UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4633

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANCISCO BARAHONA, a/k/a Poncho,

Defendant - Appellant.

No. 13-4637

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NOE FARID MEDRANO,

Defendant - Appellant.

No. 13-4822

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
2

OMAR STEELE, a/k/a Panamanian, a/k/a Omie,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Roger W. Titus, Senior District 

Judge. (8:12-cr-00014-RWT-3; 8:12-cr-00014-RWT-7; 8:12-cr00014-RWT-5)

Argued: March 25, 2015 Decided: April 24, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished opinion. Senior Judge Davis wrote the 

opinion, in which Judge Wilkinson and Judge Harris joined. 

ARGUED: Kira Anne West, LAW OFFICE OF KIRA ANNE WEST, 

Washington, D.C.; Anthony Douglas Martin, I, ANTHONY D. MARTIN, 

PC, Greenbelt, Maryland; Elita C. Amato, Arlington, Virginia, 

for Appellants. Scott A.C. Meisler, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Rod J. 

Rosenstein, United States Attorney, Baltimore, Maryland, Sujit 

Raman, Chief of Appeals, Deborah Johnston, Assistant United 

States Attorney, Mara Zusman Greenberg, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, 

Maryland; Leslie R. Caldwell, Assistant Attorney General, David 

A. O'Neil, Acting Deputy Assistant Attorney General, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DAVIS, Senior Circuit Judge:

These appeals arise from the prosecution of members of a 

conspiracy to distribute significant quantities of cocaine and 

heroin in Maryland and other states from 2010 to January 2012. 

At the center of the government’s case was cooperating 

coconspirator Saul Calderon Mata, who obtained drugs from 

sources in Virginia, Georgia, Texas, and elsewhere, and then 

transported and distributed the drugs with the help of a network 

of associates, including Francisco Barahona, Noe Farid Medrano, 

and Omar Steele (all three, collectively, “the Defendants”). 

Following a multi-week trial, a jury convicted Barahona and 

Steele of conspiring to distribute more than five kilograms of 

cocaine and one kilogram of heroin. The jury also found Medrano 

guilty of conspiring to distribute more than five kilograms of 

cocaine. On appeal, the Defendants make several assertions of 

error, some individually and some jointly, regarding pretrial 

rulings, their trial, and the application of a sentencing 

enhancement. Having carefully considered all of the Defendants’ 

contentions, we discern no reversible error in any respect, and 

we therefore affirm.

I.

A.

Law enforcement began investigating Mata in September 2011. 

By then, Mata was active in the drug business, and had a 
4

longstanding relationship with Barahona, who obtained cocaine 

from Mata to distribute to others and made supply runs on Mata’s 

behalf. For example, Mata paid Barahona a fee of $1,000 per 

kilogram to make supply runs to Atlanta, Georgia. Barahona also 

rented Mata the basement of his Gaithersburg, Maryland home to 

store, cut, and repackage drugs.

Like Barahona, Medrano distributed drugs for Mata. Mata 

fronted Medrano ounces of cocaine at a time, and then collected 

payment from Medrano after he sold the drugs. In addition to 

distributing drugs, Medrano made supply runs on Mata’s behalf, 

and arranged for one of his associates, Daniel Stotz, to make 

the Atlanta runs for the $1,000-per-kilogram fee, with $100 of 

that fee going to Medrano. Mata also bought handguns from 

Medrano and Stotz for his protection. By January 2012, Mata 

owed Medrano and Stotz $15,000, and as collateral for the debt, 

gave them large quantities of marijuana. 

Steele was one of Mata’s main customers for cocaine and 

heroin, and began buying kilogram quantities of those drugs in 

2010. Some of those transactions took place at Steele’s 

apartment on 16th Avenue in Hyattsville, Maryland, which Steele 

eventually agreed to lease to Mata. Mata used the Hyattsville

apartment for about a month and a half, and during that time,

continued to distribute cocaine and heroin to Steele at the 

apartment complex. On one occasion, while Mata was living in 
5

the apartment, Steele served as a translator in a heroin deal 

between Mata and Steele’s English-speaking friend. Steele’s 

friend subsequently met Mata and one of his associates, Ivan

Santoyo-Villa, at a restaurant with $50,000, to be used to buy 

cocaine and heroin from a supplier in Virginia. Shortly after 

Mata moved out of the Hyattsville apartment, Steele brokered a 

deal for Mata to sell a kilogram of heroin to a woman in New 

York. Steele later arranged for Mata to sell the woman an 

additional half-kilogram of heroin. Following this transaction, 

Steele and Mata continued to stay in contact regarding drugs 

Steele wanted, money that Steele owed Mata, and a digital scale 

that Steele wanted Mata to return. 

B.

In late January 2012, Mata sent Santoyo-Villa and Stotz to 

Atlanta to pick up five kilograms of cocaine and two kilograms 

of heroin, which would be concealed in a hidden compartment of a 

vehicle driven by Stotz. Before the drugs arrived, Mata 

contacted Barahona, who confirmed that Mata could cut and 

repackage the drugs in his basement and helped Mata locate the 

key to a room containing cutting materials. Mata also contacted 

Medrano to confirm that his order for eighteen ounces of cocaine 

would soon be ready, and Steele to find out how many kilograms 

of drugs he needed. Suspecting that police were following him, 
6

however, Steele put off placing his order. Steele was later 

arrested by law enforcement agents following his car.

On January 25, 2012, Mata arrived at Barahona’s house in 

the car that Stotz had driven from Atlanta. Mata and another of 

his associates, Alfonso Solorio, brought the drugs, except for 

one kilogram of cocaine which was stuck in the car’s hidden 

compartment, to Barahona’s basement. Soon thereafter, law 

enforcement agents entered the house with a search warrant. In 

the basement, agents found kilograms of cocaine and heroin in 

brick form, cutting agents, and various other materials 

containing drug residue or used to package drugs. Agents also 

recovered the remaining kilogram of cocaine from the hidden 

compartment in the car, and seized a firearm, which Medrano had 

sold to Mata. In Barahona’s upstairs bedroom, agents found a 

small bag of cocaine in the mattress. Barahona and Medrano were 

arrested the same day.

Two days later, on January 27, 2012, agents searched the 

Hyattsville apartment. They found a vice press used to package 

drugs, heat sealer bags (also used to package drugs), cutting 

agents, baking pans with drug residue, and two digital scales 

used to weigh drugs. Forensic testing confirmed that a 

fingerprint found on one of the scales was Steele’s, and that 

the scale contained cocaine and heroin residue. 
7

C.

