United States v. Ford

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5767

MELVIN A. FORD,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5768

CYNTHIA EVETTE BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5781

CARLOS EDWIN MCGILL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5802

MICHAEL DEWAYNE SHORT,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5809

ERIC S. BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5071

NORMAN O'NEAL BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5080

WALTER TREVAUGHN SMITH,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5097

JEFFREY ANDREW REID, a/k/a U.S.,

Defendant-Appellant.

2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5152

RODERICK BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5180

HASSAN LAFIEK SMITH,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 93-5313

ROBERT ANTONIO WILLIAMS, a/k/a

John Doe, a/k/a Gibby,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 93-5362

MICHAEL STEVEN SMITH, a/k/a Black

Mike, a/k/a Smitty,

Defendant-Appellant.

3

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-90-454-WN)

Argued: December 8, 1995

Decided: July 15, 1996

Before RUSSELL and HALL, Circuit Judges, and THORNBURG,

United States District Judge for the Western District

of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by published opin-

ion. Judge Russell wrote the opinion, in which Judge Hall and Judge

Thornburg joined.

_________________________________________________________________

COUNSEL

ARGUED: John David Ash, Baltimore, Maryland; James Christo-

pher Savage, LAW OFFICES OF JAMES SAVAGE, Rockville,

Maryland; Arcangelo Michael Timinelli, Baltimore, Maryland; Wil-

liam B. Purpura, Baltimore, Maryland; David Richard Solomon, Bal-

timore, Maryland; William Scott Little, STARK & LITTLE,

Baltimore, Maryland; Colin R. Hueston, EUGENE P. TINARI &

ASSOCIATES, Philadelphia, Pennsylvania; Daniel Tisdale, Balti-

more, Maryland; Alan Curtis Drew, Upper Marlboro, Maryland, for

Appellants. John Vincent Geise, Assistant United States Attorney,

Greenbelt, Maryland, for Appellee. ON BRIEF: Eugene Patrick

Tinari, Philadelphia, Pennsylvania, for Appellant Eric Brown;

C. Michael Walls, Laurel, Maryland, for Appellant Hassan Smith;

Gary L. Segal, Rockville, Maryland, for Appellant Michael Smith;

Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Mary-

land, for Appellant Cynthia Brown; Kenneth Mack Williams, Balti-

more, Maryland, for Appellant Walter Smith; Jeffrey C. Hines,

Baltimore, Maryland, for Appellant Roderick Brown. Lynne A. Bat-

4

taglia, United States Attorney, Barbara S. Skalla, Assistant United

States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

This case is the result of an extensive investigation into the cocaine

trafficking activities of Paul Winestock, Jr., Norman Brown, and

numerous associates. The investigation included court-ordered elec-

tronic surveillance on several cellular telephone lines, numerous

undercover drug buys made by police agents, and the searches of

approximately 32 locations in Maryland, Virginia, the District of

Columbia, and Pennsylvania. The investigation led to the indictment

of thirty defendants, fifteen of whom were convicted after four sepa-

rate trials and six of whom entered guilty pleas.

The main trial of seventeen defendants (referred to by the parties

as the "Winestock" trial) began on November 4, 1991. The trial con-

tinued for sixty-nine trial days and concluded on March 31, 1992. The

jury acquitted all of the defendants on the conspiracy counts.1 The

jury, however, convicted each of the following defendants on at least

one substantive count: Paul Winestock, Jr., Norman Brown, Melvin

A. Ford, Eric S. Brown, Jeffrey A. Reid, Walter T. Smith, Roderick

Brown, Michael D. Short, Carlos E. McGill, Robert A. Williams, and

Cynthia E. Brown. Except for Paul Winestock, Jr., 2 all of these defen-

dants are parties to this appeal.3

_________________________________________________________________

1 Count I of the indictment charges a conspiracy of all of the defen-

dants. In Counts II and III, the indictment divided the defendants into

two groups and charged a conspiracy of each group. Count II involved

the group headed by Norman Brown; Count III involved the group

headed by Paul Winestock, Jr.

2 Although Winestock's appeal was originally consolidated with this

case, we ordered that his appeal be deconsolidated on June 14, 1996.

3 The jury acquitted the other six defendants: Douglas Allston, Paul

Winestock, Sr., Delbert Mobley, Terrance Ross, Alvin Martin, and Eric

Allston.

5

The trial against the other two defendants (the"Smith" trial) began

on April 7, 1992. At the completion of the trial, the jury convicted

Hassan L. Smith and Michael S. Smith on all counts brought against

them.4

The thirteen appellants have raised numerous arguments to their

convictions and sentences. We find error only in the sentencing of

Jeffrey A. Reid, which we vacate and remand for resentencing. We

affirm the convictions and sentences of all of the other appellants.

I.

We first turn to the sentencing of Jeffrey A. Reid, the one issue on

which we reverse. Reid was convicted on two counts of possession

with intent to distribute crack cocaine. The district court attributed to

him eight kilograms of crack cocaine and sentenced him at level 40.

Reid's presentence report assigned three criminal history points to

Reid, thus placing him in criminal history category II. He received

one point for a 1987 drug conviction in the District of Columbia and

two points for a 1987 conviction in the same jurisdiction for unautho-

rized use of a vehicle. At sentencing, the government presented evi-

dence that Reid had violated the terms of his probation on the drug

conviction, for which he received a sentence of 90 days imprison-

ment. Pursuant to § 4A1.1 of the Sentencing Guidelines, the govern-

ment added another criminal history point for the violation of

probation, which elevated Reid's criminal history category to Cate-

gory III. Because the government surprised Reid with this informa-

tion, the district court agreed to sentence Reid at the low end of the

Category III range (360 months), with the understanding that the

court would reopen the matter if Reid found that the extra criminal

history point was wrongly added. The court clearly stated that it

would sentence Reid at the low end of the Category II range (324

_________________________________________________________________

4 The jury could not reach a verdict on the charges brought against a

third defendant, Vincent Knight. Knight later entered a guilty plea on one

of the counts. The court also conducted two other jury trials against Der-

rick Curry and Tyrone Lancaster. The jury convicted each on at least one

count. Curry has filed an appeal, but it was deconsolidated by order of

the court on March 1, 1995. Lancaster has not filed an appeal.

6

months) if Reid established that Category II was the appropriate cate-

gory. After conducting further research, Reid's attorney conceded that

the government correctly assigned four criminal history points to

Reid.

After sentencing, Reid's attorney learned that the 1987 drug con-

viction used in the criminal history category determination resulted

from Reid's participation as a member of the Winestock group for the

distribution of cocaine in Washington. On this appeal, Reid argues for

the first time that he should not have received criminal history points

for the prior drug conviction because it was part of the same course

of conduct as his current convictions. Reid argues that we should sub-

tract the two criminal history points assigned from that conviction and

sentence him to the low end of the Category II range. The government

concedes that Reid should not have received criminal history points

for the 1987 conviction but argues that Reid failed to raise the issue

before the district court at sentencing.

