US v. Bruce Kilgore, No. 08-4657 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4657 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE KILGORE, Defendant - Appellant. No. 08-5200 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY MOODY, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:06-cr-00066-RWT-11; 8:06-cr-00066-RWT-12) Submitted: September 16, 2010 Decided: November 19, 2010 Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In Timothy these Moody consolidated appeal their appeals, Bruce convictions for Kilgore one count and of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (2006). appeals his sentence. Both admitting conspirator. evidence of Finding no error, we affirm. Appellants evidence Kilgore also of claim them the district discussing court erred by a co- murdering Moody also claims the court erred by admitting his involvement in the conspiracy that extended beyond the date indicated in the superseding indictment. of a district court s determination of the Review admissibility evidence under Rule 404(b) is for abuse of discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). of See In general, any evidence which tends to make the existence of a fact of consequence to an issue in the case more probable or less probable than without the evidence is relevant under Fed. R. Evid. 401 and therefore generally admissible under Fed. R. Evid. 402. Evidence of other crimes is not admissible to prove bad character or criminal propensity. Such evidence is admissible, Fed. R. Evid. 404(b). however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 3 Id.; see Queen, 132 F.3d at 994. Rule 404(b) is an inclusive rule, allowing evidence of other crimes or acts criminal disposition. except that which tends to prove only See Queen, 132 F.3d at 994-95. Evidence of prior acts is admissible under Rule 404(b) and Fed. R. Evid. 403 if the evidence is (1) relevant to an issue other than the general character of the defendant, (2) necessary, (3) reliable, and (4) if the probative value of the evidence is not substantially outweighed by its prejudicial effect. Queen, 132 F.3d at 997. A limiting jury instruction explaining the purpose for admitting evidence of prior acts and advance notice of the intent to introduce evidence of prior acts See id. provide additional protection to defendants. We discretion conclude by the admitting district the court challenged did not its In evidence. abuse both instances, the evidence was intrinsic to the charged conspiracy and was relevant opportunity. to the issues of intent, motive, and Furthermore, the evidence highlighted the extent to which both Appellants were committed to the conspiracy. Insofar continuing in as the Moody claims conspiracy after that the evidence on or of him about date charged in the indictment constructively amended the indictment or was a fatal variance, we find no error. amendment to an indictment occurs when . . . A constructive the government (usually during its presentation of evidence and/or argument), 4 the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented to the grand jury. United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). A constructive amendment is a fatal variance because the indictment is altered to change the elements of the offenses charged, such that the defendant is actually convicted of a crime other than that charged in the indictment. United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal quotation marks and citation omitted). A constructive amendment is error per se, and, given the Fifth Amendment right corrected on to be appeal, indicted even when by not a grand jury, preserved by must be objection. Floresca, 38 F.3d at 714. When considering a constructive amendment claim, it is the broadening [of the bases for a defendant s conviction] that is important - nothing more. Id. at 711. The key inquiry is whether the defendant has been tried on charges other than those made in the indictment. See id. The beginning and ending dates of a conspiracy are not elements of the offense, so proof of different dates could never raise the specter of conviction for a different crime. See United States v. Hatten-Lubick, 525 F.3d 575, 581 (7th Cir. 2008); see also Queen, 132 F.3d at 999 (dates of offense). conspiracy are not substantive elements of the We conclude there was no constructive amendment to 5 the superseding indictment. We further note the jury was instructed that it could not convict Moody based solely on the challenged evidence and that the evidence was admitted for the purpose of providing conspiracy. context and more information about the See United States v. Paredes-Rodriguez, 160 F.3d 49, 56 (1st Cir. 1998) (any potential prejudice by the admission of pre-conspiracy evidence was prevented by the court s jury instruction); United States v. Gonzalez, 661 F.2d 488, 492 (11th Cir. 1981) (no constructive amendment when jury was instructed that it was limited indictment). variance to We the to further the conspiracy conclude indictment. that Moody charged there failed in was no to the fatal show his United States v. Kennedy, 32 substantial rights were violated. F.3d 876, 883 (4th Cir. 1994). Moody s claim that he was entitled to a mistrial or a severance based on Kilgore s testimony is without merit. failed to making a show Kilgore s reliable testimony judgment about prevented his the criminal Moody jury from conduct. See United States v. Allen, 491 F.3d 178, 189 (4th Cir. 2007). did Kilgore s testimony unveil a asserted by the two Appellants. stark contrast in Nor defenses See United States v. Najjar, 300 F.3d 466, 474 (4th Cir. 2002). Kilgore argues that the district court erred at sentencing when it considered the differences between himself 6 and two co-defendants prior to finding that his sentence would not result § 3553(a)(6). in an unwarranted We conclude See 18 court the disparity. not abuse did U.S.C. its discretion as there was no unwarranted disparity. Accordingly, we affirm the convictions and sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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