In February 2013, a federal grand jury issued a second 

superseding indictment, charging Barahona, Medrano, and Steele 

with conspiring to distribute more than five kilograms of 

cocaine and more than one kilogram of heroin, in violation of 21 

U.S.C. §§ 841 and 846 (Count 1); and using a telephone in 

furtherance of a drug trafficking crime, in violation of 21 

U.S.C. § 843(b) (Counts 5–8, 10, 12, and 15). The grand jury 

also charged Steele and Barahona with managing places used to 

distribute and store drugs, in violation of 21 U.S.C. § 856 

(Counts 2 and 13); Steele and Barahona with engaging in 

interstate travel for narcotics activity, in violation of 18 

U.S.C. § 1952 (Counts 3 and 14); Steele with possessing with 

intent to distribute heroin, in violation of 21 U.S.C. § 841 

(Count 4); Medrano with possessing with intent to distribute 

cocaine and marijuana in violation of 21 U.S.C. § 841 (Counts 9 

and 11); and Barahona with possessing with intent to distribute 

more than 1 kilogram of heroin and 500 grams of cocaine, in 

violation of 21 U.S.C. § 841 (Count 16). 

Barahona and Steele filed pretrial a motion to suppress 

evidence uncovered at Barahona’s Gaithersburg residence and 

Steele’s Hyattsville apartment, which the district court denied. 

The Defendants proceeded to trial, following which the jury 

found them guilty on all counts. The jury determined that 
8

Barahona and Steele participated in a conspiracy to distribute 

more than five kilograms of cocaine and one kilogram of heroin, 

while Medrano conspired to distribute more than five kilograms 

of cocaine. The district court sentenced Barahona to 132 

months’ imprisonment; Medrano to 120 months’ imprisonment; and 

Steele to 192 months’ imprisonment. This timely appeal 

followed.

II.

A.

The Defendants challenge the district court’s denial of 

their motion to suppress evidence recovered through the use of 

electronic interception of telephone conversations. 

Specifically, they claim that the government’s wiretap 

applications did not satisfy the necessity requirement of 18 

U.S.C. § 2518(3), and that the supporting affidavits contained 

material misstatements or omissions justifying a hearing 

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). 

1.

In September 2011, during a court-authorized wiretap of 

drug dealer Kevin Walker’s phone (“Target Telephone A” or 

“TTA”), law enforcement officers identified Mata as a Marylandbased cocaine supplier. After monitoring calls and conducting 

some physical surveillance over a period of weeks, officers 

stopped a car driven by Mata’s girlfriend, Yacenia Beaver, on 
9

October 5, 2011. Officers searched the car upon receiving 

consent, and discovered approximately 403 grams of heroin and 

$15,000 in cash. Subsequent interviews with Beaver and her 

children confirmed that Mata was a drug dealer who had dealings 

in Atlanta, but did not reveal the extent of Mata’s operations 

in Maryland or the identity of his suppliers. 

Following the above events, officers sought authorization 

to wiretap a cellular phone used by Mata (“Target Telephone C” 

or “TTC”). The supporting affidavit filed by Officer Richard 

Armagost disclosed the TTA wiretap, and set forth the basis for 

believing that Mata used TTC in his drug operation. Armagost 

explained why previous wiretaps had provided valuable, albeit 

limited, information. He also explained why other investigative 

techniques, such as confidential sources, controlled purchases, 

physical surveillance, and trash pulls, would not yield the 

information that officers were seeking. On October 7, 2011, the 

district court authorized the TTC wiretap, which ultimately 

captured Mata’s calls with Barahona, among others. 

As the investigation continued and Mata changed cell 

phones, investigators sought authorization to wiretap additional 

phones (“Target Telephones D through I” or “TTD through TTI”). 

Armagost’s supporting affidavits for those wiretap applications 

reviewed the history of the investigation, explained why there 

was probable cause to believe that Mata was using the target 
10

phones to further his drug dealings, and explained why 

techniques other than wiretapping would not yield information 

helpful to the investigation. 

On November 29, 2011, the district court authorized the TTE 

wiretap, which captured calls with Steele. The district court 

later issued a “roving” order authorizing the wiretap of any 

phones Mata used over the next thirty days; those phones were 

TTG, TTH, and TTI. Based on an updated application, the court 

extended the TTG and TTI wiretaps through the time of the 

Defendants’ January 2012 arrests.1

The Defendants joined in a motion to suppress the wiretap 

evidence, filed by Steele. Following a hearing, the district 

court denied the motion to suppress. 

2.

In reviewing a denial of a motion to suppress, we review

factual findings for clear error and legal conclusions de novo. 

United States v. Hampton, 628 F.3d 654, 658 (4th Cir. 2010). We 

review for abuse of discretion an authorizing court’s 

determinations of necessity under 18 U.S.C. § 2518(3). United 

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Finally, 

 1 Interception of TTD was quickly suspended because Mata 

stopped using that phone within a few days of the district 

court’s order authorizing the wiretap. Interception of TTF 

never commenced because Mata stopped using that phone around the 

time the court authorized its interception.
11

we review the denial of a Franks hearing de novo. United States 

v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).

3.

To obtain authorization for a wiretap, the government must 

“show the ‘necessity’ of any wiretap application via a full and 

complete statement as to whether ‘normal investigative 

procedures have been tried and have failed or reasonably appear 

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

Wilson, 484 F.3d at 281 (quoting 18 U.S.C. § 2518(3)). The 

burden on the government, however, “is not great, and the 

adequacy of such a showing is to be tested in a practical and 

commonsense fashion that does not hamper unduly the 

investigative powers of law enforcement agents.” Id. (internal 

quotation marks omitted). While the government 

cannot meet its burden with bare conclusory statements 

that normal techniques would be unproductive or mere 

boilerplate recitation of the difficulties of 

gathering usable evidence, it need only present 

specific factual information sufficient to establish 

that it has encountered difficulties in penetrating 

[the] criminal enterprise or in gathering evidence 

such that wiretapping becomes reasonable, despite the 

statutory preference for less intrusive techniques. 

United States v. Galloway, 749 F.3d 238, 243 (4th Cir. 2014) 

(internal quotation marks omitted). The federal wiretap statute 

includes a “standing” requirement, permitting “[a]ny aggrieved 

person in any trial, hearing, or proceeding” to file a motion to 

“suppress the contents of any wire or oral communication” 
12

alleged to have been unlawfully intercepted. 18 U.S.C. § 

2518(10); see also 18 U.S.C. § 2510(11) (defining “aggrieved 

person”).

Assuming without deciding that the Defendants have standing 

to challenge the wiretaps, their challenge fails. Beginning 

with TTA, the government made an adequate showing of necessity. 

