Filed:   October 24, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                            Nos. 98-4049(L)
                            (CR-96-458-WMN)



United States of America,

                                                  Plaintiff - Appellee,

           versus


Allen Jett, a/k/a Al, et al.,

                                               Defendants - Appellants.



                               O R D E R



     The court grants Appellants’ motion to allow filing of tran-

script of oral arguments, grants panel rehearing, denies rehearing

en banc, and amends its opinion filed September 18, 2001, as

follows:

     On page 5, first paragraph, line 2 -- the name “Antoine

Marshall” is cut from line 2 and inserted into line 5 after the

name “Allen Jett” -- “Appellants Allen Jett, Antoine Marshall, and

Rodney Montgomery ....”
                                   - 2 -




     On    page   25,   first   full   paragraph,   line   1   --   the   name

“Marshall” is inserted after the name “Jett” -- “Jett, Marshall,

and Montgomery ....”

     On page 26, first paragraph, lines 2-4 -- the first and second

sentences on the page are re-written as follows: “We also conclude

that Montgomery’s sentence of 292 months and Marshall’s sentence of

264 months affected their substantial rights.              Montgomery and

Marshall were convicted only of the drug trafficking count, and

accordingly were each subject to a statutory maximum penalty of 240

months.”    The rest of the paragraph remains the same.

     Entered at the direction of Judge Wilkins, with the concur-

rence of Judge Widener and Judge Luttig.

                                           For the Court




                                              /s/ Patricia S. Connor
                                                       Clerk
            Rehearing granted, October 24, 2001 for the limited purpose of amending opinion




UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 98-4049

ALLEN JETT, a/k/a Al,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                No. 98-4213
DARNELL MICHAEL JONES, a/k/a
Mookie,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                No. 98-4288
JERRY ANTONIO WILLIAMS, a/k/a
Black Jerry,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 98-4307
WARREN DEVON HILL, a/k/a Red
Dog,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 98-4319
ANTOINE DEPAUL MARSHALL, a/k/a
Chim Chim,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                 No. 98-4331
ALAN VINCENT CHAPMAN, a/k/a
Walli,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 98-4332

JOHN LEVI BENTON, a/k/a Levi,
Defendant-Appellant.

                2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                           No. 98-4351
RODNEY MONTGOMERY, a/k/a Boonie,
a/k/a Black,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                           No. 99-4019
VICTOR UNDERWOOD, a/k/a Little
Vic,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-96-458-WMN)

Argued: April 3, 2001

Decided: September 18, 2001

Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, dismissed in part, and vacated and remanded in part
by unpublished opinion. Judge Wilkins wrote the opinion, in which
Judge Widener and Judge Luttig joined.

_________________________________________________________________

                   3
COUNSEL

ARGUED: Arcangelo Michael Tuminelli, Baltimore, Maryland; Wil-
liam Scott Little, STARK & LITTLE, Baltimore, Maryland; Stephen
Clayton Gordon, FEDERAL PUBLIC DEFENDER'S OFFICE,
Raleigh, North Carolina; Fred Warren Bennett, BENNETT &
NATHANS, Greenbelt, Maryland; Thomas Turner Ruffin, Jr., Wash-
ington, D.C., for Appellants. Jamie M. Bennett, Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
Nancy M. Cohen, Towson, Maryland, for Appellant Jett; David P.
Henninger, LAW OFFICES OF DAVID P. HENNINGER, Bel Air,
Maryland, for Appellant Hill; George A. Dubois, FEDERAL PUB-
LIC DEFENDER'S OFFICE, Raleigh, North Carolina, for Appellant
Montgomery; William B. Purpura, Baltimore, Maryland, for Appel-
lant Chapman; David R. Solomon, Baltimore, Maryland, for Appel-
lant Underwood. Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Following a lengthy trial, Appellants1 were convicted of various
crimes in connection with their participation in a massive narcotics
operation in Baltimore, Maryland. Appellants now raise numerous
challenges to their convictions and sentences. With the exception of
Appellant Jerry Williams' ("J. Williams") claim of ineffective assis-
tance of counsel, which we dismiss, we reject Appellants' challenges
_________________________________________________________________

1 Appellants are Allen Jett, Darnell Michael Jones, Jerry Antonio Wil-
liams, Warren Devon Hill, Antoine Depaul Marshall, Alan Vincent
Chapman, John Levi Benton, Rodney Montgomery, and Victor Under-
wood.

                    4
to their convictions. We further conclude that Appellants Darnell
Jones ("D. Jones"), Warren Hill, and Victor Under-
wood have failed to demonstrate plain error with respect to their chal-
lenges under Apprendi v. New Jersey, 

 (2000). However,
because J. Williams and Appellants Allen Jett, Antoine Marshall, and Rodney
Montgomery have demonstrated plain error under Apprendi, and because
United States v. Cotton, 

 (4th Cir. Aug. 10, 2001),
compels us to notice the error, we vacate those Appellants' sentences
and remand for resentencing.

I.

Beginning in the late 1980s, Anthony Jones ("A. Jones") operated
an increasingly large and violent drug distribution ring ("the Jones
organization") in east Baltimore, Maryland. During part of the period
relevant to this appeal, Montgomery supplied the organization with
heroin and cocaine. Marshall and others repackaged the cocaine for
street-level sales. Marshall also transported cocaine from New York
to Baltimore.

As a means of protecting the organization and fostering a reputa-
tion as one to be feared and respected, A. Jones engaged in or directed
acts of violence against others. For example, in the fall of 1994, A.
Jones and D. Jones shot Keith Westmoreland to death because West-
moreland was suspected of providing information to law enforcement
authorities. On another occasion, Jett, who served as an enforcer for
the Jones organization, murdered Walter Green ("W. Green") at
A. Jones' direction because W. Green had made disparaging remarks
about A. Jones.

