                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4133


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

XAVIER D. ECCLESTON, a/k/a Xavier Daniel Eccleston, a/k/a X,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:11-cr-00567-AW-3)


Argued:   March 25, 2015                  Decided:   July 31, 2015


Before MOTZ and GREGORY, Circuit Judges, and Mary Geiger LEWIS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion.       Judge Gregory    wrote   the
opinion, in which Judge Motz and Judge Lewis joined.


ARGUED:    Anthony Douglas Martin, I, ANTHONY D. MARTIN, PC,
Greenbelt, Maryland, for Appellant. David Ira Salem, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     In      this    federal       drug     conspiracy       case,     the    defendant-

appellant,     Xavier      Eccleston,       alleges      that   the    district       court

made numerous errors before and during trial, as well as during

sentencing.         Because      the      district      court   did    not    abuse     its

discretion or err in its pretrial, trial, or sentencing rulings,

we affirm.



                                            I.

                                            A.

     Eccleston       and    nineteen        co-defendants       were    charged       in    a

criminal     complaint      on     September      22,    2011   with    one     count      of

conspiracy to posses with intent to distribute five kilograms or

more of a mixture or substance containing a detectable amount of

cocaine      and    280    grams    or     more   of     a   mixture     or    substance

containing a detectable amount of cocaine base, commonly known

as crack cocaine.           The complaint was based in part on evidence

obtained through execution of a warrant issued pursuant to Title

III of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §§ 2510-2522 (“Title III”).

     Eccleston appeared before the district court on September

28, 2011 and a magistrate judge signed an “order of detention by

agreement” on that same day.               He was indicted on the charges set

forth   in    the    criminal       complaint      on    October      26,     2011.        On

                                             2
November 2, 2011, he was arraigned and entered a plea of not

guilty.    The district court initially set a motions hearing date

of December 16, 2011 and a trial date of January 3, 2012.

       On November 2, 2011, the government filed, and none of the

defendants opposed, a motion to exclude time under the Speedy

Trial Act, 18 U.S.C. §§ 3161-3174.            In support of its motion,

the government cited:          “(1) . . . two charged defendants who

have   been   fugitives   for    approximately     one   month;    (2)       . . .

voluminous    discovery   the    government    must   produce     and   defense

counsel must analyze; and, (3) the unusual and complex nature of

the case.”      J.A. 1128.      In granting the motion, the district

court found that it was necessary to toll the speedy trial clock

not    only   pursuant    to    18   U.S.C.   § 3161(h)(6)      due     to    the

fugitives, but also pursuant to 18 U.S.C. § 3161(h)(7) because

the “interests of justice” outweighed the interest in a speedy

trial.    The court stated that it was necessary to toll the clock

to “provide the defendants and defense counsel sufficient time

to review fully all of the voluminous discovery materials and to

prepare and file pretrial motions” and to give “defense counsel

and the [g]overnment the reasonable time necessary for effective

preparation.”     J.A. 116 (observing that the case “involve[s]

wiretap   evidence,   including      more   than   10,000   pertinent        calls

captured from at least three different wiretapped phone lines”).

The order excluded from the speedy trial clock the time between

                                      3
the date of the order, November 21, 2011, and the date of the

initial appearance of the last fugitive defendant.                               The order

further     excluded     any    time     between       the    date    of    the       initial

appearance of the last fugitive defendant and the trial date,

which the court planned to set at a later date.

      On December 15, 2011, the government filed a motion to take

the December 16, 2011 motions hearing date off of the calendar,

and   to    convert     the    January    3,    2012    trial    date       to    a    status

conference.      Defense counsel consented to the motion.                        Though no

order granting the motion appears on the docket, the district

court apparently did so; it issued an informal January 3, 2012

letter order stating that pretrial motions were due by April 17,

2012 and that trial would commence on August 21, 2012.

      Eccleston had previously written to his counsel on November

9, 2011 indicating that he did not want to waive his speedy

trial rights.         He wrote to counsel again on December 22, 2011,

reiterating      that    he    objected    to    a   speedy      trial      waiver.          On

January     3,   2012,    Eccleston’s      attorney          filed   a     motion      for   a

speedy trial pursuant to both the Sixth Amendment and the Speedy

Trial Act. 1      In addition to his speedy trial motion, Eccleston

filed      several    pretrial     motions      on     January       21,    2012,      among

      1
      Although the docket text reflects that the government was
to respond by January 20, 2012, no response was filed on that
date.



                                           4
others:     (1) a motion for Disclosure by Government of Intent to

Use   Uncharged         Misconduct       and     Prior       Convictions         (the    “404(b)

Motion”); and (2) a motion for sequestration of witness. 2

      On January 23, 2012 Eccleston sent a letter to the district

court;    the     letter      was    dated       January      10,       2012.      His    letter

stated:     “[s]ince day one, I have been adamant about my desire

for a speedy trial.                . . .     I haven’t consented to any delays

and never gave any inclination to my attorney that I would.”

J.A. 1112.       He argued also that (1) the fugitive defendants were

not   named      on   the    indictment          and   thus       could    not    be    properly

considered his co-defendants for purposes of tolling the speedy

trial     clock;      (2)    the    case     was       not    complex,      but        rather   an

ordinary street crime; (3) the government had failed to provide

complete      discovery       despite       promises         to    do     so;    and     (4)    the

factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), which

courts     use     to    determine         whether       a    defendant          has    suffered

prejudicial delay in bringing his case to trial, weighed in his

favor.      Eccleston        sent    the     district         court      another       letter   on

April 9, 2012 (dated April 8, 2012) indicating that he had not

authorized counsel to enter into a discovery agreement with the

government,        and      that    in     any       event,       he    believed       that     the



      2   The government responded to these motions on January 30,
2012.



                                                 5
government had breached the agreement.                           He sent a third letter

to    the    court      on     June   1,     2012,      again    requesting    “independent

access to my discovery so I can properly prepare my defense.” 3

J.A. 1119.

       On    April       17,    2012,       Eccleston’s       counsel   filed      additional

pretrial motions, among which were:                           (1) a second motion for a

speedy trial; (2) a motion to suppress the Title III wiretaps;

and    (3)    a    motion       to    dismiss     the     indictment    on    speedy      trial

grounds.          The government filed a response to these motions on

May 14, 2012.            The government’s May 14 filing was the first time

that it responded to Eccleston’s speedy trial motions.

       Eccleston’s pretrial motions hearing took place on July 25,

2012.        During       the     hearing,        the    district     court    granted     the

government’s            request       to    delay       the     beginning     of   trial    to

September         11,     2012,       due    to    a     government     counsel’s      health

concerns.         The court then ruled on Eccleston’s pending motions.

As relevant here, the court granted his motions for notice of

the     government’s            intent       to    use     404(b)     evidence      and    for

sequestration of witness, and denied his speedy trial motion,



       3
       Counsel explained during the pretrial motions hearing that
Eccleston requested personal copies for his review while in
jail. However, counsel represented that the discovery agreement
prevented him from giving Eccleston such copies, because it
allowed only for Eccleston to review discovery during meetings
with counsel.



                                                  6
motion      to       suppress      evidence       obtained      from       the      Title    III

warrants.            The   court     also    denied      his    request       for    a     Franks

hearing concerning the Title III warrant application. 4

      On     August        8,     2012,    the    grand      jury    returned        a     fourth

superseding           indictment. 5          The        indictment        removed        certain

defendants,          and   also     included      new    charges        against     Eccleston.

Specifically, the fourth superseding indictment added two counts

of possession with intent to distribute cocaine (counts nine and

eleven) in violation of 21 U.S.C. § 841, as well as two counts

of   using       a    telephone      in     furtherance        of   a    drug      trafficking

offense      (counts        eight     and    ten)       in   violation        of    21     U.S.C.

§ 842(b).            Eccleston was arraigned on the fourth superseding

indictment on the first day of trial, September 11, 2012.

                                                 B.

      The    trial         took    place    from      September     11-19,         2012.     The

government called several witnesses, including co-defendants and

others       who           were      cooperating             with       the        government:

Christopher Rainey,                Decarlos           Bryant,       Antonio          Marshall,

Kenneth Smith, and Gavin Wallis.




      4   Franks v. Delaware, 438 U.S. 154 (1978).
      5Previous indictments had added a forfeiture allegation,
and added or removed defendants.



                                                 7
      Rainey     testified        that     he       sold   drugs      in   the   Kentland,

Maryland area in concert with co-defendant Phillip Whitehurst,

who ran the operation.                 According to Rainey, “it was a 24/7

operation” that was managed from three different stash houses in

the Kentland area.           J.A. 462-63.            The drug ring sold both crack

and   powder     cocaine.         He     witnessed         Eccleston       and   other   co-

defendants      purchase      distribution           quantities       of   powder   cocaine

from Whitehurst on several occasions.                           However, he disclaimed

personal       knowledge     of     what    Eccleston           did   with    the   powder.

