US v. Amanza Pollino, No. 08-4183 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4183 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AMANZA JAMES POLLINO, a/k/a Jiggy, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:07-cr-00046-jpj-pms-1) Submitted: March 30, 2009 Decided: May 1, 2009 Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Joel C. Hoppe, Assistant Federal Public Defender, Charlottesville, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Amanza James Pollino of conspiracy to possess with intent to distribute and to distribute five grams or more of cocaine §§ 841(b)(1)(B), 846 base, violation of and possession with (2006), in 21 U.S.C. intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B). imprisonment. insufficient He was sentenced to 120 months On appeal, Pollino argues: (1) the evidence was to support the jury s convictions; (2) the admission of evidence relating to a traffic stop of Pollino on April 12, 2007, created a prejudicial variance from the charges in the indictment and, as prior bad acts evidence under Fed. R. Evid. 404(b), it required a limiting instruction; and (3) the sentencing scheme for cocaine base offenses under 21 U.S.C. § 841 violates the Due Process and Equal Protection clauses. Finding no reversible error, we affirm. Pollino first challenges the sufficiency evidence to support the jury s convictions. of the This court reviews de novo a district court s denial of a motion, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal. Cir. 2005). United States v. Alerre, 430 F.3d 681, 693 (4th In conducting such a review, the court is obliged to sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, 2 the verdict is supported by substantial evidence. F.3d 849, 862 (4th Cir. 1996) United States v. Burgos, 94 (en banc) United States, 315 U.S. 60, 80 (1942)). (citing Glasser v. This court has defined substantial evidence as evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693 (internal quotation omitted); see Burgos, 94 F.3d at 862. circumstantial as well as direct and citation This court must consider evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In evaluating the sufficiency of the evidence, this court does assumes not that assess the the jury credibility resolved all testimony in favor of the Government. of the witnesses contradictions in and the United States v. Brooks, 524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008). This court can reverse a conviction on insufficiency grounds only when the prosecution s failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (internal quotation marks and citation omitted). To government prove must a prove conspiracy (1) an under 21 agreement U.S.C. between § 846, the two or more persons to engage in conduct that violates a federal drug law, 3 (2) the defendant s knowledge of the conspiracy, and (3) the defendant s knowing and voluntary participation conspiracy. United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); see Burgos, 94 F.3d at 857. nature, a frequently conspiracy resulting agreement. generally is in clandestine little direct Burgos, 94 F.3d at 857. is Circumstantial proved evidence by and to the By its very covert, evidence thereby of such an Therefore, a conspiracy circumstantial tending in prove evidence. Id. a may conspiracy consist of a defendant s relationship with other members of the conspiracy, the length of this association, [the defendant s] attitude [and] conduct and the nature of the conspiracy. Id. (internal quotations and citations omitted). To convict a defendant of possession with the intent to distribute, the government must prove: (1) possession of a narcotic controlled substance; (2) knowledge of the possession; and (3) the intent to distribute. F.3d 515, 519 (4th Cir. 2005). United States v. Collins, 412 A defendant is guilty of aiding and abetting if he has knowingly associated himself with and participated in the criminal venture. Burgos, 94 F.3d at 873 (internal quotation marks and citation omitted). Pollino s main contention on appeal is that the evidence linking him to crack cocaine was circumstantial, which is admittedly permissible, but, 4 in his case, too tenuous to establish beyond a reasonable requisite knowledge. doubt that he possessed the We have reviewed the record and we find sufficient evidence to sustain the jury s verdict. Accordingly, we find the district court did not err in denying Pollino s motion for acquittal as to both counts. Next, relating to prejudicial rights to Pollino the April variance due claims the 12, from process. 2007 the The introduction traffic indictment indictment conspiracy on or about June 20, 2007. of stop that charged evidence created a violated his Pollino with The indictment cites the same date for the second charge of possession with intent to distribute. The traffic stop occurred on April 12, 2007. Pollino argues that the admission into evidence of the April 12, 2007 stop and arrest constituted a prejudicial variance. Pollino further claims that the admission of this prior bad acts evidence under Fed. R. Evid. 404(b) required a limiting instruction to the jury. A variance occurs when the evidence presented at trial differs materially from the facts alleged in the indictment. United States v. Bollin, 264 F.3d 391, 405 (4th Cir. 2001). Only when the evidence presented at trial changes the elements of the crime charged, such that the defendant is convicted of a crime other than difference fatal. that charged in the indictment, is the United States v. Randall, 171 F.3d 195, 203 5 (4th Cir. 1999). A variance that does not alter the crime charged does not violate a defendant s constitutional rights unless it prejudices [him] either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense. Id. The district court concluded that the April 12, 2007 traffic stop evidence and but testimony subsequent rather as to arrest intrinsic both were not evidence counts. prior providing Pollino was bad acts relevant charged with conspiracy in count one and the alleged discrepancy in offense dates does not affect the essential elements of the crime. See United States v. Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997) (specific dates are not elements of conspiracy offense). therefore find admission of the contested evidence did We not create a fatal variance. Additionally, the district court properly admitted the evidence as intrinsic to the charged offense and not subject to 404(b). charged. Rule 404(b) only applies to acts extrinsic to the crime Where testimony is admitted as to acts intrinsic to the crime charged, and is not admitted solely to demonstrate bad character, it is admissible. 88 (4th Cir. inextricably 1996). intertwined United States v. Chin, 83 F.3d 83, Acts or are both intrinsic acts are when part of they a are single criminal episode or the other acts were necessary preliminaries 6 to the crime charged. Id. (quoting United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)). other crimes crimes same . or for . uncharged Rule . 404(b) series Moreover, evidence of conduct is not purposes if it of considered arose transactions as out the other of the charged offense, . . . or if it is necessary to complete the story of the crime [on] trial. United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989)). Accordingly, we find the admission of the contested evidence did not require a limiting instruction. Last, Pollino argues that the sentencing scheme under 21 U.S.C. § 841 as it relates to cocaine base is unconstitutional because it is not proportional to sentences for powder cocaine and violates his rights to due process and equal protection. Pollino s constitutional merit. court repeatedly This has challenge rejected is claims without that the sentencing disparity between powder cocaine and crack offenses See United violates either equal protection or due process. States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (collecting cases); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990). We further note that Pollino s reliance on the Supreme Court s decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), is misplaced. Although the Court in Kimbrough found that district courts are permitted to disagree 7 with the policies underlying the Sentencing Guidelines, the Court neither found § 841 s penalty provisions unconstitutional nor overruled this court s previous holdings Id. at 572. constitutional challenges to the 100:1 ratio. Accordingly, sentence. legal before affirm Pollino s convictions and We dispense with oral argument because the facts and contentions the we rejecting court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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