In early 1995, DeShane Carter ("D. Carter"), a partner of A. Jones',
became involved in an altercation with Anthony Green ("A. Green"),
a close associate of rival drug dealer Elway Williams ("E. Williams").
As a result of animosity stemming from that altercation, A. Jones and
D. Carter murdered A. Green on March 31, 1995, sparking an ongo-
ing feud between the Jones organization and the Williams organiza-
tion. E. Williams subsequently hired Mark Coles and Appellants Hill
and Chapman, known collectively as the "Young Guns," as enforcers.
In October 1995, the Young Guns murdered D. Carter.

                    5
In the ensuing months, A. Jones and members of his organization
repeatedly attempted to locate and kill E. Williams. There were also
other acts of violence between the two organizations. For example, on
January 25, 1996, Jett and another member of the Jones organization
engaged in a shootout with the Young Guns. Coles was wounded dur-
ing the shootout, and a friend of his who had no involvement in the
drug business, Glen Wilson, was killed. As a result of the ongoing
violence, both organizations were forced to limit their drug dealing
activities, causing lost profits for all concerned.

In early February 1996, Appellant John Benton, who is Chapman's
uncle, decided to attempt to broker a truce in an effort to save his
nephew's life. Benton contacted Daniel Ross, an acquaintance of
Benton's and a close associate of A. Jones'. At a meeting arranged
by Ross, the Young Guns agreed to murder E. Williams in exchange
for A. Jones' promise to forgo his efforts to kill them. On February
26, the Young Guns persuaded E. Williams and his driver, Derrick
Rivers, to give them a ride to Coles' house. E. Williams and Rivers
were in the front of the vehicle, and Coles, Chapman, and Hill were
in the rear. During the drive to Coles' house, Chapman asked Rivers
to pull down a side street so that the group could purchase alcohol at
a bar. When the automobile came to a stop, Chapman, Hill, and Coles
began firing their weapons. Rivers was killed almost immediately. E.
Williams was severely wounded but managed to escape.

After the shooting, Benton took the Young Guns to a safe house.
At that time, the Young Guns and Benton believed that E. Williams
had been killed, and A. Jones was so informed. Benton left the safe
house briefly and returned with $15,000 he had obtained from Ross
and A. Jones; he distributed $3,000 each to Chapman, Hill, and Coles
(leaving $6,000 unaccounted for). When it was learned that E. Wil-
liams had not died in the shooting, the Young Guns and A. Jones
engaged in further attempts to take E. Williams' life. These efforts
were ultimately abandoned, apparently due to A. Jones' incarceration
on firearms charges in 1996.

While incarcerated, A. Jones continued to mastermind efforts to
eliminate those perceived as a threat to the Jones organization. In May
1996, Jett killed Octavian Henry, a member of the organization who
was suspected of providing information to law enforcement authori-

                    6
ties. In February 1997, an attempt was made on the life of Angelo
Carter ("A. Carter"), another member of the Jones organization who
was suspected of being an informant. In a fairly elaborate set up, D.
Jones and J. Williams, who was an enforcer for the Jones organiza-
tion, invited A. Carter to D. Jones' house; after A. Carter arrived, D.
Jones asked him and J. Williams to go to a nearby restaurant for some
food. What D. Jones and J. Williams knew, but A. Carter did not, was
that the restaurant was to be the scene of an ambush. As J. Williams
and A. Carter waited for their takeout order, Underwood entered the
store and spoke briefly to the pair. As Underwood was leaving, he
shot A. Carter in the leg. At about this time, a bystander observed a
vehicle pull up in front of the restaurant and saw its occupants fire
several shots at A. Carter, who was fleeing the restaurant on foot. One
of these shots, or possibly another from Underwood, hit A. Carter in
the back as he was running. A. Carter survived the attack.

Based upon this evidence, Appellants were convicted of the follow-
ing crimes:

       - Conspiracy to commit murder in aid of racketeering
       (E. Williams), see 18 U.S.C.A. § 1959(a)(5) (West
       2000): Benton, Chapman, Hill, Jett, and J. Williams;

       - Murder in aid of racketeering (Rivers), see 18 U.S.C.A.
       § 1959(a)(1) (West 2000): Chapman and Hill;

       - Attempted murder in aid of racketeering (E. Williams),
       see 18 U.S.C.A. § 1959(a)(5): Chapman and Hill;

       - Murder in aid of racketeering (Westmoreland), see 18
       U.S.C.A. § 1959(a)(1): D. Jones;

       - Conspiracy to retaliate against witnesses (Henry and
       A. Carter), see 18 U.S.C.A. § 371 (West 2000): D. Jones,
       Jett, Underwood, and J. Williams;

       - Conspiracy to distribute heroin and cocaine, see 21
       U.S.C.A. § 846 (West 1999): All Appellants except Ben-
       ton.

                    7
Appellants now raise numerous challenges to their convictions and
sentences.

II.

All Appellants challenge rulings of the district court denying their
motion to sever and rejecting their claim that the Government exer-
cised its peremptory strikes in a racially discriminatory manner. We
conclude that both challenges lack merit.

A.

Prior to trial, the district court denied Appellants' motion for sever-
ance under Federal Rule of Criminal Procedure 14. Appellants chal-
lenge this ruling on appeal, maintaining that they were prejudiced by
the joint trial. We reject this contention.

Federal Rule of Criminal Procedure 8(b) provides that "[t]wo or
more defendants may be charged in the same indictment . . . if they
are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or
offenses." Ordinarily, defendants who are indicted together should be
tried together; joint trials "promote efficiency and serve the interests
of justice by avoiding the scandal and inequity of inconsistent ver-
dicts." Zafiro v. United States, 

, 537 (1993) (internal
quotation marks omitted).

A district court may sever defendants if a joint trial will prejudice
the defendant or the Government. See Fed. R. Crim. P. 14. The propo-
nent of severance bears the burden of demonstrating that a joint trial
will cause actual prejudice. See United States v. Reavis, 

,
767 (4th Cir. 1995). Because "a certain amount of conflict among
defendants is inherent in most multi-defendant trials," United States
v. Smith, 

, 1267 (4th Cir. 1995), a defendant desiring
severance "must show more than merely that a separate trial would
offer . . . a better chance of acquittal," United States v. Spitler, 

, 1271 (4th Cir. 1986) (internal quotation marks omitted).
Rather, severance is appropriate "only if there is a serious risk that a
joint trial would compromise a specific trial right of one of the defen-

                    8
dants, or prevent the jury from making a reliable judgment about guilt
or innocence." Zafiro, 506 U.S. at 539. A district court possesses
broad discretion in ruling on a motion for severance. See Smith, 44
F.3d at 1266.