Rainey further testified that Eccleston stopped by the stash

houses    to    watch   TV,    do    drugs,         drink,   and      socialize.       While

Eccleston was at the stash houses, others would often stop by to

purchase both crack and powder cocaine.                           The government also

introduced       several     audio      recordings         of    phone     calls    through

Rainey.        The   audio    was      obtained       pursuant        to   the   Title   III

wiretap    warrant.           During       the       phone      calls,     Eccleston     and

Whitehurst discussed purchases of powder cocaine.

      During Rainey’s testimony, Eccleston’s counsel approached

the bench to report that witnesses had been speaking with one

another in holding cells and in the hallway.                                 He asked the

district court to direct government counsel to remind witnesses

of the sequestration order.                However, counsel did not make any

representation that the conversations were about the trial or

about trial testimony.            The district court ruled that there was

                                                8
no evidence of a violation of the sequestration order.                                 The

court     nonetheless        reminded      government          counsel    to     admonish

witnesses not to speak with each other about the case.

     Later, Smith testified that he also had sold distribution

quantities of powder cocaine to Eccleston.                            Additional audio

recordings concerning Eccleston’s purchases were also introduced

through    Smith.       On    these     recordings,       Whitehurst      stated       that

Eccleston was purchasing powder, cutting it with baking soda or

other substances, and then selling it.

     Marshall similarly testified that he had sold distribution

quantities of powder cocaine to Eccleston.

     Wallis      was   granted       immunity     for    his    testimony.        He   and

Eccleston met in high school, and more recently, Eccleston had

agreed to provide personal training sessions to Wallis free of

charge.     Wallis testified that he had purchased cocaine from

Eccleston    five      to   ten   times,      each   time      between    one    and   ten

grams.      He   was    not    charged     as    part     of    the   conspiracy,       and

testified that he had never been convicted of a crime.

     The    government        also    introduced        testimony     from     Montgomery

County    Police    Detective        Robert     Grims,    who    arrested       Eccleston

pursuant to an arrest warrant.                  He searched Eccleston and found

two cell phones.            He then searched one of these cell phones

without first obtaining a warrant for that search.



                                            9
       Months      after    Detective      Grims    searched       the     phone,     and

shortly     before    trial,       the   FBI   obtained    a    search    warrant     and

searched     the    phone.         Eccleston    objected       during    trial   to   the

introduction of certain evidence obtained in connection with the

searches and moved to suppress that information.                          The district

court took a trial recess in order to allow counsel to do legal

research.         The court then held a suppression hearing and took

testimony from Detective Grims.                 The district court ultimately

denied      the    motion     to    suppress,      finding      that     then    binding

appellate law permitted the warrantless search.                          The district

court further found that the subsequent warrant application was

based on information known prior to the search and seizure of

the phones, and that the subsequent search was not tainted by

the first search.

       Near the end of trial, the following colloquy took place

between defense counsel and FBI Special Agent Mark E. James:

       Q.    Well you knew he was staying there [at the
             residence where Eccleston was living], didn’t you?

       A.    We suspected that he was staying there based on
             some physical surveillance and records, I believe,
             we got from parole and probation. Yes.

J.A.    977.        Despite    Agent      James’    reference      to     “parole     and

probation,” Eccleston did not object or request a curative jury

instruction either at the time or during a later discussion with

the court about jury instructions.



                                           10
     After the government rested its case, Eccleston moved for a

judgment     of    acquittal,     arguing        that   there    was    insufficient

evidence to convict him for conspiracy with intent to distribute

cocaine and cocaine base.              He further argued that the evidence

supported multiple conspiracies revolving around lead defendant

Whitehurst        and    requested     a     jury   instruction        for   multiple

conspiracies.           The   motion   for      judgment   and   request     for   the

multiple conspiracy instruction were denied.

                                           C.

     The case was then submitted to the jury.                    During the course

of deliberations, the jury sent a note to the court, which read:

“Is it possible to alter the [verdict] form from ‘and crack

cocaine’ to ‘and/or’?”           J.A. 1039.         The district court provided

the following written response:

     In response to your note, I am clarifying Instruction
     No. 47,[6] a copy of which I am providing to you.   I
     instruct you that in order to find the defendant
     guilty of Count One of the Fourth Superseding
     Indictment, you must find that the government has
     proved beyond a reasonable doubt the two elements of
     the offense of conspiracy. With respect to the first
     element of conspiracy, you must find that two or more
     people   entered  into   an  unlawful   agreement  to
     distribute and possess with intent to distribute a
     controlled substance and you must also unanimously
     agree which controlled substance -- powder cocaine,
     crack cocaine, or both -- was involved in the

     6 Instruction No. 47 addressed what the government                            must
prove with respect to the first element of conspiracy:                              the
existence of an unlawful agreement.



                                           11
     conspiracy.    You may find the defendant guilty of
     Count One if you find that the conspiracy involved
     powder cocaine or crack cocaine or both, but you must
     be unanimous as to which form of cocaine was involved.
     Accordingly, I am submitting to you a slightly revised
     verdict form to reflect this instruction.

J.A. 1040.    The two verdict forms were identical, except that

the revised form required the jury to identify which drug (or

drugs) it unanimously agreed was involved in the conspiracy.

Compare J.A. 1042 (original verdict form for count one), with

J.A. 1045 (altered verdict form for count one).

     On September 21, 2012, the jury returned a verdict, finding

Eccleston guilty of conspiracy to distribute and possess with

intent to distribute both powder and crack cocaine.                The jury

attributed   to   Eccleston   500   grams   to   5   kilograms   of   powder

cocaine, and less than 28 grams of crack cocaine.           Eccleston was

further found guilty of counts eight, nine, ten, and eleven of

the Fourth Superseding Indictment.

     Eccleston    was   sentenced   to   concurrent    sentences      of   210

months’ imprisonment on count one, 96 months’ imprisonment on

count eight, 210 months’ imprisonment on count nine, 96 months’

imprisonment on count ten, and 210 months’ imprisonment on count

eleven, to be followed by 8 years of supervised release.              He was

also assessed a $500 criminal monetary penalty.             In sentencing

Eccleston, the district court “var[ied] down from the guidelines

235 [months’ imprisonment] for Count 1.”         J.A. 1100.


                                    12
     This    appeal       followed.           Eccleston       advances      numerous

arguments on appeal.         First, he contends that delay between his

arrest and the commencement of his trial was unconstitutionally

lengthy in violation of the Sixth Amendment, and that the delay

also constituted a violation of the Speedy Trial Act.                       He also

contends that it was error for the district court to admit the

evidence    obtained      from   his   cell    phone.        He   argues   that   the

district    court     abused     its   discretion       in    finding      that   its

sequestration order had not been violated.                   He also argues that

he suffered prejudice under Federal Rule of Evidence 404(b) when

a case agent referred to obtaining information from a parole or

probation    office    about     his   address.         Eccleston     additionally

contends    that    the    district    court    constructively        amended     the

indictment in this case when it altered the jury verdict form in

response to a jury question.           He further challenges the district

court’s refusal to instruct the jury on multiple conspiracies.

And finally, Eccleston contends that the district court erred in

the amount of cocaine and cocaine base it attributed to him for

purposes of sentencing.          For the reasons that follow, we reject

each of these arguments.



                                        II.

     Eccleston argues that both his constitutional and statutory

speedy trial rights were violated.             We address each in turn.

                                        13
                                            A.

       First, Eccleston alleges that the delay between his arrest

and the commencement of his trial violated his right to a speedy

trial under the Sixth Amendment.                   We review de novo a district

court’s     constitutional       speedy         trial    determination.          United

States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).

       The Supreme Court has directed federal courts to consider

four     factors    when     addressing          Sixth   Amendment      speedy    trial

claims:      “Length       of   delay,      the    reason     for    the    delay,   the

defendant’s assertion of his right, and the prejudice to the

defendant.”        Barker, 407 U.S. at 530.                 “To prevail on [his]

speedy     trial    claim,      [a]    [d]efendant[]          [is]    obliged,    under

Barker,    to   establish       ‘that      on    balance,     [the]    four    separate

factors weigh in his favor.’”                    Hall, 551 F.3d at 271 (final

alteration in original).

       There are two components to the first Barker factor.                          Id.,

551 F.3d at 271 (citing Doggett v. United States, 505 U.S. 647,

651-52 (1992)).         “First of all, a reviewing court must decide

whether the length of the delay triggers a speedy trial inquiry.

In that respect, the Court has suggested that we should conduct

a full inquiry when such a delay approaches one year.”                         Id., 551

F.3d at 271 (citing Doggett, 505 U.S. at 651-52).                          The relevant

time   period      to   consider      is   that     between    indictment      and   the

commencement of trial.           Id. (citing United States v. MacDonald,

                                            14
456    U.S.   1,     7    (1982)).        Notably,       “the   delay    that      can    be

tolerated for an ordinary street crime is considerably less than

for a serious, complex conspiracy charge.”                      Barker, 407 U.S. at

531.

       Eccleston was first indicted on October 26, 2011, and his

trial commenced less than a year later, on September 11, 2012.

Indeed, although there was a delay between Eccleston’s September

28, 2011 arrest on the criminal complaint and the October 26,

2011 indictment, even the time between the arrest and the trial

was less than one year.              Moreover, he was charged as part of a

large drug conspiracy.              Accordingly, the first factor does not

weigh in his favor.

