US v. Bruce Kilgore

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion for bail/release pending appeal (Local Rule 9(a) and (b)) [998417884-2] in 08-4657 Originating case number: 8:06-cr-00066-RWT-11. Copies to all parties and the district court/agency. [998469310] [08-4657, 08-5200]

US v. Bruce Kilgore

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4657 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE KILGORE, Defendant - Appellant.

No. 08-5200 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY MOODY, Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:06-cr-00066-RWT-11; 8:06-cr-00066-RWT-12) Submitted: September 16, 2010 Decided: November 19, 2010

Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.

Dockets.Justia.com

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Affirmed by unpublished per curiam opinion. Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: In Timothy these consolidated their appeals, Bruce for Kilgore count and of

Moody

appeal

convictions

one

conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (2006). appeals his sentence. Both admitting Finding no error, we affirm. claim them the district court erred a by coKilgore also

Appellants of

evidence

discussing

murdering

conspirator. evidence of

Moody also claims the court erred by admitting his involvement in the conspiracy that extended Review of See In

beyond the date indicated in the superseding indictment. of a district court's determination of the

admissibility

evidence under Rule 404(b) is for abuse of discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).

general, any evidence which tends to make the existence of a fact of consequence to an issue in the case "more probable or less probable" than without the evidence is relevant under Fed. R. Evid. 401 and therefore generally admissible under Fed. R. Evid. 402. Evidence of other crimes is not admissible to prove Fed. R. Evid. 404(b). to prove "motive,

bad character or criminal propensity. Such evidence is admissible,

however,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 3 Id.; see Queen, 132 F.3d at

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994. other

Rule 404(b) is an inclusive rule, allowing evidence of crimes or acts except that which tends to prove only

criminal disposition.

See Queen, 132 F.3d at 994-95.

Evidence of prior acts is admissible under Rule 404(b) and Fed. R. Evid. 403 if the evidence is (1) relevant to an issue other than the general character of the defendant,

(2) necessary, (3) reliable, and (4) if the probative value of the evidence is not substantially outweighed by its prejudicial effect. Queen, 132 F.3d at 997. A limiting jury instruction

explaining the purpose for admitting evidence of prior acts and advance notice of the intent to introduce evidence of prior acts provide additional protection to defendants. We discretion conclude by the district the court See id. did not abuse In its both

admitting

challenged

evidence.

instances, the evidence was intrinsic to the charged conspiracy and was relevant to the issues of intent, motive, and

opportunity.

Furthermore, the evidence highlighted the extent

to which both Appellants were committed to the conspiracy. Insofar continuing in the as Moody claims after that the evidence "on or of him date

conspiracy

about"

charged in the indictment constructively amended the indictment or was a fatal variance, we find no error. amendment to an indictment occurs when ... "A constructive the government

(usually during its presentation of evidence and/or argument), 4

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the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented to the grand jury." F.3d 706, 710 (4th Cir. 1994). United States v. Floresca, 38 "A constructive amendment is a

fatal variance because the indictment is altered to change the elements of the offenses charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." United States v. Randall, 171 F.3d 195, 203 (4th A

Cir. 1999) (internal quotation marks and citation omitted).

constructive amendment is error per se, and, given the Fifth Amendment corrected right on to be indicted when by not a grand jury, by "must be

appeal,

even

preserved

objection."

Floresca, 38 F.3d at 714. When considering a constructive amendment claim, "it is the broadening [of the bases for a defendant's conviction] that is important - nothing more." Id. at 711. The key inquiry

is whether the defendant has been tried on charges other than those made in the indictment. See id. The beginning and ending

dates of a conspiracy are not elements of the offense, so proof of different dates could never raise the specter of conviction for a different crime. See United States v. Hatten-Lubick, 525

F.3d 575, 581 (7th Cir. 2008); see also Queen, 132 F.3d at 999 (dates of conspiracy are not substantive elements of the

offense).

We conclude there was no constructive amendment to 5

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the

superseding

indictment.

We

further

note

the

jury

was

instructed that it could not convict Moody based solely on the challenged evidence and that the evidence was admitted for the purpose of providing context and more information about the

conspiracy.

See United States v. Paredes-Rodriguez, 160 F.3d

49, 56 (1st Cir. 1998) (any potential prejudice by the admission of pre-conspiracy evidence was prevented by the court's jury instruction); United States v. Gonzalez, 661 F.2d 488, 492 (11th Cir. 1981) (no constructive amendment when jury was instructed that it was limited We the to the conspiracy that charged was to in no show the fatal his

indictment). variance to

further

conclude

there failed

indictment.

Moody

substantial rights were violated. F.3d 876, 883 (4th Cir. 1994).

United States v. Kennedy, 32

Moody's claim that he was entitled to a mistrial or a severance based on Kilgore's testimony is without merit. failed making to a show Kilgore's judgment testimony about his prevented criminal the jury Moody from See Nor

reliable

conduct.

United States v. Allen, 491 F.3d 178, 189 (4th Cir. 2007). did Kilgore's testimony unveil a stark contrast in

defenses

asserted by the two Appellants. 300 F.3d 466, 474 (4th Cir. 2002). Kilgore argues that

See United States v. Najjar,

the

district

court

erred

at

sentencing when it considered the differences between himself 6

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and two co-defendants prior to finding that his sentence would not result in an We unwarranted conclude the disparity. court did See not 18 U.S.C. its

§ 3553(a)(6).

abuse

discretion as there was no "unwarranted" disparity. Accordingly, we affirm the convictions and sentences. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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