UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                            No. 99-4048
LIONEL S. CHAMBERLAIN, a/k/a
Lonnie,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                          No. 99-4177

MYRON ARVEL WARD, a/k/a Tank,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                          No. 99-4251

MARCUS DARRELL MACK,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-97-40)

Argued: June 6, 2000

Decided: August 3, 2000
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Widener wrote
a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Char-
lottesville, Virginia, for Appellants. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: John S. Hart, Jr., JOHN S. HART, JR., P.C.,
Harrisonburg, Virginia, for Appellant Ward; John Q. Adams, Harri-
sonburg, Virginia, for Appellant Chamberlain. Robert P. Crouch, Jr.,
United States Attorney, Joseph W.H. Mott, Assistant United States
Attorney, Bruce A. Pagel, Assistant United States Attorney, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Lionel Chamberlain, Myron Ward, Marcus Mack,
and co-defendants of a wide ranging drug trafficking conspiracy.
Finding no reversible trial or sentencing error, we affirm.

I.

Appellants' principal argument on appeal is that the district court
erred in failing to dismiss the indictment because of government mis-
conduct in providing them false evidence during discovery.

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This evidence consisted of a report fabricated by FBI Agent Frank
Harman. The report recounted a statement by informant James Page
that he knew the appellants but had no knowledge of any drug dealing
activities by them. According to the government, Agent Harman fab-
ricated the report because Page was afraid of retaliation from mem-
bers of the drug conspiracy. The Government provided this report to
the defense as part of pre-trial discovery. At trial, Agent Harman testi-
fied that he had told the prosecutors about the false report, but
"d[id]n't recall which one [of the Assistant United States Attorneys
on the case he] informed." The prosecutors represented that neither
had knowledge that the report was false until the weekend before the
trial began; on the next Monday, after opening statements, the prose-
cutors assertedly told the attorney for one of the defendants (but none
of the appellants) of the fabrication. The prosecutors did not expressly
inform appellants' counsel of the false report until another defense
counsel began to cross-examine Page about the document. Appellants
moved for a mistrial upon learning of the false report. The district
court denied those motions and also denied defense requests to
require the prosecutors themselves to testify, but the court did permit
the defense to offer the report into evidence and to question Agent
Harman extensively about it before the jury.

Like the appellants, we are troubled by the government's conduct
in this case. Agent Harman fabricated a report with the intent of mis-
leading the defendants through their attorneys. However, we must
reject the appellants' contention that this prosecutorial conduct, sim-
ply because it is "so outrageous," requires the district court to dismiss
the indictment. More is required; specifically, in order to gain dis-
missal of an indictment a defendant must demonstrate not just that the
government engaged in misconduct but also that this misconduct prej-
udiced him. See United States v. Derrick, 163 F.3d 799, 807 (4th Cir.
1998); see also Bank of Nova Scotia v. United States, 487 U.S. 250,
263 (1987); United States v. Hasting, 461 U.S. 499, 505 (1983);
United States v. Morrison, 447 U.S. 361, 365-67 (1981) (holding prej-
udice required to reverse for government misconduct in Sixth Amend-
ment context); United States v. Payner, 447 U.S. 727, 737 (1980)
(holding a court's supervisory power must be exercised "with some
caution" and with a view towards balancing the interests involved).

The Supreme Court has repeatedly emphasized prejudice as a pre-
requisite for a court's exercise of supervisory powers to address pro-

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secutorial misconduct. In Hasting, the Court held that a court could
not invoke its supervisory powers to reverse a conviction for govern-
ment misconduct where the alleged misconduct was harmless. 461
U.S. at 505. In Nova Scotia, the Court reaffirmed Hasting, upholding
a district court's refusal to dismiss an indictment despite clear pro-
secutorial misconduct; the court explained that"the District Court had
no authority to dismiss the indictment on the basis of prosecutorial
misconduct absent a finding that petitioners were prejudiced by such
misconduct." 487 U.S. at 263. In both cases the Court relied on its
discussion in Payner in which it noted the limitations on and cau-
tioned restraint in the use of the supervisory power. 447 U.S. at 737.