A defendant's failure to object to a sentencing issue amounts to a

waiver of his right to raise that issue on appeal, absent plain error.

United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). Under this

standard, we must find that (1) an error was committed, (2) the error

was plain, and (3) the error affected the defendant's substantial rights.

United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993); United

States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995). Once these thresh-

old requirements are satisfied, we must also decide whether the error

"seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings." Olano, 113 S. Ct. at 1779 (quoting United

States v. Young, 470 U.S. 1, 15 (1985)); Lockhart, 58 F.3d at 88.

There is no question that an error was committed: even the govern-

ment concedes that Reid erroneously received two criminal history

points for a prior conviction that was part of the same course of con-

duct as his current convictions. The error was plain because, under the

Sentencing Guidelines, a defendant should receive criminal history

points for a "prior sentence" only if the prior conviction arises from

"conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). The

error clearly affected Reid's substantial rights because the extra points

caused Reid to be sentenced at a more severe guideline range. See

United States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994) ("A sen-

7

tence based on an incorrect guideline range constitutes an error affect-

ing substantial rights and can thus constitute plain error.").

Furthermore, sentencing a defendant at the wrong guideline range

seriously affects the fairness, integrity, and public reputation of the

judicial proceedings. If we do not correct this error, Reid will serve

a term of imprisonment three years longer than required by the sen-

tencing guidelines.5 We cannot casually ignore this fact because of an

overly-strict adherence to technical requirements. Three years of a

man's life is not a trifling thing. No court of justice would require a

man to serve three undeserved years in prison when it knows that the

sentence is improper. The fairness, integrity, and public reputation of

our judicial system demand that we correct Reid's sentence.

The district court stated at sentencing that it would sentence Reid

at the low end of the Category II guideline range (for a level 40

offense) if that criminal history category were appropriate. We there-

fore vacate and remand Reid's sentence with instructions to resen-

tence him to 324 months imprisonment, the low end of the Category

II guideline range.

II.

Having addressed the one issue on which we reverse, we now turn

to the numerous issues on which we affirm. We first address the pre-

trial issues arising from the Winestock trial.

A. Wiretaps

The appellants challenge the government's authority to place wire-

taps on the cellular phones of four of the appellants.

_________________________________________________________________

5 The district court stated at sentencing that it would sentence Reid at

the low end of the appropriate guideline range, whether it is Category II

or Category III. For a level 40 offense, the low end of the Category II

range is 324 months, and the low end of the Category III range is 360

months. Thus, correcting Reid's criminal history category would reduce

his sentence by three years.

8

Special Agent Eric V. Bryant of the Federal Bureau of Investiga-

tion, acting in an undercover capacity, met Norman Brown on

November 17, 1989, and portrayed himself as a supplier of untrace-

able and untappable cellular phones. Bryant gave Brown a cellular

phone in exchange for crack cocaine. Subsequently, Bryant supplied

Tommy Patrick Johnson and Michael S. Smith with cellular phones

in exchange for crack cocaine. Sergeant Thurman J. Dade of the

Washington Metropolitan Police Department supplied cellular phones

to Paul Winestock, Jr., and his associates.

On September 10, 1990, after receiving court authorization, the

government tapped the cellular phones of Norman Brown, Tommy

Johnson, Michael Smith, and Paul Winestock, Jr., as well as Wine-

stock's home telephone line. After one month, the government

dropped the taps on Johnson's and Smith's phones. The taps on

Brown's and Winestock's phones remained until December 5, 1990.

The government intercepted hundreds of conversations, many dealing

explicitly with drugs. At trial, the government introduced many of

these conversations into evidence.

Robert S. Mueller, III, an acting Assistant Attorney General of the

Criminal Division of the Department of Justice, authorized the gov-

ernment's applications for wiretaps. The appellants argue that Muel-

ler, as an acting Assistant Attorney General, lacked the statutory

power to authorize the wiretap applications. The appellants base their

argument on 18 U.S.C. § 2516(1) as originally enacted in 1968:

The Attorney General, or any Assistant Attorney General

specially designated by the Attorney General, may authorize

an application to a Federal judge of competent jurisdiction

for . . . an order authorizing or approving the interception of

wire or oral communications by [federal investigative agen-

cies seeking evidence of certain designated offenses].

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-

351, § 802, 82 Stat. 197, 216 (1968). Under this provision, the Attor-

ney General cannot delegate the power to authorize wiretap applica-

tions to acting Assistant United States Attorney Generals.

Congress, however, amended this provision in 1986 to allow an

acting Assistant Attorney General specially designated by the Attor-

9

ney General to authorize wiretap applications. Electronic Communi-

cations Privacy Act of 1986, Pub. L. 99-508, § 104, 100 Stat. 1848,

1855 (1986). On May 24, 1989, Attorney General Richard Thornburg

gave the power to authorize wiretap applications to"the Assistant

Attorney General in charge of the Criminal Division, any acting

Assistant Attorney General in charge of the Criminal Division, and

any Deputy Assistant Attorney General of the Criminal Division."

Order No. 1348-89 of the Attorney General of the United States (May

24, 1989). Thus, Robert Mueller, in his capacity as acting Assistant

Attorney General of the Criminal Division, had the power to autho-

rize wiretap applications in September 1990. The appellants argument

is therefore meritless.

B. Search of Vehicle

We next review whether the search of Cynthia Brown's vehicle

violated the Fourth Amendment.

On October 21, 1990, Paul Winestock, Jr., who based his operation

in Maryland, contacted Melvin Ford in Philadelphia, Pennsylvania,

and began making arrangements for Ford to supply Winestock with

cocaine. FBI agents, having tapped Winestock's cellular phone line

and home telephone line, closely monitored all contacts between

Winestock and Ford over the next few weeks.

In the early morning of November 9, 1990, the FBI intercepted a

telephone call from a man named Eric (later identified to be Eric

Brown) to Winestock. Eric notified Winestock that"the main man"

had "something" for him that would be available the next day.6 Other

intercepted calls that day clarified that Winestock would receive five

kilograms of cocaine from Philadelphia. At 10:19 p.m., the FBI inter-

cepted a conversation between Eric and Winestock, in which they

confirmed that the price would be $28,500 per kilogram and that the

courier would receive $250 per kilogram, or $1,250. At approxi-

mately 9:37 a.m. the following morning, the FBI intercepted another

of Eric's calls confirming that his driver was at the International

House of Pancakes in a rented red Corsica. At 10:50 a.m., Winestock

_________________________________________________________________

6 Apparently, Eric Brown and Melvin Ford were both agents of the

same source in Philadelphia.

10

and the courier spoke to Eric on Winestock's cellular phone. The cou-

rier verified to Eric that she had received "the paper, the 1,250," a ref-

erence to her courier fee. She also told Eric that she would be on the

road within three hours. Winestock told Eric that the couriers were at

the Marriott Hotel under his name. Winestock gave Eric the phone

number of the hotel.

