                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4216


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

FERNANDO SANTANA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:06-cr-00172-JBF-TEM-3)


Argued:   September 30, 2009                 Decided:   November 23, 2009


Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY,
Virginia Beach, Virginia, for Appellant.    Laura Marie Everhart,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.    ON BRIEF: Dana J. Boente, Acting United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Fernando Santana appeals his conviction and sentence for

conspiracy     to    possess     and       distribute       methamphetamine     in

violation of 21 U.S.C. § 846, possession and distribution of

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1),

conspiracy to launder money in violation of 18 U.S.C. § 1956(h),

money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i),

possession with the intent to distribute cocaine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1), and possession of a firearm with

an obliterated serial number in violation of 18 U.S.C. § 922(k).

Santana challenges the district court’s order denying his motion

to dismiss a superseding indictment, its ruling permitting the

introduction of certain business records by the government, its

supplemental    instruction      to        the   jury      regarding   a   mistake

contained in the jury verdict form, and its failure to instruct

the jury on the elements of the crime of attempt.                          For the

reasons that follow, we affirm.



                                       I.

     In December 2006 Santana was indicted on counts of money

laundering,         conspiracy        to         possess       and     distribute

methamphetamine, possession and distribution of methamphetamine,

possession of a firearm in furtherance of a drug trafficking

crime, and possession of a firearm by a felon.                  The case went to

                                           2
trial    in    May       2007.     During          the    trial,       witnesses           mentioned

Santana’s role in uncharged crimes.                           The witnesses referenced

Santana’s possession of cocaine with intent to distribute and

his possession of a firearm with an altered serial number.                                     As a

result,    Santana        moved    for    a    mistrial        and       the    district      court

granted       the    motion.       In     June         2007   the      government           filed   a

superseding          indictment,         which         included        additional           charges

related to the uncharged crimes referenced by the witnesses at

trial.        In August 2007 Santana filed a motion to dismiss the

superseding         indictment     based       on       prosecutorial          vindictiveness.

The district court denied that motion.

        The case proceeded to trial in September 2007.                                 At trial,

the government sought to introduce, through the testimony of an

Internal      Revenue      Service       (“IRS”)         Special       Agent,     a    number       of

summary       charts      pertaining          to       records      of     money       transfers.

Santana objected, arguing that the IRS Special Agent was not the

appropriate person to authenticate those records.                                      The court

overruled Santana’s objection, finding that the records had been

previously authenticated as business records and that the agent

was qualified to testify as to their significance.

        At the trial’s conclusion, the court mistakenly instructed

the jury that Count 11 of the indictment charged Santana with

possession          of   methamphetamine.                In   fact,       Count       11    charged

attempt    to       possess      methamphetamine.                The     jury     verdict      form

                                                   3
reflected that same mistake.                  During deliberations, the jury

asked the court about the inconsistency between the indictment

and the instructions.             The jury’s question read, in part: “[I]s

the charge possess or attempt to possess? . . . [I]f attempted,

as in the indictment, should wording of the jury form be changed

to ‘attempt,’ or are we reading too much into this?”                       J.A. 1136.

Santana argued that allowing the jury to amend the verdict form

would    constitute     a   constructive       amendment     to    the    indictment.

The court rejected Santana’s argument.                 It instructed the jury

to follow the indictment to determine what the charge was and

stated that they could amend the verdict form to reflect that

Count 11 charged attempt if they wished.                Santana again objected

to the court’s action permitting the jury to correct the form.

        The   jury    found   Santana      not    guilty     on    two     counts   of

possession with intent to distribute cocaine and methamphetamine

and     found   him    guilty       on   twelve    counts     of    conspiracy      to

distribute       and        possess       with      intent         to      distribute

methamphetamine,           possession      with      intent        to      distribute

methamphetamine, attempted possession with intent to distribute

methamphetamine, distribution of methamphetamine, conspiracy to

launder money, money laundering, and possession of a firearm

with an obliterated serial number.                On January 18, 2008, Santana

was     sentenced     to    252     months’     imprisonment.            This   appeal

followed.

                                          4
                                              II.

       Santana     first       argues       that    the     district     court      erred    in

denying his motion to dismiss the superseding indictment because

the government did not present sufficient evidence to rebut the

presumption of vindictiveness that he had established.                               Second,

he   contends      that      the    district        court    erred     in    admitting      the

money-transfer business records because they were not previously

authenticated          and   because    the        IRS    Special    Agent    was    not    the

appropriate person to authenticate them.                         Third, he asserts that

the district court erred in allowing the jury to correct the

jury     verdict        form       because     the        correction        constituted      a

constructive amendment to the indictment.                            Finally, he posits

that the court erred in not instructing the jury on the elements

of     the    crime     of     attempt.        We        address     each    of     Santana’s

contentions in turn.



