                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4223


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OSCAR BAPTISTE, a/k/a Dread,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Richard M. Gergel, District
Judge. (2:11-cr-02015-RMG-1)


Submitted:   December 31, 2013            Decided:   April 16, 2014


Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant.  Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                A jury convicted Oscar Baptiste of importing 500 grams

or   more       of    cocaine      and    aiding      and     abetting        the    same,     in

violation of 18 U.S.C. § 2 (2012) and 21 U.S.C. § 952(a) (2012).

The court sentenced Baptiste to 108 months’ imprisonment.                                      On

appeal,         counsel    has     filed    a       brief    pursuant        to     Anders     v.

California,          386   U.S.    738    (1967),      stating        that    there     are    no

meritorious          grounds      for    appeal      but    questioning           whether     the

district court erred by declining to issue a jury instruction on

entrapment.          Baptiste has filed a pro se supplemental brief, in

which      he     raises    several        challenges        to   his        conviction       and

sentence.        We affirm.

                Baptiste argues in his pro se supplemental brief that

the Government violated Brady v. Maryland, 373 U.S. 83 (1963),

by   not    disclosing         the      grand   jury       transcripts        prior     to    the

hearing on his motion to dismiss the superseding indictment.

Pursuant        to    Brady,      the    government         has   a    responsibility          to

disclose material evidence favorable to the accused.                                    United

States v. McLean, 715 F.3d 129, 142 (4th Cir. 2013).                                    “A due

process violation occurs when (1) the evidence is favorable to

the accused because it is exculpatory or impeaching; (2) the

evidence was suppressed by the government, either willfully or

inadvertently; and (3) the evidence is material.”                                 Id.   “To be



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material, there must be a reasonable probability that disclosure

of the evidence would have produced a different outcome.”                               Id.

              We conclude that Baptiste has failed to demonstrate

that the Government violated Brady by not disclosing the grand

jury transcripts prior to the hearing on his motion to dismiss

the superseding indictment.              To the contrary, in accordance with

the    Federal      Rules    of   Criminal        Procedure,     the    district          court

allowed Baptiste’s counsel to review relevant portions of the

grand jury transcripts during the motions hearing.                              See Fed. R.

Crim. P. 6(e)(3)(E)(ii) (providing that grand jury testimony may

be disclosed “at the request of a defendant who shows that a

ground may exist to dismiss the indictment because of a matter

that occurred before the grand jury”).

              Next, Baptiste argues in his pro se supplemental brief

that    the    district       court     erred       by   failing       to       dismiss       the

superseding indictment.            In reviewing the denial of a motion to

dismiss an indictment, we review the district court’s factual

findings      for    clear    error     and   its    legal    conclusions          de     novo.

United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).

“When    a    criminal      defendant     challenges       the   sufficiency            of     an

indictment       prior       to   the    verdict,        we    apply        a     heightened

scrutiny.”          United States v. Kingrea, 573 F.3d 186, 191 (4th

Cir. 2009).         A federal indictment must contain elements of the

offense charged, fairly inform the defendant of the charge, and

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enable the defendant to plead double jeopardy as a defense to

future    prosecutions         for    the      same      offense.        United    States     v.

Resendiz–Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P.

7(c)(1).

            We conclude that Baptiste’s indictment fairly informed

him of the charge and the elements thereof.                          “Because the aiding

and abetting provision [18 U.S.C. § 2] does not set forth an

essential    element          of    the     offense       with     which    [Baptiste]       is

charged or itself create a separate offense, aiding and abetting

liability    need       not    be    charged        in   [the]    indictment.”            United

States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010).                                Moreover,

the    language    of    Baptiste’s         indictment         includes     the     essential

elements of the 21 U.S.C. § 952(a) offense.                              See United States

v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (listing elements

of § 952 offense); see also Fed. R. Crim. P. 7(c)(2) (providing

that     typographical         error      in    indictment          is    not     ground    for

dismissal unless it prejudices defendant).                          Finally, we conclude

that the district court did not err by determining that the

Government accurately presented the facts of the case to the

grand    jury,    and     therefore,           we    find    no    merit    in     Baptiste’s

contention       that    the        Government        misled      the    grand     jury    when

seeking the indictment.

            Counsel questions whether the district court erred by

declining to issue a jury instruction on entrapment.                               We review

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de    novo     a    district      court’s       decision       to    deny    a     defendant’s

requested instruction on entrapment.                          United States v. Ramos,

462 F.3d 329, 334 (4th Cir. 2006).                           However, “[t]he district

court is the gatekeeper; if the defendant does not produce more

than a scintilla of evidence of entrapment, the court need not

give the instruction.”              United States v. Hackley, 662 F.3d 671,

681 (4th Cir. 2011) (internal quotation marks omitted), cert.

denied, 132 S. Ct. 1936, 2703 (2012).                           “An entrapment defense

has two elements:            (1) government inducement of the crime and

(2)    the   defendant’s        lack     of     predisposition        to     engage       in   the

criminal conduct.”           Ramos, 462 F.3d at 334.                 “‘Inducement’ . . .

involves       elements      of     governmental            overreaching          and    conduct

sufficiently excessive to implant a criminal design in the mind

of an otherwise innocent party.”                        United States v. Daniel, 3

F.3d 775, 778 (4th Cir. 1993).

