may find the defendant

guilty on the basis of elements that were not set forth in the

grand jury’s indictment—a different version of the offense

charged or a different offense altogether. See Miller, 471 U.S.

at 145. "[A]ctual additions" to an indictment are forbidden, id.

at 144, but here there was only a subtraction, and a jury can

UNITED STATES v. ASHLEY 11

be instructed on any "lesser included offense" whose elements

were all contained within the grand jury’s charge. See United

States v. Brooks, 524 F.3d 549, 555 n.9 (4th Cir. 2008).

Nor can we perceive any problem of fair notice. The dis-

tinction between "during and in relation to" and "in further-

ance of" is "a subtle one," to say the least. H.R. Rep. No. 105-

344, at 11 (1997); see also United States v. Avery, 295 F.3d

1158, 1174 (10th Cir. 2002) (difference is "only slight");

United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001)

(difference "somewhat elusive"). But if anything, according to

the drafters of the provision, "‘in furtherance of’ is a slightly

higher standard, and encompasses the ‘during and in relation

to’ language." H.R. Rep. No. 105-344, at 11; see also United

States v. Lomax, 293 F.3d 701, 704-05 (4th Cir. 2002). So it

would hardly have made any sense for Ashley to base his

defense on defeating the "during and in relation to" portion of

his indictment, and not surprisingly, there is no indication he

attempted to do so. In short, the district court neither commit-

ted a fatal variance or prejudiced the defendant in its presenta-

tion to the petit jury of Count Three.

B.

Ashley also objects to the jury’s being told it could find

Ashley guilty on Count Three not only if he aided and abetted

York’s violation of Section 924(c), but also by virtue of the

doctrine of vicarious liability set forth in Pinkerton v. United

States, 328 U.S. 640, 647 (1946). The Pinkerton doctrine

makes a person liable for substantive offenses committed by

a co-conspirator when their commission is reasonably fore-

seeable and in furtherance of the conspiracy. See United

States v. Singh, 518 F.3d 236, 253 (4th Cir. 2008). Because

we hold that an indictment need not set forth vicarious co-

conspirator liability, it was not error for the district court to

instruct the jury on this theory.

It is settled that vicarious liability predicated on having

aided or abetted the crimes of another need not be charged in

12 UNITED STATES v. ASHLEY

an indictment. See United States v. Wills, 346 F.3d 476, 495

(4th Cir. 2003). The reason for this rule is that aiding and

abetting simply describes the way in which a defendant’s con-

duct resulted in the violation of a particular law. The federal

criminal statute dealing with the subject speaks simply of

agency and causation principles, providing that a person is

punishable "as a principal" if he "aids, abets, counsels, com-

mands, induces or procures" the commission of a federal

offense or "willfully causes" another to do an act that would

be criminal if he performed it himself. 18 U.S.C. § 2. Because

the aiding and abetting provision does not set forth an essen-

tial element of the offense with which the defendant is

charged or itself create a separate offense, aiding and abetting

liability need not be charged in an indictment. See United

States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987).

These same principles hold true in the case of vicarious co-

conspirator liability. The Pinkerton doctrine is distinct from

the substantive offense of conspiracy, which makes the very

act of conspiring criminal. See 18 U.S.C. § 371. Instead, the

Pinkerton doctrine is a means of apportioning criminal

responsibility for the commission of substantive offenses.

Pinkerton, 328 U.S. at 643-47. It provides that a person can

commit an offense not only by engaging in the forbidden con-

duct himself but also by participating in a conspiracy that

leads a confederate to engage in that conduct. As the Pinker-

ton Court explained, "so long as the partnership in crime con-

tinues, the partners act for each other in carrying it forward."

Id. at 646. By joining the conspiracy, "[e]ach conspirator

instigated the commission of the crime." Id. at 647. In other

words, Pinkerton liability, like aiding and abetting liability,

rests on notions of agency and causation. As the Court recog-

nized, "[t]he rule which holds responsible one who counsels,

procures, or commands another to commit a crime is founded

on the same principle." Id. at 647.

Since the same reasons that make it unnecessary to charge

aiding and abetting liability in an indictment underlie vicari-

UNITED STATES v. ASHLEY 13

ous co-conspirator liability, we hold that a district court does

not constructively amend an indictment by giving a Pinkerton

instruction when Pinkerton liability has not been charged by

the grand jury. This has been the unanimous view of the cir-

cuit courts which have addressed this issue. See United States

v. Zackery, 494 F.3d 644, 647-49 (8th Cir. 2007); United

States v. Budd, 496 F.3d 517, 527-28 (6th Cir. 2007); United

States v. Creech, 408 F.3d 264, 273 (5th Cir. 2005); United

States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001); United

States v. Macey, 8 F.3d 462, 468 (7th Cir. 1993); United

States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990); United

States v. Jackson, 627 F.2d 1198, 1216-17 (D.C. Cir. 1980);

United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975);

United States v. Roselli, 432 F.2d 879, 895 (9th Cir. 1970).

Accordingly, the district court’s instruction did not construc-

tively amend Ashley’s indictment.

Nor was this instruction in any way prejudicial. Ashley

argues that, since conspiracy liability was explicitly set forth

in the other counts of his indictment, the government was

obliged to charge it in Count Three. This is backwards at best.

The very fact that Counts One and Two charged Ashley with

conspiracy offenses should have made it the more obvious

that co-conspirator liability was a possibility, especially when

the conspiracy charges served as the predicate offenses in

Count Three and were incorporated by reference. Certainly

there could be no danger of unfair surprise. Malloy, 568 F.3d

at 179.

IV.

For the foregoing reasons, we reject each of Ashley’s

claims. The judgment is hereby

AFFIRMED.