The affidavit supporting TTA explained how “agents and officers 

involved in this investigation have made extensive use of 

information provided by . . . informants concerning the [Walker] 

organization’s drug distribution activities.” J.A. 2728.2 

Nevertheless, informants were unable to provide information 

regarding Walker’s sources of supply. The affidavit further 

explained that, because “[Walker] is extremely suspicious” and 

“has shown a pattern [of] utilizing other individuals to deliver 

drugs on his behalf,” investigators have been unable to arrange 

controlled purchases from Walker. J.A. 2729. Moreover, the 

affidavit explained, investigators’ ability to conduct physical 

surveillance has been limited by Walker’s use of “lookouts” and 

other counter-surveillance maneuvers. Walker was also careful 

about what he discarded in the trash, as two trash pulls did not 

yield any information helpful to the investigation. In light of 

 2 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
13

the affidavit’s “fairly extensive discussions” of why other 

techniques would fail “to reveal the full scope of the 

organization,” risked “reveal[ing] the existence of the ongoing 

investigation,” or were “not practical under the circumstances,”

the district court did not abuse its discretion in authorizing 

TTA. Galloway, 749 F.3d at 243.

We also reject the Defendants’ argument that the necessity 

explanation provided in the TTC affidavit “amounted to bare 

conclusory statements and boilerplate recitations that would 

more or less apply to any drug-trafficking investigation.” Id.

at 242. The affidavit supporting TTC explained that, although 

officers had interviewed Beaver and her children, their 

information was limited to “the storage and distribution of 

controlled substances [] and transportation of proceeds from 

some of Mata’s customers.” J.A. 1807. Moreover, because Mata 

was aware of Beaver’s traffic stop, he was “not likely to engage 

in [further] criminal activities with” her. J.A. 1808. The 

affidavit further explained why physical surveillance would be 

insufficient, especially in light of Mata’s observed countersurveillance practices and the lack of an adequate place to 

mount cameras. As for trash pulls, the affidavit explained 

that, given the location of Mata’s residence, trash searches 

were impractical. Although the Defendants take issue with the 

fact that the officers did not attempt all the alternative 
14

investigative techniques discussed in their affidavit, § 2518(3) 

did not place that kind of burden upon them. See Wilson, 484 

F.3d at 281 (stating that the government may obtain 

authorization for a wiretap if it explains why normal 

investigative procedures “reasonably appear to be unlikely to 

succeed if tried or [are] too dangerous” (quoting 18 U.S.C. § 

2518(3)); see also United States v. Clerkley, 556 F.2d 709, 715 

(4th Cir. 1977) (“[P]olice need not exhaust every conceivable 

technique before making [an] application for a wiretap.”). 

Accordingly, the district court did not abuse its discretion in 

finding the TTC wiretap necessary under § 2518(3).

As for TTE through TTI, the Defendants claim that the 

government failed to satisfy the necessity requirement each time 

it sought a wiretap. Although later affidavits repeated 

relevant facts from earlier affidavits, this does not render the 

government’s necessity explanations “boilerplate.” United 

States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). The 

affidavits for TTE through TTI relayed the progress of the 

investigation, justifying the continued need for a wiretap. For 

example, the affidavit for TTE explained that Mata had changed 

residences following Beaver’s arrest, detailed the difficulties 

of using Barahona or Santoyo-Villa to conduct controlled 

purchases, and explained that a recently arrested co-conspirator 

had refused to cooperate. The affidavit supporting the roving 
15

order explained that Mata was changing cell phones “in a 

continued effort to engage in his illegal activities and to 

thwart law enforcement . . . .” J.A. 2155. The affidavit to 

renew TTG and TTI explained that law enforcement had used trash 

pulls and a pole camera, but that those techniques had provided 

only limited information. Cf. United States v. Blackmon, 273 

F.3d 1204, 1208 (9th Cir. 2001) (reversing necessity finding 

where the wiretap application was a “carbon copy” of an earlier 

wiretap application targeting a different suspect); United 

States v. Carneiro, 861 F.2d 1171, 1180–81 (9th Cir. 1988) 

(same). Thus, in sum, we find no abuse of discretion in the 

district court’s necessity determinations. 

Finally, we reject the Defendants’ claim that they are 

entitled to a Franks hearing. Franks “carved out a narrow 

exception to” the general rule that “[a]n accused is [] not 

entitled to challenge the veracity of a facially valid . . . 

affidavit.” Allen, 631 F.3d at 171. To trigger that exception, 

“the accused must make a substantial preliminary showing that 

false statements were either knowingly or recklessly included in 

an affidavit supporting a search warrant and that, without those 

false statements, the affidavit cannot support a probable cause 

finding.” Id. (emphasis in original).

The Defendants claim that they are entitled to a Franks

hearing because the government failed to inform the district 
16

court that: (1) the Mata investigation had spun off the Walker 

investigation; and (2) it had misidentified Steele as “David 

Lowell” in earlier wiretaps. As to the first claim, the 

government did not, as the Defendants claim, use the TTA wiretap 

to “mislead the court into thinking there was necessity as to 

Mata and his target telephone.” Def. Br. at 46. Although the 

government stated in the TTC affidavit that the court had 

already authorized the TTA wiretap, it made clear that the goal 

of TTC was different: to “identify [Mata’s] source of supply” 

and “identify other participants in the [Mata] organization.” 

J.A. 1767; see also J.A. 1807 (TTC affidavit explained why 

traditional investigative methods were inadequate to understand 

“[Mata’s] drug trafficking methods”). Moreover, the affidavit 

supporting the TTE wiretap made clear that “[a]gents commenced 

an investigation of [Mata]” after identifying Mata “during the 

[Walker] investigation.” J.A. 1969. The affidavits, therefore, 

fully apprised the district court of the origins of the Mata 

investigation as well as its goals.

As to the second claim, the Defendants fail to demonstrate 

that the “David Lowell” omission was “material” to the district 

court’s decision to authorize the wiretaps. See United States 

v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011) (explaining 

that, to obtain a Franks hearing, the accused must show that 

“omissions were material, i.e., rendered the affidavit unable to 
17

support a probable cause finding” (internal quotation marks 

omitted)); see also United States v. Colkley, 899 F.2d 297, 301 

(4th Cir. 1990) (“Omitted information that is potentially 

relevant but not dispositive is not enough to warrant a Franks

hearing.”). To authorize the wiretaps, the district court 

needed to find probable cause that “particular communications 

concerning that offense will be obtained through such 

interception.” 18 U.S.C. § 2518(3)(b). “What mattered for that 

purpose,” as explained by the government, “was that Mata used 

his cell-phone to conduct his drug-trafficking operation, not 

with whom he spoke.” Gov’t Br. at 23.