We conclude that the district court did not abuse its discretion in
denying the severance motion. In the first place, we note that only Jett
makes any specific argument regarding prejudice. He maintains that
the evidence against him was weak and that the jury "would likely
have reached a different result" had it not been presented with evi-
dence admissible only against Jett's codefendants. Br. of Appellants
at 36. The remaining Appellants argue generally that they presented
inconsistent defenses and that the mass of evidence made it impossi-
ble for the jury to separately assess the culpability of each defendant.
None of these arguments persuades us that the district court abused
its discretion. We have consistently refused to reverse the denial of
a motion for severance when the verdict returned by the jury "demon-
strate[s] its ability to follow the instructions and match evidence with
defendants and counts." United States v. Riley, 

, 125 (4th
Cir. 1993); see, e.g., United States v. Ford, 

, 1361 (4th
Cir. 1996). Here, the jury demonstrated its ability to "match evidence
with defendants and counts" when it acquitted Benton of the drug
conspiracy charge. We therefore affirm the denial of the motion for
severance.

B.

During the course of jury selection, the Government used eight of
its 12 peremptory challenges to strike black female venire members.
Appellants objected to the Government's use of its peremptory chal-
lenges under Batson v. Kentucky, 

 (1986), and its progeny,
arguing that the Government had discriminated on the basis of race
in exercising its challenges, thereby violating the Equal Protection
Clause. We conclude that the district court did not err in rejecting
Appellants' Batson claim.

The exercise of peremptory challenges by the Government in a
racially discriminatory manner violates the Equal Protection Clause.
See Batson, 476 U.S. at 89. A defendant who challenges the exercise
of a peremptory challenge on equal protection grounds bears the bur-

                    9
den of proving intentional discrimination by the Government. See id.
at 93 ("As in any equal protection case, the burden is, of course, on
the [party] who alleges discriminatory selection . . . to prove the exis-
tence of purposeful discrimination." (internal quotation marks omit-
ted)). The Supreme Court has delineated a burden-shifting procedure
for courts to follow in analyzing a claim of purposeful discrimination
in the jury selection process. See Evans v. Smith, 

, 312
(4th Cir. 2000), cert. denied, 

 (2001). The party rais-
ing the equal protection challenge must first establish a prima facie
case of purposeful discrimination in the selection process, in light of
all of the "relevant circumstances, including whether there has been
a pattern of strikes against members of a particular race." Edmonson
v. Leesville Concrete Co., 

, 631 (1991). Once a prima
facie case of discrimination is established, the burden shifts to the
party whose conduct is challenged to come forward with a nondis-
criminatory explanation for the use of the peremptory strike. See Pur-
kett v. Elem, 

, 767 (1995) (per curiam). To satisfy this
burden, the party need offer only a race-neutral explanation for the
strike; the reason need not be worthy of belief or related to the issues
to be tried or to the prospective juror's ability to provide acceptable
jury service. See id. at 767-68. The trial court must then decide
whether the party challenging the selection process has proven that
the decision to exercise the strike was motivated by racial bias. See
id. at 767. "A finding by the district court concerning whether a
peremptory challenge was exercised for a racially discriminatory rea-
son is given great deference by this court; we review that finding only
for clear error." Jones v. Plaster, 

, 421 (4th Cir. 1995);
see Hernandez v. New York, 

, 365 (1991) (plurality opin-
ion) (explaining that "the best evidence [regarding discriminatory pur-
pose] often will be the demeanor of the attorney who exercises the
challenge," evaluation of which "lies peculiarly within a trial judge's
province" (internal quotation marks omitted)).

Here, the district court initially ruled that Appellants had made out
a prima facie case of a Batson violation. Although the court later
reversed itself on that point, it did so only after the Government had
proffered its explanations for the challenged strikes. And, the court
ruled that even if it assumed that Appellants had made out a prima
facie case, the Government had proffered race-neutral explanations
for the challenged peremptory strikes and Appellants had not demon-

                    10
strated that those explanations were pretextual. Accordingly, we con-
sider only the question of whether the district court committed clear
error in accepting the Government's explanations. See Hernandez,
500 U.S. at 359 (plurality opinion).

1. Venire Member #10186

The Government explained that it struck venire member #10186
because she had previously served on a jury that deadlocked and
because she lived in zip code 21206, close to the area in which the
criminal activity occurred. Both of these proffered explanations are
racially neutral. See Malone v. Vasquez, 

, 720 & n.13
(8th Cir. 1998) (holding that prosecutor's "experience [that] it was not
a good idea to have jurors who were familiar with the area of a crime"
was race-neutral reason for peremptory strike); United States v.
Rudas, 

, 41 (2d Cir. 1990) (holding that venire member's
prior service on hung jury was legitimate reason for peremptory
strike).

Appellants argue that the Government's "zip code" explanation is
implausible because the Government did not strike another venire
member who lived in zip code 21206 and did not strike venire mem-
bers who lived in zip code 21205, which is contiguous with the zip
code in which the criminal activity took place. See Purkett, 514 U.S.
at 768 (noting that an implausible explanation for a peremptory strike
may be evidence of purposeful discrimination). Even if we discredit
the Government's "zip code" explanation, however, a legitimate basis
for striking venire member #10186--her prior service on a dead-
locked jury--remains, and is unchallenged by Appellants.