Undercover agents went to the hotel and observed a rented red Cor-

sica with Pennsylvania license plates. Agents at the hotel had received

a general description of the individuals staying in the room under

Winestock's name, and they observed two women who fit that gen-

eral description enter the red Corsica and drive off. They headed

south on I-95, instead of north toward Philadelphia. The Corsica trav-

elled recklessly between 80 and 95 miles per hour.

Special Agent Andrew McColl, who headed the investigation of

Winestock, was not at the scene but followed these events by police

radio and by cellular phone. He concluded that the women in the red

Corsica were couriers en route to making another cocaine delivery.

He ordered the agents at the scene to stop and search the vehicle.

With the assistance of a Virginia state trooper, the agents stopped the

Corsica.

Special Agent Stephen Benjamin approached the vehicle and spoke

with the driver, Cynthia Brown. He asked for permission to search the

contents of the vehicle. She consented. Benjamin asked if he could

look in the trunk. Again she consented and handed him the keys. He

asked if she would open the trunk; she did. Two bags were in the

trunk. Brown identified her bag, and she opened it herself. Benjamin

found clothing in the bag, but there was a shoebox at the bottom.

When asked, Brown stated that the shoebox contained shoes. Without

asking for Brown's consent, Benjamin opened the shoebox and found

three kilograms of cocaine.

In a pre-trial motion, the defense tried to suppress the evidence

found in the search. The district court denied the motion, finding that

the government had probable cause to search the vehicle and had

received the defendant's consent to search.

"The police may search an automobile and the containers within it

where they have probable cause to believe contraband or evidence is

11

contained." California v. Acevedo, 500 U.S. 565, 580 (1991); United

States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir.), cert. denied, 115 S.

Ct. 102 (1994). Probable cause exists where, given all the facts at the

time of the search, "there is a fair probability that contraband or evi-

dence of a crime will be found in a particular place." Illinois v. Gates,

462 U.S. 213, 238 (1983).

Special Agent Benjamin had probable cause to search Brown's car,

including the trunk and the containers found within the trunk. From

the intercepted conversations obtained with the wiretaps, the FBI

agents knew that the women in the red Corsica had delivered five

kilograms of cocaine to Winestock. That fact alone likely establishes

probable cause to believe that the car might contain either more

cocaine or the payment for the cocaine. At the very least, the agents

had probable cause to believe the vehicle contained the $1,250 courier

fee. Furthermore, the fact that Brown did not return directly to Phila-

delphia, but instead headed south on I-95 away from Philadelphia,

suggests that she was going to make another delivery.

The federal agents had probable cause to believe Cynthia Brown's

car contained cocaine or drug money. Thus, Agent Benjamin had the

authority to search the car and any container within the car that could

hold drugs or drug money, including the trunk, the bag within the

trunk, and the shoebox within the bag. Because Agent Benjamin had

probable cause for the search, it is irrelevant that Brown did not con-

sent specifically to the search of the shoebox. We conclude that the

district court correctly denied the defense's motion to suppress the

evidence found in Brown's vehicle.

III.

We next address several trial issues arising from the Winestock

trial.

A. Timing of Closing Argument

First, we consider whether Melvin Ford can challenge his convic-

tion on the ground that his attorney delivered his closing argument

eleven days before the jury began its deliberations.

12

As already described in the previous section, Melvin Ford was con-

tacted by Paul Winestock, Jr. on October 21, 1990, about the purchase

of cocaine. Over the next few weeks, Ford and Winestock made the

necessary arrangements, which FBI agents intercepted from their

wiretaps. Other surveillance agents saw Ford and Winestock meet in

person, both in Maryland and Philadelphia. On November 9 and 10,

1990, FBI agents intercepted a series of telephone calls between

Winestock and Eric Brown which revealed the delivery of five kilo-

grams of cocaine from the source in Philadelphia to Winestock in

Maryland. These conversations led to the stop and search of Cynthia

Brown's vehicle. The jury convicted Ford of one count of distribution

of cocaine for his involvement as a middleman for the source in Phila-

delphia that supplied cocaine to Winestock. As with the other defen-

dants, he was acquitted of conspiracy.

Ford argues that the district court's denial of severance deprived

him of an effective closing argument.7 At the close of evidence, each

defendant's attorney made a closing argument. Because of the time

involved for so many closing arguments, the jury did not receive the

case until eleven days after Ford's attorney made his closing argu-

ment. Ford contends that the evidence against him was so weak that

if the jury had heard his closing argument closer to its deliberations,

he would certainly have been acquitted.

No constitutional or statutory provision gives a criminal defendant

the right to have the jury hear his closing argument immediately

before the case is sent to the jury. In a large-scale, multi-defendant

prosecution, simple logistics demands that some defendants' attorneys

will have to make their closing arguments several days or even a few

weeks before the jury commences its deliberations. Courts have

shown a strong preference for joinder of criminal defendants, which

promotes efficiency and judicial economy. United States v. Tedder,

_________________________________________________________________

7 Actually, Ford attempts to twist his argument into a claim for ineffec-

tive assistance of counsel. Ford, however, cannot blame his trial counsel

for delivering his closing argument eleven days before the jury began its

deliberation. The attorney had no choice in the matter. The district court,

by denying the defendants' motion for severance, forced the simulta-

neous trial of seventeen defendants. We therefore treat Ford's argument

as a challenge to the denial of severance.

13

801 F.2d 1437, 1450 (4th Cir. 1986), cert. denied, 480 U.S. 938

(1987). Establishing a right to a closing argument immediately before

the commencement of jury deliberations would force the government

to prosecute defendants separately; especially where the government

has alleged a conspiracy (and has sufficient evidence to support the

conspiracy charge), separate trials would be repetitive, inefficient, and

expensive.

We hold that a criminal defendant has no right to have his attorney

make a closing argument immediately before the jury commences its

deliberations. Accordingly, we reject Ford's claim.

B. Motion for Severance

We turn next to the denial of Carlos McGill's motion for severance

or a mistrial.

Before trial, the defendants moved for severance, claiming that

there was insufficient evidence for the jury to find a single conspiracy

of the charged defendants (Count I). The defendants argued that Nor-

man Brown and Paul Winestock, Jr. ran separate operations. The gov-

ernment's theory was that Brown and Winestock headed somewhat

independent but interrelated and interacting branches of a large, fluid

drug conspiracy. In denying the motion for severance, the district

court found sufficient evidence for a jury to find a single conspiracy

and allowed the conspiracy charge to go to trial.