Likewise, the alleged omission was not material to the 

district court’s necessity determination. The Defendants argue 

that the government only learned of Steele’s identity through 

physical surveillance. Thus, they claim, by omitting that 

Steele was misidentified on earlier wiretaps, the government was 

omitting the success of other, traditional investigative 

techniques. As pointed out by the government, however, it only 

learned of its misidentification after setting up surveillance 

based on information gleaned from a wiretap. Accordingly, as 

claimed by the government, traditional techniques alone were 

insufficient to identify all of Mata’s co-conspirators. The 

district court, in short, did not err in denying the Defendants’ 

motion to suppress wiretap evidence.
18

B.

Barahona and Steele contend that the district court erred 

in denying their motion to suppress evidence uncovered at 

Barahona’s Gaithersburg residence and Steele’s Hyattsville

apartment. They claim that the search warrants were not 

supported by probable cause, and were so facially deficient in 

establishing probable cause that the good-faith exception does 

not apply.3

 

Pursuant to well-established law, a warrant must be 

supported by probable cause. United States v. Montieth, 662 

F.3d 660, 664 (4th Cir. 2011). The probable cause determination 

“is a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit [] . . . there is a 

fair probability that contraband or evidence of a crime will be 

found in a particular place.” Id. (internal quotation marks 

omitted). “[T]he nexus between the place to be searched and the 

items to be seized may be established by the nature of the item 

and the normal inferences of where one would likely keep such 

evidence.” United States v. Allen, 631 F.3d 164, 173 (4th Cir. 

2011) (internal quotation marks omitted). “In assessing the 

 3 The Defendants also challenge a search conducted at an 

apartment in Upper Marlboro, Maryland. The government, however, 

did not introduce any evidence from the Upper Marlboro apartment 

at trial, and thus we need not decide whether that search was 

lawful.
19

probable cause determination,” this Court “accord[s] great 

deference to the issuing judge’s assessment of the facts 

presented,” id., and limits its inquiry “to whether there was a 

substantial basis for determining the existence of probable 

cause,” Monteith, 662 F.3d at 664 (internal quotation marks 

omitted).

Applying the above standard, the issuing judge properly 

concluded that there was a “fair probability” of discovering 

contraband or evidence of a crime at Barahona’s Gaithersburg 

home. In a January 13, 2012 affidavit, Officer David Papalia 

explained in detail Barahona’s involvement in Mata’s drug 

operation, describing, for example, Barahona’s role as a driver 

in a thwarted October 2011 drug run to North Carolina. In 

addition, the affidavit described a phone call between Mata and

a cocaine customer, in which Mata agreed to sell the customer 

three and a half kilograms of cocaine and told the customer to 

meet him at Barahona’s house. The affidavit also detailed a 

January 6, 2012 call between Mata and Barahona, in which 

Barahona asked Mata for money and told Mata to bring him air 

fresheners because “you won’t believe the smell” at the house. 

Surveillance confirmed that Mata went to Barahona’s house within 

hours after the phone call. 

Barahona argues that the above facts cannot establish 

probable cause because they do not establish a nexus between his 
20

house and evidence of his involvement in Mata’s drug operation. 

He argues, at bottom, that there was no direct evidence that 

drugs would be found at the house. As explained by this Court, 

however, “we have upheld warrants to search suspects’ residences 

and even temporary abodes on the basis of (1) evidence of the 

suspects’ involvement in drug trafficking combined with (2) the 

reasonable suspicion (whether explicitly articulated by the

applying officer or implicitly arrived at by the magistrate 

judge) that drug traffickers store drug-related evidence in 

their homes.” United States v. Williams, 548 F.3d 311, 319 (4th 

Cir. 2008); see also United States v. Lalor, 996 F.2d 1578, 1582 

(4th Cir. 1993) (“[A] warrant is not invalid for failure to 

produce direct evidence that the items to be seized will be 

found at a particular location.”).

The affidavit here established the requisite suspicion

regarding Barahona’s house. The affiant detailed Barahona’s 

role in Mata’s drug activities, and asserted his experience with 

drug dealers storing evidence in their homes. See J.A. 2592 

(“[I]t is common for drug dealers to secrete contraband, 

proceeds of drug sales and records of drug transactions in 

secure locations within their residence . . . .”). 

Additionally, the affiant offered facts from which a reasonable 

judge could find a “fair probability” that drugs would be 

present in Barahona’s house: (1) Mata instructed a customer to 
21

meet him there; and (2) Barahona asked Mata to bring him air 

fresheners, implying that the men were trying to conceal the 

smell of drugs at the house. This was simply not a case where 

evidence failed to “connect[] the drug activity to the 

residence.” Lalor, 996 F.2d at 1583.

Likewise, the issuing judge properly concluded that there 

was a “fair probability” of discovering contraband or evidence 

of a crime at Steele’s Hyattsville apartment. In a January 27, 

2012 affidavit, Armagost described a phone call between Steele 

and Mata, in which they discussed whether Mata would leave a bag 

containing drugs at the apartment. Agents later confirmed 

through GPS that Mata was at or near the Hyattsville apartment 

during the call. The affidavit also described Steele’s 

subsequent dealings with Mata, as well as Steele’s connections 

to the Hyattsville apartment. In particular, Steele drove a 

vehicle registered to that address and, as of the time of his 

arrest, had a key to the apartment building. Cf. United States 

v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (“[I]t is 

reasonable to suspect that a drug dealer stores drugs in a home 

to which he owns a key.”). Additionally, officers saw Steele’s 

car in the apartment’s parking lot. In short, the above 

evidence provided a sufficient basis from which the issuing 

judge could infer that evidence of drug activity would be found 

at the Hyattsville apartment.
22

In any event, even if the search warrants were deficient, 

the district court properly denied suppression pursuant to the 

good-faith exception to the exclusionary rule. Pursuant to that 

exception, “the exclusionary rule does not apply when the police 

conduct a search in ‘objectively reasonable reliance’ on a 

warrant later held invalid.” Davis v. United States, 131 S. Ct. 

2419, 2428 (2011) (quoting United States v. Leon, 468 U.S. 897, 

922 (1984)). “[T]he good-faith inquiry is confined to the 

objectively ascertainable question whether a reasonably well 

trained officer would have known that the search was illegal in 

light of all of the circumstances.” United States v. Stephens, 

764 F.3d 327, 336 (4th Cir. 2014) (internal quotation marks 

omitted). Accordingly, the good faith exception does not apply 

when, for example, a warrant is based on an affidavit “so 

lacking in indicia of probable cause as to render official 

belief in its existence entirely unreasonable.” Leon, 468 U.S. 

at 923; see also Messerschmidt v. Millender, 132 S. Ct. 1235, 

1245 (2012) (threshold for establishing that a warrant was 

facially deficient is a “high one”).

