US v. Bruce Kilgore

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UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Bruce Kilgore Doc. 0 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4657 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE KILGORE, Defendant - Appellant.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 Dockets.Justia.com Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 2 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 3 PER CURIAM: In Timothy these consolidated their appeals, Bruce for Kilgore count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 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 4 994. 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 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 5 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 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 6 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 Case: 08-4657 Document: 93 Date Filed: 11/19/2010 Page: 7 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 7

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