Carlos McGill was one of the defendants charged in the conspir-

acy. About a month into trial, McGill moved for a severance or mis-

trial and requested the government to explain how the Brown and

Winestock groups were connected. McGill insisted that the evidence

presented by the government up to that point demonstrated that

Brown and Winestock ran separate operations. The government

recited the evidence it had so far presented and explained the evi-

dence it would present to connect Brown and Winestock as branches

of a single conspiracy. Satisfied with the government's proffer of evi-

dence, the district court denied McGill's motion for severance or mis-

trial. At the conclusion of the evidence, however, the district court

found sufficient evidence to warrant giving the jury a multiple con-

14

spiracy instruction. The jury acquitted the defendants on the conspir-

acy charge.

Although acquitted of conspiracy, McGill was convicted on one

count of distribution of crack cocaine and one count of possession

with intent to distribute crack cocaine. On November 7, 1990, McGill

gave 53.54 grams of crack cocaine to Sergeant Dade in payment for

Winestock's cellular phone. This transaction formed the basis of the

distribution charge brought against McGill. On December 5, 1990, the

police searched McGill's residence and found 84 grams of crack

cocaine inside a safe in his closet. This evidence formed the basis of

the possession with intent to distribute charge brought against McGill.

In urging this court to reverse his convictions on the substantive

counts, McGill ostensibly argues that the district court erred in deny-

ing his motion for severance or mistrial. The substance of his argu-

ment, however, is that a material variance occurred because the

government indicted the defendants on a single conspiracy but pres-

ented evidence of multiple conspiracies. We therefore review

McGill's claim first under a "variance" analysis.

A variance occurs when the evidence at trial establishes facts mate-

rially different from those alleged in the indictment. United States v.

Kennedy, 32 F.3d 876, 883 (4th Cir. 1994), cert. denied sub nom.

Ingram v. United States, 115 S. Ct. 939 (1995); United States v.

Tarantino, 846 F.2d 1384, 1391 (D.C. Cir.), cert. denied, 488 U.S.

840 & 867 (1988). "In a conspiracy prosecution, a defendant may

establish the existence of a material variance by showing that the

indictment alleged a single conspiracy but that the government's

proof at trial established the existence of multiple, separate conspira-

cies." Kennedy, 32 F.3d at 883.

The government's theory of the case was that Norman Brown and

Paul Winestock, Jr., headed somewhat independent operations but

participated in a single, albeit loose-knit, conspiracy. The government

presented evidence linking several of the defendants and witnesses to

both Brown and Winestock and showing that Winestock occasionally

supplied Brown with crack cocaine. The government also showed that

the two spoke on the phone on occasion; in one conversation, Wine-

stock asked for Brown's help in obtaining a gun, and in another,

15

Winestock invited Brown to a meeting with his source in Philadel-

phia. The district court found that the government introduced suffi-

cient evidence to send the conspiracy issue to the jury.

The fact that the jury acquitted the defendants on the conspiracy

charge does not demonstrate a material variance. The verdict shows

that the jury found the evidence of a single conspiracy lacking, but

not that the government's evidence pointed inescapably to the exis-

tence of multiple conspiracies. The government tried its conspiracy

case and lost, but losing does not in itself create a material variance

that undermines the jury's convictions on the substantive counts. A

variance occurs when the government produces so little evidence on

a charge in the indictment that the charge should not even be sent to

the jury.

Even if a variance had occurred, we would still affirm McGill's

convictions. "A variance constitutes a legitimate grounds for reversal

only if the appellant shows that the variance infringed his `substantial

rights' and thereby resulted in actual prejudice." Kennedy, 32 F.3d at

883. To show actual prejudice, an appellant must demonstrate that the

multiple conspiracy variance created a spillover effect, such that "the

jury was likely to transfer evidence from one conspiracy to a defen-

dant involved in an unrelated conspiracy." Id .

McGill was not prejudiced by any variance. The jury easily had the

ability to separate the evidence relating to the charges against McGill

from the evidence pertaining to the other defendants. See United

States v. Edwards, 69 F.3d 419, 433 (10th Cir. 1995) (holding that,

in evaluating whether a variance caused a prejudicial spillover, the

court considers "whether the proliferation of separate conspiracies in

the case affected the jury's ability to segregate each defendant's indi-

vidual actions and participation"). Direct evidence supported the two

charges on which the jury convicted McGill. One count involved a

sale of crack cocaine to an undercover police officer. At trial, Ser-

geant Dade testified to the details of the transaction and identified

McGill as the seller. The other count involved crack cocaine that the

police found in McGill's apartment during a search. At trial, Special

Agents Bryant and Burmeister testified to the search of McGill's resi-

dence. Agent Bryant identified the cocaine found in the safe in

McGill's closet. Given this direct evidence supporting McGill's con-

16

viction, we conclude that the jury could easily have separated the evi-

dence against McGill from the evidence pertaining to the other

defendants.

In fact, we find that the jury demonstrated its ability to sift through

the evidence and draw conclusions based on the evidence relevant to

each defendant. The jury did not convict all seventeen defendants on

all the counts charged against them. The jury acquitted the defendants

on the conspiracy counts. It convicted on some of the substantive

charges, and acquitted on others. The jury acquitted six defendants on

all of the charges brought against them. The verdict reveals that the

jury did not convict or acquit the defendants as a group. The jury went

through the indictment methodically and reached an independent ver-

dict on each charge.

If we treat McGill's argument as a review of the trial court's ruling

on his motion for severance or mistrial, we reach the same conclu-

sion. We review a trial court's ruling on a motion for severance or

mistrial under the abuse of discretion standard. United States v. West,

877 F.2d 281, 287-88 (4th Cir. 1989), cert. denied, 493 U.S. 869 &

959 (1989) & 493 U.S. 1070 (1990); see United States v. Brewer, 1

F.3d 1430, 1437 (4th Cir. 1993) (mistrial); United States v. Brooks,

957 F.2d 1138, 1145 (4th Cir.) (severance), cert. denied, 505 U.S.

1228 (1992). For reasons of efficiency and judicial economy, courts

prefer to try joint-conspirators together. United States v. Tedder, 801

F.2d 1437, 1450 (4th Cir. 1986), cert. denied , 480 U.S. 938 (1987).

The district court found that the government introduced sufficient evi-

dence for a jury to conclude that Brown and Winestock participated

in a single, albeit loosely-connected, conspiracy. As it turned out, the

jury acquitted all the defendants on the conspiracy counts. Nonethe-

less, we agree with the district court that the evidence was sufficient

for the jury to consider the conspiracy count.

A defendant must show prejudice in order for a trial court's ruling

on a motion for severance to constitute an abuse of discretion. United

States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485

U.S. 934 (1988). No prejudice exists if the verdicts demonstrate that

the jury "meticulously sifted the evidence" and "apprais[ed] the inde-

pendent evidence against each defendant." Id .; see United States v.

Alexander, 982 F.2d 262, 266 (8th Cir. 1992) (holding that prejudice

17

exists where the jury was unable to "compartmentalize the evidence"

as it related to the separate defendants). As we have already stated,

the verdict demonstrated that the jury considered the independent evi-

dence against McGill when it convicted him on the two substantive

counts.