The affidavits at issue here were not so “bare bones” as to 

render officers’ reliance on them unreasonable. United States 

v. Wilhelm, 80 F.3d 118, 122 (4th Cir. 1996). As explained 

above, the affidavits detail Barahona and Steele’s involvement 

in Mata’s drug-trafficking operation, and offer specific facts 
23

linking that operation to Barahona’s house and Steele’s 

apartment. Cf. id. at 123 (concluding that the good faith 

exception did not apply where the affiant did little more than 

assert that probable cause existed). Accordingly, because the 

good faith exception applies, the district court did not err in 

denying Barahona and Steele’s motion to suppress.

C.

Barahona and Medrano argue that there was a material 

variance between the charged conspiracy and the proof presented 

at trial, and relatedly, that they were entitled to a multipleconspiracies instruction. 

1.

The court typically reviews de novo whether a material 

variance occurred. See United States v. Ford, 88 F.3d 1350, 

1360 (4th Cir. 1996); see also United States v. Malloy, 568 F.3d 

166, 177 (4th Cir. 2009). Where, however, the defendant failed 

to preserve his variance claim below, the court reviews only for 

plain error. United States v. Jeffers, 570 F.3d 557, 567 (4th 

Cir. 2009).

Here, Medrano preserved his variance claim by moving for a 

judgment of acquittal and, later, for a new trial. Accordingly, 

his variance claim is subject to de novo review. Barahona’s 

variance claim, however, is subject to plain error review, as he 

did not claim a variance below. 
24

As for claims of instructional error, the court typically 

reviews for abuse of discretion the district court’s decision

not to give a particular jury instruction. United States v. 

Bartko, 728 F.3d 327, 343 (4th Cir. 2013). Where, as here, 

however, the defendants propose a particular jury instruction 

but do not object to the failure to give that instruction, they 

fail to preserve their instructional error claim, and plain 

error review applies. United States v. Nicolaou, 180 F.3d 565, 

569 (4th Cir. 1999).

2.

“In general, a ‘variance’ occurs when the evidence at trial 

establishes facts materially different from those alleged in the 

indictment.” United States v. Kennedy, 32 F.3d 876, 883 (4th 

Cir. 1994). In a conspiracy case, “a defendant may establish 

the existence of a material variance by showing that the 

indictment alleged a single conspiracy but that the government’s 

proof at trial established the existence of multiple, separate 

conspiracies.” Id. “The question whether the evidence shows a 

single conspiracy or multiple conspiracies . . . is one of fact 

and is properly the province of the jury.” United States v. 

Leavis, 853 F.2d 215, 218 (4th Cir. 1988). “Whether there is a 

single conspiracy or multiple conspiracies depends upon the 

overlap of key actors, methods, and goals.” Id.
25

There is such an overlap here. The evidence at trial 

showed, for example, that both Barahona and Medrano made supply 

runs on Mata’s behalf. Likewise, both men obtained cocaine from 

Mata to resell, with Mata fronting them the drugs and then 

collecting payment later. Barahona and Medrano also aided Mata 

in other ways: Barahona permitted Mata to store, cut, and 

repackage drugs in the basement of his home, while Medrano 

helped arrange for Stotz to make the Atlanta drug runs and sold 

Mata a firearm for his protection. Cf. United States v. Bollin, 

264 F.3d 391, 405–06 (4th Cir. 2001) (the jury’s finding of a 

single conspiracy was supported by substantial evidence, despite 

the fact that co-conspirators played different roles in the 

conspiracy). Finally, Medrano was slated to receive drugs from 

a shipment that Mata planned to store and repackage in 

Barahona’s basement. Cf. United States v. Banks, 10 F.3d 1044, 

1054–56 (4th Cir. 1993) (the jury could reasonably find a single 

conspiracy based on “the interdependence of participants” in a 

drug-trafficking venture). Based on the above facts, the jury 

could reasonably find Barahona and Medrano engaged in a single 

conspiracy. See Bollin, 264 F.3d at 405 (“[T]he finding of a 

single conspiracy must stand unless the evidence, taken in the 

light most favorable to the Government, would not allow any 

reasonable juror to reach such a verdict.”).
26

In the face of the above evidence, Barahona and Medrano 

claim that there was a variance because the indictment charged a 

conspiracy to traffic in cocaine and heroin, whereas the proof 

at trial established only that they dealt in cocaine. As 

explained in Bollin, however, “even if the evidence established 

separate conspiracies, a variance is grounds for reversal only 

if it infringed the defendant’s substantial rights and thereby 

resulted in actual prejudice.” Id. at 406 (internal quotation 

marks omitted). Medrano cannot establish prejudice because the 

jury’s verdict against him rested on his participation in a 

conspiracy to distribute cocaine, not heroin. The jury was 

asked to determine whether Medrano was guilty of conspiracy to 

distribute and possess with intent to distribute cocaine and, if 

so, how much cocaine was attributable to him. It was not asked

to determine whether Medrano distributed heroin or how much 

heroin was attributable to him. As for Barahona, because he 

does not dispute that the evidence was sufficient to prove that 

he conspired to distribute cocaine, any factual insufficiency as 

to heroin would not require reversal of his conspiracy 

conviction. See Griffin v. United States, 502 U.S. 46, 56–57 

(1991) (“[W]hen a jury returns a guilty verdict on an indictment 

charging several acts in the conjunctive . . . the verdict 

stands if the evidence is sufficient with respect to any one of 

the acts charged.” (internal quotation marks omitted)).
27

In any event, the evidence was sufficient to link Barahona 

to Mata’s heroin-trafficking activities. As explained above, 

Barahona permitted Mata to use his basement to cut and repackage 

a drug shipment, which included more than a kilogram of heroin. 

Although Barahona indicates that he did not know Mata’s shipment 

would include heroin, the jury could have reasonably rejected 

that contention. The government presented evidence that 

Barahona had seen drugs in the basement on a previous occasion, 

and that among the items seized there were drug-packaging 

materials testing positive for heroin. Based on this evidence, 

the jury could have reasonably inferred, beyond a reasonable 

doubt, that Mata had brought heroin to Barahona’s house on other 

occasions, and that Barahona was aware of Mata’s heroin 

dealings. Thus, in sum, Barahona and Medrano’s variance claim 

fails.

Turning to Barahona and Medrano’s instructional error 

claim, “[a] multiple conspiracy instruction is not required 

unless the proof at trial demonstrates that appellants were 

involved only in separate conspiracies unrelated to the overall 

conspiracy charged in the indictment.” Bartko, 728 F.3d at 344 

(internal quotation marks omitted). “And, even if one 

overarching conspiracy is not evident, the district court’s 

failure to give a multiple conspiracies instruction is 

reversible error only when the defendant suffers substantial 
28

prejudice as a result.” Id. In other words, “the evidence of 

multiple conspiracies [must have been] so strong in relation to 

that of a single conspiracy that the jury probably would have 

acquitted on the conspiracy count had it been given a cautionary

multiple-conspiracy instruction.” Id. (emphasis in original) 

(internal quotation marks omitted). 