2. Venire Members #10180 and #10158

The Government contended that it struck venire members #10180
and #10158 because it was concerned that they lacked the intellectual
capacity to serve as jurors. See United States v. Montgomery, 

, 453-54 (5th Cir. 2000) (affirming rejection of Batson chal-
lenge to strike assertedly based upon intellectual capacity of venire
member). Specifically, the Government noted that venire member
#10180 appeared to have been unable to complete the juror question-
naire; she responded "yes" to a question asking whether she lived in

                    11
an apartment or a single-family home, and responded "I don't know
what you mean" to a question asking her to describe her neighbor-
hood, misspelling the word "know." J.A. 262. Venire member #10180
also had difficulty answering the questions of the district court during
voir dire. The Government observed that venire member #10158's
questionnaire contained numerous misspellings and that she seemed
to have trouble understanding and responding to questions during voir
dire.

Appellants note that both venire members had completed high
school and had been employed for many years. At best, these facts
tend to undermine the Government's explanation for the strikes. Ulti-
mately, however, the district court was required to make a credibility
determination based on numerous factors including the demeanor of
counsel for the Government, and we cannot say that the district court
clearly erred in crediting the Government's explanation. See Ander-
son v. City of Bessemer City, 

, 575 (1985).

3. Venire Member #10109

The Government asserted that it struck venire member #10109 pri-
marily because she had a friend who had witnessed a shooting and
was in witness protection; the Government was concerned that the
experience of the venire member's friend "might have an intimidating
effect on [the venire member's] ability to support the government."
J.A. 264. The Government also cited the venire member's youthful
age (22) and concomitant lack of substantial community ties and the
fact that she lived in zip code 21207, near where the criminal activity
took place.

Appellants challenge the Government's explanations on two fronts.
First, they maintain that venire member #10109's employment as a
schoolteacher constituted a sufficient tie to the community. Even if
the facts regarding the venire member's employment would allow a
finding of racial bias, they do not demand such a finding. The con-
trary conclusion reached by the district court therefore was not clearly
erroneous. See United States v. Spriggs, 

, 1255 (D.C.
Cir. 1996) (per curiam) (holding that district court did not commit
clear error in crediting Government's explanation that it struck a
potential juror because it "was looking for . . . people who had raised

                    12
families in this city, people who have a stake in our community"
(internal quotation marks omitted)). Second, Appellants point out that
zip code 21207 is not near the area where the criminal activity took
place and that several other venire members lived in that zip code but
were not struck by the Government. Even if we accept Appellants'
argument on this point, Appellants do not challenge the primary basis
for the strike--that the venire member's association with someone in
witness protection might make her hesitant to vote to convict in a case
involving allegations of retaliation against Government witnesses.

4. Venire Members #10101 and #10099

The Government explained that it struck these venire members
because of concern that they might be biased against law enforcement
officers. Venire Member #10101 had been married to a Baltimore
City police officer with 30 years of service in the Eastern District of
Baltimore, the district where the criminal activity took place. The
Government asserted that certain responses given by this venire mem-
ber during voir dire caused the Government to question whether she
could be impartial, particularly given that the evidence at trial would
include allegations of police corruption. As to venire member #10099,
the Government explained that it believed she might be biased against
the police based on her statement during voir dire that, when her sister
had been robbed, the police did not respond as quickly as they should
have because of the neighborhood in which the crime took place.
Both of these explanations are race neutral. See United States v.
Gonzalez-Balderas, 

, 1222-23 (5th Cir. 1994) (accept-
ing, as nondiscriminatory, strike based on Government's concern that
venire member would be biased because of relation to police officers
who served in area that was subject of trial and as to which there
would be allegations of police corruption); United States v. Campbell,

, 249 (4th Cir. 1992) (holding that potential dissatisfac-
tion with police response to crime was proper basis for peremptory
challenge).

Appellants do not appear to dispute the neutrality of the Govern-
ment's explanations for the strikes; rather, they maintain that the evi-
dence does not support the Government's claim of potential bias.
With respect to venire member #10101, Appellants note that she was
divorced and estranged from her former husband. Yet again, this

                    13
assertion amounts to nothing more than a conflict in the evidence, and
we cannot say that the district court committed clear error in crediting
the Government's explanation. We also reject Appellants' contention
that the strike of venire member #10099 was improper because she
advised the district court that she could be fair and impartial regard-
less of any opinion she might have of the police handling of the rob-
bery of her sister. The Government's explanation of a peremptory
strike need not rise to the level of a challenge for cause. See Evans,
220 F.3d at 312.

In sum, we conclude that the district court did not commit clear
error in accepting, as nondiscriminatory, the Government's explana-
tions for the challenged strikes. We therefore reject Appellants' Bat-
son challenge.

III.

We next consider J. Williams' claims concerning the actions of his
trial counsel. On the morning the Government completed its case in
chief, J. Williams wrote notes to two prospective defense witnesses,
Hilton Thomas and Sean Dill. Both were expected to testify regarding
the murder of John Jones. In the letters, J. Williams recounted the tes-
timony of prosecution witnesses, in violation of the witness sequestra-
tion order entered by the district court, and advised Thomas and Dill
how to testify. J. Williams gave the letters to his attorney and
instructed him to deliver the letters to Thomas and Dill. Counsel
reviewed the letters and advised J. Williams against giving them to
the witnesses, but J. Williams persisted and counsel offered no further
protest. During the luncheon recess, counsel met with Thomas and
Dill, who were incarcerated, and attempted to show them the letters
through the plexiglass partition in the visiting room. When Thomas
and Dill were unable to read the letters through the partition, counsel
gave the letters to a United States Marshal and asked him to deliver
them. The Marshal read the letters, copied them, and delivered the
originals to Thomas and Dill. The copies were provided to counsel for
the Government, who subsequently moved to exclude the testimony
of Thomas and Dill. The district court granted this motion, and addi-
tionally ruled that the letters could be introduced in the Government's
rebuttal case if J. Williams took the stand in his own defense.
J. Williams elected not to testify.

                    14
J. Williams now contends that his trial counsel was constitutionally
ineffective. To prevail on this claim, J. Williams must demonstrate
that "counsel's representation fell below an objective standard of rea-
sonableness" and "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 

, 688,
694 (1984). A "reasonable probability" is one sufficient to undermine
our confidence in the outcome. See id. at 694.