We therefore conclude that the district court did not abuse its dis-

cretion in denying McGill's motion for severance or a mistrial.

C. Evidentiary Rulings

We next review two evidentiary rulings that affected Robert A.

Williams.

Williams was convicted of possession with intent to distribute 117

grams of crack cocaine. The evidence on which Williams was con-

victed was found in a four-bedroom house at 501 Castlewood Place

in Largo, Maryland, where Williams was living. In one of the bed-

rooms, identified at trial as "bedroom number four," the police found

a beeper, Williams' social security card, 7 grams of crack cocaine,

and $800 in cash. Another bedroom, identified as"bedroom number

two," contained more incriminating evidence: 117 grams of crack

cocaine, a loaded .357 Magnum, a cellular phone, and $1803 in cash.

Williams claims that he resided in bedroom number four, and that

Bernard Langley, another resident of the house, lived in bedroom

number two.

During the presentation of the defense's case, Williams requested

that Special Agent Wally Borum be recalled to testify that Bernard

Langley, and not Williams, occupied bedroom number two where the

117 grams of crack cocaine were found. The district court denied Wil-

liams' request. Williams argues that he was prejudiced because the

district court denied his request to recall Special Agent Borum.

We review the district court's evidentiary rulings for abuse of dis-

cretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993),

cert. denied, 114 S. Ct. 1374 (1994). A district court has the discre-

tion to place reasonable limits on the presentation of evidence. Id.

(citing United States v. Gravely, 840 F.2d 1156, 1162-64 (4th Cir.

18

1988)). Williams had an opportunity to cross-exam Special Agent

Borum when he testified during the government's case. Williams

could have presented evidence establishing that Langley lived in bed-

room number two and that he lived in bedroom number four. Wil-

liams insists that, because of the length and complexity of the trial,

he needed to wait until the defense's case to examine Agent Borum

so that the jury would not forget the testimony regarding which room

Williams occupied. This argument is unavailing, however, because

Williams had an opportunity at closing argument to remind the jury

of Agent Borum's testimony and to argue that he did not reside in the

bedroom where the 117 grams of crack cocaine were found. We con-

clude that the district court had the discretion to control the presenta-

tion of evidence in this complex trial, and that it did not abuse its

discretion when it denied Williams' request to recall Agent Borum.

Williams also challenges the government's introduction of evi-

dence of Williams' involvement in a drug transaction not included in

the indictment. On April 3, 1990, Robert Williams was arrested along

with Maurice Robinson and Gary Chapel in connection with an

undercover drug buy. The police found Williams in possession of the

marked funds used to purchase the crack cocaine, but they later

released Williams without bringing charges. Williams contends that

the district court improperly admitted evidence of his past bad acts.

Rule 404(b) of the Federal Rule of Evidence provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mis-

take or accident . . . .

Fed. R. Evid. 404(b). We have held that "other identical instances of

criminal activity to that charged in the indictment, occurring reason-

ably current with the activity charged in the indictment and connected

with the very illegal activity which was the subject matter of the

indictment, is admissible under the rubric of intent, plan, scheme or

design." United States v. Ramey, 791 F.2d 317, 323 (4th Cir. 1986);

see United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991); United

19

States v. Fells, 920 F.2d 1179, 1181-82 (4th Cir. 1990), cert. denied,

501 U.S. 1219 (1991); United States v. King, 768 F.2d 586, 587-88

(4th Cir. 1985). Williams' previous arrest was evidence that he was

a seller of crack cocaine during the time of the events charged in the

indictment. Given that Williams claimed that he was a user and not

a distributor of cocaine, the evidence was relevant to Williams' intent.

We conclude that the district court did not abuse its discretion in

the two evidentiary rulings that negatively impacted Williams.

D. Failure to Grant Mistrial

We next consider whether the district court, after learning that a

third party had improperly contacted one of the jurors, erred in not

granting a mistrial.

After a five-month trial, the jury finally received the case on March

31, 1992, and deliberated for seven court days. On the evening of

April 9, the jury informed the court that it had reached a verdict on

all counts except for two counts of distribution of cocaine, both of

which pertained to Eric Brown. On the morning of April 10, 1992,

one of the jurors informed the court that an individual had phoned her

the night before wanting to know the status of the deliberations. The

district judge spoke with the juror in chambers and, in front of coun-

sel, questioned her extensively about the incident. The juror main-

tained she could proceed with the deliberations even though the

incident had disturbed her.

The government suggested that a mistrial may be in order because

it would be unfair to put the juror through the stress of additional

deliberations. Eric Brown's attorney asked for a mistrial, which the

court indicated it would grant. When the court reconvened, however,

Brown's attorney explained he had changed his mind and asked for

the jury to continue its deliberations. The district court agreed with

the request and did not grant a mistrial on the remaining two counts.

Before the jury returned to its deliberations, the court directed the

jury to return a verdict on the counts it had decided. The jury

announced it had acquitted on the conspiracy counts and on many of

20

the substantive counts. The jury then returned to its deliberations, and

when it returned, it convicted Brown on one of the remaining counts

and acquitted on the other.

Brown now claims his counsel failed to represent his wishes in not

moving for a mistrial. He alleges he was not informed that his attor-

ney had changed his mind and would request that the jury continue

its deliberation. Brown claims that, had he known of his attorney's

decision, he would have directed him to request a mistrial. However,

when court had reconvened and Brown's attorney had requested that

the jury continue its deliberations, Brown did not make his feelings

known to the court.

To the extent Brown argues that the district court should have

declared a mistrial sua sponte over the attorney's request that the jury

continue to deliberate, we review the district court's decision for plain

error. United States v. Barnes, 909 F.2d 1059, 1070 (7th Cir. 1990).

The plain error standard is appropriate because Brown never commu-

nicated to the court that he wanted a mistrial. We conclude that the

district court's failure to declare a mistrial did not constitute plain

error because the court carefully questioned the juror about the impact

of the third party contact and the juror insisted that she could continue

to deliberate fairly and objectively. Cf. United States v. Sanders, 962

F.2d 660, 670 (7th Cir.) (district court did not abuse its discretion in

allowing the jury to continue deliberations after one of the jurors was

threatened because the court carefully inquired into the incident and

the juror explicitly testified that she could continue to serve impar-

tially), cert. denied, 506 U.S. 892 & 900 (1992).

To the extent Brown raises an ineffective assistance of counsel

claim, we do not reach the issue. A claim of ineffective assistance of

counsel is normally considered on collateral review, not on direct

appeal. United States v. Grubb, 11 F.3d 426, 441 (4th Cir. 1993).

Unless the record conclusively demonstrates ineffective assistance,

the defendant should file a 28 U.S.C. § 2255 motion in the district

court. United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992),

cert. denied, 507 U.S. 942 (1993). The record in this case does not

conclusively demonstrate ineffective assistance.