       Based on the foregoing, we need not consider the remaining

factors.          See Barker, 407 U.S. at 530 (“Until there is some

delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.”);

United States v. Woolfork, 399 F.3d 590, 597 (4th Cir. 2005)

(“One      year    is     the    ‘point    at    which    courts      deem   the     delay

unreasonable enough to trigger the Barker [i]nquiry.” (citing

Doggett, 505 U.S. at 652 n.1)).                  The first Barker factor “acts

as     a   threshold       requirement,”        and    “[i]f    the     delay   is       not

uncommonly        long,    the   inquiry    ends      there.”      United    States      v.

Grimmond, 137 F.3d 823, 827 (4th Cir. 1998).                       Having failed to



                                            15
clear    the   threshold     requirement,        Eccleston      cannot       show    a

violation of his Sixth Amendment right.

     Our    conclusion     would   be    the    same   even     if    we    were    to

consider the remaining factors under Barker.                  The second factor

addresses “the reasons for the delay.”               Barker, 407 U.S. at 530.

“The reasons for a trial delay should be characterized as either

valid, improper, or neutral.            On this factor, a reviewing court

must carefully examine several issues, specifically focusing on

the intent of the prosecution.”              Hall, 551 F.3d at 272 (citation

omitted).      Here,   the   district        court   stated     that       the   delay

stemmed from the complexity of the case.                     Indeed, as we will

discuss in more detail below, the complexity of the case led the

court to grant the government’s motion to exclude time under the

Speedy Trial Act.        Moreover, Eccleston caused delay by filing

numerous pretrial motions, all of which by definition had to be

resolved prior to the commencement of trial.                  We find that there

were valid reasons for the trial delay.

     The    third   Barker   factor     addresses      whether       the   defendant

timely asserted his right to a speedy trial.                   Barker, 407 U.S.

at 532.     Eccleston did so, and this factor thus weighs in his

favor.

     The    final   Barker    factor      requires      us     to    consider       the

prejudice to Eccleston.        Id.       Courts assess prejudice “in the



                                        16
light     of   the     interests     of     defendants       which    the    speedy   trial

right was designed to protect.”                   Id. at 532.        There are

      three such interests:      (i) to prevent oppressive
      pretrial incarceration; (ii) to minimize anxiety and
      concern of the accused; and (iii) to limit the
      possibility that the defense will be impaired.    Of
      these, the most serious is the last, because the
      inability of a defendant adequately to prepare his
      case skews the fairness of the entire system.

Id.     As to the first prejudice interest, we note per the first

Barker factor that the delay in this case was not presumptively

prejudicial           and   there      is    no       allegation      that    Eccleston’s

detention was otherwise oppressive.                        As to the second prejudice

interest, Eccleston has asserted generalized concerns that would

affect     any    individual        who     is   detained.          See   Opening   Br.    of

Appellant 41 (complaining of economic harm, damaged credit, the

inability        to    advance   his      skills      at    work,    embarrassment,       and

missed birthdays).            Finally, Eccleston has not argued that his

defense was impaired by the delay. 7                       See Grimmond, 137 F.3d at

830 (determining that the defendant had not shown impairment of



      7Eccleston argues before this Court that the government
refused “to permit him access to discovery materials thus
denying him the opportunity to play a more active role in his
own defense.” Opening Br. of Appellant 42. However, Eccleston
did have access to the materials.    As counsel explained during
the pretrial hearing, the discovery agreement in this case
prevented counsel from leaving copies of the discovery material
with Eccleston to keep and review while he was in prison.
Rather, the agreement allowed Eccleston to review discovery only
during meetings with counsel.



                                                 17
his defense where he failed to “identif[y] any witness that was

unavailable as a result of the delay,” did not “allege[] that

any   witness     was     unable    accurately          to    recall    the    events   in

question,” and did “not contend that any exculpatory evidence

was lost” or that “any evidence . . . was unavailable because of

the delay”).

      Because      only       one   of     the      Barker       factors      weighs     in

Eccleston’s favor, we find that his Sixth Amendment right to a

speedy trial was not violated.

                                            B.

      Eccleston also alleges that the district court erred in

excluding time from the speedy trial clock when it granted the

government’s      tolling       motion          under    the     Speedy       Trial    Act.

Specifically,      he     faults    the    district          court   for    adopting    the

government’s assertion that fugitive co-defendants remained at

large,      and   claims       that       the     fugitive       co-defendants         were

fabricated.       He further contends that the government simply was

not ready to proceed with trial.

      “We    review     the    legal     standards       applied       by   the   district

court in making its ends of justice determination de novo and

review the district court’s findings under the Speedy Trial Act

. . . 18 U.S.C. § 3161, under the clearly erroneous standard.”

United States v. Keith, 42 F.3d 234, 236 (4th Cir. 1994).                               The

Speedy Trial Act provides that a defendant’s trial must commence

                                            18
within seventy days from the filing of the indictment unless one

of several exceptions applies.        18 U.S.C. §§ 3161(c)(1), (h).

Among other types of excusable delay, those delays attributable

to an appropriate “ends of justice” order can be excluded from

the speedy trial clock.   Id. § 3161(h)(7)(A) (providing for the

exclusion of time when a continuance is granted sua sponte or

upon a motion by counsel “if the judge granted such continuance

on the basis of his findings that the ends of justice served by

taking such action outweigh the best interest of the public and

the defendant”).

     Here, the speedy trial clock commenced on November 2, 2011,

when Eccleston was arraigned and pleaded not guilty.       On that

same day, the government filed a motion to toll the speedy trial

clock.   None of the defendants opposed the motion at that time.

In granting the motion, the district court found that

     this case involves complex issues, particularly as
     they involve wiretap evidence, including more than
     10,000 pertinent calls captured from at least three
     different wiretapped phones lines, and thus it would
     be unreasonable to expect adequate preparation for
     pretrial proceedings or for the trial itself within
     the time limits established by the Speedy Trial Act.

J.A. 116.   The court further explicitly found that the delay was

necessary to ensure continuity of counsel, as well as to ensure

that the parties -- both the defendants and the government --

had adequate time to review the discovery materials.      J.A. 116;

cf. 18 U.S.C. §§ 3161(h)(7)(B)(ii), (iv).      Given the nature of

                                 19
the case, as described by the district court and based upon our

own review of the record, we hold that the district court did

not clearly err in granting the government’s motion and tolling

the speedy trial clock until August 21, 2012.

       We    further    reject       Eccleston’s    challenge      to    the    delay

occurring between the original August 21, 2012 trial date and

the actual start of trial on September 11, 2012.                          Eccleston

apparently     takes    issue    with    government      counsel’s      request    for

this additional delay, even though government counsel indicated

that he was willing to go forward with trial on August 21 if the

court so ordered.            The district court granted the government’s

request due to counsel’s serious medical situation.                     Unavoidable

health concerns are a valid reason for granting a reasonable

delay.       United States v. Trotman, 406 F. App’x 799, 805 (4th

Cir. 2011) (unpublished); see also United States v. Hale, 685

F.3d 522, 535 (6th Cir. 2012); United States v. DiTommaso, 817

F.2d    201,   210     (2d    Cir.    1987)    (holding    that    a    seven     week

suspension of the speedy trial clock was warranted under the

“ends of justice” provision where the chief prosecutor was ill

and    new   assistant       prosecutors      required    time    to    prepare   for




                                          20
trial).    The district court did not clearly err in delaying the

commencement of trial from August 21 to September 11. 8



                                       III.

      Eccleston makes several arguments considering the use and

admissibility of wiretap evidence in his case.                        None of his

arguments are availing.

                                        A.

      Eccleston      first    faults   the        government    for     failing     to

exhaust “normal investigative procedures” prior to filing its

wiretap    warrant    application.       He       contends    that    this   failure

violated his rights under the Fourth Amendment, and that the

evidence    obtained    from    the    wiretaps        thus    should      have   been

suppressed.

      “We review for clear error the factual findings underlying

a district court’s ruling on a motion to suppress, and we review

the   court’s   legal    conclusions         de    novo.”      United      States   v.

Wilson, 484 F.3d 267, 280 (4th Cir. 2007).                     Additionally, “we

review    for   abuse   of    discretion          determinations      of   necessity

under” Title III.       Id.     As we have previously noted, “wiretaps

are necessary tools of law enforcement, . . . particularly where

      8Because we find no error in the district court’s “ends of
justice” ruling, we need not address its other bases for tolling
the clock.



                                        21
crimes are committed by large and sophisticated organizations,”

and “[c]ourts must be careful not to read the statute in an

overly restrictive manner.”        Id. at 281.

      The    government   bears     the    burden      of   demonstrating          the

necessity of a wiretap “via a full and complete statement as to

whether     ‘normal   investigative   procedures        have    been       tried   and

have failed or reasonably appear to be unlikely to succeed if

tried or to be too dangerous.’”            Id. at 281 (quoting 18 U.S.C.