J. Williams' ineffective assistance claim faces an additional hurdle.
A defendant may obtain review of an ineffective assistance claim on
direct appeal by first presenting the claim to the district court in a
motion for new trial pursuant to Federal Rule of Criminal Procedure
33. See United States v. Russell, 

, 619 (4th Cir. 2000).
Because J. Williams did not follow this course, we will review his
claim only if the constitutional violation "conclusively appears" on
the face of the record. Id. at 619 n.5 (internal quotation marks omit-
ted). Our reluctance to review ineffective assistance claims on direct
appeal stems from the fact that "the record is usually inadequately
developed," revealing "only ambiguous symptoms of a more complex
set of relationships which cannot be adequately addressed on direct
appeal." United States v. Tatum, 

, 379 (4th Cir. 1991).
For this reason, ineffective assistance claims usually are better raised
in a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255 (West
Supp. 2001). See id.

Here, we have little difficulty concluding, from the face of the
record, that the performance of J. Williams' counsel fell below an
objective standard of reasonableness. Upon reading the letters, coun-
sel should have been aware that delivering them would at least violate
the witness sequestration order and could also constitute subornation
of perjury. However, we cannot discern from the face of the record
whether J. Williams was prejudiced by his counsel's deficiencies. We
accordingly dismiss this claim.2
_________________________________________________________________

2 J. Williams also maintains that his attorney's actions constituted crim-
inal and ethical violations and thus created an actual conflict of interest
that adversely affected counsel's performance, requiring reversal without
a specific showing of prejudice. See Cuyler v. Sullivan, 

,

                    15
IV.

Jett raises two challenges to his conviction. First, he contends that
the district court erred in allowing the Government to impeach him
with prior written and oral statements when the Government had
failed to disclose those statements prior to trial. Second, Jett maintains
that the conditions of his confinement constituted a denial of access
to counsel in violation of the Sixth Amendment. We reject both of
these claims.

A.

Jett testified in his own defense at trial and denied involvement in
the murders of W. Green, Octavian Henry, and Glen Wilson. Jett fur-
ther denied any relationship with A. Jones. On cross-examination, the
Government sought to impeach Jett with a letter he had written to a
federal prosecutor offering to provide information about the Jones
organization and with oral statements made during a proffer session.
Jett objected, maintaining that the Government had violated Federal
Rule of Criminal Procedure 16(a)(1)(A) by failing to disclose the
written and oral statements to defense counsel prior to trial. The dis-
trict court overruled this objection.

As is relevant here, Rule 16(a)(1)(A) requires the Government to
disclose to the defendant "any relevant written .. . statements made
by the defendant" within the possession of the Government and
known to the prosecutor, and the substance of any oral statement
given in response to interrogation by a Government agent "if the
[G]overnment intends to use that statement at trial." The Government
concedes that its failure to disclose the written and oral statements
violated Rule 16(a)(1)(A). See United States v. Scafe, 

,
935 (10th Cir. 1987) (holding that the discovery obligations of Rule
_________________________________________________________________

348-50 (1980). We reject this claim on its merits. The record is clear that
at the time of trial, J. Williams' counsel was absolutely unaware that his
actions were legally or ethically suspect. Even assuming that an actual
conflict can exist absent counsel's awareness of any problem, we fail to
see--and J. Williams has not demonstrated--how a conflict of which
counsel was unaware could have adversely affected his performance.

                     16
16(a)(1)(A) apply to evidence used in rebuttal or on cross-
examination).

We conclude, however, that Jett was not substantially prejudiced
by the nondisclosure, and therefore that reversal is not required. See
United States v. Camargo-Vergara, 

, 998 (11th Cir.
1995). "Substantial prejudice exists when a defendant is unduly sur-
prised and lacks an adequate opportunity to prepare a defense, or if
the mistake substantially influences the jury." Id. at 998-99; see
United States v. Salameh, 

, 130 (2d Cir. 1998) (per
curiam) ("Substantial prejudice means the prejudice resulting from
the [G]overnment's untimely disclosure of evidence, rather than the
prejudice attributable to the evidence itself." (internal quotation marks
omitted)). We first note that Jett could not have been "unduly sur-
prised" by the statements, since he himself made them. See United
States v. Rivera, 

, 1566 (11th Cir. 1991). Additionally,
Jett's failure to request a continuance when the Government sought
to introduce the written and oral statements on cross-examination
tends to indicate that no prejudice existed. See United States v. Beras,

, 27 (1st Cir. 1999). Finally, there is no possibility that
the discovery violation had a substantial influence on the determina-
tion of guilt by the jury. The evidence supporting the charges against
Jett was substantial, and the improper admission of Jett's prior state-
ments added little to the Government's case. See United States v.
Bueno-Sierra, 

, 380 (11th Cir. 1996) (per curiam); United
States v. Stevens, 

, 1181 (2d Cir. 1993).

B.

Prior to trial, Jett was transferred from the Baltimore City Deten-
tion Center to the Maryland Correctional Adjustment Center
(MCAC). At MCAC, Jett was not allowed contact visits with counsel.
And, because of a malfunctioning telephone system in the visiting
area, counsel sometimes was forced to shout through a plexiglass par-
tition in order to communicate with Jett. Additionally, counsel's
repeated requests that Jett be allowed to listen to and discuss with
counsel a tape that would be introduced at trial were denied. Jett
maintains that these difficulties were so severe as to constitute a vio-
lation of his Sixth Amendment right to counsel.

                    17
The constitutional guarantee of counsel necessarily includes the
"opportunity for . . . counsel to confer, to consult with the accused and
to prepare his defense." Avery v. Alabama, 

, 446 (1940).
Complete denial of the assistance of counsel, whether actual or con-
structive, is per se reversible error. See Perry v. Leeke, 

,
280 (1989). Not every restriction on counsel's access to the defendant
amounts to a deprivation of the right to counsel, however. See id. at
280-85 (holding that prohibition of consultation between defendant
and defense counsel during brief recess between defendant's testi-
mony on direct and cross-examination did not amount to complete
denial of counsel).

