                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4199



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KENNETH MITCHELL,

                                             Defendant - Appellant.


                             No. 05-4200



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BERNARD NATHANIEL CHRISTIAN,

                                             Defendant - Appellant.


                             No. 05-4259



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus
RALPH K. WILLIAMS,

                                            Defendant - Appellant.


Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
03-351)


Argued:   October 26, 2006                Decided:    March 19, 2007


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Traxler and Judge Gregory joined.


ARGUED: Robert Jay Feldman, Baltimore, Maryland; Arnold Christopher
Joseph, COZEN O’CONNOR, Philadelphia, Pennsylvania, for Appellants.
James G. Warwick, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.       ON
BRIEF: Peter T. Kandel, Nelson R. Kandel, KANDEL & ASSOCIATES,
P.A., Baltimore, Maryland, for Appellant Kenneth Mitchell; Harold
I. Glaser, Baltimore, Maryland, for Appellant Ralph K. Williams.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

       Bernard    Christian,         Ralph    Williams,     and   Kenneth    Mitchell

(“Defendants”) were convicted by a federal jury and sentenced to

188,    235,     and    360    months,       respectively,    for    conspiracy    to

distribute more than five kilograms of cocaine in violation of 21

U.S.C. § 846.          The Defendants now appeal their convictions and

sentences.       For the following reasons, we affirm.



                                              I

       The evidence at trial tended to establish that the Defendants

were involved in a drug trafficking conspiracy, distributing in

Baltimore drugs that originated in Los Angeles. In addition to the

Defendants, the following individuals were key players in the

conspiracy: Charles Ransom, Hugo Lopez, James Murphy, and Patrich

Giles.    The most inculpatory evidence against the Defendants was

the testimony of these co-conspirators.

       Law enforcement officials first discovered the conspiracy when

Murphy   was     arrested      in    Baltimore    in   connection     with    a   drug

trafficking      scheme       that   is   unrelated    to    this   case.      Murphy

cooperated       with    law     enforcement       officials,       who   eventually

intercepted several Federal Express packages labeled for shipment

from Los Angeles to Johns Hopkins Hospital in Baltimore.                     Many of

the packages contained cocaine hidden inside empty computer cases.

Christian, who serviced the Johns Hopkins route as a Federal


                                              3
Express driver, was responsible for pulling these packages off the

line instead of delivering them to the specified address. Sometime

after these initial packages were intercepted, several additional

packages      containing      large    quantities    of       cash    and   bearing

Christian’s handwriting or Federal Express employee number were

seized. Specifically, a Federal Express package that was addressed

to Ransom and bore Christian’s employee number and handwriting was

damaged in transit to Los Angeles.             The package was full of cash,

and Ransom was arrested when he attempted to claim it.                 A search of

Ransom’s house revealed packages sent by Williams and Mitchell, in

addition to vacuum-sealed bags full of cash; the bags were similar

to ones previously found in Christian’s garbage.                     The search of

Ransom’s house also revealed Federal Express and United Parcel

Service packages that contained large amounts of cash and bore

Christian’s handwriting. Ransom’s cooperation with law enforcement

officials ultimately led to the arrest of Lopez.                Giles, a partner

of   Murphy    and   Lopez,    was    also    arrested   in    relation     to   this

conspiracy.



                                         II

      The Defendants argue that the district court erred in numerous

ways. We address herein only the four errors that require detailed




                                         4
analysis.1     These alleged errors were raised below in the form of

motions   to    strike   or   exclude       testimony,   requests   for   jury

instructions, and motions for mistrial. Accordingly, we review the

district court’s rulings for abuse of discretion. United States v.

Rivera, 412 F.3d 562, 572 (4th Cir. 2005) (motion to strike or

exclude testimony);      United States v. Hurwitz, 459 F.3d 463, 474

(4th Cir. 2006) (request for jury instruction);            United States v.

Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993) (motion for mistrial).



                                    A.

     The Defendants first argue that the district court improperly

applied Fed. R. Evid. 801(d)(2)(E) by admitting co-conspirators’

statements to prove their participation in the drug conspiracy.2

A significant portion of the Government’s case was based on out-of-

court statements made by Ransom to Lopez, Murphy, and Giles.              Such

statements, which would otherwise be inadmissible hearsay under

Fed. R. Evid. 801 and 802, may be admitted if the district court

finds “(1) that there was a conspiracy involving the declarant and

the party against whom admission of the evidence is sought and (2)

that the statements at issue were made during the course of and in

furtherance of that conspiracy.”             United States v. Blevins, 960


     1
      We have considered the Defendants’ other arguments and find
them to be without merit.
     2
      We assume for the sake of argument that the Defendants’
motion in limine properly preserved the objection.

                                        5
F.2d    1252,   1255   (4th   Cir.    1992);    see   also   Fed.    R.   Evid.

801(d)(2)(E) (statement offered against a party is not hearsay if

it is “a statement by a coconspirator of a party during the course

and in furtherance of the conspiracy”).

       The Defendants’ chief contention is that Ransom’s statements

to Lopez, Murphy, and Giles were not during the course of and in

furtherance of the conspiracy.             These co-conspirators testified

that they were not concerned with the handling of the cocaine after

Ransom paid for it and took possession of it.          Thus, the Defendants

argue that Ransom’s incriminating statements about their activity

in Baltimore did not further the conspiracy.