§ 2518(3)).     But this burden “is not great, and the adequacy of

such a showing is to be tested in a practical and commonsense

fashion that does not hamper unduly the investigative powers of

law enforcement agents.”          Id. (quoting United States v. Smith,

31 F.3d 1294, 1298 (4th Cir. 1994)).                In Wilson, this Circuit

found that the government adequately demonstrated the necessity

of a wiretap by submitting a detailed affidavit in support of

its   wiretap   application.       484     F.3d   at   281.          The   affidavit

“span[ned] 64 pages in the Joint Appendix.”                    Id.     The Circuit

observed of the affidavit:

      In exhaustive fashion, [the government] set forth the
      techniques that had been used up to that point. Those
      techniques     included     confidential      informants,
      undercover   agents,   surveillance,   trash    searches,
      interviews,   search    warrants,   telephone    records,
      reverse buys, GPS trackers, and financial and public
      records. The affiants then explained that despite the
      information they had been able to gain from these
      traditional sources, they believed that those sources,
      standing alone, were insufficient to achieve the goals
      of the investigation and prove the extent of the

                                      22
        conspiracy.     For   example,  they   explained  that
        confidential informants were unable to identify the
        higher-ups of the conspiracy. The traditional sources
        also failed to uncover the conspiracy’s cocaine source
        and the extent to which the coconspirators distributed
        it for resale.

Id. (citation omitted).

       The   government      has     satisfied      its     burden    here.      In

Eccleston’s case, as in Wilson, the government has presented a

detailed     affidavit     concerning      “whether       ‘normal    investigative

procedures have been tried and have failed or reasonably appear

to be unlikely to succeed if tried or to be too dangerous.’”

Id. at 281 (quoting 18 U.S.C. § 2518(3)).                   The forty-five page

Affidavit in Support of an Application for an Order Authorizing

the Interception of Wire Communications was submitted by FBI

Special Agent Mark E. James to a district judge on March 3,

2011.     The Affidavit details the normal investigative techniques

used     during     the    course    of    the     investigation,       including:

physical     surveillance,         confidential      informants,       cooperating

sources,      undercover      agents,          interviews     of     subjects    or

associates,       search   warrants,      pen    registers/toll      records,   and

trash cover.        For each investigative category, James set forth

whether the normal techniques had been used; how well they had

worked; and whether there was additional information needed for

the investigation that was unavailable from further use of that

technique.     He also was forthcoming about which techniques, such


                                          23
as physical surveillance, had been fruitful and would continue

to be used going forward.                  J.A. 1177 (discussing success with

physical surveillance, but observing that heavy foot traffic in

the area, as well as the targets’ use of different vehicles

registered in others’ names, thwarted efforts at identification

of additional conspirators).                For techniques that had not been

used, such as grand jury subpoenas, he explained why they would

not   be   useful    or      would    be    counterproductive.           J.A.    1177-78

(explaining     that         the     use    of     subpoenas     would     alert     the

conspirators to the investigation and might cause them to flee

or to threaten potential witnesses).                   We find that the level of

specificity in the Affidavit sufficient to meet the government’s

burden, and thus the issuing court did not abuse its discretion

in authorizing the wiretap, and the district court did not err

in denying Eccleston’s motion to suppress.

                                             B.

      Eccleston separately contends that there was insufficient

and   “misleading”           probable       cause     to    support      the     wiretap

application.        “The probable cause required for issuance of a

wiretap order is the same as that which is necessary to obtain

the issuance of a search warrant.”                     United States v. Talbert,

706 F.2d 464, 467 (4th Cir. 1983).                         And the probable cause

determination       is   a   “practical,          common-sense   decision       whether,

given all the circumstances set forth in the affidavit before

                                             24
[the judge] . . . there is a fair probability that contraband or

evidence       of     a    crime      will    be    found     in    a    particular     place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983).                              Courts look to the

“totality-of-the-circumstances” in making their decisions.                                    Id.

Reviewing           courts      “must        accord      great          deference       to    the

magistrate’s assessment of the facts presented to him.”                                  United

States v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011) (internal

quotation marks and citation omitted).

       Here, given the nature and specificity of the information

in the Affidavit, we find that there was probable cause to grant

the wiretap application.                    James stated that the facts set forth

in the Affidavit were based in part on his personal knowledge

and in part on information and belief.                         He based his information

and belief on, among other things, reports received from other

field    agents           and   law    enforcement          officials,         his   review    of

various telephone records and consensually recorded interviews,

his review of evidence, and debriefings.                                 Information from a

number        of     confidential           sources     was    incorporated          into     the

Affidavit          where    specified.          The     Affidavit        set    forth   several

detailed, specific facts to support the existence of probable

cause to believe that several individuals, known and unknown,

were engaged in a conspiracy to distribute cocaine and cocaine

base     in        Kentland.          For     example,        the       Affidavit    discussed

controlled           purchases         of     crack      cocaine          carried       out    by

                                                   25
confidential            sources       at      the    direction       of    law     enforcement.

Moreover, it set forth specific facts suggesting that there was

probable cause to believe that the target phone numbers would

yield information concerning the alleged drug conspiracy.                                        For

example, the Affidavit included excerpts from wiretaps executed

earlier      in     the    investigation,            and    also    described       information

obtained      from        pen    registers          concerning       numbers      known     to    be

associated         with    the     conspiracy.             Because     there      was     probable

cause   to        authorize       the      wiretaps,       the   district        court    did    not

abuse       its    discretion           in    refusing      to     suppress       the    evidence

obtained from the wiretaps.

                                                    C.

       Finally, Eccleston argues that the district court erred by

denying him a Franks hearing.                         In particular, he alleges that

two of the five confidential sources whose information formed

part    of        the     basis       of     James’      Affidavit        were     engaging       in

unauthorized drug dealing activity and that one of these two

informants          was     killed           during      the     unauthorized            activity.

Moreover, Eccleston contends that “the task force knew or should

have known that the lead defendant [Whitehurst] was a murder

suspect and had an outstanding warrant for his arrest.”                                    Opening

Br.    of    Appellant          25.          Eccleston      faults    the     government         for

failing to include this information in the Affidavit and argues



                                                    26
that     the       district     court   would     have   denied     the    wiretap

application had the information been included.

       The Supreme Court held in Franks that,

       where the defendant makes a substantial preliminary
       showing   that   a   false  statement  knowingly   and
       intentionally, or with reckless disregard for the
       truth, was included by the affiant in the warrant
       affidavit, and if the allegedly false statement is
       necessary to the finding of probable cause, the Fourth
       Amendment requires that a hearing be held at the
       defendant’s request.

438 U.S. at 155-56.              In addition to false statements, “Franks

protects against omissions that are designed to mislead, or that

are made in reckless disregard of whether they would mislead,

the magistrate.”             United States v. Colkley, 899 F.2d 297, 301

(4th Cir. 1990) (emphasis deleted).

       This Court reviews the legal determinations underlying a

district court’s denial of a Franks hearing de novo, and its

factual findings for clear error.                 United States v. Allen, 631

F.3d 164, 171 (4th Cir. 2011).                 To warrant a Franks hearing, a

defendant’s preliminary “showing ‘must be more than conclusory’

and should include affidavits or other evidence to overcome the

‘presumption of [the warrant’s] validity.’”                    United States v.

Clenney, 631 F.3d 658, 663 (4th Cir. 2011) (quoting Franks, 438

U.S.   at    171).       Where    a   defendant    “rel[ies]   on   an    omission,

rather      than    on   a    false   affirmative    statement,”    his    “burden

increases yet more.”             United States v. Tate, 524 F.3d 449, 454


                                          27
(4th Cir. 2008).      “[M]erely showing an intentional omission of a

fact     from   a   warrant     affidavit      does    not   fulfill        Franks’

requirements.”      Id. at 455.       Rather, “[t]o satisfy the Franks’

intentional or reckless falsity requirement for an omission, the

defendant must show that facts were omitted ‘with the intent to

make, or in reckless disregard of whether they thereby made, the

affidavit misleading.’”        Id. (quoting Colkley, 899 F.2d at 300).

       Here, Eccleston offers only a conclusory showing that a

Franks    hearing    would     be   appropriate.         Despite     Eccleston’s

insistence that the lead defendant in the conspiracy was subject

to an outstanding warrant, he has presented no documentary proof

to that effect.      And though he questions the reliability of the

information in James’ Affidavit, he does not demonstrate that

Special Agent James had any intent to mislead the court.                        See

Colkley, 899 F.2d at 301 (“Here Johnson made no showing, and the

district court possessed no evidence, that agent Moore had the

requisite intent to mislead.”).             While some courts have inferred

intent where “the omitted material was ‘clearly critical’ to the

finding of probable cause,” id., that showing cannot be made

here.      James’    Affidavit      relied     on    information     from    three

additional      confidential    sources      aside    from   those    challenged

here.     At least one of these additional confidential sources

participated in controlled purchases of crack cocaine at the

direction of law enforcement.          Furthermore, the Affidavit relied

                                       28
on     reports    from     law        enforcement       officials,        review   of    pen

register and documentary evidence, and personal knowledge.

