US v. Gregory Whyte

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00212-RDB-1 Copies to all parties and the district court/agency. [998755507].. [11-4187]

Appeal: 11-4187

Document: 52

Date Filed: 01/03/2012

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4187

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY ALFRED WHYTE,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:10-cr-00212-RDB-1)

Submitted:

November 4, 2011

Decided:

January 3, 2012

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Erek L. Barron, BARRON & ASSOCIATES, LLC, Largo, Maryland, for
Appellant.
Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Sujit Raman, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4187

Document: 52

Date Filed: 01/03/2012

Page: 2 of 6

PER CURIAM:
After a jury trial, Gregory Alfred Whyte was convicted
of one count of conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846 (2006), and one count
of attempted possession with intent to distribute cocaine and
aiding and abetting such conduct, in violation of 18 U.S.C. § 2
(2006) and 21 U.S.C. § 846.
his convictions.

Whyte makes several challenges to

Finding no error, we affirm.

Whyte claims that the charges in his indictment were
improperly joined.

He contends he was charged with one drug

conspiracy

unrelated

Whyte’s

and

two

motion

for

possession

severance

was

charges.

denied,

the

Although
Government

eventually dropped one of the possession charges and proceeded
to trial on the remaining two charges.
Fed.

R.

Crim.

P.

8(a)

provides

that

two

or

more

offenses may be charged in the same indictment when the offenses
“are of the same or similar character, or are based on the same
act or transaction, or are connected with or constitute parts of
a

common

district

scheme
court’s

or

plan.”

refusal

This
to

court

grant

a

reviews

de

misjoinder

novo

the

motion

to

determine whether the initial joinder of the offenses was proper
under Rule 8(a).
(4th Cir. 2003).

United States v. Mackins, 315 F.3d 399, 412
If joinder was proper, review of the denial of

a motion to sever is for abuse of discretion under Fed. R. Crim.
2

Appeal: 11-4187

Document: 52

P. 14.

Id.

Date Filed: 01/03/2012

Page: 3 of 6

If joinder was improper, the court “review[s] this

nonconstitutional error for harmlessness, and reverse[s] unless
the

misjoinder

resulted

in

no

‘actual

prejudice’

to

the

defendants ‘because it had [no] substantial and injurious effect
or influence in determining the jury’s verdict.’”

Id. (quoting

United States v. Lane, 474 U.S. 438, 449 (1986).
Because
testimony,

impaneling

judicial

resources,

exception.
Cir.

is

States v.

the

prospect

additional
joinder

of

duplicating
or

jurors

is

the

witness
limited

rule

wasting
rather

than

the

United States v. Hawkins, 589 F.3d 694, 700 (4th

2009).

statute

of

Joinder

of

multiple

“unremarkable”.

Acker,

52

F.3d

charges

Id.
509,

at

514

involving

702-03

(4th

the

same

(citing

Cir.

United

1995)

(courts

routinely allow joinder of bank robbery charges against the same
defendant)).
We

fail

to

see

any

error

in

decision denying the motion to sever.

the

district

court’s

We note that even if

there was error in the joinder, Whyte has failed to show actual
prejudice.

A review of the record shows that the jury only

heard evidence pertaining to the one possession charge, and no
evidence relating to the dismissed charge was admitted.
Whyte also argues that by virtue of the Government’s
decision to sever one of the charges, there was a constructive
amendment of the indictment that became a fatal variance.
3

“A

Appeal: 11-4187

Document: 52

Date Filed: 01/03/2012

Page: 4 of 6

constructive amendment to an indictment occurs when . . . the
government (usually during its presentation of evidence and/or
its argument), the court (usually through its instructions to
the jury), or both, broadens the possible bases for conviction
beyond those presented by the grand jury.”

United States v.

Floresca, 38 F.3d 706, 710 (4th Cir. 1994).

“A constructive

amendment is a fatal variance because the indictment is altered
to change the elements of the offense charged, such that the
defendant

is

actually

convicted

charged in the indictment.”

of

a

crime

other

than

that

United States v. Randall, 171 F.3d

195, 203 (4th Cir. 1999) (internal quotation marks omitted).

A

constructive amendment is error per se, and, given the Fifth
Amendment

right

corrected

on

to

be

appeal,

indicted

even

when

by
not

a

grand

jury,

preserved

by

“must

be

objection.”

Floresca, 38 F.3d at 714.
We

conclude

this

claim

is

without

merit.

The

Government did not present evidence that broadened the possible
bases for a conviction.

Neither is there any indication that

the indictment was altered so as to change the elements of the
charged offenses or that Whyte was convicted of anything other
than the two charges.
Whyte also claims he received ineffective assistance
of trial counsel because counsel failed to present the testimony
of two impeachment witnesses.

In order to succeed on a claim of
4

Appeal: 11-4187

Document: 52

Date Filed: 01/03/2012

Page: 5 of 6

ineffective assistance of counsel, Whyte must show:

(1) that

his counsel’s performance fell below an objective standard of
reasonableness; and (2) that counsel’s deficient performance was
prejudicial.
(1984).

Strickland

Ineffective

cognizable

on

direct

v.

Washington,

assistance

of

appeal,

counsel

unless

establishes ineffective assistance.

466

the

U.S.

668,

687

claims

are

not

record

conclusively

United States v. James, 337

F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999).
development

of

the

record,

Rather, to allow for adequate

claims

of

ineffective

assistance

generally should be brought in a 28 U.S.C.A. § 2255 (West Supp.
2011) motion.
(4th

Cir.

United States v. Gastiaburo, 16 F.3d 582, 590

1994).

We

conclude

that

Whyte’s

ineffective

assistance of counsel claim is not conclusively established by
the record, and we will forego reviewing the claim.
Finally, Whyte argues that the district court abused
its discretion by denying his motion to continue the hearing on
his motions seeking a new trial.

The court’s decision not to

grant a continuance and to have the scheduled hearing on Whyte’s
motions for a new trial is reviewed for abuse of discretion.
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
We see no abuse of discretion.

Whyte has failed to

show that he was prejudiced as a result of the district court’s
decision.
5

Appeal: 11-4187

Document: 52

Date Filed: 01/03/2012

Page: 6 of 6

Accordingly, we affirm the convictions and sentence.
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

6