               After    reviewing         the       trial    transcript,          we    find    no

evidence that the Government induced Baptiste to engage in the

criminal       conduct.        Rather,        the    confidential       informant         (“CI”)

emphatically stated that Baptiste approached him about the plan

to    import       cocaine   into      the    United        States   from     Panama.          Any

question as to the CI’s credibility was addressed in the court’s

specific       instruction        that    the       jury    should    consider          the    CI’s

testimony with a heightened degree of scrutiny.                             In sum, we find

that    Baptiste       needed     no     nudging      to     initiate       his    importation

                                                5
scheme, to contact his acquaintances in Panama, and to provide

the CI with the specific container number in which the cocaine

ultimately arrived.             Accordingly, we conclude that the district

court       correctly     declined      to    issue        a    jury       instruction        on

entrapment.

              Baptiste argues in his pro se supplemental brief that

the evidence was insufficient to support his conviction.                                       We

review the denial of a Fed. R. Crim. P. 29 motion de novo.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).

When    a    Rule    29   motion   is   based       on    a    claim       of    insufficient

evidence,      the    jury’s     verdict     must    be       sustained         “if   there   is

substantial         evidence,    taking      the    view       most    favorable        to    the

Government, to support it.”               United States v. Abu Ali, 528 F.3d

210, 244 (4th Cir. 2008) (internal quotation marks and brackets

omitted).       “We have 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 marks omitted).

              To support a conviction of importing 500 grams or more

of cocaine, the Government was required to prove:                               “(1) that the

[500 grams or more of cocaine] was imported; (2) that [the 500

grams or more of cocaine] was imported knowingly and willfully;

and (3) that [Baptiste] willfully associated himself with the

                                             6
importation venture.”          Samad, 754 F.2d at 1096; see Argaw v.

Ashcroft,    395      F.3d   521,     524       (4th     Cir.    2005)      (considering

elements of importation in immigration context).

            After     reviewing      the    trial        transcript,        we    conclude

that, contrary to Baptiste’s contention, overwhelming evidence

linked    Baptiste     to    the    container       in    which      the    cocaine    was

imported into the Port of Charleston.                    The evidence demonstrates

that Baptiste met with the CI on several occasions to discuss

the plan to import the cocaine.                 Notably, at the meeting on the

night before the cocaine was discovered, Baptiste provided the

exact number of the container in which the cocaine would be

shipped and advised the CI that the cocaine would be packaged in

a Choco Krispis box.          Agents found the cocaine in the numbered

container in a Choco Krispis box the next day.                             Moreover, the

evidence    demonstrates       that    the       email     address       and     telephone

numbers    the   CI   and    the    case    agent      used     to   communicate      with

Baptiste about the shipment were registered in Baptiste’s name.

In one email, Baptiste indicated that he needed to fly back to

Panama to work out the details of the shipment, and the case

agent confirmed that Baptiste flew to Panama shortly thereafter.

Finally, while Baptiste claims that he only discussed auto parts

with the CI, both the CI and the case agent testified that they

referred to auto parts to establish a code for the criminal

activity.        Accordingly,        the    Government          produced         sufficient

                                            7
evidence      to    support   Baptiste’s         conviction,   and     the    district

court did not err by denying Baptiste’s Rule 29 motions.

              Baptiste’s final argument in his pro se supplemental

brief is that the district court erred by not requiring the jury

to find the drug weight attributable to him beyond a reasonable

doubt.      The jury found that Baptiste was guilty of importing 500

grams    or   more     of    cocaine;   the       higher    figure    found    by   the

district court, by a preponderance of the evidence, affected

Baptiste’s         advisory    Guidelines          range,    not     his     statutory

sentencing exposure.           We conclude that Baptiste’s argument is

without merit, as the district court was empowered to determine

the quantity of drugs attributable to Baptiste for Guidelines

purposes by a preponderance of the evidence.                       United States v.

Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008).

              In accordance with Anders, we have reviewed the record

and have found no meritorious grounds for appeal.                      We therefore

affirm the district court’s judgment.                  This court requires that

counsel inform Baptiste, in writing, of the right to petition

the Supreme Court of the United States for further review.                          If

Baptiste requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in   this     court    for    leave     to       withdraw   from     representation.

Counsel’s motion must state that a copy thereof was served on

Baptiste.

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            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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