Here, although counsel's representation of Jett was unquestionably
rendered more difficult by the conditions at MCAC, those difficulties
were not so severe as to amount to the total denial of access to coun-
sel. The record demonstrates that Jett's counsel vigorously defended
him throughout the trial. And, Jett points to no specific prejudice aris-
ing from the problems he had communicating with counsel.

V.

Benton, Chapman, and Hill maintain that the district court erred in
denying their motions for judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29 with respect to the racketeering
charges arising from the murder of Rivers and the attempted murder
of E. Williams.3 We review the denial of a motion for a judgment of
acquittal de novo. See United States v. Romer, 

, 364 (4th
Cir. 1998). When, as here, the motion for judgment of acquittal is
based on the sufficiency of the evidence, our role is limited to consid-
ering whether "there is substantial evidence, taking the view most
favorable to the Government, to support" the verdict. Glasser v.
United States, 

, 80 (1942). We must bear in mind that
"[t]he jury, not the reviewing court, weighs the credibility of the evi-
dence and resolves any conflicts in the evidence presented." United
States v. Murphy, 

, 148 (4th Cir. 1994). Further, "if the
_________________________________________________________________

3 As noted previously, Benton, Chapman, and Hill were convicted of
conspiracy to murder E. Williams in aid of racketeering. Chapman and
Hill were also convicted of murdering Rivers in aid of racketeering and
attempting to murder E. Williams in aid of racketeering.

                    18
evidence supports different, reasonable interpretations, the jury
decides which interpretation to believe." Id. Reversal for insufficient
evidence is reserved for cases in which "the prosecution's failure is
clear." Burks v. United States, 

, 17 (1978). In sum, we
"may not overturn a substantially supported verdict merely because
[we] find[ ] the verdict unpalatable or determine[ ] that another, rea-
sonable verdict would be preferable." United States v. Burgos, 

, 862 (4th Cir. 1996) (en banc); see United States v. Hoyte,

, 1245 (4th Cir. 1995) (observing that a defendant chal-
lenging the sufficiency of the evidence to support his conviction bears
"a heavy burden").

As is relevant here, 18 U.S.C.A. § 1959(a) provides for the punish-
ment of

       [w]hoever, as consideration for the receipt of. . . anything
       of pecuniary value from an enterprise engaged in racketeer-
       ing activity, or for the purpose of gaining entrance to or
       maintaining or increasing position in an enterprise engaged
       in racketeering activity, murders . . . or attempts or conspires
       to do so . . ..

Thus, the Government was required to prove (1) that the Jones organi-
zation was an enterprise engaged in racketeering activity; (2) that
Benton, Chapman, and Hill conspired to murder E. Williams and that
Chapman and Hill murdered Rivers and attempted to murder E. Wil-
liams; and (3) that Benton, Chapman, and Hill committed these acts
either (a) as consideration for the receipt of something of pecuniary
value or (b) for the purpose of gaining entrance to the Jones organiza-
tion. Cf. United States v. Concepcion, 

, 381 (2d Cir.
1992) (setting forth similar description of the elements of 18 U.S.C.A.
§ 1959(a)). Benton, Chapman, and Hill do not dispute that the Gov-
ernment presented sufficient evidence regarding the first and second
elements. Rather, they maintain that the Government failed to prove
that their actions against Rivers and E. Williams were taken in
exchange for pecuniary gain or for the purpose of gaining entrance to
the Jones organization.

We begin with Benton's sufficiency challenge. We agree with Ben-
ton that the Government presented no evidence to support a conclu-

                    19
sion that his participation in the conspiracy to murder E. Williams
was undertaken for the purpose of gaining entry into the Jones organiza-
tion.4 Accordingly, the denial of Benton's motion for acquittal can be
affirmed only if there is sufficient evidence to support a conclusion
that Benton conspired to murder E. Williams in exchange for some-
thing of pecuniary value from the Jones organization. The evidence
presented by the Government was certainly adequate for this purpose.
As described above, the Government presented testimony that after
the shooting of Rivers and E. Williams, Benton took the Young Guns
to a safe house, left briefly, and returned with $15,000 obtained from
A. Jones and Ross. Benton distributed $3,000 of this money to each
of the Young Guns, leaving $6,000 unaccounted for.

Benton argues that this evidence allowed the jury to convict him
only "by piling inference upon inference," Direct Sales Co. v. United
States, 

, 711 (1943), but we do not agree. At a minimum,
a reasonable jury could infer from the speed with which Benton
obtained the money that the parties shared an expectation that com-
pletion of the assigned task of murdering E. Williams would be fol-
lowed by monetary remuneration. And, in light of the evidence that
Benton received $15,000 but dispensed only $9,000 to the Young
Guns, it requires no great leap to conclude that Benton kept the
remaining $6,000. We therefore affirm the denial of Benton's motion
for judgment of acquittal.

We also conclude that substantial evidence supports the convic-
tions of Chapman and Hill. As with Benton, the facts relating to the
payment made following the attempt on E. Williams' life support a
conclusion that Chapman and Hill acted not simply to preserve their
own lives, but also for pecuniary gain. See Concepcion, 983 F.2d at
381 (holding that purposes specified in 18 U.S.C.A. § 1959 need not
be defendant's "sole or principal motive" for committing charged act
of violence). And, the evidence presented at trial also supports a find-
ing that Chapman and Hill engaged in acts of violence against Rivers
and E. Williams for the purpose of gaining entry into the Jones orga-
nization. A rational jury could conclude that in betraying their former
employer, Chapman and Hill aligned themselves with the Jones orga-
_________________________________________________________________

4 Indeed, the jury acquitted Benton of participating in the narcotics
dealing activity that was the primary focus of the Jones organization.

                    20
nization and that A. Jones, in agreeing to lift the contract on the lives
of the Young Guns, accepted this alliance and allowed them into the
Jones organization.5

VI.

Underwood, whose participation in the attempt on A. Carter's life
led to his conviction for conspiring to retaliate against Government
witnesses, maintains that he was entitled to an alibi instruction. We
review the refusal of the district court to give this instruction for
abuse of discretion, see United States v. Abbas, 

, 513 (4th
Cir. 1996), bearing in mind that Underwood was entitled to the
instruction if it was supported by the evidence presented at trial, see
United States v. Hicks, 

, 857 (4th Cir. 1984).