                                              A.

       When ruling on Santana’s motion to dismiss the superseding

indictment,       the        district       court        found   that,      “although       the

defendant . . . offered evidence of circumstances from which a

vindictive motive may be presumed, the government . . . offered

objective information justifying its actions.”                               J.A. 249.        A

trial        court’s     finding       on     prosecutorial          vindictiveness          is



                                               5
reviewed for abuse of discretion.                 United States v. Fiel, 35

F.3d 997, 1007 (4th Cir. 1994).

     Contrary to Santana’s position, we find that the district

court erred in holding that he adequately raised a presumption

of vindictiveness in the first place. 1               In Fiel, we found that

“[w]here   the    change   in   the   indictment      is     prompted    ‘by   newly

discovered      evidence   supporting       the    imposition      of    additional

counts . . . a presumption of vindictiveness is not warranted.’”

Id. at 1008 (quoting United States v. Bryant, 770 F.2d 1283,

1287 (5th Cir. 1985)) (ellipses in original).                      Here, the new

charges    in    the   indictment     were        prompted    by   new     evidence

regarding Santana’s drug-related activities that the government

obtained from Santana’s codefendants and other witnesses after

the initial indictment was issued.                Therefore, the presumption

of vindictiveness never should have attached and the district

court should have denied the motion on that ground.                      However,

the error is harmless because the district court reached the

correct result in denying the motion.

     1
       To raise a presumption of vindictiveness “a defendant must
show that the circumstances ‘pose a realistic likelihood of
‘vindictiveness.’’” United States v. Wilson, 262 F.3d 305, 314
(4th Cir. 2001) (quoting Blackledge v. Perry, 417 U.S. 21, 27
(1974)).    The facts that the court found to support the
presumption were that the superseding indictment was issued
after Santana successfully moved for a mistrial over the
government’s objection and that the additional charges included
in the superseding indictment increased Santana’s potential
sentence.

                                        6
      Furthermore,       even   if   the       presumption      had    attached,       the

government clearly presented sufficient evidence to rebut it.

The Fiel court explained the presumption and potential rebuttal

as follows:

      In certain cases where detrimental action was taken
      against the defendant by the government immediately
      following her exercise of a right, the Court presumes
      an improper vindictive motive on the part of the
      prosecutor. . . .    Where the presumption arises, it
      may be rebutted by objective information justifying
      the detrimental action.

Id. at 1007 (internal citations omitted).                       Santana argues that

the   government    had    to    present        actual    evidence,      such     as   an

affidavit, justifying the government’s actions.                          Yet, as the

Supreme   Court    has    explained,       “attorneys      are       officers   of     the

court, and when they address the judge solemnly upon a matter

before the court, their declarations are virtually made under

oath.”    Holloway v. Arkansas, 435 U.S. 475, 486 (1978) (citation

and   internal     quotation     marks     omitted).            In    addition,      Fiel

clearly specifies that “objective information” suffices to rebut

the vindictiveness presumption.                 35 F.3d at 1007.             The Fiel

court made no mention of a requirement that the information take

any specific form.          Here, the government presented objective

information that it had received new evidence justifying the new

charges and that the only reason it had not chosen to file the

superseding   indictment        previously       was     that    it   had   wanted      to



                                           7
preserve the original trial date.                   This evidence was sufficient

to overcome any presumption that might have arisen.

       Any presumption here would have also been rebutted by the

fact that the government added the charges in order to cure the

defects that caused the mistrial.                     Where “[i]n advance of the

new    trial,    the    United      States     took    the    opportunity        to     ‘cure

perceived       deficiencies          in     the     original       indictment’          that

contributed       to     the       mistrial,”       such     “wholly      neutral,        and

rational,       reason       for     the     additional       charges         defeats     the

presumption of vindictiveness.”                    United States v. Hill, 93 F.

App’x 540, 546 (4th Cir. April 2, 2004) (quoting United States

v.    Brown,    298    F.3d    392,    406    (5th    Cir.    2002)).          During     the

hearing on Santana’s motion to dismiss, the government indicated

that the decision to file a superseding indictment was intended

to address “the situation where witnesses were talking about

things that were not charged in the original indictment,” which

ultimately led to the mistrial.                     J.A. 226.        The government’s

rationale       for    its     decision       was     sufficient         to     rebut     any

presumption of vindictiveness.

