                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 14-4643


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RICHARD ANTHONY WILFORD, a/k/a Richie Rich,

                    Defendant - Appellant.



                                      No. 16-6669


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RICHARD ANTHONY WILFORD, a/k/a Richie Rich,

                    Defendant - Appellant.



Appeals from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:11-cr-00258-ELH-2)


Submitted: March 30, 2017                                         Decided: May 9, 2017
Before WILKINSON, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Linda M. Wagoner, Angola, Indiana, for Appellant; Richard Anthony Wilford, Appellant
Pro Se. Rod J. Rosenstein, United States Attorney, John Walter Sippel, Jr., Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       A jury convicted Richard Anthony Wilford of conspiracy to distribute cocaine, in

violation of 21 U.S.C. § 846 (2012).       In these consolidated appeals, Wilford raises

numerous challenges to his conviction, and to the district court’s denial of his posttrial

motions to dismiss and for a new trial. We have considered the arguments asserted in

counsel’s brief and Wilford’s pro se filings. 1 Finding no error, we affirm.

       Wilford first argues that this court lacks jurisdiction over him because the district

court never arraigned him. Rule 10 of the Federal Rules of Criminal Procedure requires

that a defendant be advised in open court of “the substance of the charge” before being

called upon to plead. However, technical noncompliance with the procedural requirements

of the rule does not warrant a reversal of a conviction if not raised before trial. See United

States v. Reynolds, 781 F.2d 135, 136 n.2 (8th Cir. 1986). “A failure to arraign only

warrants a reversal if it causes prejudice or impairs a substantial right.” United States v.

Williams, 152 F.3d 294, 299 (4th Cir. 1998).

       Although Wilford was never formally arraigned, he was properly advised of the

charges at his initial appearance. Furthermore, Wilford’s attorney received a copy of the

superseding indictment and filed numerous pretrial motions. Wilford never raised the lack

of an arraignment in the district court. Consequently, we conclude that Wilford has failed

to establish either prejudice or the impairment of a substantial right. Moreover, Wilford



       1
        Counsel for Wilford filed a merits brief in No. 14-4643, but subsequently withdrew
from representation. We granted Wilford’s subsequent motion to proceed pro se.

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waived any argument pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 (2012), because

he did not raise this issue prior to trial in the district court. “[T]he plain language of Section

3162(a)(2) is unequivocal in requiring that a defendant move for dismissal of an indictment

before the beginning of a new trial or suffer a statutorily imposed waiver of rights under

the Act.” United States v. Mosteller, 741 F.3d 503, 509 (4th Cir. 2014).

       Wilford next argues that the prosecutor engaged in several instances of misconduct.

Because Wilford failed to allege prosecutorial misconduct in the district court, we review

for plain error. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005); see United States

v. Obey, 790 F.3d 545, 547 (4th Cir. 2015) (setting forth plain error standard). To establish

prosecutorial misconduct, Wilford “must show (1) that the prosecutor’s remarks or conduct

were improper and (2) that such remarks or conduct prejudicially affected his substantial

rights so as to deprive him of a fair trial.” United States v. Caro, 597 F.3d 608, 624-25

(4th Cir. 2010) (internal quotation marks omitted). Our review of the record discloses that

Wilford’s claims are meritless, as he fails to show either misconduct or prejudice.

       Wilford argues that the district court erred in failing to suppress evidence obtained

through warrantless Global Positioning System (“GPS”) “slap on” devices.                   When

considering the denial of a suppression motion, we review de novo the district court’s legal

conclusions and review its factual findings for clear error. United States v. Guijon-Ortiz,

660 F.3d 757, 762 (4th Cir. 2011). Because the Government prevailed on the suppression

issue below, we construe the evidence in the light most favorable to the Government.

United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).



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       The good faith exception to the exclusionary rule applies where warrantless GPS

evidence was obtained prior to the Supreme Court’s decision in United States v. Jones, 565

U.S. 400, 404 (2012) (holding that the attachment of a GPS tracking device to a vehicle

and use of the device to track the vehicle’s movements constitutes a search within the

meaning of the Fourth Amendment). United States v. Stephens, 764 F.3d 327, 338 (4th

Cir. 2014). Applying the good faith exception, we find no error in the district court’s ruling.

       Wilford also argues that the district court erred in denying his motion to suppress

evidence obtained by the pinging of his cellular phone pursuant to the state court’s

authorization obtained under the Maryland pen register and trap and trace statute. Wilford

also challenged the Government’s reliance on state court orders issued to federal law

enforcement officers. Having reviewed the record, we discern no error. “Search warrants

obtained during a joint federal-state investigation may be authorized by Federal Rule 41(b)

or by state law and may serve to uncover violations of federal law as well as state law.”

United States v. Claridy, 601 F.3d 276, 281–82 (4th Cir. 2010). The district court properly

denied Wilford’s motions to suppress and his motion for reconsideration.

       Wilford alleges that the Government unlawfully used cell-site simulators to obtain

information in his case. The record reveals that law enforcement officers obtained a court

order to utilize a cell site simulator to confirm information regarding a coconspirator’s cell

phone number-not Wilford’s cell phone number. Thus, Wilford lacks standing to challenge

the use of the cell-site simulator. He presents only supposition and conjecture to support

his assertions that such a device was used to obtain information about him. Wilford also



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fails to demonstrate that any evidence introduced at his trial was tainted by the use of a

cell-site simulator.