In Derrick, we applied these principles in a case involving prosecu-
torial misconduct far more egregious than that here. Federal prosecu-
tors in that case failed to disclose exculpatory materials in their
possession on numerous occasions, even after the district court
entered explicit orders that the government produce"all documents
and/or materials in [its] possession . . . dealing with these cases and
not presently available to the defendants" and that "should the govern-
ment come into possession of any evidence which might impact on
[the government's allegations], such information and/or materials
shall be immediately submitted to this court for in camera review."
Derrick, 163 F.3d at 804-05. The district court, after learning of
numerous violations of these orders, required the government to pro-
duce all related exculpatory and non-exculpatory documents for the
defendants, and subsequently dismissed the indictments. We reversed
because, since the prosecution was ultimately ordered to produce all
documents, the misconduct had caused the defendants no prejudice.

In the case at hand, appellants do not even assert that they suffered
any prejudice because of the governmental misconduct. Similarly,
after close review of the record, we too can discern no prejudice as
a result either of the deception itself or of the prosecution's delay in
revealing it. In opening argument, two defense attorneys referred to
Page before learning of the fabrication. The first, an attorney for
another defendant, stated that "[t]here will be evidence that shows that
[Page] made contradictory statements with respect to these events
subsequent to the occurrence of those events" and that "he's made a
statement inconsistent subsequent to the events of about whenever he
was questioned." Appellant Mack's counsel then said in opening that

                    4
"Mr. Page is not a trustworthy person" and that "you [will] have seri-
ous questions about whether you can believe James Page." These
statements are not inconsistent with the other evidence in the case,
which indicates that Page dishonestly took advantage of his informant
status and used government money to purchase drugs. The statements
thus do not realistically undermine defense counsel's credibility with
the jury, particularly in light of the fact that these same counsel later
impeached Agent Harman with the fabricated documents.

Nor were appellants prejudiced in their cross examination of Page
or Agent Harman. Page admitted on the stand that"[t]here w[ere] a
lot of false statements put out by the FBI and different law enforce-
ment agencies." Moreover, the only attorney to try to impeach Page
with the report before prosecutors admitted the fabrication to the court
did not represent the appellants. Prior to that brief and aborted attempt
at impeachment, no one had referred to the report in the cross exami-
nation. Appellants' counsel vigorously cross-examined Agent Har-
man, who did not testify until all defense counsel had learned of the
fabrication. The district court specifically allowed defense counsel
wide latitude in cross-examination. Other defendants' counsel also
cross-examined Agent Harman on the report. In sum, the prosecutor's
delay in revealing the deception did not prejudice the defense in any
aspect of its case.

We note too that deterrence of government misconduct in the
future does not justify reversal in the absence of a showing of preju-
dice. "[D]eterrence is an inappropriate basis for reversal . . . where
means more narrowly tailored to deter objectionable prosecutorial
conduct are available." Hasting, 461 U.S. at 506 (quoted in Derrick,
163 F.3d at 807). Here, the district court fashioned an appropriate
"narrowly tailored" remedy to counter the government misconduct.
The district court allowed the defense to use the report to cross exam-
ine and impeach state witnesses, to read it to the jury, to herald it as
a document given to them by the prosecution, to refer to it in summa-
tion, or to use it in any other way the defense chose. The court acted
well within its discretion in refusing to permit the dramatic disruption
of the trial that would have resulted from calling a prosecutor as a
witness.

In sum, the district court did not abuse its discretion in refusing to
dismiss the indictment when appellants utterly failed to demonstrate

                     5
that the government misconduct prejudiced them. Indeed, under con-
trolling precedent, to have dismissed the indictment absent prejudice
would have been error. See Nova Scotia, 487 U.S. at 263; Derrick 163
F.3d at 807.

