US v. Amanza Pollino

Filing 920090501

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4183

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AMANZA JAMES POLLINO, a/k/a Jiggy, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:07-cr-00046-jpj-pms-1)

Submitted:

March 30, 2009

Decided:

May 1, 2009

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Joel C. Hoppe, Assistant Federal Public Defender, Charlottesville, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted Amanza James Pollino of conspiracy to possess with intent to distribute and to distribute five grams or more of cocaine 846 base, (2006), in and violation possession of with 21 U.S.C. to

§§ 841(b)(1)(B),

intent

distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B). He was sentenced to 120 months'

imprisonment. insufficient

On appeal, Pollino argues: (1) the evidence was to support the jury's convictions; (2) the

admission of evidence relating to a traffic stop of Pollino on April 12, 2007, created a prejudicial variance from the charges in the indictment and, as "prior bad acts" evidence under Fed. R. Evid. 404(b), it required a limiting instruction; and (3) the sentencing scheme for cocaine base offenses under 21 U.S.C.

§ 841 violates the Due Process and Equal Protection clauses. Finding no reversible error, we affirm. Pollino first challenges the sufficiency of the

evidence to support the jury's convictions.

This court reviews

de novo a district court's denial of a motion, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal. Cir. 2005). United States v. Alerre, 430 F.3d 681, 693 (4th In conducting such a review, the court is obliged

to sustain a guilty verdict if, viewing the evidence in the light most favorable to the 2 prosecution, the verdict is

supported by substantial evidence. F.3d 849, 862 (4th Cir. 1996)

United States v. Burgos, 94 banc) (citing Glasser v.

(en

United States, 315 U.S. 60, 80 (1942)).

This court has "defined

substantial evidence as 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." Alerre, 430 F.3d at 693 (internal quotation and citation

omitted); see Burgos, 94 F.3d at 862. circumstantial as well as direct

This court "must consider evidence, and allow the

government the benefit of all reasonable inferences from the facts proven to those sought to be established." United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In evaluating the sufficiency of the evidence, this court does not assess jury the credibility all of the witnesses in and the

assumes

that

the

resolved

contradictions

testimony in favor of the Government.

United States v. Brooks,

524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008). This court "can reverse a conviction on insufficiency United

grounds only when the prosecution's failure is clear."

States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal quotation marks and citation omitted). To government prove a conspiracy (1) an under 21 U.S.C. § two 846, or the more

must

prove

agreement

between

persons to engage in conduct that violates a federal drug law, 3

(2) the defendant's knowledge of the conspiracy, and (3) the defendant's conspiracy. knowing and voluntary participation in the

United States v. Strickland, 245 F.3d 368, 384-85 "By its very thereby such an

(4th Cir. 2001); see Burgos, 94 F.3d at 857. nature, a conspiracy resulting in is clandestine direct and

covert, of

frequently agreement." generally

little

evidence

Burgos, 94 F.3d at 857. is proved evidence by

Therefore, a conspiracy evidence. a conspiracy Id. may

circumstantial to prove

"Circumstantial

tending

consist of a defendant's relationship with other members of the conspiracy, the length of this association, [the defendant's] attitude [and] conduct and the nature of the conspiracy." (internal quotations and citations omitted). To convict a defendant of possession with the intent to distribute, the government must prove: (1) possession of a Id.

narcotic controlled substance; (2) knowledge of the possession; and (3) the intent to distribute. F.3d 515, 519 (4th Cir. 2005). United States v. Collins, 412

"A defendant is guilty of aiding

and abetting if he has knowingly associated himself with and participated in the criminal venture." Burgos, 94 F.3d at 873

(internal quotation marks and citation omitted). Pollino's main contention on appeal is that the

evidence linking him to crack cocaine was circumstantial, which is admittedly permissible, but, 4 in his case, too tenuous to

establish

beyond

a

reasonable

doubt

that

he

possessed

the

requisite knowledge.

We have reviewed the record and we find Accordingly,

sufficient evidence to sustain the jury's verdict.

we find the district court did not err in denying Pollino's motion for acquittal as to both counts. Next, relating to Pollino April from claims 12, the The the 2007 introduction traffic stop of evidence a his with

the

created

prejudicial rights to

variance due

indictment indictment

that

violated Pollino

process.

charged

conspiracy "on or about June 20, 2007."

The indictment cites

the same date for the second charge of possession with intent to distribute. The traffic stop occurred on April 12, 2007.

Pollino argues that the admission into evidence of the April 12, 2007 stop and arrest constituted a prejudicial variance.

Pollino further claims that the admission of this "prior bad acts evidence" under Fed. R. Evid. 404(b) required a limiting instruction to the jury. A variance occurs when the evidence presented at trial differs materially from the facts alleged in the indictment. United States v. Bollin, 264 F.3d 391, 405 (4th Cir. 2001). Only when the evidence presented at trial changes the elements of the crime charged, such that the defendant is convicted of a crime other than that charged in the indictment, is the

difference fatal.

United States v. Randall, 171 F.3d 195, 203 5

(4th Cir. 1999).

A variance that does not alter the crime

charged "does not violate a defendant's constitutional rights unless it prejudices [him] 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.

The district court concluded that the April 12, 2007 traffic stop but as and subsequent arrest were not "prior bad acts

evidence" testimony"

rather to

"intrinsic counts.

evidence" Pollino

providing was

"relevant with

both

charged

conspiracy in count one and the alleged discrepancy in offense dates does not affect the essential elements of the crime. See

United States v. Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997) (specific dates are not elements of conspiracy offense). therefore find admission of the contested evidence did We not

create a fatal variance. Additionally, the district court properly admitted the evidence as intrinsic to the charged offense and not subject to 404(b). charged. Rule 404(b) only applies to acts extrinsic to the crime Where testimony is admitted as to acts intrinsic to

the crime charged, and is not admitted solely to demonstrate bad character, it is admissible. 88 (4th Cir. 1996). intertwined United States v. Chin, 83 F.3d 83, are both intrinsic acts are when of they a are

Acts or

"inextricably

part

single

criminal episode or the other acts were necessary preliminaries 6

to the crime charged."

Id. (quoting United States v. Lambert, Moreover, evidence of "not it considered out `other of the

995 F.2d 1006, 1007 (10th Cir. 1993)). other crimes for . . or uncharged 404(b) conduct purposes of is if

crimes'" same .

Rule

"`arose as

series

transactions

the

charged

offense, . . . or if it is necessary to complete the story of the crime [on] trial.'" United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989)). Accordingly, we find the admission of

the contested evidence did not require a limiting instruction. Last, Pollino argues that the sentencing scheme under 21 U.S.C. § 841 as it relates to cocaine base is

unconstitutional because it is not proportional to sentences for powder cocaine and violates his rights to due process and equal protection. merit. This Pollino's court has constitutional repeatedly challenge is without that the

rejected

claims

sentencing disparity between powder cocaine and crack offenses violates either equal protection or due process. States v. Burgos, 94 F.3d 849, 876-77 (4th See United Cir. 1996)

(collecting cases); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990). We further note that Pollino's reliance on

the Supreme Court's decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), is misplaced. Although the Court in

Kimbrough found that district courts are permitted to disagree 7

with

the

policies

underlying

the

Sentencing

Guidelines,

the

Court neither found § 841's penalty provisions unconstitutional nor overruled this court's previous holdings rejecting

constitutional challenges to the 100:1 ratio. Accordingly, sentence. legal before we affirm Pollino's

Id. at 572. convictions and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

8