       Eccleston points to two other pieces of information missing

from the Affidavit:              the unauthorized criminal activity by one

of the confidential sources and the murder and unauthorized drug

dealing activity of another of the confidential sources.                                 This

information        is      not        “critical”        to     the    probable          cause

determination.          We note first that we cannot with certainty say

that the information with which Eccleston takes issue was not

contained in the Affidavit, because much of the Affidavit is

redacted.        Even so, the Affidavit stated that the information

from    the    sources     had    been       independently      corroborated       through

other investigative techniques.                    And though it did not go into

detail, the Affidavit also acknowledged that one confidential

source    died     during     the       course     of    the    investigation.           The

information about the killing and the unauthorized drug dealing

was    later     disclosed       to    the    district       court   in    Special      Agent

Garrett Swick’s “Affidavit in Support of Criminal Complaint and

Arrest Warrants.”

       Even      without     information           about       the    murder       or     the

unauthorized illegal activity, there is sufficient, independent

probable cause outlined in the James’ Affidavit for the issuance

of the wiretap warrant.                We find that Eccleston has not made a



                                              29
preliminary showing sufficient to warrant a Franks hearing.                          The

district court properly denied his request.



                                       IV.

       Eccleston argues that the district court erred in admitting

evidence     obtained   from     his   cell      phone.       In   particular,       he

contends that the warrantless search of his cell phone at the

time of his arrest violated the Fourth Amendment, and that the

later application for and issuance of a search warrant for the

phone did not cure the violation.

       “This Court reviews evidentiary rulings for an abuse of

discretion, and ‘will only overturn an evidentiary ruling that

is arbitrary and irrational.’”             United States v. Cone, 714 F.3d

197,   219   (4th   Cir.   2013)    (citation          omitted).      “A    court   has

abused its discretion if its decision ‘is guided by erroneous

legal principles’ or ‘rests upon a clearly erroneous factual

finding.’”      United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010) (citation omitted).

                                          A.

       The United States Supreme Court recently held that, upon

lawful arrest, “officers must generally secure a warrant before

conducting” a search of a cell phone.                   Riley v. California, --

U.S. ---, 134 S. Ct. 2473, 2485 (2014).                     There is no dispute

that    Riley   applies     to     this        case.       However,        while    “the

                                          30
retroactive        application          of    a    new     rule     of    substantive         Fourth

Amendment law raises the question whether a suppression remedy

applies[,] it does not answer that question.”                                 Davis v. United

States, --- U.S. ---,131 S. Ct. 2419, 2431 (2011) (citing United

States v. Leon, 468 U.S. 897, 906 (1984)).                                Rather, “[w]hether

the    exclusionary            sanction           is     appropriately        imposed         in     a

particular        case    . . .     is       an    issue    separate       from     whether        the

Fourth Amendment rights of the party seeking to invoke the rule

were    violated         by    police        conduct.”         Leon,       468     U.S.    at      907

(internal      quotation          marks       and        citation        omitted);      see     also

Davis,131 S. Ct. at 2431 (2011) (“Retroactive application does

not    . . .      determine       what       ‘appropriate           remedy’      (if    any)       the

defendant should obtain.”).

       The exclusionary rule “cannot be expected, and should not

be    applied,      to    deter     objectively            reasonable        law     enforcement

activity.”        Leon, 468 U.S. at 919; see id. (“If the purpose of

the exclusionary rule is to deter unlawful police conduct, then

evidence obtained from a search should be suppressed only if it

can be said that the law enforcement officer had knowledge, or

may    properly     be        charged    with          knowledge,    that     the      search      was

unconstitutional          under     the       Fourth       Amendment.”       (quoting         United

States v. Peltier, 422 U.S. 531, 542 (1975))); see also Davis,

131    S.   Ct.    at     2431.         Thus,      “[b]ecause        suppression          would     do

nothing to deter police misconduct” in cases where “the police

                                                   31
conduct a search in compliance with binding precedent that is

later overruled,” and “because [suppression] would come at a

high    cost   to    both     the     truth    and      the   public         safety,    . . .

searches conducted in objectively reasonable reliance on binding

appellate precedent are not subject to the exclusionary rule.”

Davis, 131 S. Ct. at 2423-24.

       At   the     time    of   Eccleston’s            arrest,     binding         appellate

precedent from this Circuit permitted the warrantless search of

his cell phone incident to his arrest.                           See United States v.

Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009).                            In Murphy, the

defendant argued that the warrantless search of his cell phone

was    unlawful     “because     there     was     no    evidence       of    the     volatile

nature of the cell phone’s information,” and also because the

search “was not contemporaneous with his arrest.”                              Id. at 411.

We    rejected     the     defendant’s       arguments,       observing         that    “this

Court ha[d] held on at least two prior occasions, albeit in

unpublished opinions, that officers may retrieve text messages

and    other      information       from     cell       phones    and        pagers    seized

incident to an arrest.”             Id. (citing United States v. Young, 278

F. App’x 242, 245-46 (4th Cir. 2008), cert. denied, 555 U.S.

1006 (2008), and United States v. Hunter, No. 9604259, 1998 WL

887289, at *3 (4th Cir. Oct. 29, 1998)).                           This Court further

observed that “the initial search of the cell phone occurred in

Murphy’s    presence       and   at    his     direction,”        and    another        search

                                              32
occurred      at    the    police   station       “during    the       course    of   the

inventory search.”           Id. at 412.         Accordingly, we held that the

district court committed no error when it refused to suppress

the contents of the defendant’s cell phone.

      Prior    to    the    Supreme    Court’s     decision       in    Riley,    Murphy

served as binding appellant precedent permitting the search of

Eccleston’s cell phone incident to his arrest without a warrant.

Because    the     search     was   “conducted      in    objectively       reasonable

reliance    on     [then-]binding       appellate        precedent,”      it    is    “not

subject to the exclusionary rule.”                 Davis, 131 S. Ct. at 2423-

24.   We therefore hold that the district court did not abuse its

discretion in refusing to suppress the evidence obtained from

Eccleston’s cell phone.

                                            B.

      Regardless of the applicability of Murphy at the time of

Eccleston’s arrest, and as the district court held, the same

information was later lawfully obtained by the FBI pursuant to a

search warrant.           Eccleston did not challenge the validity of the

warrant below.        He argues here that the district court did not

address whether the initial search tainted the warrant.

      It is well established that where the government can show

“by   a    preponderance       of     the    evidence      that    the    information

ultimately or inevitably would have been discovered by lawful

means . . . then the deterrence rationale [for the exclusionary

                                            33
rule] has so little basis that the evidence should be received.”

Nix    v.    Williams,    467     U.S.      431,       444   (1984);     see    also    United

States      v.   Whitehorn,      813       F.2d    646,      650   n.4   (4th    Cir.    1987)

(“[T]he premise of the inevitable discovery doctrine is that the

illegal search played no real part in discovery of incriminating

evidence.        Only then, if it can be shown that the taint did not

extend to the second search, would the product of the second

search be admissible.”); Simmons v. Poe, 47 F.3d 1370, 1378 (4th

Cir.    1995)       (finding,    in    the        42    U.S.C.     § 1983   context,        that

defendant’s challenge to the validity of a warrant was meritless

where       there    “existed    sufficient             independent      evidence      in    the

warrant       application       to    justify          the   magistrate’s        finding      of

probable cause”).

       Here, the district court explicitly stated:                             “[T]here’s no

indication at all that the alleged unlawful search, if it was an

unlawful search, . . . tainted the subsequent application for a

search warrant.          In fact, [the government] read portions of the

application.         It had no reference at all to what occurred back

on” the date of Eccleston’s arrest.                       J.A. 626; see also J.A. 622

(discussing         contents     of        warrant       application).           We     agree.

Eccleston did not challenge the warrant on any grounds, and does

not meaningfully do so before this Court.                           In fact, when asked

by    the    district     court       if    the        warrant     had   been    challenged,

Eccleston’s counsel stated:                 “I’m not trying to say that because

                                              34
of what [Grims] did everything after that is tainted, because I

think at some point the government realized, yeah, we do need a

warrant.     And so, they went and they got it, and they did the

right   thing.”       J.A.     623.     Because       the    government      presented

evidence that the search did not taint the warrant, and because

Eccleston presented no evidence or arguments to the contrary,

the second search of Eccleston’s cell phone pursuant to the FBI

warrant was not tainted by the initial warrantless search.                            The

district     court    did    not    abuse    its     discretion     by    refusing     to

suppress the evidence obtained from the search of Eccleston’s

cell phone.



                                            V.

      Eccleston      argues    that    the       district   court’s      sequestration

order was violated due to cohabitation of witnesses in a holding

cell, which in turn undermined his Fifth Amendment due process

rights.      As noted above, we review a trial court’s evidentiary

rulings for abuse of discretion.                 Cone, 714 F.3d at 219.

      This    Court    has     not     directly       addressed       this    type     of

challenge to a sequestration order, but case law from the First

and   Eleventh    Circuits      is    instructive.           In    United    States   v.

Sepulveda,     the     First       Circuit       stated     that    cohabitation      of

witnesses did not equate to an automatic violation of the trial

court’s sequestration order.                15 F.3d 1161, 1176-77 (1st Cir.