21

We therefore affirm Brown's conviction for distribution of crack

cocaine, although he is free to raise his claim for ineffective assis-

tance of counsel on collateral review.

E. Improper Cross-examination

We next review whether the district court should have granted a

mistrial to Michael D. Short for the government's allegedly improper

cross-examination of Short's character witnesses.

Short was convicted on one count of distribution, involving a direct

delivery of crack cocaine to an undercover agent. At trial, Special

Agent Bryant identified Short and testified that on December 19,

1989, Short gave him one half ounce of crack cocaine as payment for

Norman Brown's cellular phone service and an additional two ounces

in exchange for $1,800 in cash. Because Short was also charged with

conspiracy, the government presented other evidence of Short's drug

trafficking activities to show his participation in the conspiracy.

As part of his defense, Short called several character witnesses.

During cross-examination of some of these witnesses, the government

made several improper statements. First, the government asked Cindy

Dennison, one of the character witnesses, the following question:

Q: Were you aware that on December 5, 1990, when

agents of the FBI and the Metropolitan Police Depart-

ment were looking for Mr. Short, to arrest him pursuant

to our arrest warrant, that they spoke with Rhonda

Short, Mr. Short's sister, and she said, "What do you

want him for? I know he does some dealing." Were you

aware of that statement?

A: No, I was not.

Short objected to this question because Rhonda Short's statement had

never been placed in evidence and the prosecutor's use of the state-

ment constituted hearsay. Second, the government asked Douglas

Winkler, another character witness, whether he knew that Short had

admitted to purchasing a .44 magnum for $200 on the street; when the

22

witness said that he had not, the government asked him whether his

opinion of Short would change if the admission were true. Although

Short does not contest the fact that he made the admission, he

objected to the question because it asked the witness to give his opin-

ion of Short's character based on an unsubstantiated fact. Cf. United

States v. Siers, 873 F.2d 747, 749 (4th Cir. 1989) ("If the witness has

not heard of the fact, that is the end of the inquiry, and asking the wit-

ness to assume the fact simply has no place in this case."), cert.

denied, 506 U.S. 1086 (1993).

The district court sustained the objections and issued limiting

instructions to the jury on the following morning. With regard to the

question to Ms. Dennison concerning Rhonda Short's statement of her

brother's of dealing drugs, the district court instructed the jury to dis-

regard both the question and the answer because"there isn't any evi-

dence that Mr. Short's sister had made any such statement." Similarly,

with regard to the question to Mr. Winkler regarding Short's admis-

sion that he purchased a gun, the district court instructed the jury to

disregard both the question and the answer because"there simply is

no evidence before you as to whether Mr. Short ever made any such

admission."

Despite these limiting instructions, Short argues that the govern-

ment's improper questioning prejudiced his defense and that the dis-

trict court should have granted a mistrial. We disagree. Courts

"presume that a jury will follow an instruction to disregard inadmissi-

ble evidence presented to it, unless there is an`overwhelming proba-

bility' that the jury will be unable to follow the court's instructions

. . . and a strong likelihood that the effect of the evidence would be

`devastating' to the defendant." Greer v. Miller, 483 U.S. 756, 766

n.8 (1987) (citations omitted); see United States v. Jones, 907 F.2d

456, 460 (4th Cir. 1990) ("The jury is generally presumed to be able

to follow an instruction to disregard evidence, absent some strong

indication that the evidence is so powerful that a jury could not ignore

it and that the defendant would be harmed as a result."), cert. denied

sub nom., Johnson v. United States, 498 U.S. 1029 (1991).

Short has not shown that the jury could not follow the district

court's instruction. Even if we assume, arguendo , that the prosecu-

tor's questions affected the jury so much that the limiting instruction

23

could not cure the prejudice, the questions did not devastate Short's

defense. The government presented direct evidence pertaining to the

count on which Short was convicted: the jury heard Special Agent

Bryant identify Short and testify that he had given him two and one-

half ounces of crack cocaine in exchange for $1,800 in cash and Nor-

man Brown's cellular phone payment. Given the clear evidence of

distribution, the improper character evidence that the jury heard and

was instructed to disregard could not have significantly skewed the

jury's judgment on this count. The improper evidence may have

affected the jury's judgment on the conspiracy counts, but the jury did

not convict Short of conspiracy.

We conclude that the district court did not abuse its discretion in

denying Short's motion for a mistrial.

IV.

We next consider the appellants' remaining challenges to their sen-

tences.

A. Sentencing of Norman Brown

Norman Brown received a sentence of life imprisonment under the

mandatory minimum sentence provision in 21 U.S.C.

§ 841(b)(1)(A)(iii). He raises three arguments against his sentence,

which we address in turn.

1. Constitutionality of 100 to 1 ratio for crack cocaine

First, Brown challenges the constitutionality of the 100 to 1 con-

version ratio between powder cocaine and crack cocaine in the United

States Sentencing Guidelines. We have addressed this issue before

and have repeatedly affirmed the constitutionality of the sentencing

ratio for powder cocaine and crack cocaine against equal protection

and due process challenges. United States v. Fisher, 58 F.3d 96, 99-

100 (4th Cir.), cert. denied, 116 S. Ct. 329 (1995); United States v.

Jones, 18 F.3d 1145, 1151 (4th Cir. 1994); United States v. D'Anjou,

16 F.3d 604, 612 (4th Cir.), cert. denied, 114 S. Ct. 2754 (1994);

United States v. Bynum, 3 F.3d 769, 774 (4th Cir. 1993), cert. denied,

114 S. Ct. 1105 (1994). We see no need to repeat this discussion here.

24

2. Number of prior felony convictions

Second, Brown argues that he should not have received a manda-

tory life sentence under 21 U.S.C. § 841(b)(1)(A)(iii). That section

provides that if a defendant is convicted of an offense involving 50

grams or more of cocaine base and committed "after two or more

prior convictions for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of life imprisonment

without release . . . ." 21 U.S.C. § 841(b)(1)(A)(iii). Brown had two

prior felony convictions resulting from two sales of cocaine to an

undercover agent on July 13, 1987 and July 15, 1987. These actions

formed the basis for two separate counts of a single indictment. The

counts were tried together, Brown was convicted of both, and the

court imposed concurrent sentences. Brown argues that the two prior

convictions arose from a single act of criminality, and he urges this

court to construe them as a single conviction for purposes of sentenc-

ing under 21 U.S.C. § 841(b)(1)(A)(iii).

