Filed: Nov. 23, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FERNANDO SANTANA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:06-cr-00172-JBF-TEM-3) Argued: September 30, 2009 Decided: November 23, 2009 Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan CURRIE, United States District Judge for the District of So
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FERNANDO SANTANA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:06-cr-00172-JBF-TEM-3) Argued: September 30, 2009 Decided: November 23, 2009 Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan CURRIE, United States District Judge for the District of Sou..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4216
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO SANTANA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:06-cr-00172-JBF-TEM-3)
Argued: September 30, 2009 Decided: November 23, 2009
Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY,
Virginia Beach, Virginia, for Appellant. Laura Marie Everhart,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee. ON BRIEF: Dana J. Boente, Acting United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Santana appeals his conviction and sentence for
conspiracy to possess and distribute methamphetamine in
violation of 21 U.S.C. § 846, possession and distribution of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1),
conspiracy to launder money in violation of 18 U.S.C. § 1956(h),
money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i),
possession with the intent to distribute cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1), and possession of a firearm with
an obliterated serial number in violation of 18 U.S.C. § 922(k).
Santana challenges the district court’s order denying his motion
to dismiss a superseding indictment, its ruling permitting the
introduction of certain business records by the government, its
supplemental instruction to the jury regarding a mistake
contained in the jury verdict form, and its failure to instruct
the jury on the elements of the crime of attempt. For the
reasons that follow, we affirm.
I.
In December 2006 Santana was indicted on counts of money
laundering, conspiracy to possess and distribute
methamphetamine, possession and distribution of methamphetamine,
possession of a firearm in furtherance of a drug trafficking
crime, and possession of a firearm by a felon. The case went to
2
trial in May 2007. During the trial, witnesses mentioned
Santana’s role in uncharged crimes. The witnesses referenced
Santana’s possession of cocaine with intent to distribute and
his possession of a firearm with an altered serial number. As a
result, Santana moved for a mistrial and the district court
granted the motion. In June 2007 the government filed a
superseding indictment, which included additional charges
related to the uncharged crimes referenced by the witnesses at
trial. In August 2007 Santana filed a motion to dismiss the
superseding indictment based on prosecutorial vindictiveness.
The district court denied that motion.
The case proceeded to trial in September 2007. At trial,
the government sought to introduce, through the testimony of an
Internal Revenue Service (“IRS”) Special Agent, a number of
summary charts pertaining to records of money transfers.
Santana objected, arguing that the IRS Special Agent was not the
appropriate person to authenticate those records. The court
overruled Santana’s objection, finding that the records had been
previously authenticated as business records and that the agent
was qualified to testify as to their significance.
At the trial’s conclusion, the court mistakenly instructed
the jury that Count 11 of the indictment charged Santana with
possession of methamphetamine. In fact, Count 11 charged
attempt to possess methamphetamine. The jury verdict form
3
reflected that same mistake. During deliberations, the jury
asked the court about the inconsistency between the indictment
and the instructions. The jury’s question read, in part: “[I]s
the charge possess or attempt to possess? . . . [I]f attempted,
as in the indictment, should wording of the jury form be changed
to ‘attempt,’ or are we reading too much into this?” J.A. 1136.
Santana argued that allowing the jury to amend the verdict form
would constitute a constructive amendment to the indictment.
The court rejected Santana’s argument. It instructed the jury
to follow the indictment to determine what the charge was and
stated that they could amend the verdict form to reflect that
Count 11 charged attempt if they wished. Santana again objected
to the court’s action permitting the jury to correct the form.
The jury found Santana not guilty on two counts of
possession with intent to distribute cocaine and methamphetamine
and found him guilty on twelve counts of conspiracy to
distribute and possess with intent to distribute
methamphetamine, possession with intent to distribute
methamphetamine, attempted possession with intent to distribute
methamphetamine, distribution of methamphetamine, conspiracy to
launder money, money laundering, and possession of a firearm
with an obliterated serial number. On January 18, 2008, Santana
was sentenced to 252 months’ imprisonment. This appeal
followed.