                                            35
1993).   In that case, the district court granted the defendants’

motion for sequestration.              The motion did not “indicat[e] to the

court    what        level     of     restraint     [the      defendants]      thought

appropriate.”         Id. at 1176.         Accordingly, “[t]he court granted

the motion in its simplest aspect, directing counsel ‘to monitor

sequestration’ and ordering ‘that witnesses who are subject to

[the court’s] order are not to be present in the courtroom at

any time prior to their appearance to render testimony.’”                             Id.

The court additionally admonished witnesses not to discuss their

testimony    with      other     witnesses.        Id.       The    defendants      later

sought to vacate their convictions based, in part, on alleged

violations      of     the     sequestration      order.           In   affirming    the

district court’s denial of relief, the First Circuit indicated

that “[t]he crux of sequestration . . . is communication between

witnesses,      not    shared       accommodations      or   geographic     proximity.

. . .    We assume that witnesses, like all other persons subject

to court orders, will follow the instructions they receive.”

Id. at 1177.          And “if [the defendants] desired a more vigorous

sequestration regime, such as an edict that would have banned

cohabitation or other contact amongst prisoner-witnesses, they

had a duty to ask for it.”               Id.    Where the defendants failed to

do so, and where their claims of the prejudice from the alleged

violation    of      the     sequestration      order    were   “speculative,”        the



                                           36
district         court       did     not        err      in        refusing     to     vacate      the

convictions.        Id.

      The Eleventh Circuit faced a more extreme situation.                                         In

United     States      v.     Eyster,          at   least      two    witnesses        admitted    to

discussing testimony with each other while confined together in

jail during trial.                 948 F.2d 1196, 1210 (11th Cir. 1991).                           The

circuit      court       found        a    violation           of     the     district       court’s

sequestration order, and noted that “both the district court and

the government were lax in upholding the sequestration rule.”

Id. at 1211.             However, because the district court had allowed

cross examination on the issue, the Eleventh Circuit held that

the   district         court       had     sufficiently             cured     the    violation     by

“giving the jury the opportunity to evaluate [the witnesses’]

credibility.”            Id.        Accordingly,              the    district       court    had   not

abused its discretion in denying the appellants’ motion for a

mistrial.        Id.

      We    need       not     rule       on    the      entire       universe       of     potential

sequestration violations in order to address Eccleston’s claims.

There is no admission or direct allegation in this case, as

there      was    in     Eyster,          that      any       of     the    witnesses        actually

discussed testimony while confined together.                                  Thus, we address

our   inquiry       to      whether        cohabitation             alone     is     sufficient    to

violate a district court’s sequestration order.                                    With respect to

this question, we find the First Circuit’s analysis in Sepulveda

                                                    37
persuasive.        We hold today that the cohabitation of witnesses in

a     holding     cell   is     ordinarily      insufficient         to    constitute     a

violation of a district court’s sequestration order where the

defendant has failed to request a sequestration order explicitly

banning      cohabitation       of     witnesses,    and    where         the    defendant

presents only speculation that a sequestration order has been

otherwise violated.

       Evaluated in this light, Eccleston’s challenge must fail.

Eccleston moved for sequestration of witnesses without making

any request for witnesses to be housed separately.                          See ECF No.

105, United States v. Xavier Eccleston, Case No. AW-11-CR-0567

(filed Jan. 21, 2012) (Motion for Sequestration of Witnesses).

The district court granted the motion without including any such

requirement.          The     court’s    order    provided:          “the       court   will

sequester the witnesses and instruct them to remain outside the

courtroom and not discuss their testimony with one another and

we will hold the lawyers responsible for that.”                      J.A. 179.

       Beyond cohabitation, Eccleston points to no evidence that

the sequestration order was otherwise violated.                            On the third

day     of   trial,      Eccleston’s      counsel,       expressed         sequestration

concerns to the court citing certain witnesses’ cohabitation, as

well    as   having      seen    two    witness   who    had    not       yet    testified

talking      in    the   hallway.         J.A.    577.         The    court       directed

government counsel to notify the witnesses and the marshal’s

                                           38
office once more that the witnesses were not to discuss their

testimony with one another, but added that it was “not sure what

[defense counsel] is alluding to when he says [the witnesses]

were    talking.        I   mean,      they    could       have    been    talking     about

anything.”          J.A. 578.    The court stated further that it had not

heard     any       “representation       that      they’re        talking     about       the

testimony.”          J.A. 578.    Defense counsel responded “I can’t make

that representation to the court because I don’t know that, Your

Honor.”        J.A. 578.         The court then stated that it found no

violation of the sequestration order.                       At no point during this

exchange       or    otherwise    did     defense      counsel      request     that       the

cooperating witnesses be physically separated from one another

in the holding cells.

       Throughout the remainder of the trial, the court admonished

some    of    the    witnesses,     but    not      all,    that    they     were    not    to

discuss their testimony with one anyone.                           Eccleston’s counsel

inquired       of    some   witnesses,        but    not    all,    whether     they       had

discussed the trial with others.                    They testified that they had

not.     Government counsel made similar inquiries.                        The witnesses

denied       speaking    with    one    another      about    their       testimony,       and

indicated that the holding cells were too loud and too public to

permit a private conversation.                     Some witnesses testified that

they were also eventually physically separated from one another.



                                              39
       In sum, Eccleston did not request physical separation of

witnesses    in       his   motion    or   in     his   verbal    exchange    with   the

court, and cohabitation alone did not violate the sequestration

order.     In any event, Eccleston failed to present any evidence

to the court that the witnesses had in fact discussed their

testimony.       The court repeatedly admonished witnesses to refrain

from discussing their testimony with other witnesses, and also

directed        the     government         to      so    advise     its      witnesses.

Additionally, on cross examination, the witnesses who were asked

uniformly testified that they had not discussed their testimony

with one another.           Bearing all of this in mind, we find that the

district court did not abuse its discretion in ruling that there

had been no violation of the sequestration order.



                                            VI.

       Eccleston argues that Federal Rule of Evidence 404(b) was

violated when a case agent made reference to Eccleston’s parole

and   probation       officer,   thereby          causing   substantial      prejudice.

He    further     contends     that    the      district    court    compounded      the

problem by its “refusal to give a curing instruction.” 9                        Opening

Br. of Appellant 50.


       9Eccleston seems to abandon his final point about
aggravation in his reply brief.   See Reply Br. of Appellant 21
(“It was difficult if not impossible for the defense to recover
(Continued)
                                             40
       Rule       404(b)      “prevents        the      government         from     using     a

defendant’s        prior      bad    conduct       to   suggest      his    propensity       to

commit a crime.”              United States v. Campbell, 935 F.2d 39, 44

(4th Cir. 1991).              We review a district court’s admission of

evidence of prior bad acts for abuse of discretion.                                     United

States v. McBride, 676 F.3d 385, 395 (4th Cir. 2012).                              “While we

have   reversed        convictions       in    cases      where      evidence      of     other

crimes      had      been   improperly        presented,        in    those       cases     the

inadmissible evidence was not only prejudicial, but had been

purposely      introduced       by    the     prosecution.”           United      States     v.

Johnson, 610 F.2d 194, 197 (4th Cir. 1979); see also Campbell,

935 F.2d at 44 (“Certainly it was not error for the district

court to fail to exclude evidence elicited by [the defendant’s]

own counsel.”).

       We     find     that     the    district         court   did        not    abuse     its

discretion in allowing the testimony at issue.                               As discussed

above,      the    district     court       granted      Eccleston’s        404(b)      Motion

prior to trial, thereby requiring the government to notify him

of   its    intent     to     introduce     evidence      of    uncharged         conduct    or

prior convictions.            In setting forth his 404(b) argument before




from the impression left that the Appellant was a recidivist,
because the agent was the last witness called and any curing
instruction would have only highlighted the point.”).



                                              41
this Court, Eccleston states that a case agent made reference to

Eccleston’s   parole    and   probation   officer    on   the   last    day   of

trial.    His challenge is aimed at the testimony from James,

specifically the following exchange between Eccleston’s counsel

and James:

     Q.     Well you    knew he was staying there [at the
            residence   where Eccleston was living], didn’t
            you?

     A.     We suspected that he was staying there based on
            some   physical   surveillance  and   records,  I
            believe, we got from parole and probation. Yes.

J.A. 977.     This testimony, which was elicited by Eccleston’s

counsel, does not implicate Rule 404(b).            See Campbell, 935 F.2d

at 44.    Moreover, although Eccleston faults the district court

for its “refusal” to give a curative instruction, we note that

he never requested such an instruction at the time. 10                 Further,

when discussing the jury instructions after the conclusion of

all testimony, Eccleston noted his exception to instructions 21,

22, 36, 37, 38, 39, and 40.          A review of those instructions

reveals that none addresses prior bad acts or uncharged conduct.

Given that the testimony was elicited by Eccleston’s counsel,

and given that there was no objection to the testimony, we find



    10  Eccleston erroneously states in his opening brief that a
bench conference followed and addressed potential prejudice
stemming from James’ testimony.      Rather, an unrelated bench
conference occurred prior to James’ testimony.