II.

The indictment charged and the jury convicted appellants of partic-
ipating in a single drug trafficking conspiracy with other co-
defendants. Appellants maintain that the government offered insuffi-
cient evidence to establish that they were part of the same conspiracy
as the other defendants. Appellants do not contend that the district
court improperly charged the jury on the law relating to conspiracy.
Moreover, they concede that they had the same customers as the other
defendants, they do not dispute that they used the homes of the same
crack addicts used by the defendants to sell crack, and they recognize
that two persons, Rick Washington and Marco "Mikey" Rodriguez,
engaged in drug trafficking both with them and with the other defen-
dants. Nevertheless, they argue that because there is no evidence of
common suppliers, their drug activities were separate from the con-
spiracy involving the other defendants.

A court will uphold a jury's finding of a single drug distribution
conspiracy even when the participants "may have bought drugs from
other sources at various time." United States v. Johnson, 54 F.3d
1150, 1154 (4th Cir. 1995). Indeed, the fact that the defendants
charged in the conspiracy "either did not know or had minimal con-
tact with each other" is not sufficient for us to reverse a jury's finding
of a single conspiracy. Id.; see also United States v. Capers, 61 F.3d
1100, 1108 (4th Cir. 1995) ("The government need not prove that a
defendant knew everyone in the conspiracy.").

Appellants' reliance on United States v. Whitehead, 539 F.2d 1023
(4th Cir. 1976), and United States v. Levine, 546 F.2d 658 (5th Cir.
1977), is misplaced. In those cases the government did not allege that
the defendants engaged in a single conspiracy. Moreover, as the court
in Levine explained, the offenses at issue there involved distinct activ-
ities "aris[ing] from different factual matrices, implicating different
defendants at different times." 546 F.2d at 662. In contrast, the gov-
ernment here asserted and provided evidence that these defendants

                     6
were involved in the same single, overarching conspiracy as the other
defendants. The jury, after being properly instructed, agreed. The
appellants offer no authority to support their contention that, with
such evidence and proper instructions, the jury's verdict that the
defendants were part of the same conspiracy was contrary to law.

III.

Finally, Appellant Mack asserts that the district court improperly
enhanced his sentence for his leadership role in the conspiracy. Spe-
cifically, he contends that insufficient evidence supported the court's
finding that he was responsible for the actions of several other defen-
dants.

The fatal weakness in Mack's assertion is that Agent Harman testi-
fied that Mack had told him that several people assisted him in his
drug distribution operation and that he brought down approximately
two ounces of crack every couple of weeks. The district court found
this testimony credible and, based on this testimony and the probation
officer's report, found that Mack had been a significant figure with
a leadership role in the conspiracy. If believed, Agent Harman's testi-
mony certainly supports a finding that Mack supervised others and
played a significant supplier role; we defer to the district court on
credibility determinations, and this testimony suffices to support the
district court's finding.

IV.

Because appellants suffered no prejudice from government miscon-
duct and appellants' other arguments are meritless, the convictions
and sentences are in all respects

AFFIRMED.

WIDENER, Circuit Judge, concurring and dissenting:

I concur in the opinion of the majority so far as it holds that there
was no reversible error in the district court's refusal to dismiss the
indictment.

                     7
As to the motion for mistrial, however, I respectfully dissent. It is
my opinion it was an abuse of discretion not to have granted that
motion which came early in the game. The gross misconduct of the
FBI agent which, according to the version of that agent, was joined
in by one or more of the Assistant United States Attorneys connected
with the case, should have been given more weight and the defendants
should not have been required to proceed with the case in the face of
such outrageous fraud for which, so far as we are presently advised,
there has not even been any discipline by the Justice Department.

We are placing too readily a stamp of approval on conduct which
should not be tolerated in ordinary circumstances as here.

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