4
II.
Santana first argues that the district court erred in
denying his motion to dismiss the superseding indictment because
the government did not present sufficient evidence to rebut the
presumption of vindictiveness that he had established. Second,
he contends that the district court erred in admitting the
money-transfer business records because they were not previously
authenticated and because the IRS Special Agent was not the
appropriate person to authenticate them. Third, he asserts that
the district court erred in allowing the jury to correct the
jury verdict form because the correction constituted a
constructive amendment to the indictment. Finally, he posits
that the court erred in not instructing the jury on the elements
of the crime of attempt. We address each of Santana’s
contentions in turn.
A.
When ruling on Santana’s motion to dismiss the superseding
indictment, the district court found that, “although the
defendant . . . offered evidence of circumstances from which a
vindictive motive may be presumed, the government . . . offered
objective information justifying its actions.” J.A. 249. A
trial court’s finding on prosecutorial vindictiveness is
5
reviewed for abuse of discretion. United States v. Fiel, 35
F.3d 997, 1007 (4th Cir. 1994).
Contrary to Santana’s position, we find that the district
court erred in holding that he adequately raised a presumption
of vindictiveness in the first place. 1 In Fiel, we found that
“[w]here the change in the indictment is prompted ‘by newly
discovered evidence supporting the imposition of additional
counts . . . a presumption of vindictiveness is not warranted.’”
Id. at 1008 (quoting United States v. Bryant,
770 F.2d 1283,
1287 (5th Cir. 1985)) (ellipses in original). Here, the new
charges in the indictment were prompted by new evidence
regarding Santana’s drug-related activities that the government
obtained from Santana’s codefendants and other witnesses after
the initial indictment was issued. Therefore, the presumption
of vindictiveness never should have attached and the district
court should have denied the motion on that ground. However,
the error is harmless because the district court reached the
correct result in denying the motion.
1
To raise a presumption of vindictiveness “a defendant must
show that the circumstances ‘pose a realistic likelihood of
‘vindictiveness.’’” United States v. Wilson, 262 F.3d 305, 314
(4th Cir. 2001) (quoting Blackledge v. Perry,
417 U.S. 21, 27
(1974)). The facts that the court found to support the
presumption were that the superseding indictment was issued
after Santana successfully moved for a mistrial over the
government’s objection and that the additional charges included
in the superseding indictment increased Santana’s potential
sentence.
6
Furthermore, even if the presumption had attached, the
government clearly presented sufficient evidence to rebut it.
The Fiel court explained the presumption and potential rebuttal
as follows:
In certain cases where detrimental action was taken
against the defendant by the government immediately
following her exercise of a right, the Court presumes
an improper vindictive motive on the part of the
prosecutor. . . . Where the presumption arises, it
may be rebutted by objective information justifying
the detrimental action.
Id. at 1007 (internal citations omitted). Santana argues that
the government had to present actual evidence, such as an
affidavit, justifying the government’s actions. Yet, as the
Supreme Court has explained, “attorneys are officers of the
court, and when they address the judge solemnly upon a matter
before the court, their declarations are virtually made under
oath.” Holloway v. Arkansas,
435 U.S. 475, 486 (1978) (citation
and internal quotation marks omitted). In addition, Fiel
clearly specifies that “objective information” suffices to rebut
the vindictiveness
presumption. 35 F.3d at 1007. The Fiel
court made no mention of a requirement that the information take
any specific form. Here, the government presented objective
information that it had received new evidence justifying the new
charges and that the only reason it had not chosen to file the
superseding indictment previously was that it had wanted to
7
preserve the original trial date. This evidence was sufficient
to overcome any presumption that might have arisen.
Any presumption here would have also been rebutted by the
fact that the government added the charges in order to cure the
defects that caused the mistrial. Where “[i]n advance of the
new trial, the United States took the opportunity to ‘cure
perceived deficiencies in the original indictment’ that
contributed to the mistrial,” such “wholly neutral, and
rational, reason for the additional charges defeats the
presumption of vindictiveness.” United States v. Hill, 93 F.