                                    42
that    the   district    court   did        not   abuse    its   discretion       in

permitting the testimony.

       We stress that the fact that Eccleston’s counsel elicited

the testimony is not dispositive.              Rather, we view that fact in

conjunction with the reality that Eccleston’s counsel failed to

request a curative instruction, the fact that the government did

not later refer to the challenged testimony in an attempt to

establish     Eccleston’s   general      character,    and    the    overwhelming

evidence      presented     by    the         government.           Under        these

circumstances, we cannot find that the district court abused its

discretion in permitting the testimony.                Even if the district

court did abuse its discretion, we find that the weight of the

government’s case against Eccleston rendered any error harmless.

See, e.g., United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)

(“Furthermore,     any    error   was    at    most   harmless      error.        The

evidence of Chin’s guilt provided in government videotapes and

audio recordings was overwhelming.”).



                                      VII.

       Eccleston   argues    that       the    evidence     presented       by    the

government did not support his conviction of the charges in the

indictment.      He contends that the jury note at issue in this

case demonstrates that the jurors did not think he was involved

in the crack cocaine aspect of the conspiracy.                      Moreover, he

                                        43
argues that the district court’s response to the jury note and

subsequent         amendment     of     the    verdict           form       resulted        in       an

impermissible         constructive       amendment             of    the     indictment           and

allowed the government “to have Mr. Eccleston convicted of a

conspiracy to distribute cocaine or crack; when he was charged

with conspiracy to distribute cocaine and crack.”                                     Opening Br.

of Appellant 14 (emphasis added).

       “We    review    a     district    court’s         decision          to    respond       to    a

jury’s question, and the form of that response, for an abuse of

discretion.”          United States v. Foster, 507 F.3d 233, 244 (4th

Cir.    2007).         And     “in    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).                         Reversal is warranted only

where    the       district    court’s       response          “is       prejudicial       in    the

context of the record as a whole.”                      Foster, 507 F.3d at 244.

       “A    constructive       amendment          to    an    indictment             occurs     when

either       the    government       (usually           during       its    presentation             of

evidence and/or its argument), the court (usually through its

instructions to the jury), or both, broadens the possible bases

for    conviction       beyond       those    presented             by     the    grand     jury.”

Foster, 507 F.3d at 242.                 Constructive amendments are “fatal

variances      because        ‘the    indictment         is     altered          to    change     the

                                              44
elements   of    the   offense   charged,     such    that   the    defendant    is

actually convicted of a crime other than that charged in the

indictment.’”      Id. (quoting United States v. Randall, 171 F.3d

195, 203 (4th Cir. 1999)).          We have stated that “[c]onstructive

amendments are error per se and, given the Fifth Amendment right

to be indicted by a grand jury, ‘must be corrected on appeal

even when not preserved by objection.’”                    Id. (quoting United

States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)).

In determining whether an amendment has occurred, “it is the

broadening itself that is important—nothing more.”                  Floresca, 38

F.3d at 711.      “The key inquiry is whether the defendant has been

tried on charges other than those made in the indictment against

him.”   Foster, 507 F.3d at 242-43; see also Floresca, 38 F.3d at

710   (“The     court’s   instruction       . . .    was    more   than   just   a

misstatement of the law applicable to the indicted offense; it

stated a distinct, unindicted offense.               It was by no means only

a slight defect in the charge [that] could be cured by other

circumstances.”           (internal     quotation      marks       and    footnote

omitted)).

      The district court’s amendment of the jury verdict form did

not create a variance.           The fourth superseding indictment uses

the conjunctive term “and.”           The thrust of Eccleston’s argument

is that the district court’s response to the jury note resulted

in a constructive amendment because it altered the language of

                                       45
the verdict form from permitting only a finding of conspiracy to

distribute powder and crack cocaine, to instead allowing the a

finding of conspiracy to distribute powder and/or crack cocaine.

But this change does not appear so starkly in the record.     The

original verdict form read:

     How do you find the defendant, Xavier Eccleston, as to
     Count   One  of  the  Fourth   Superseding  Indictment
     (conspiracy to distribute and possess with intent to
     distribute cocaine and/or crack cocaine), guilty or
     not guilty?

              Guilty ______          Not Guilty ______

     If you find the defendant not guilty of Count One,
     proceed to Question Two below.       If you find the
     defendant, Xavier Eccleston, guilty as to Count One,
     how do you find as to the amount of cocaine
     attributable to the defendant, Xavier Eccleston?

J.A. 1042 (emphasis added).   The revised form read:

     How do you find the defendant, Xavier Eccleston, as to
     Count   One  of  the  Fourth   Superseding  Indictment
     (conspiracy to distribute and possess with intent to
     distribute cocaine and/or crack cocaine), guilty or
     not guilty?

              Guilty ______          Not Guilty ______

     If you find the defendant not guilty of Count One,
     proceed to Question Two below.      If you find the
     defendant, Xavier Eccleston, guilty as to Count One,
     which drug do you unanimously agree was involved in
     the conspiracy?

          Powder Cocaine _______
          Crack Cocaine _______
          Both powder cocaine and crack cocaine ______




                                46
J.A. 1045 (underlined text appears in original indictment, and

bolded portion added to revised verdict form).               Aside from the

bolded text above, the two verdict forms are identical.

     As is clear from the text above, the verdict form always

provided a disjunctive option to the jury.                 This makes sense

because “[i]t is well settled that conjunctive indictment . . .

permits disjunctive consideration of guilt.”               United States v.

Champion, 387 F.2d 561, 563 n.6 (4th Cir. 1967).                  The Supreme

Court has stated that “[t]he general rule is that when a jury

returns a guilty verdict on an indictment charging several acts

in the conjunctive, . . . the verdict stands if the evidence is

sufficient with respect to any one of the acts charged.”                 Turner

v. United States, 396 U.S. 398, 420 (1970); see also United

States     v.   Montgomery,   262   F.3d    233,     242   (4th   Cir.    2001)

(reiterating      that   “[w]here    a     statute    is    worded   in     the

disjunctive, federal pleading requires the Government to charge

in the conjunctive.        The district court, however, can instruct

the jury in the disjunctive” (citation omitted)).

     Indeed, this Circuit rejected an argument identical to that

advanced by Eccleston, albeit in an unpublished opinion.                    See

United States v. Davis, 270 F. App’x 236, 242 n.2 (4th Cir.

2008) (unpublished).       There, we observed that while the statute

prohibiting distribution of cocaine or cocaine base is written

in   the    disjunctive,      the   indictment       was   charged   in     the

                                     47
conjunctive.          Id.        The    jury    instructions,       like    the   statute,

“allowed conviction if either drug was found to be within the

scope   of    the     conspiracy        in     the   relevant      amount.”       Id.      We

nonetheless determined that “this seeming discrepancy does not

actually     pose     a   meaningful          variance,    and     certainly      does    not

undermine     Appellants’         convictions.”            Id.   (citing      Turner,     396

U.S. at 420).             Similarly, we do not find that the district

court’s      amendment       of    the        jury   verdict     form      here   posed     a

meaningful variance.              The amendment simply required the jury to

specify which drug or drugs were involved in the conspiracy.                              We

thus hold that the district court did not abuse its discretion

by amending the verdict form.

     Aside from the verdict form, Eccleston mistakenly contends

that the district court amended Instruction No. 47 to read in

the disjunctive.            The district court stated only that it had

amended the verdict form in order to clarify Instruction No. 47.

Accordingly,        the      court      provided       a    copy     of    the    existing

instruction, explained the instruction, and provided a revised

verdict      sheet.         By    way    of    explanation,        the    district      court

stated:

     In response to your note, I am clarifying Instruction
     No. 47, a copy of which I am providing to you. . . .
     You may find the defendant guilty of Count One if you
     find that the conspiracy involved powder cocaine or
     crack cocaine or both, but you must be unanimous as to
     which form of cocaine was involved.    I am submitting


                                                48
       to you a slightly revised verdict form to reflect the
       instruction.

J.A. 1040.         The instruction itself was originally written in the

disjunctive,         and       thus        the     court’s          explanation          did     not

meaningfully alter the instruction.                          See J.A. 1041 (Instruction

No.   47)    (“The    first         element      which       the    government        must     prove

beyond a reasonable doubt to establish the offense of conspiracy

is    that   two     or    more      persons       entered         the    unlawful      agreement

charged,      which       is   to    distribute          and    possess        with     intent    to

distribute cocaine or cocaine base.”                         (emphasis added)).

       In    any    event,     as     discussed         above,      the       statute    at    issue

prohibits the distribution of cocaine or cocaine base in the

disjunctive.          See       21    U.S.C.           § 841.        Accordingly,         it     was

permissible for the government to charge in the conjunctive and

for the district court to instruct the jury in the disjunctive.

See Montgomery, 262 F.3d at 242; Davis, 270 F. App’x at 242 n.2.

The    district       court       thus      did        not   abuse       its     discretion       by

clarifying Instruction No. 47.



                                              VIII.