Brown argues that our decision in United States v. Blackwood, 913

F.2d 139 (4th Cir. 1990), supports his position. In Blackwood, the

defendant had two previous convictions for possession of large quan-

tities of marijuana. The first conviction involved marijuana found in

a pickup truck that the defendant was driving when arrested. The sec-

ond conviction concerned marijuana found in the defendant's motel

room less than two hours later. We held that the two convictions arose

from a single act of criminality--the possession with intent to sell

marijuana within a limited geographical area and period of time--and

should therefore have been treated as one prior conviction for pur-

poses of 21 U.S.C. § 841(b). Id. at 145. We recognized that, for pur-

poses of 21 U.S.C. § 841(b) and other similar sentencing

enhancement statutes, the term "prior convictions" refers to "separate

criminal episodes, not separate convictions arising out of a single

transaction." Id. at 145-46. Relying on Blackwood, Brown contends

that his two prior convictions for distribution of cocaine arose from

a single act of criminality, and that his prior convictions should be

treated as a single prior conviction.

We disagree. Brown was previously convicted of distribution, not

possession. An instance of possession is somewhat amorphous: a sin-

gle act of possession may occur over a period of time and in a range

25

of locales. An act of distribution, however, occurs at a distinct time

and place. We have held that separate acts of distribution that occur

on different days or even at different times on the same day constitute

separate criminal episodes. See United States v. Letterlough, 63 F.3d

332, 334-37 (4th Cir.) (two convictions for two acts of distribution of

a single dose of crack cocaine occurring less than two hours apart on

the same evening constituted two prior convictions for purposes of 18

U.S.C. § 924(e), a similar mandatory minimum sentencing statute),

cert. denied, 116 S. Ct. 406 (1995); United States v. Samuels, 970

F.2d 1312, 1315 (4th Cir. 1992) (convictions for two acts of distribu-

tion occurring on consecutive days counted as two separate prior con-

victions for purposes of 18 U.S.C. § 924(e), even though the two

convictions had been consolidated for disposition and resulted in con-

current sentences). We therefore conclude that Brown's prior convic-

tions resulted from two separate episodes of criminality and that they

constituted two separate convictions for sentencing purposes under 21

U.S.C. § 841(b)(1)(A).

3. Evidence of attributable weight of crack cocaine.

Brown also claims that the evidence attributing 551 ounces of

crack cocaine to him was unreliable. Because we affirm the imposi-

tion of a life sentence under 21 U.S.C. § 841(b)(1)(A), the calculation

of Brown's sentence under the guidelines is irrelevant. We therefore

do not review the evidence supporting the calculation of Brown's

attributable weight.

B. Sentencing of Jeffrey A. Reid

We have already vacated Jeffrey A. Reid's sentence and remanded

for resentencing under criminal history category II. Reid also raises

two other challenges to his sentence, which we now address.

1. Rule of lenity

First, Reid challenges the differentiation between cocaine powder

and cocaine base inherent in the Sentencing Guidelines. The drug

quantity table in U.S.S.G. § 2D1.1 has separate listings for "Cocaine"

and "Cocaine Base," such that the penalty for cocaine base is much

26

more harsh than for an equivalent amount of cocaine. The term "co-

caine base," however, is not defined by statute or in the Sentencing

Guidelines. The term "cocaine" is defined by statute as:

Coca leaves except coca leaves and extracts of coca leaves

from which cocaine, ecgonine, and derivatives of ecgonine

or their salts have been removed; cocaine, its salts, optical

and geometric isomers, and salts of isomers; ecgonine, its

derivatives, their salts, isomers, and salts of isomers; or any

compound, mixture or preparation which contains any quan-

tity of any of the substances referred to in this paragraph.

21 U.S.C. § 812(c). Reid argues that this definition of "cocaine"

includes cocaine base. There is no scientific distinction between pow-

der cocaine and crack cocaine: they share the same chemical proper-

ties, molecular weight, and melting point. See United States v. Davis,

864 F. Supp. 1303, 1305 (N.D. Ga. 1994). Reid argues that the failure

to define the term "cocaine base" creates an ambiguity in the applica-

tion of the guidelines.

The rule of lenity provides that a court will not interpret a federal

criminal statute so as to increase the penalty that it places on an indi-

vidual when such an interpretation can be based on no more than a

guess as to what Congress intended. Bifulco v. United States, 447 U.S.

381, 387 (1980); Ladner v. United States, 358 U.S. 169, 178 (1958).

Applying the rule of lenity, Reid argues that the district court should

have sentenced him under the Sentencing Guidelines based on the

drug quantities applicable to "cocaine," not"cocaine base."

This court recently rejected this argument in United States v.

Fisher, 58 F.3d 96 (4th Cir.), cert. denied , 116 S. Ct. 329 (1995).

Fisher involved the mandatory minimum sentencing provision of 21

U.S.C. § 841(b)(1)(A), which applies to the possession and distribu-

tion of 5 kilograms or more of "cocaine," but only 50 grams or more

of "cocaine base." The defendants in Fisher argued that the treatment

of cocaine base under the statute was ambiguous because the term

"cocaine" includes cocaine base. Asserting the rule of lenity, the

defendants implored the sentencing court to apply the lesser of the

two penalties.

27

We held that "the only rational interpretation" of the statute was to

conclude that the standards for "cocaine" applied to all forms of

cocaine except for cocaine base, which had its own harsher penalties.

Id. at 99. The rule of lenity does not force us to ignore our common

sense. Id. By establishing different standards for cocaine base, Con-

gress clearly intended it to be punished more harshly than other forms

of cocaine. In fact, the legislative history of 21 U.S.C. § 841(b)(1)(A)

"demonstrates that Congress intended . . . to penalize more severely

violations involving crack cocaine." Id.

Based on our clear holding in Fisher, we conclude that the rule of

lenity does not require us to ignore the harsher penalties for cocaine

base inherent in the Sentencing Guidelines.

2. Alleged inaccuracies in presentence report

Finally, Reid argues that we should remand for resentencing

because the district court did not correct alleged inaccuracies in his

presentence report. The district court did not address Reid's objec-

tions to the report's accuracy because it specifically stated that it was

not relying on the accuracy of the report but on its own recollection

of the evidence presented at trial. Reid maintains, however, that the

district court should have corrected the alleged inaccuracies in the

presentence report because the Bureau of Prisons will use that report

throughout Reid's incarceration.

Rule 32(c)(1) of the Federal Rules of Criminal Procedure provides

that:

At the sentencing hearing, the court must afford counsel for

the defendant and for the Government an opportunity to

comment on the probation officer's determinations and on

other matters relating to the appropriate sentence, and must

rule on any unresolved objections to the presentence report.

The court may, in its discretion, permit the parties to intro-

duce testimony of other evidence on the objections. For

each matter controverted, the court must make either a find-

ing on the allegation or a determination that no finding is

necessary because the controverted matter will not be taken

into account in, or will not affect, sentencing. A written

28

record of these findings and determinations must be

appended to any copy of the presentence report made avail-

able to the Bureau of Prisons.

Fed. R. Crim. P. 32(c)(1) (emphasis added). The district court clearly

complied with this rule. When Reid raised objections to findings

made in the presentence report, the district court stated on the record

that "I don't think it is really necessary that we get into that because

for purposes of sentencing I am not relying upon in any respect the

factual matter that is set out in the presentence report." Transcript of

Sentencing Hearing for Jerry Andrew Reid at 7. Given this ruling, it

was unnecessary to correct any alleged inaccuracies in the presen-

tence report.