App’x 540, 546 (4th Cir. April 2, 2004) (quoting United States
v. Brown, 298 F.3d 392, 406 (5th Cir. 2002)). During the
hearing on Santana’s motion to dismiss, the government indicated
that the decision to file a superseding indictment was intended
to address “the situation where witnesses were talking about
things that were not charged in the original indictment,” which
ultimately led to the mistrial. J.A. 226. The government’s
rationale for its decision was sufficient to rebut any
presumption of vindictiveness.
Accordingly, the district court did not abuse its
discretion in denying Santana’s motion to dismiss the
superseding indictment.
8
B.
We now turn to the district court’s decision to admit the
government’s evidence of business records pertaining to money
transfers. We “review decisions to admit evidence for abuse of
discretion.” United States v. Forrest, 429 F.3d 73, 79 (4th
Cir. 2005). Santana argues that the records were hearsay and
were not pre-authenticated because they did not fit within the
confines of Federal Rules of Evidence 803(6) and 902(11).
Rule 803(6) states that business records are not excluded
under the hearsay rule if they are accompanied by a
certification of their custodian or other qualified person
asserting (1) that the records were “made at or near the time
by, or from information transmitted by, a person with
knowledge”; (2) that they were “kept in the course of a
regularly conducted business activity”; and (3) that “it was the
regular practice of that business activity to make [them].”
Prior to the introduction of the charts summarizing the business
records, the government introduced certificates of authenticity
from the original custodians of the records that met each of
these requirements. Therefore, the government complied with the
requirements of Rule 803(6), thereby excepting the charts from
the hearsay limitation.
Likewise, we find the government complied with the
requirements of Rule 902(11). The rule states that records need
9
not be authenticated at trial if they are accompanied “by a
written declaration of [their] custodian or other qualified
person” attesting that the records meet each of the requirements
of Rule 803(6). Fed. R. Evid. 902(11). To meet Rule 902(11)’s
authentication requirement, the proponent of the evidence must
“provide written notice . . . to all adverse parties” of his
intention to offer the record into evidence under that rule and
must “make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide
an adverse party with a fair opportunity to challenge them.”
Id. Santana argues that the government failed to comply with
this requirement because “[t]he record does not disclose that
notice pursuant to Rule 902(11) was provided [to] defense
counsel prior to the trial on the superseding indictment.”
Appellant’s Br. at 19.
Contrary to Santana’s assertion, the record indicates that
the government did comply with the disclosure requirements of
Rule 902(11). Santana’s counsel admitted that the intention to
introduce the records was given in advance of the second trial,
but that he did not file a motion in limine because he
“assum[ed]” the government was “going to prove it the way [he
thought it] should be proved.” J.A. 831. Therefore, the record
clearly shows that Santana knew the documents would be
introduced at the second trial. Santana also admits in his
10
brief that “notice pursuant to Rule 902(11) had been provided
prior to the first trial.” Appellant’s Br. at 19. There is
therefore no question that Santana had sufficient notice of the
government’s intention to introduce the evidence and a fair
opportunity to challenge it as required by Rule 902(11).
Accordingly, we find that the government complied with Rule
902(11).
Because the business records were excepted from the hearsay
rule under Rule 803(6) and were pre-authenticated under Rule
902(11), the district court did not abuse its discretion in
admitting the records and the related summary charts. 2
C.
We consider next Santana’s argument that the court’s
supplemental instruction to the jury designed to correct the
error in the jury verdict form was a constructive amendment to
the indictment. “It is well established that the necessity,
extent and character of any supplemental instructions to the
jury are matters within the sound discretion of the district
court” and are therefore reviewable only for abuse of
2
Santana also contends that the court erred in admitting
the records because the IRS Special Agent was not qualified to
authenticate them at trial. Because the government did not need
to authenticate the records at trial, this argument is
unavailing.
11
discretion. United States v. Horton, 921 F.2d 540, 546 (4th
Cir. 1990). “[I]n 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).