       Eccleston argues that the district court erred in refusing

to give the jury an instruction on multiple conspiracies or an

instruction        stating          that    mere        presence         or     association      is

insufficient for a conviction of a conspiracy charge.                                     Similar


                                                  49
to his arguments about constructive amendment of the indictment,

he     believes     that   the    jury       note    at    issue       in   this     case

demonstrates that the jurors did not think he was involved in

the crack cocaine aspect of the conspiracy.

       We review a district court’s decision to refuse to give a

jury    instruction    for   abuse      of   discretion.         United     States    v.

Passaro, 577 F.3d 207, 221 (4th Cir. 2009).                     The refusal to give

a requested instruction constitutes reversible error “only when

the    instruction    ‘(1)   was     correct;       (2)   was    not    substantially

covered by the court’s charge to the jury; and (3) dealt with

some point of the trial so important, that failure to give the

requested instruction seriously impaired the defendant’s ability

to conduct his defense.’”           Id. (quoting United States v. Lewis,

53 F.3d 29, 32 (4th Cir. 1995)).                    “Even if these factors are

met,     however,     failure      to    give       the   defendant’s        requested

instruction is not reversible error unless the defendant can

show that the record as a whole demonstrates prejudice.”                           United

States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

                                         A.

       Eccleston argues that the jury’s note shows that the jury

did not think he was selling crack cocaine.                      Even if this were

true, the jury properly could have found Eccleston guilty of

conspiracy    to     distribute      either     form      of    the    drug,   as    was



                                         50
discussed above.       Thus, a multiple conspiracy charge would not

have cured the problem that he attributes to the jury’s note.

      An instruction on multiple conspiracies is necessary only

“‘if such an instruction is supported by the facts.’                        Hence,

‘[a] multiple conspiracy instruction is not required unless the

proof at trial demonstrates that appellants were involved only

in   separate   conspiracies   unrelated       to     the    overall   conspiracy

charged in the indictment.’”       Bartko, 728 F.3d at 344 (citation

omitted).       Moreover,   failure     to     give    the    instruction      when

required “is not reversible error unless a defendant can show

that this caused him substantial prejudice.”                   United States v.

Tipton, 90 F.3d 861, 883 (4th Cir. 1996).               Substantial prejudice

exists   when   “the   evidence   of    multiple       conspiracies”      is     “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.”                  Id.

      Moreover, we have held that “[w]hether there is a single

conspiracy or multiple conspiracies depends upon the overlap of

key actors, methods, and goals.”            United States v. Stockton, 349

F.3d 755, 762 (4th Cir. 2003).              On the other hand, “[a] single

conspiracy exists where there is ‘one overall agreement,’ or

‘one general business venture.’”             United States v. Leavis, 853

F.2d 215, 218 (4th Cir. 1988).               There need not be continuous

activity to constitute a single conspiracy.                    Id.     “Our focus

                                       51
must be not on the timing of the conspiracy’s operations, but on

whether it functioned as an ongoing unit.”                     Id. at 219.

       Here, there was little to no evidence that Eccleston was

involved in a separate conspiracy unrelated to that charged in

the indictment.        Rather, there was testimony that Eccleston was

involved in a cocaine enterprise that centered around his co-

defendant, Whitehurst.             Several witnesses identified Eccleston

as    purchasing     amounts       of   powder    cocaine       in   excess     of     that

typically     obtained       for   personal      use.      Witnesses        also   placed

Eccleston in at least two of the drug ring’s stash houses during

the    sale   of     crack    cocaine.         Additionally,         audio     tapes    of

wiretapped phone calls detailing sales were played for the jury.

This evidence points to a single conspiracy.

                                          B.

       Eccleston      additionally        argues        that     mere       presence     or

association is insufficient to support a charge of conspiracy.

He contends that the evidence clearly shows that he was not part

of the charged conspiracy, and that the jury instead found him

guilty of conspiracy based solely on his presence in the stash

houses   or    his    association       with     others    who       were    engaged    in

illegal activity.

       In explaining why it rejected certain jury instructions,

the district court noted that Eccleston “had a request for a

separate instruction on association and presence which the Court

                                          52
found    was    already      contained        in     the    conspiracy       instructions.”

J.A. 995.       We agree.             The court instructed the jury that “the

government must prove that there was a mutual understanding,

either      spoken    or     unspoken,        between        two    or     more    people    to

cooperate with each other to accomplish an unlawful act.”                                   J.A.

1041    (Jury    Instruction            No.   47).         The     requirement       that    the

government          prove         a      mutual       understanding               sufficiently

communicates that both Eccleston and any other person with whom

he allegedly conspired understood that Eccleston was part of the

conspiracy.          The    instructions           given     made     clear       that   simple

presence or association was insufficient for conviction.

       We    hold    that     the        district      court        did    not     abuse     its

discretion in refusing the requested instructions.



                                              IX.

       Finally,      Eccleston          challenges         his    sentence.         The     jury

attributed to him less than 28 grams of crack cocaine, as well

as between 500 grams and 5 kilograms of powder cocaine to him.

Eccleston       argues       that       the   district           court     thus     erred    in

attributing to him for sentencing purposes more than 28 grams of

crack cocaine to him, and in attributing 16 kilograms of powder

cocaine.       “We review the sentence imposed by a district court

under a ‘deferential abuse-of-discretion standard.’                                 We review

factual     findings        for       clear   error,       and     legal    conclusions       de

                                               53
novo.”      United States v. Davis, 679 F.3d 177, 182 (4th Cir.

2012) (citation omitted).

       Contrary     to    Eccleston’s   contention,      the   district       court

attributed less than 28 grams of crack cocaine to him. 11                      See

J.A.     1078.      The    district     court     then   concluded     that     the

appropriate base offense level was 34. 12                Next, it raised the

offense     level    to     36   due    to   an    obstruction    of      justice



       11
        Although Eccleston argued in the district court that no
amount of crack cocaine should be attributable to him as
relevant conduct, he does not explicitly advance that argument
here.   Even if he did, we would review the district court’s
determination of the drug quantity attributable to him only for
clear error.   United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999). For sentencing purposes, a defendant is accountable
for “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,” which
“occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.”        USSG
§ 1B1.3(a)(1)(B); see also United States v. Williams, 986 F.2d
86, 90 (4th Cir. 1993) (“A defendant convicted of conspiracy
should be sentenced not only on the basis of his conduct, but
also on the basis of conduct of coconspirators in furtherance of
the conspiracy that was known to the defendant or reasonably
foreseeable to him.”). Here, there is evidence in the record to
support the district court’s conclusion that it was foreseeable
to Eccleston that crack cocaine would be sold as part of the
conspiracy.   Witness testimony established that he was present
in the stash houses while his coconspirators sold crack cocaine.
Indeed, Rainey’s testimony established that the conspiracy sold
crack cocaine at a rate of 3 ounces per day, or 2.25 kilograms
per month, for 16 months. Given this witness testimony, we find
that the district court did not clearly err in attributing less
than 28 grams of crack cocaine to Eccleston.
       12
        This base offense level incorporated both the powder and
crack cocaine.



                                        54
enhancement.         Eccleston’s trial counsel confirmed that the base

offense level of 34 was correct.                 See J.A. 1076-78 (arguing that

no crack cocaine at all should be attributed to Eccleston, but

conceding      that   if   less    than    28    grams    of   crack    cocaine     were

attributed him, the base offense level would be 34).                          We thus

reject Eccleston’s argument that the district court erred in

attributing to him less than 28 grams of crack cocaine.

      In arguing that the district court erred in attributing 16

kilograms of powder cocaine to him, 13 Eccleston relies primarily

on   Alleyne    v.    United   States,      133    S.    Ct.   2151    (2013),     which

expressly overruled the Supreme Court’s decision in Harris v.

United States, 536 U.S. 545 (2002).                      Alleyne, 133 S. Ct. at

2155.       Specifically,         the    Court    held    “that       any   fact    that

increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.”            Id.    Here, however, the facts at issue

-- the amount of powder cocaine attributable to Eccleston -- did

not serve to increase a mandatory minimum, and thus Alleyne does



      13As indicated above, the jury attributed only between 500
grams and 5 kilograms of powder cocaine to Eccleston.         In
attributing 16 kilograms to Eccleston for sentencing purposes,
the district court accepted the government’s analysis of
Rainey’s testimony.      The government pointed to Rainey’s
testimony that the drug operation “moved about a kilogram a
month” during the course of the 16 month conspiracy. J.A. 1066.
Eccleston does not challenge these calculations except to say
that the amount is “clearly in excess of the jury’s finding.”
Opening Br. of Appellant 50.



                                           55
not apply.       See United States v. Benn, 572 F. App’x 167, 180

(4th    Cir.    2014)   (unpublished)     (“The   district   court’s    drug

quantity       determinations   at      sentencing   did     not   increase

Appellants’ statutory mandatory minimum sentences, but rather,

were used to determine their advisory Guidelines ranges (from

which, in any event, the district court varied downward).”) 14            We

thus reject Eccleston’s argument that the district court erred

in its attribution of powder cocaine during sentencing.



                                     X.

       For the foregoing reasons, the judgment of the district

court is

                                                                   AFFIRMED.




       14   The district court here also varied downward.



                                     56