       Accordingly,       the       district        court     did    not        abuse    its

discretion       in     denying       Santana’s        motion       to        dismiss     the

superseding indictment.




                                              8
                                                  B.

        We now turn to the district court’s decision to admit the

government’s evidence of business records pertaining to money

transfers.         We “review decisions to admit evidence for abuse of

discretion.”          United States v. Forrest, 429 F.3d 73, 79 (4th

Cir. 2005).           Santana argues that the records were hearsay and

were not pre-authenticated because they did not fit within the

confines of Federal Rules of Evidence 803(6) and 902(11).

        Rule 803(6) states that business records are not excluded

under        the   hearsay          rule     if        they    are     accompanied         by        a

certification         of      their       custodian       or   other       qualified       person

asserting (1) that the records were “made at or near the time

by,     or     from      information          transmitted            by,     a    person        with

knowledge”;        (2)     that       they    were       “kept   in        the   course        of    a

regularly conducted business activity”; and (3) that “it was the

regular       practice        of    that    business      activity         to    make    [them].”

Prior to the introduction of the charts summarizing the business

records, the government introduced certificates of authenticity

from the original custodians of the records that met each of

these requirements.                Therefore, the government complied with the

requirements of Rule 803(6), thereby excepting the charts from

the hearsay limitation.

        Likewise,        we        find    the     government         complied          with        the

requirements of Rule 902(11).                     The rule states that records need

                                                  9
not be authenticated at trial if they are accompanied “by a

written   declaration           of     [their]      custodian           or   other    qualified

person” attesting that the records meet each of the requirements

of Rule 803(6).        Fed. R. Evid. 902(11).                     To meet Rule 902(11)’s

authentication requirement, the proponent of the evidence must

“provide written notice . . . to all adverse parties” of his

intention to offer the record into evidence under that rule and

must “make the record and declaration available for inspection

sufficiently in advance of their offer into evidence to provide

an adverse party with a fair opportunity to challenge them.”

Id.   Santana argues that the government failed to comply with

this requirement because “[t]he record does not disclose that

notice    pursuant        to    Rule     902(11)          was     provided     [to]    defense

counsel   prior      to    the        trial    on    the        superseding      indictment.”

Appellant’s Br. at 19.

      Contrary to Santana’s assertion, the record indicates that

the government did comply with the disclosure requirements of

Rule 902(11).        Santana’s counsel admitted that the intention to

introduce the records was given in advance of the second trial,

but   that    he     did       not    file     a    motion        in    limine     because   he

“assum[ed]” the government was “going to prove it the way [he

thought it] should be proved.”                     J.A. 831.       Therefore, the record

clearly      shows    that           Santana       knew     the        documents     would   be

introduced at the second trial.                           Santana also admits in his

                                               10
brief that “notice pursuant to Rule 902(11) had been provided

prior to the first trial.”                 Appellant’s Br. at 19.                     There is

therefore no question that Santana had sufficient notice of the

government’s      intention      to   introduce           the   evidence        and    a   fair

opportunity       to    challenge     it       as    required       by     Rule       902(11).

Accordingly,      we    find   that      the     government        complied       with     Rule

902(11).

     Because the business records were excepted from the hearsay

rule under Rule 803(6) and were pre-authenticated under Rule

902(11),    the    district      court     did      not    abuse    its    discretion       in

admitting the records and the related summary charts. 2



                                           C.

     We    consider       next    Santana’s          argument       that    the        court’s

supplemental instruction to the jury designed to correct the

error in the jury verdict form was a constructive amendment to

the indictment.          “It is well established that the necessity,

extent and character of any supplemental instructions to the

jury are matters within the sound discretion of the district

court”     and    are     therefore        reviewable           only      for     abuse     of


     2
       Santana also contends that the court erred                           in admitting
the records because the IRS Special Agent was not                           qualified to
authenticate them at trial. Because the government                          did not need
to authenticate the records at trial, this                                  argument is
unavailing.