According to Barahona and Medrano, the lack of evidence 

that they were involved in or knew about Mata’s heroin dealings 

entitled them to a multiple-conspiracies instruction. But, even 

assuming they were entitled to this instruction, the district 

court’s failure to give it did not cause them substantial 

prejudice. As explained above, the verdict form for Medrano 

only permitted a conspiracy conviction based on cocaine 

distribution. As for Barahona, there was sufficient 

circumstantial evidence linking him to Mata’s heroin dealings. 

Moreover, the district court instructed the jury to consider 

each defendant individually for purposes of determining guilt 

and drug quantities. In this way, the district court ensured 

that the jury would not find a defendant guilty based merely on 

the activities of another defendant. Cf. Jeffers, 570 F.3d at 

567 (“Error will be found in a conspiracy instruction if the 

proof of multiple conspiracies was likely to have confused the 

jury into imputing guilt to [the defendant] as a member of one 

conspiracy because of the illegal activity of members of the 
29

other conspiracy.” (internal quotation marks omitted)). The 

district court, therefore, did not commit reversible error in 

declining to give a multiple-conspiracies instruction.

D.

Steele asserts that he is entitled to a new trial because 

he was unable to recall two government witnesses, David Ware and 

Michael Margulis. He claims that his inability to recall Ware 

violated his right to confrontation, while his inability to 

recall Margulis resulted in a Brady violation.

1.

On March 8, 2013, the government called Ware, a Utah-based 

government contractor who translated recorded phone calls, to 

testify as an expert witness. Among the calls Ware translated 

was a December 6, 2011 call, in which Santoyo-Villa and Mata 

used the Spanish word “carros,” which literally means “cars.” 

Santoyo-Villa and Mata testified, however, that, in the context 

of their conversations, “carros” meant “kilos.” Accordingly, 

Ware translated the word “carros” as kilos. The parties 

eventually stipulated that, in the December 6 call, “the word 

used by the speaker in Spanish that was translated as kilos was 

the word carros.” S.A. 272–73.4

 4 Citations to the “S.A.” refer to the Supplemental Joint 

Appendix filed by the parties in this appeal.
30

Despite the above stipulation, Steele requested that the 

district court continue the trial so that he could recall Ware 

and question him about the December 6 call. The court denied 

the request, reasoning that the parties had “thoroughly brought 

to the attention of the jury that the Spanish word used was 

carros, not kilos.” S.A. 270. The court also denied Steele’s 

subsequent motion for a new trial based on translation issues, 

again reasoning that his concerns had been “amply developed 

before the jury and the jury was able to make its own 

determinations with respect to any challenges to the 

interpretation of transcripts.” S.A. 292–93.

On April 4, 2013, the government called canine handler 

Margulis to testify about the January 25, 2012 searches of 

Barahona’s house and the vehicle used to transport drugs there. 

On cross-examination, Steele’s counsel went beyond the scope of 

direct and asked Margulis whether he had conducted a dog sniff 

at the Hyattsville apartment. Margulis indicated that his dog 

had alerted during a scan of the Hyattsville apartment, but that 

he would need to review his report to provide more details. At 

a bench conference, Steele’s counsel complained that she had not 

been provided with Margulis’ report. Although questioning 

whether the report would be more “bad evidence” for Steele, the 

district court agreed that Margulis would be subject to recall 
31

after the government gave the report to defense counsel. S.A. 

163–64.

The government located the report soon thereafter, and 

Steele’s counsel recalled Margulis. Margulis testified that the 

dog had alerted in the hall and bedroom of the Hyattsville 

apartment, and that, to his best recollection, he had not 

conducted a scan of Steele’s car in the apartment parking lot. 

The court excused Margulis after his testimony. 

The next day, on April 5, 2013, the government gave Steele 

an additional report indicating that, on January 27, 2012, 

Margulis conducted a scan of the car Steele was driving at the 

time of his arrest, and that the dog did not alert. Steele’s 

counsel did not advise the government until April 10, 2013, five 

days later, however, that she wished to recall Margulis. By 

that time, Margulis had left on a previously scheduled vacation 

to Mexico and was not available for recall. 

Steele moved for a mistrial, which the district court 

denied. The court reasoned that the answer to the only question 

Steele wished to pose—whether dogs alert to latent odors when 

drugs are no longer present—was likely “it [] depends,” and that 

the issue was not “of great significance to this case.” S.A. 

250–52. The court denied Steele’s post-trial motion raising the 

same issue. In any event, Steele’s counsel introduced the 
32

result of the January 27 car scan by cross-examining Armagost, 

and later used that testimony in her closing argument.

2.

We review for abuse of discretion limitations on the 

defense case that are alleged to violate the Confrontation 

Clause. See, e.g., United States v. Sterling, 724 F.3d 482, 516 

(4th Cir. 2013); see also United States v. Williams, 445 F.3d 

724, 738–39 (4th Cir. 2006) (“[B]road discretion must be granted 

trial courts on matters of continuances; only an unreasoning and 

arbitrary insistence upon expeditiousness in the face of a 

justifiable request for delay violates the right to the 

assistance of counsel.” (internal quotation marks omitted)). 

Likewise, we review for abuse of discretion the denial of a new 

trial based on a Brady violation, reviewing de novo the legal 

question of whether there was indeed a Brady violation. United 

States v. Horton, 693 F.3d 463, 470 (4th Cir. 2012).

3.

The district court did not abuse its discretion in denying 

Steele a continuance to recall Ware. As we have recognized, 

denial of a motion for continuance may, “under certain 

circumstances, implicate a defendant’s right to present a 

defense or to confront the witnesses against him.” Williams, 

445 F.3d at 739–40. In particular, denial of a continuance may 

implicate the confrontation right when the defendant is 
33

prevented from pursuing a meaningful line of inquiry. See id.

at 740 (no abuse of discretion in denying a continuance where 

there was “nothing new” in the testimony the defendant sought to 

elicit, or where the denial prevented the defendant from 

presenting “cumulative evidence”).

Steele’s desire to question Ware about the Spanish word 

“carros” used in the December 6 call is not such a meaningful 

line of inquiry. As found by the district court, Steele 

“thoroughly brought to the attention of the jury that the 

Spanish word used [in the December 6 call] was carros, not 

kilos.” S.A. 270. As indicated above, the parties stipulated 

that the Spanish word “that was translated as kilos was the word 

carros.” S.A. 272–73. Moreover, Steele’s counsel reminded the 

jury of the parties’ stipulation during closing argument.