       We find the Defendants’ argument unpersuasive.              Ransom made

the statements throughout the course of the conspiracy in reference

to the specific drugs being purchased and the particular method of

distribution.     At the very least, these statements assured co-

conspirators that a sufficient demand existed for the Los Angeles

cocaine supply.    Further, these statements certainly gave the Los

Angeles   co-conspirators     peace    of    mind   that   their   trafficking

operation had evaded detection –- a vital concern for any illicit

enterprise.     We therefore hold that the district court did not

abuse its discretion in admitting testimony regarding conversations

between Ransom and his co-conspirators; Ransom’s statements were

clearly made in the course and furtherance of the conspiracy and

otherwise satisfy the requirements of Rule 801(d)(2)(E).


                                       6
                                   B.

     The Defendants next assert that the district court erred by

refusing to instruct the jury on how properly to weigh evidence of

drug conspiracies in which the Defendants did not participate,

thereby causing an impermissible variance.          Generally, a variance

occurs when the evidence produced at trial demonstrates criminal

activity materially different than the offense alleged in the

indictment.   United States v. Kennedy, 32 F.3d 876, 883 (4th Cir.

1994).   A variance requires reversal “only if the appellant shows

that the variance infringed his substantial rights and thereby

resulted in actual prejudice.”    Id. (internal quotations omitted).

In   a   conspiracy   case,   actual    prejudice    must   be   shown   by

demonstrating that a “spillover effect” occurred, which caused the

jury to transfer evidence from one conspiracy to a defendant who

participated in a different conspiracy.      United States v. Ford, 88

F.3d 1350, 1360 (4th Cir. 1996).

     The Defendants maintain that the Government’s case proved the

existence of five clearly distinct drug conspiracies, only one of

which involved the Defendants. We disagree because the Defendants’

theory artificially compartmentalizes a single, broad conspiracy.

The five “distinct” conspiracies are nothing more than varying

permutations of substantially the same players.              Ransom, the

Defendants’ chief supplier and a primary figure in the drug ring,

was involved in four of the so-called distinct conspiracies. Lopez


                                   7
sold cocaine to Ransom, as well as directly to Williams and

Mitchell,   and     Lopez     was     involved    in     nearly    all    of    the   drug

transactions at issue in this case.               Murphy and Giles were cohorts

of Ransom and Lopez, and they knew that Williams and Mitchell were

associates of Ransom who sold cocaine in Baltimore.                             Finally,

everyone    in   the    conspiracy        knew    that    Ransom    had     a   contact,

Christian, who worked at Federal Express or United Parcel Service

pulling cocaine shipments off the distribution line.                      Accordingly,

we conclude that no variance occurred because the evidence tended

to establish the existence of only one conspiracy.3                      Therefore, the

district    court      did   not    err     in   refusing    to    give     a   multiple

conspiracies instruction. See United States v. Bowens, 224 F.3d

302, 308 (4th Cir. 2000) (holding that it was not error for the

district    court      to    refuse    to    instruct      the    jury    on    multiple

conspiracies where evidence did not support the existence of

multiple conspiracies).



                                            C.

     The Defendants next contend that the district court erred in

its handling of Ransom’s appearance as a witness.                           Ransom was



     3
      We note that Murphy’s initial arrest arose out of a truly
distinct conspiracy, which led him to inform authorities about the
conspiracy at issue in this case. However, when evidence of the
distinct conspiracy was introduced for purposes of establishing
credibility, the district court gave a proper limiting instruction
that prevented any spillover effect.

                                             8
expected to testify against the Defendants pursuant to a plea

agreement; however, after giving only minimal testimony about his

relationship with the Defendants and his past experience as a drug

dealer, Ransom refused to testify further.              The Defendants moved

for a mistrial on the basis of the prejudicial effect of Ransom’s

abandoned testimony.    Though the district court denied the motion

for mistrial, it promptly struck Ransom’s testimony and instructed

the jury to disregard his appearance on the witness stand.

      The Defendants inaccurately characterize the district court’s

curative instruction as permissive instead of mandatory.                Reading

the instruction as a whole, the district court clearly directed the

jury that they were required to disregard Ransom’s brief appearance

as a witness.    The jury is presumed to have followed this curative

instruction.    Hinkle v. City of Clarksburg, 81 F.3d 416, 427 (4th

Cir. 1996).     Therefore, the district court did not abuse its

discretion in denying the Defendants’ motion for mistrial.



                                      D.

      Finally, the Defendants assert that the district court erred

in   denying   Defendants’   motion       to   strike   or   give   a   curative

instruction due to the Government’s violation of Maryland Local

Rule 107.14.     Maryland Local Rule 107.14 prohibits, inter alia,

counsel conferring with a witness during a break in re-direct

examination.     Government counsel admits violating this rule by


                                      9
conferring    with   Detective   Morcomb,   a   witness   who   testified

regarding summaries of documentary evidence, during an overnight

recess in re-direct examination.

     As the district court correctly noted, the Defendants had

every opportunity to expose the Government’s improper conduct in

front of the jury on both re-cross examination and at closing

argument.    We believe that the jury could accurately determine the

credibility of Morcomb, who apparently was obviously more familiar

with documents after conferring with Government counsel.         Further,

because jurors were allowed independently to review the documents

about which Morcomb was testifying, no harm resulted from any

testimony given about such documents.       We therefore hold that the

district court did not abuse its discretion in refusing to strike

Morcomb’s testimony and declining to instruct jurors that they

could weigh the local rule violation in their deliberations.



                                   III

     For the foregoing reasons, we affirm the convictions and

sentences of the Defendants.

                                                                AFFIRMED




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