                                           11
discretion.        United States v. Horton, 921 F.2d 540, 546 (4th

Cir.     1990).         “[I]n      responding   to     a    jury’s     request      for

clarification on a charge, the district court’s duty is simply

to respond to the jury’s apparent source of confusion fairly and

accurately without creating prejudice.”                   United States v. Smith,

62 F.3d 641, 646 (4th Cir. 1995).

       Here,     the     court’s     decision   to     clear     up    confusion     by

directing the jury to look to the indictment for an accurate

description of the charge was warranted.                   In so doing, the court

correctly       directed    the     jury   to   do   exactly      what    they     were

supposed to do, which was to decide whether the defendant was

guilty     of     the    crimes     with   which     he    was   charged    in      the

indictment.       The court’s statement that the jury could amend the

form to correct the mistake was similarly reasonable, for the

change made the words on the form reflect the charge in the

indictment.       Therefore, the district court did not err in giving

this supplemental instruction.

       Santana asserts that the supplemental instruction created

prejudice because it constituted a constructive amendment to the

indictment.        A constructive amendment, also known as a fatal

variance, occurs when “‘the indictment is altered to change the

elements    of    the    offense     charged,   such      that   the   defendant     is

actually convicted of a crime other than that charged in the

indictment.’”           United States v. Malloy, 568 F.3d 166, 177-78

                                           12
(4th Cir. 2009) (quoting United States v. Randall, 171 F.3d 195,

203 (4th Cir. 1999)).            When “the district court, through its

instructions to the jury . . . broadens the bases for conviction

beyond those charged in the indictment . . . a fatal variance .

. . occurs.”      Id. at 178.

        This court has emphasized that, “‘[a] mere variance [to the

indictment] does not violate a defendant’s constitutional rights

unless it prejudices the defendant either by surprising him at

trial    and    hindering   the     preparation       of   his     defense,    or    by

exposing him to the danger of a second prosecution for the same

offense.’”      Id. (quoting Randall, 171 F.3d at 203).

        Here, Santana has failed to show actual prejudice.                          The

court’s supplemental instruction amended the erroneous original

instruction by explaining to the jury that its role was to find

whether    defendant      was    guilty    or   not    guilty      “based     on    the

indictment,”      which   clearly    describes        Count   11    as   attempt     to

possess.       J.A. 1139.       Following the court’s explanation of the

error, the jury changed the jury verdict form to describe Count

11 as attempt to possess.             Therefore, the jury found Santana

guilty of exactly the same crime that he was charged with in the

indictment.      Accordingly, under any standard, Santana cannot be

said to have suffered prejudice because, in spite of the court’s

alleged error, he was not “convicted of a crime other than that

charged in the indictment.”          Malloy, 568 F.3d at 178.

                                          13
        Therefore,        the     district       court’s       supplemental        instruction

regarding the error in the jury verdict form did not constitute

an abuse of discretion.



                                                 D.

        Finally, we turn to Santana’s assertion that, when allowing

the jury to amend the verdict form, the court erred in failing

to discuss the elements of the crime of attempt.                                  The question

of whether the trial court properly instructed the jury on the

elements      of     a    charged     crime       is     a     legal    question        that    we

ordinarily review de novo.                 United States v. Rahman, 83 F.3d 89,

92   (4th     Cir.       1996).     However,          where    the     defendant        fails   to

object to the omission of elements of the crime in the jury

instructions         at    trial,     “we    review          solely    for    plain      error.”

United States v. McLamb, 985 F.2d 1284, 1293 (4th Cir. 1993).

Here,    Santana         admits    that     he    did    not    object       to   the    court’s

original jury instructions.                  Furthermore, although he objected

to the court’s answer to the jury question, his objection was

that    the    court       should    not     allow       the    jury    to    add       the    word

“attempt” to the jury verdict form.                            At no point during the

trial did Santana raise his concern that the court had failed to

explain       the    elements       of     the        crime    of     attempt      to    possess

methamphetamine.            Therefore, because Santana did not raise the



                                                 14
alleged omission at trial, we review the court’s omission of

instructions on attempt for plain error.                    Id. at 1293.

       The Supreme Court explained in United States v. Olano that,

in order for an appellate court to find a plain error, “[t]here

must    be    an    ‘error’     that        is    ‘plain’    and     that    ‘affect[s]

substantial rights.’”          507 U.S. 725, 732 (1993) (quoting Fed. R.

Crim. Pro. 52(b)).           The Olano Court emphasized that, even when a

plain error affects substantial rights, “the decision to correct

the    forfeited     error    [is]    within       the   sound     discretion     of    the

court    of   appeals,       and    the     court     should     not   exercise        that

discretion     unless    the       error    ‘seriously      affects    the   fairness,

integrity or public reputation of judicial proceedings.”                                Id.