To the extent Steele argues that the court deprived him of 

an opportunity to probe Ware’s potential bias, this argument 

must be rejected. As pointed out by the government, defense 

counsel elicited testimony from Ware that the U.S. Drug 

Enforcement Administration (“DEA”) was one of his company’s 

biggest clients, and that DEA agents provided the company with 

call summaries and identified call participants. In addition, 

Steele argued during closing that the jury should give less 

credence to Ware’s testimony given his company’s relationship to 

the DEA. Accordingly, the government is correct that any 
34

further suggestion of bias would have been cumulative. Cf.

Williams, 445 F.3d at 740 (because the defendant was able to 

explore the relevant issue elsewhere in trial, his “inability to 

impeach [a witness] to a somewhat greater degree [cannot] be 

viewed as a violation of his constitutional rights”).

As to Margulis, the district court was correct in finding 

no Brady violation. To establish a Brady violation, “the burden 

rest[s] on [the defendant] to show that the undisclosed evidence 

was (1) favorable to him either because it is exculpatory, or 

because it is impeaching; (2) material to the defense, i.e., 

prejudice must have ensued; and (3) that the prosecution had 

materials and failed to disclose them.” United States v. 

Wilson, 624 F.3d 640, 661 (4th Cir. 2010) (internal quotation 

marks omitted) (emphasis added). “Evidence is material if it is 

likely to have changed the verdict.” Id. (internal quotation 

marks omitted).

Steele cannot show that questioning Margulis about whether 

dogs alert to latent odors would have likely had any effect on 

the verdict in his case. Indeed, he does not argue that this 

line of questioning would have exculpated him, or that it would 

have impeached Margulis. Steele instead contends that, by 

questioning Margulis, he would have been able to impeach Mata, 

who testified that he had put kilograms of drugs in Steele’s 

car. 
35

But this assumes that Margulis would have testified that a 

trained dog would have likely alerted to a car that formerly 

contained drugs. And, as indicated by the district court, there 

was no basis for believing that Margulis would give such 

testimony. See S.A. 251 (“I could almost guarantee you that the 

question of whether a dog is going to hit on a car that’s had 

drugs in it . . . depends on whether any drug residue is left or 

not.”). In any event, even if Margulis had testified as Steele 

hoped, his testimony would not have undermined the other 

considerable evidence presented by the government, including 

phone calls in which Steele negotiated drug deals, surveillance 

from a drug deal in New York, and a digital scale bearing

Steele’s fingerprint which was recovered from the Hyattsville 

apartment. Cf. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per 

curiam) (no reversible Brady error where the case against the 

defendant was “overwhelming”). Steele, in short, was not 

entitled to a new trial based on his inability to recall Ware or 

Margulis.

E.

The Defendants claim that the district court abused its 

discretion in denying their request to remove two jurors based 

on alleged incidents involving Barahona. According to the 

Defendants, the jurors involved in those incidents were actually 

biased. In the alternative, the Defendants argue for a 
36

“presumption of prejudice” under Remmer v. United States, 347 

U.S. 227 (1954), or an “implication of bias” pursuant to Person 

v. Miller, 854 F.2d 656 (4th Cir. 1988). 

1.

On March 29, 2013, the third day of trial, the district 

court informed the parties that a juror had the impression 

Barahona had followed her down a courthouse escalator and taken 

a picture of her with a cellphone. The juror also thought that 

a woman outside the courthouse had taken pictures of her. 

Acknowledging that the juror might have been mistaken, the 

district court “[didn’t] want to make a deal out of it with the 

juror,” but admonished the parties not to take the escalators 

used by jurors and not to take pictures with their cell phones. 

J.A. 511.

The government suggested that the court determine whether 

Barahona had taken the picture and, if not, inform the juror 

that she had been “confused.” J.A. 511. Accordingly, the court 

asked Barahona’s counsel to question him about the alleged 

incident. A short time later, counsel reported that she had 

checked Barahona’s phone, and that there were no pictures of any 

jurors. The court did not conduct any further inquiry of the 

juror, nor did the Defendants request that the court do so.

Four days later, on April 5, 2013, the district court 

informed the parties that another juror expressed concern that 
37

Barahona had followed her home upon leaving the courthouse. To 

avoid “any apprehension by jurors that they’re being followed or 

intimidated,” the district court ordered the Defendants to 

depart the courthouse each day fifteen minutes after the jury. 

J.A. 1057. Following the district court’s order, the Defendants 

requested that the court voir dire the juror. After confirming 

through Barahona’s counsel that he had not followed the juror, 

the court determined that it—but not the parties’ attorneys—

would conduct the inquiry. 

Upon questioning, the juror stated that, while she had seen 

Barahona’s van, she “[couldn’t] truly say he was following 

[her].” J.A. 1061. Additionally, she stated that the incident 

did not impede her ability to be a fair juror, and that she had 

not discussed the incident with other jurors. The court told 

the juror that seeing Barahona’s car was likely “coincidental,” 

but explained that the Defendants would now be departing fifteen 

minutes after the jury to avoid any future encounters. J.A. 

1062. The court verified that this measure addressed the 

juror’s concerns, and twice reminded her not to talk with the 

other jurors about what they had discussed. The Defendants did 

not ask the court to make further inquiries, nor did they move 

to excuse the juror. 

On April 11, 2013, Steele’s counsel reported to the court 

that, an hour after court recessed the day before, she saw the 
38

same juror the court had voir dired “sitting in the backseat of 

her car with the door open and on the phone and kind of looking 

around like she was freaked out.” J.A. 1426. Counsel brought 

the incident to the court’s attention because “it was 94-degrees 

[out], so [she] just thought it was strange.” J.A. 1426. The 

court indicated that it had heard no additional concerns from 

the juror, and the Defendants neither moved to excuse the juror 

nor asked the court to inquire further. 

On April 17, 2013, just prior to the commencement of 

deliberations, the Defendants moved to exclude the two jurors 

involved in the above incidents. The Defendants argued that the 

two jurors had “shown some bias and concern,” and that they 

could be replaced with alternates. J.A. 1445. Stating that the 

jurors “didn’t reflect any bias,” and that it had “addressed the 

issue long ago,” the district court denied the motion. J.A. 

1445.

2.

We typically review for abuse of discretion the district 

court’s handling of juror-intimidation allegations. United 

States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 2010). Where, 

however, the defendants fail to raise the issue at trial, we 

review only for plain error. Id.

The government urges us to apply plain error review as to 

the March 29 and April 11 incidents, as the Defendants did not 
39

request additional voir dire. The Defendants, for their part, 

seem to assume that the abuse of discretion standard applies. 