       Wilford also asserts that the district court erred in denying his request to give a jury

instruction on multiple conspiracies, and that a fatal variance between the indictment and

the evidence at trial requires reversal of his conviction. This court reviews for abuse of

discretion the district court’s denial of a proposed jury instruction. United States v. Sonmez,

777 F.3d 684, 688 (4th Cir.), cert. denied, 136 S. Ct. 689 (2015). To show such an abuse,

a defendant must establish “that his proposed instructions (1) were correct, (2) were not

substantially covered by the charge that the district court actually gave to the jury, and (3)

involved some point so important that the failure to give the instructions seriously impaired

the defendant's defense.” Id. (brackets and internal quotation marks omitted). “[A] district

court must issue a ‘multiple conspiracies’ instruction where the evidence supports a finding

that multiple conspiracies existed.” United States v. Stockton, 349 F.3d 755, 762 (4th Cir.

2003). This instruction is not required, however, “unless the proof at trial demonstrates

that [the defendant] w[as] involved only in [a] separate conspirac[y] unrelated to the overall

conspiracy charged in the indictment.” United States v. Squillacote, 221 F.3d 542, 574

(4th Cir. 2000). Moreover, the failure to give a multiple conspiracies instruction is

reversible error only where the defendant establishes substantial prejudice by showing that

“the evidence of multiple conspiracies [was] so strong in relation to that of a single

conspiracy that the jury probably would have acquitted on the conspiracy count had it been

given a cautionary multiple-conspiracy instruction.” United States v. Bartko, 728 F.3d 327,

344 (4th Cir. 2013) (brackets and internal quotation marks omitted). We conclude that the

                                              6
district court did not abuse its discretion, as Wilford has not shown that he was only

involved in a conspiracy that was unrelated to the one charged in the indictment. See

Squillacote, 221 F.3d at 574. Rather, the evidence at trial clearly supported a finding that

he was involved in the charged conspiracy.

       There was also no fatal variance. “[I]t is the exclusive province of the grand jury to

alter or broaden the charges set out in an indictment.” United States v. Moore, 810 F.3d

932, 936 (4th Cir. 2016) (internal quotation marks omitted). “Accordingly, it is well

established that a court cannot permit a defendant to be tried on charges that are not made

in the indictment against him.” Id. (internal quotation marks omitted). “An impermissible

constructive amendment – also referred to as a fatal variance — occurs when the

government, usually through its presentation of evidence or argument, or the district court,

usually through its jury instructions, broadens the possible bases for conviction beyond

those presented by the grand jury.” Id. (internal quotation marks omitted). When a

constructive amendment claim rests on allegedly erroneous jury instructions, a reviewing

court must consider “the totality of the circumstances—including not only the instructions

and the indictment but also the arguments of the parties and the evidence presented at

trial—to determine whether a jury could have reasonably interpreted the challenged

instructions as license to convict on an unindicted charge.” Id. (internal quotation marks

omitted). The evidence at trial did not broaden the bases for conviction, but rather

established the scope of the Hayes conspiracy and Wilford’s active membership in that

organization. Thus Wilford’s arguments on this issue are without merit.



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       Finally, Wilford asserts that the jury lacked sufficient evidence to convict him. This

court reviews de novo the district court’s denial of a Fed. R. Crim. P. 29 motion based on

sufficiency of the evidence. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015).

“Applying that standard, . . . the verdict . . . must be sustained if there is substantial evidence

in the record, when viewed in the light most favorable to the government, to support the

conviction.” Id. (internal quotation marks omitted). “[S]ubstantial evidence is 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.” United States v. Cornell,

780 F.3d 616, 630 (4th Cir. 2015) (internal quotation marks omitted). “Reversal for

insufficient evidence is reserved for the rare case where the prosecution’s failure is clear.”

United States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal quotation marks

omitted).

       To establish a drug conspiracy under 21 U.S.C. § 846, the government must
       prove that (1) the defendant entered into an agreement with one or more
       persons to engage in conduct that violated 21 U.S.C. § 841(a)(1); (2) that the
       defendant had knowledge of the conspiracy; and (3) that the defendant
       knowingly and voluntarily participated in the conspiracy. Given the
       clandestine and covert nature of conspiracies, the government can prove the
       existence of a conspiracy by circumstantial evidence alone.

United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014). (internal alterations and

quotation marks omitted). “Evidence of continuing relationships and repeated transactions

can support the finding that there was a conspiracy, especially when coupled with

substantial quantities of drugs.” Id. at 526 (brackets omitted). Having thoroughly reviewed

the trial transcript, we conclude that there was more than sufficient evidence, direct and

circumstantial, to establish that Wilford knowingly participated in the charged conspiracy.

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       We have carefully considered all of Wilford’s remaining arguments and conclude

that they are without merit. Accordingly, we affirm the district court’s judgment and its

order denying Wilford’s posttrial motions. We grant Wilford’s motions in No. 14-4643 to

file supplemental briefs, and to supplement the reply brief, and in No. 16-6669 to exceed

length limitations in his informal brief, and for leave to supplement his opening and

supplemental briefs. We deny Wilford’s motions to compel the Government to respond to

substantive issues. 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 in

the decisional process.

                                                                             AFFIRMED




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