(quoting United States v. Young, 470 U.S. 1, 15 (1985)).                                On

plain-error        review,    “‘it     is    the     defendant      rather   than       the

Government who bears the burden of persuasion.’”                        United States

v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (quoting Olano,

507 U.S. at 734).

       We find that, even assuming that there was an error, which

was plain, and which affected substantial rights, we need not

correct it because it does not seriously affect the fairness or

reputation of these legal proceedings.                      The Supreme Court has

indicated      that,     where        the        evidence    presented       at     trial

overwhelmingly supports the jury’s conclusion that the defendant

committed an element of an offense, and where that evidence is

                                             15
essentially         uncontroverted,        a     court       need     not    correct       the

district court’s failure to submit a required element to the

jury in its instruction.            See Johnson v. United States, 520 U.S.

461,   470     (1997).       We    have    similarly         held     that   we    will    not

correct an error where, “even if the proper instruction had been

given, [the defendant’s] conviction was inevitable” because the

evidence “permitt[ed] no other conclusion” but that the element

missing from the jury instructions was proven.                         United States v.

Cedelle, 89 F.3d 181, 186 (4th Cir. 1996).                              In Cedelle, we

further explained that we will not notice an error in a failure

to instruct on an element where, “viewing the record as a whole,

the proceedings resulted in a fair and reliable determination of

[the defendant’s] guilt.”            Id.

       Here,    the    evidence     at     trial      overwhelmingly          showed      that

Santana      was     responsible     for       the    charged       attempt       to   obtain

methamphetamine.          The relevant count, Count 11, charged Santana

with attempt to possess with intent to distribute approximately

209 grams of methamphetamine on February 11, 2005.                           We have held

that the elements of attempt are “(1) culpable intent to commit

the    crime       charged   and    (2)    a     substantial          step   towards      the

completion of the crime that strongly corroborates that intent.”

United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996).                                   At

trial,    the        government      presented             evidence     from       Santana’s

coconspirators,          Octavio     Chavez          and     Martin     Fernandez,        who

                                            16
testified that on February 11, 2005, they were arrested while

trying to obtain a package containing approximately nine ounces

of methamphetamine, which was to be distributed among the four

coconspirators--Santana,         Chavez,      Fernandez,    and   Bryan    Wilson.

The evidence also showed that Santana had helped to pay for

methamphetamine orders made by Chavez and Fernandez on behalf of

the group.

     The car trip described by Chavez and Fernandez was the only

incident    that    the     government     presented     that   related    to     any

attempt     to   obtain      methamphetamine       on     February   11,     2005.

Therefore, in finding Santana guilty of an attempt to obtain

methamphetamine on that date, the jury necessarily found that

the government had proven that the trip had occurred and that

Santana was liable for it as part of the conspiracy. 3                    The trip

itself     proved    both    intent   to      obtain    methamphetamine     and    a

substantial step towards that goal that strongly corroborates

the intent.         It necessarily follows that, had the jury been

instructed about the intent and substantial step elements of the

     3
       The jury also found, pursuant to a different count, that
Santana was part of a conspiracy with Chavez and Fernandez to
obtain methamphetamine. This court has held that a defendant’s
“conspiracy conviction makes him liable for all substantive
offenses of his coconspirator[s] that are both reasonably
foreseeable and in furtherance of the conspiracy.”        United
States v. Bonetti, 277 F.3d 441, 447 (4th Cir. 2002).
Accordingly, Santana was necessarily responsible for any attempt
by his coconspirators to obtain methamphetamine in furtherance
of the conspiracy.

                                         17
crime of attempt, it would have found that the government proved

those elements.           We therefore find, as we did in Cedelle, that

“even        if     the   proper     instruction      had    been    given,   [the

defendant’s] conviction was inevitable.”                    Cedelle, 89 F.3d at

186.        We further find that, “viewing the record as a whole, the

proceedings resulted in a fair and reliable determination of

[the defendant’s] guilt.” 4              Id.     Accordingly, because the error

does not “seriously affect[] the fairness, integrity or public

reputation of judicial proceedings,” we will not exercise our

discretion to correct it.            Olano, 507 U.S. at 732.



                                          III.

        For       the   reasons    set   forth    above,    we   affirm   Santana’s

conviction and sentence.

                                                                           AFFIRMED




        4
       With regard to the fairness consideration, we also note
that at trial, when the question arose regarding the correction
to the jury verdict form, the court heard both sides on how to
address the issue. Santana never suggested that an instruction
be given on the elements of the crime of attempt. Therefore, if
we were to overturn the conviction based on this error, Santana
would unfairly benefit from an error that he helped create.

                                           18