An alibi is "[a] defense that places the defendant at the relevant
time of crime in a different place than the scene involved and so
removed therefrom as to render it impossible for him to be the guilty
party." Black's Law Dictionary 71 (6th ed. 1990). Underwood's
"alibi" defense consisted of testimony from himself and others that he
was present at the restaurant at the same time as A. Carter but that he
did not shoot A. Carter and left the scene before the shooting
occurred. As the Government points out, this is not an alibi; it is sim-
ply an assertion of innocence. Accordingly, the district court did not
abuse its discretion in denying the requested instruction.

VII.

We turn now to Marshall's challenge to his conviction. Marshall
was charged only with the narcotics conspiracy. In addition to evi-
dence regarding Marshall's role in narcotics dealing, the Government
presented evidence that Marshall assisted in disposing of the body of
Charles Addison, Jr., who was accidentally shot to death while mem-
_________________________________________________________________

5 Chapman and Hill also contend that the evidence was insufficient to
support their convictions for conspiring to distribute cocaine and heroin.
Based on the evidence presented at trial, a rational jury could conclude
that Chapman and Hill became members of the narcotics conspiracy that
was the focus of the Jones organization by agreeing to murder E. Wil-
liams.

                     21
bers of the conspiracy were packaging cocaine for sale. Marshall
asserts that the presentation of this evidence amounted to a construc-
tive amendment of the indictment.

A constructive amendment occurs "[w]hen the[G]overnment,
through its presentation of evidence and/or its argument, or the dis-
trict court, through its instructions to the jury, or both, broadens the
bases for conviction beyond those charged in the indictment." United
States v. Randall, 

, 203 (4th Cir. 1999). A constructive
amendment is a structural error not subject to review for harmless-
ness. See United States v. Floresca, 

, 712 (4th Cir. 1994)
(en banc).

We conclude that the presentation of the challenged evidence did
not constructively amend the indictment by allowing the jury to con-
vict Marshall of a crime not charged by the grand jury. The evidence
regarding Marshall's involvement in the disposal of Addison's body
was plainly relevant to his participation in the narcotics conspiracy,
in that the testimony established that the decision to leave the body
in an alley was made in order to prevent the police from discovering
the cocaine packaging operation in progress at the time of the shoot-
ing. Accordingly, the evidence was intrinsically related to the charged
conspiracy and its presentation did not amend the indictment.6 See
United States v. Hughes, 

, 329 (7th Cir.) (holding that
introduction of evidence of uncharged criminal activity did not con-
structively amend indictment because evidence "completed the story
of the crime or crimes charged and was necessary to enable the jury
to fully understand and make sense of" charged conspiracy (internal
quotation marks omitted), vacated, 

 (2000), judgment
reinstated in pertinent part, 

 (7th Cir. 2001) (unpub-
lished order).
_________________________________________________________________

6 For this reason, Marshall's alternative argument--that the admission
of the evidence violated Federal Rule of Evidence 404(b)--also fails. See
United States v. Chin, 

, 88 (4th Cir. 1996) (holding that evi-
dence of other crimes, wrongs, or acts is admissible when it is "inextrica-
bly intertwined" with the charged offense (internal quotation marks
omitted)).

                    22
VIII.

All Appellants except Benton were convicted of conspiring to dis-
tribute cocaine and heroin and were sentenced to varying terms of
imprisonment--ranging from 262 months to life--for those convic-
tions. However, none of these sentences was based on findings
regarding the type and quantity of narcotics attributable to each
Appellant. Rather, in each case the district court applied a cross-
reference to the murder guideline based on the various homicides with
which, the district court found at sentencing, each Appellant had been
involved during the course of the narcotics conspiracy.7 See United
States Sentencing Guidelines Manual § 2D1.1(d)(1) (1997).8 The drug
trafficking count of the indictment did not allege a specific quantity
of narcotics, and the jury was not instructed to make a finding regard-
ing the quantity of drugs involved in the conspiracy.

Appellants now challenge their sentences, maintaining that their
_________________________________________________________________

7 While the district court was correct that application of the cross-
reference made findings regarding drug type and quantity unnecessary
for purposes of applying the sentencing guidelines, the court erred in fail-
ing to make such findings for purposes of determining the maximum
statutory penalty faced by each Appellant. See United States v. Bowens,

, 314 (4th Cir. 2000) (indicating that 21 U.S.C.A. § 841 sets
forth different maximum penalties depending upon the quantity and type
of narcotics involved in the offense, as to which the district court must
make findings at sentencing), cert. denied, 

 (2001). In
short, the district court improperly assumed that each Appellant was sub-
ject to a statutory maximum penalty of life imprisonment. Without a
finding regarding the applicable statutory maximum, the district court
simply could not know whether the guideline sentence it imposed was
within statutory limits. See Edwards v. United States, 

, 515
(1998) ("[A] maximum sentence set by statute trumps a higher sentence
set forth in the Guidelines."). However, in light of our conclusion that,
under Apprendi, the statutory maximum penalty for all Appellants was
20 years, we need not remand for correction of this error.

8 The murder guideline, U.S.S.G. § 2A1.1, sets a base offense level of
43, resulting in a presumptive life sentence in all cases. See U.S.S.G.
Ch.5, Pt.A (sentencing table). The variations among Appellants' sen-
tences resulted from downward departures by the district court as to
some Appellants.

                    23
convictions for conspiring to distribute an unspecified quantity of her-
oin and cocaine subjected them to a maximum penalty of 20 years
pursuant to 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2001). Because
Appellants failed to raise this claim before the district court, our
review is for plain error.9 See Fed. R. Crim. P. 52(b); United States
v. Olano, 

, 731-32 (1993). In order to demonstrate plain
error, Appellants must show that an error occurred, that the error was
plain, and that the error affected their substantial rights. See Olano,
507 U.S. at 732; United States v. Jackson, 

, 614 (4th Cir.
1997). Even if Appellants can satisfy these requirements, correction
of the error remains within our discretion, which we "should not exer-
cise . . . unless the error `seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.'" Olano, 507 U.S. at 732
(second alteration in original) (quoting United States v. Young, 

, 17 (1985)).