Here, the court’s decision to clear up confusion by
directing the jury to look to the indictment for an accurate
description of the charge was warranted. In so doing, the court
correctly directed the jury to do exactly what they were
supposed to do, which was to decide whether the defendant was
guilty of the crimes with which he was charged in the
indictment. The court’s statement that the jury could amend the
form to correct the mistake was similarly reasonable, for the
change made the words on the form reflect the charge in the
indictment. Therefore, the district court did not err in giving
this supplemental instruction.
Santana asserts that the supplemental instruction created
prejudice because it constituted a constructive amendment to the
indictment. A constructive amendment, also known as a fatal
variance, occurs when “‘the indictment is altered to change the
elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the
indictment.’” United States v. Malloy, 568 F.3d 166, 177-78
12
(4th Cir. 2009) (quoting United States v. Randall, 171 F.3d 195,
203 (4th Cir. 1999)). When “the district court, through its
instructions to the jury . . . broadens the bases for conviction
beyond those charged in the indictment . . . a fatal variance .
. . occurs.”
Id. at 178.
This court has emphasized that, “‘[a] mere variance [to the
indictment] does not violate a defendant’s constitutional rights
unless it prejudices the defendant 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. (quoting Randall, 171 F.3d at 203).
Here, Santana has failed to show actual prejudice. The
court’s supplemental instruction amended the erroneous original
instruction by explaining to the jury that its role was to find
whether defendant was guilty or not guilty “based on the
indictment,” which clearly describes Count 11 as attempt to
possess. J.A. 1139. Following the court’s explanation of the
error, the jury changed the jury verdict form to describe Count
11 as attempt to possess. Therefore, the jury found Santana
guilty of exactly the same crime that he was charged with in the
indictment. Accordingly, under any standard, Santana cannot be
said to have suffered prejudice because, in spite of the court’s
alleged error, he was not “convicted of a crime other than that
charged in the indictment.” Malloy, 568 F.3d at 178.
13
Therefore, the district court’s supplemental instruction
regarding the error in the jury verdict form did not constitute
an abuse of discretion.
D.
Finally, we turn to Santana’s assertion that, when allowing
the jury to amend the verdict form, the court erred in failing
to discuss the elements of the crime of attempt. The question
of whether the trial court properly instructed the jury on the
elements of a charged crime is a legal question that we
ordinarily review de novo. United States v. Rahman, 83 F.3d 89,
92 (4th Cir. 1996). However, where the defendant fails to
object to the omission of elements of the crime in the jury
instructions at trial, “we review solely for plain error.”
United States v. McLamb,
985 F.2d 1284, 1293 (4th Cir. 1993).
Here, Santana admits that he did not object to the court’s
original jury instructions. Furthermore, although he objected
to the court’s answer to the jury question, his objection was
that the court should not allow the jury to add the word
“attempt” to the jury verdict form. At no point during the
trial did Santana raise his concern that the court had failed to
explain the elements of the crime of attempt to possess
methamphetamine. Therefore, because Santana did not raise the
14
alleged omission at trial, we review the court’s omission of
instructions on attempt for plain error. Id. at 1293.
The Supreme Court explained in United States v. Olano that,
in order for an appellate court to find a plain error, “[t]here
must be an ‘error’ that is ‘plain’ and that ‘affect[s]
substantial rights.’”
507 U.S. 725, 732 (1993) (quoting Fed. R.
Crim. Pro. 52(b)). The Olano Court emphasized that, even when a
plain error affects substantial rights, “the decision to correct
the forfeited error [is] within the sound discretion of the
court of appeals, and the court should not exercise that
discretion unless the error ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Id.