We assume that a written transcript of the sentencing hearing has

been appended to the copy of the presentence report made available

to the Bureau of Prisons, as required by Rule 32(c)(1). Our holding

today does not prevent Reid from arguing in the future that the

Bureau of Prisons has not received a transcript of the sentencing hear-

ing.

C. Sentencing of Carlos E. McGill

Carlos E. McGill raises a sufficiency of the evidence claim con-

cerning several kilograms of cocaine base that was attributed to him

at sentencing.

The jury convicted McGill for the distribution of 53.54 grams of

crack cocaine to an undercover agent, and for possession with intent

to distribute 84.3 grams of crack cocaine, which was found at his resi-

dence during the execution of a search warrant. At sentencing, the

district court found that McGill participated in the efforts of Paul

Winestock, Jr., to obtain large quantities of cocaine from a source in

Philadelphia, and attributed an additional seven kilograms of crack

cocaine to McGill. Although the cocaine obtained by Winestock from

Philadelphia came in powder form, the district court treated it as crack

cocaine because it found that McGill knew or should have known that

the powder cocaine would be converted into crack cocaine before it

was sold. The district court stated:

29

I guess I am satisfied that, although perhaps reluctantly so,

perhaps I didn't really want to hear it and didn't want to be

satisfied, but I can't escape it because I am confident that

there has been a preponderance of the evidence to indicate

that the seven kilograms from October and November from

Mr. McGill's standpoint did involve foreseeability that they

would become crack cocaine. It is important that it was

crack that he had in his house when he was arrested.

I can't conclude that Mr. McGill stuck his head in the

sand with regard to what he foresaw or should have foreseen

with regard to the powder that was ultimately cooked into

crack. The evidence is just too convincing. It probably really

reaches a clear and convincing standard that on this point

leaves me with no other conclusion to make on the seven

kilograms and of course, that he was convicted with respect

to the two counts.

We review the district court's factual findings under a clearly erro-

neous standard. United States v. Williams, 977 F.2d 866, 869 (4th Cir.

1992), cert. denied, 507 U.S. 942 (1993). We have reviewed the

record and conclude that the district court was not clearly erroneous

in finding that McGill foresaw or should have foreseen that the seven

kilograms of cocaine would be converted into crack cocaine. Conse-

quently, we conclude the district court correctly sentenced McGill.

D. Sentencing of Roderick Brown

Roderick Brown challenges the attribution of 969.56 grams of

crack cocaine to him during sentencing.

Brown was convicted on one count of distribution of cocaine to an

undercover agent. At sentencing, Brown conceded that two distribu-

tions (of 28 grams and of 5 grams) could be attributed to him. The

district court also attributed another 969.96 grams of crack cocaine to

Brown because of his involvement in "cooking" cocaine powder into

crack cocaine. Brown argues that the jury's acquittal on the conspir-

acy counts indicates their finding that Brown was not involved in

cooking drugs.

30

At sentencing, a district court may consider evidence relating to

counts on which the defendant was acquitted. United States v.

Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985). Even if we assume,

arguendo, that the acquittal on the conspiracy count indicates that the

jury did not find beyond a reasonable doubt that Brown was involved

in cooking cocaine, the sentencing judge need only find by a prepon-

derance of the evidence that Brown was involved in the cooking of

cocaine. After reviewing the record, we conclude that the district

court was not clearly erroneous in finding that Brown was involved

in the conversion of 969.56 grams of powder cocaine into crack

cocaine.

V. Jury Selection at the Smith Trial

We next turn to the one issue raised by the defendants at the trial

of Hassan L. Smith and Michael S. Smith.

During jury selection, the district court conducted a voir dire exam-

ination of the jury pool. Twenty-seven members of the jury pool

responded affirmatively when asked if they had previous contact with

the criminal justice system. Each one of these 27 members was exam-

ined individually at the bench by the district court and by counsel.

None of the defendants heard what transpired during the bench con-

ferences. After the completion of voir dire, the court recessed so that

counsel could confer among themselves. After the break, counsel sub-

mitted their list of peremptory challenges, and the jury was chosen.

The district court released the remaining members of the venire and

swore in the jury. The court then broke for lunch.

After the lunch break, the defendants' attorneys informed the court

that the defendants had voiced their objection to the jury selection

process during the lunch break. Specifically, they complained that

they were not present at all stages of the jury selection process

because they could not hear the discussions that transpired during the

bench conferences with individual members of the venire. Further-

more, the defendants complained that their attorneys compiled the list

of peremptory challenges without consulting their clients. The defen-

dants requested that the court summon a new venire and select a new

jury. The district court denied their request because they objected too

late, after the jury had been sworn in.

31

Rule 43(a) of the Federal Rules of Criminal Procedure provides as

follows:

The defendant shall be present at the arraignment, at the

time of the plea, at every stage of the trial including the

impaneling of the jury and the return of the verdict, and at

the imposition of sentence, except as otherwise provided by

this rule.

Fed. R. Crim. P. 43(a). We agree that the defendants had the right to

be present during the bench conferences with the jurors, but we con-

clude that the defendants waived their right by failing to object before

the district court swore in the jury. The Supreme Court has stated:

The district court need not get an express "on the record"

waiver from the defendant for every trial conference which

a defendant may have a right to attend. . . . A defendant

knowing of . . . a discussion [between a juror and the district

judge] must assert whatever right he may have under Rule

43 to be present.

United States v. Gagnon, 470 U.S. 522, 528 (1985). The defendant's

obligation to assert expressly his right to be present extends to bench

conferences during jury selection. United States v. Washington, 705

F.2d 489 (D.C. Cir. 1983). In Washington, the D.C. Circuit stated:

In normal cases the defendant upon request should be

allowed to observe and hear juror responses made at the

bench. But because it is a right infrequently exercised and

usually delegated to counsel, unless a specific request is

made for the defendant to participate in bench examinations

of prospective jurors, such right shall be deemed to have

been waived.

Washington, 705 F.2d at 497.

We conclude that the defendants' assertion of their right to be pres-

ent during the bench conferences was untimely because it came after

the district court swore in the jury. See United States v. Romero-

32

Reyna, 867 F.2d 834 (5th Cir.), cert. denied , 110 S. Ct. 1818 (1990).

Accordingly, we hold that the Hassan L. Smith and Michael S. Smith

were not denied a fair trial.

VI.

For the foregoing reasons, we affirm the convictions of all of the

appellants, and we affirm the sentences of all of the appellants except

for Jeffrey A. Reid. We vacate and remand Reid's sentence with

instructions to resentence him to 324 months imprisonment.

AFFIRMED IN PART AND VACATED

AND REMANDED IN PART

33