We conclude that all Appellants have demonstrated error. Although
Appellants' convictions on the drug conspiracy charge subjected them
to a maximum statutory penalty of 20 years (240 months), each
Appellant received a sentence greater than 20 years. As explained in
United States v. Promise, 

, 156-57 (4th Cir. 2001) (en
banc), this was error. Moreover, the error was plain. See id. at 160.
Accordingly, we turn to the question of whether the error affected
Appellants' substantial rights.

An error affects substantial rights when it is prejudicial, i.e. when
it "actually affect[s] the outcome of the proceedings." United States
v. Hastings, 

, 240 (4th Cir. 1998). Chapman, Hill, and
D. Jones, each of whom received a life sentence on the drug traffick-
ing conviction, cannot demonstrate that their substantial rights were
_________________________________________________________________

9 Appellants maintain that Antoine Marshall objected to the failure to
allege specific drug quantity in the indictment in a pretrial motion and
maintain that they joined in this objection prior to trial. We disagree. The
portion of Marshall's motion to which Appellants refer argues only that
the Government improperly charged Marshall with distributing a "mix-
ture or substance" containing cocaine or heroin; at no point does the
motion claim that drug quantity is an element of the offense. Indeed, sev-
eral times the motion argues that drug quantity is an issue for sentencing,
not for trial.

                     24
affected because they also received life sentences for murder in aid
of racketeering. Underwood, who received a sentence of 262 months
on the drug trafficking conviction, cannot demonstrate that the error
affected his substantial rights because he was convicted of two
offenses carrying a total maximum statutory penalty of 300 months.10
Had the district court been aware when it sentenced Underwood that
the maximum penalty for his drug trafficking conviction was 20
years, U.S.S.G. § 5G1.2(d) would have obligated the court to achieve
the guideline sentence of 262 months "by imposing a term of impris-
onment of 240 months or less on each count of conviction and order-
ing those terms to be served consecutively to achieve the total
punishment mandated by the guidelines." United States v. Angle, 

, 518 (4th Cir. 2001) (en banc).

In contrast, J. Williams, Jett, Marshall, and Montgomery have demonstrated
that the error affected their substantial rights. J. Williams and Jett,
both of whom received life sentences on the drug trafficking convic-
tions, were each convicted of three counts carrying an aggregate stat-
utory maximum penalty of 35 years.11 Had the district court been
aware at the time of sentencing that the maximum statutory penalty
for the drug trafficking convictions was 20 years, it would have been
required to impose consecutive sentences for each count of conviction
in order to approximate, as closely as possible, the guidelines sen-
tence of life imprisonment. See U.S.S.G. § 5G1.2(d); see also United
States v. Saccoccia, 

, 786 & n.28 (1st Cir. 1995) (approv-
ing a 660-year sentence imposed pursuant to § 5G1.2(d) as "the func-
tional equivalent of life without parole"). But, because we cannot say
that 35 years imprisonment is the functional equivalent of a life sen-
tence, we conclude that J. Williams' and Jett's substantial rights were
_________________________________________________________________

10 In addition to the 240-month statutory maximum penalty for the drug
trafficking conviction, Underwood was subject to a statutory maximum
penalty of five years for conspiring to retaliate against Government wit-
nesses in violation of 18 U.S.C.A. § 1513(a)(1). See 18 U.S.C.A. § 371.

11 In addition to the 20-year statutory maximum penalty for the drug
trafficking conviction, Williams and Jett faced a ten-year statutory maxi-
mum penalty for conspiring to commit murder in aid of racketeering, see
18 U.S.C.A. § 1959(a)(5), and a five-year statutory penalty for conspir-
ing to retaliate against Government witnesses in violation of 18 U.S.C.A.
§ 1513(a)(1), see 18 U.S.C.A. § 371.

                    25
affected by the imposition of life sentences on the drug trafficking
convictions. We also conclude that Montgomery's sentence of 292
months and Marshall’s sentence of 264 months affected their
substantial rights. Montgomery and Marshall were convicted
only of the drug trafficking count, and accordingly were each subject to a
statutory maximum penalty of 240 months. As we held in Promise,
an error such as this affects substantial rights. See Promise, 255 F.3d
at 160-61.

In Promise, those members of the en banc court that considered the
question were equally divided regarding whether to notice an
Apprendi error like the errors here. Compare id. at 161-64 (Wilkins,
J., joined by Wilkinson, C.J, and Williams and Traxler, JJ.) (arguing
that error should not be noticed) with id. at 186-91 (Motz, J., joined
by Widener, Michael, and King, J.J.) (arguing that error should be
noticed). Thus, the question was left open for a subsequent panel.
Recently, a panel of this court held that the imposition of a sentence
greater than that allowed by a defendant's conviction must be noticed
on plain error review. See United States v. Cotton, 

,
at *5-*7 (4th Cir. Aug. 10, 2001). We are compelled to follow Cotton
and accordingly must notice the plain errors in the sentences of
J. Williams, Jett, and Montgomery. See Etheridge v. Norfolk & W. Ry.
Co., 

, 1090 (4th Cir. 1993) ("A decision of a panel of this
court becomes the law of the circuit and is binding on other panels
unless it is overruled by a subsequent en banc opinion of this court
or a superseding contrary decision of the Supreme Court." (internal
quotation marks omitted)).

IX.

For the reasons set forth above, we reject all of Appellants' chal-
lenges to their convictions except for J. Williams' claim of ineffective
assistance of counsel, which we dismiss. We therefore affirm Appel-
lants' convictions. However, we vacate the sentences of J. Williams,
Jett, Marshall, and Montgomery and remand for resentencing.

AFFIRMED IN PART, DISMISSED IN PART,
AND VACATED AND REMANDED IN PART

                    26