(quoting United States v. Young,
470 U.S. 1, 15 (1985)). On
plain-error review, “‘it is the defendant rather than the
Government who bears the burden of persuasion.’” United States
v. Hastings,
134 F.3d 235, 240 (4th Cir. 1998) (quoting
Olano,
507 U.S. at 734).
We find that, even assuming that there was an error, which
was plain, and which affected substantial rights, we need not
correct it because it does not seriously affect the fairness or
reputation of these legal proceedings. The Supreme Court has
indicated that, where the evidence presented at trial
overwhelmingly supports the jury’s conclusion that the defendant
committed an element of an offense, and where that evidence is
15
essentially uncontroverted, a court need not correct the
district court’s failure to submit a required element to the
jury in its instruction. See Johnson v. United States, 520 U.S.
461, 470 (1997). We have similarly held that we will not
correct an error where, “even if the proper instruction had been
given, [the defendant’s] conviction was inevitable” because the
evidence “permitt[ed] no other conclusion” but that the element
missing from the jury instructions was proven. United States v.
Cedelle,
89 F.3d 181, 186 (4th Cir. 1996). In Cedelle, we
further explained that we will not notice an error in a failure
to instruct on an element where, “viewing the record as a whole,
the proceedings resulted in a fair and reliable determination of
[the defendant’s] guilt.”
Id.
Here, the evidence at trial overwhelmingly showed that
Santana was responsible for the charged attempt to obtain
methamphetamine. The relevant count, Count 11, charged Santana
with attempt to possess with intent to distribute approximately
209 grams of methamphetamine on February 11, 2005. We have held
that the elements of attempt are “(1) culpable intent to commit
the crime charged and (2) a substantial step towards the
completion of the crime that strongly corroborates that intent.”
United States v. Neal,
78 F.3d 901, 906 (4th Cir. 1996). At
trial, the government presented evidence from Santana’s
coconspirators, Octavio Chavez and Martin Fernandez, who
16
testified that on February 11, 2005, they were arrested while
trying to obtain a package containing approximately nine ounces
of methamphetamine, which was to be distributed among the four
coconspirators--Santana, Chavez, Fernandez, and Bryan Wilson.
The evidence also showed that Santana had helped to pay for
methamphetamine orders made by Chavez and Fernandez on behalf of
the group.
The car trip described by Chavez and Fernandez was the only
incident that the government presented that related to any
attempt to obtain methamphetamine on February 11, 2005.
Therefore, in finding Santana guilty of an attempt to obtain
methamphetamine on that date, the jury necessarily found that
the government had proven that the trip had occurred and that
Santana was liable for it as part of the conspiracy. 3 The trip
itself proved both intent to obtain methamphetamine and a
substantial step towards that goal that strongly corroborates
the intent. It necessarily follows that, had the jury been
instructed about the intent and substantial step elements of the
3
The jury also found, pursuant to a different count, that
Santana was part of a conspiracy with Chavez and Fernandez to
obtain methamphetamine. This court has held that a defendant’s
“conspiracy conviction makes him liable for all substantive
offenses of his coconspirator[s] that are both reasonably
foreseeable and in furtherance of the conspiracy.” United
States v. Bonetti, 277 F.3d 441, 447 (4th Cir. 2002).
Accordingly, Santana was necessarily responsible for any attempt
by his coconspirators to obtain methamphetamine in furtherance
of the conspiracy.
17
crime of attempt, it would have found that the government proved
those elements. We therefore find, as we did in Cedelle, that
“even if the proper instruction had been given, [the
defendant’s] conviction was inevitable.” Cedelle, 89 F.3d at
186. We further find that, “viewing the record as a whole, the
proceedings resulted in a fair and reliable determination of
[the defendant’s] guilt.” 4
Id. Accordingly, because the error
does not “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings,” we will not exercise our
discretion to correct it.
Olano, 507 U.S. at 732.
III.
For the reasons set forth above, we affirm Santana’s
conviction and sentence.
AFFIRMED
4
With regard to the fairness consideration, we also note
that at trial, when the question arose regarding the correction
to the jury verdict form, the court heard both sides on how to
address the issue. Santana never suggested that an instruction
be given on the elements of the crime of attempt. Therefore, if
we were to overturn the conviction based on this error, Santana
would unfairly benefit from an error that he helped create.
18