We need not decide which standard of review controls, as the 

Defendants’ challenges fail even under the more lenient abuse of 

discretion standard.

3.

As an initial matter, we reject the Defendants’ claim of 

actual bias. “[T]he trial court has a serious duty to determine 

the question of actual bias, and a broad discretion in its 

rulings on challenges therefor . . . .” Wainwright v. Witt, 469 

U.S. 412, 429–30 (1985) (internal quotation marks omitted). 

That being said, the trial court must, as a matter of law, 

“exclude veniremen who cannot be impartial.” United States v. 

Turner, 389 F.3d 111, 117 (4th Cir. 2004). “[A] juror is 

impartial only if he can lay aside his opinion and render a 

verdict based on the evidence presented in court . . . .” 

Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). “[T]he burden 

of proving partiality is upon the challenger.” Turner, 389 F.3d 

at 117–18 (internal quotation marks omitted).

The Defendants simply did not meet that burden here. As to 

the first juror, there is nothing in the record to indicate that 

she could not be impartial following the March 29 incident. 

Indeed, the Defendants never even requested that the court 

question the juror. While the district court might have 
40

summoned the juror anyway to explain that Barahona had not taken 

any pictures of her, the decision not to do so was a sound 

exercise of its “wide discretion in handling matters relating to 

. . . the integrity of the jury.” United States v. Johnson, 657 

F.2d 604, 606 (4th Cir. 1981). The district court may have 

reasonably concluded, for instance, that individualized voir 

dire would be counterproductive, and “unnecessarily highlight 

the matter in the eyes of the juror[].” United States v. Mack, 

729 F.3d 594, 606 (6th Cir. 2013); see also United States v. 

Stafford, 136 F.3d 1109, 1113 (7th Cir. 1998) (recognizing that 

individual questioning in the middle of a trial may “unsettle 

the jury”).

As to the second juror, the district court asked her 

whether the incident with Barahona caused her “any concern as to 

whether [she] can continue to be a fair juror in this case,” and 

the juror answered clearly, “[n]o, it does not.” J.A. 1061. 

The Defendants attempt to argue the juror was nevertheless 

biased by relying on the April 11 incident. But, as recognized 

by the district court, the juror never reported any additional 

concerns to the court, and the April 11 incident might have had 

nothing to do with the trial. The district court, therefore, 

did not err in failing to find actual bias.

Turning to the Defendants’ argument for a “presumption of 

prejudice,” this Court has explained that, “[b]ecause the 
41

potential for mischief is so great when a third party 

establishes private, extrajudicial contact with a juror, . . . 

‘any private communication [or] contact . . . with a juror 

during a trial about the matter pending before the jury is . . . 

presumptively prejudicial . . . .’” Fullwood v. Lee, 290 F.3d 

663, 678 (4th Cir. 2002) (quoting Remmer, 347 U.S. at 229). The 

Remmer presumption, however, is “not one to be casually 

invoked.” Baptiste, 596 F.3d at 221 (internal quotation marks 

omitted). To trigger the presumption, “the defendant bears the 

initial burden of establish[ing] both that an unauthorized 

contact was made and that it was of such a character as to 

reasonably draw into question the integrity of the verdict.” 

Id. (internal quotation marks omitted). In determining whether 

the defendant has met his burden, the court “refer[s] back to 

the factors the Supreme Court deemed important in Remmer

itself”: “any private communication; any private contact; any 

tampering; directly or indirectly with a juror during trial; 

about the matter before the jury.” Barnes v. Joyner, 751 F.3d 

229, 245 (4th Cir. 2014) (internal quotation marks omitted).

Applying Remmer, the March 29 incident did not trigger a 

presumption of prejudice because it did not “reasonably draw 

into question the integrity of the verdict.” Baptiste, 596 F.3d 

at 221. The Defendants made no effort to meet their threshold 

burden. The only “evidence” of bias came from a brief statement 
42

by the district court outside the presence of the jury that one 

juror had reported an incident. Nor did the April 11 incident 

trigger the Remmer presumption. As indicated above, the 

Defendants have not shown that the juror’s behavior on that day 

had anything to do with the trial, let alone that it stemmed 

from an “unauthorized contact” with Barahona. Id. Indeed, the 

Defendants merely speculate that the juror was upset because of 

an incident with Barahona. Cf. United States v. Heater, 63 F.3d 

311, 321–22 (4th Cir. 1995) (concluding that “defense counsel’s 

declaration of improper jury contact was nothing more than a 

bald assertion,” and that the “mere proffer without further 

support is not enough to create a question about improper jury 

tampering”).

As to the November 5 incident, even assuming the Defendants 

met their initial burden “of establish[ing] both that an 

unauthorized contact was made and that it was of such a 

character as to reasonably draw into question the integrity of 

the verdict,” Baptiste, 596 F.3d at 221 (internal quotation 

marks omitted), additional questioning of the juror established 

that the contact was “harmless to the defendant[s].” United 

States v. Lawson, 677 F.3d 629, 641 (4th Cir. 2012). As already 

explained, the juror indicated that she was not certain Barahona 

had followed her, that the fifteen-minute delay for the 

Defendants’ departure allayed any concerns she had, and that she 
43

could continue to be a fair juror. Thus, the Defendants’ 

presumed prejudice argument fails.

Finally, as for the Defendants’ argument for an 

“implication of bias,” this Court has stated that “the doctrine 

of implied bias is limited in application to those extreme 

situations where the relationship between a prospective juror 

and some aspect of the litigation is such that it is highly 

unlikely that the average person could remain impartial in his 

deliberations under the circumstances.” Person, 854 F.2d at 

664. Implied bias might arise, for example, when “the juror is 

an actual employee of the prosecuting agency, [when] the juror 

is a close relative of one of the participants in the trial or 

the criminal transaction, or [when] the juror was a witness or 

somehow involved in the criminal transaction.” United States v. 

Umana, 750 F.3d 320, 341 (4th Cir. 2014) (internal quotation 

marks omitted); see also Dyer v. Calderon, 151 F.3d 970, 982 

(9th Cir. 1998) (applying implied bias doctrine where the juror 

lied during voir dire to keep her status as a juror and “secure 

the right to pass on [the defendant’s] sentence”).

Applying the above standard, the two jurors had no preexisting relationships or experiences suggesting a risk of

partiality. Nor were the alleged incidents with Barahona the 

kind of “extreme situations” warranting relief. Person, 854 

F.2d at 664. Rather, as recognized by the district court, they 
44

were likely misunderstandings addressed through practical 

measures, including having the Defendants not take the 

escalators used by jurors and having the Defendants leave the 

courthouse fifteen minutes after the jury. Thus, we discern no 

error or abuse of discretion in the district court’s denial of 

the Defendants’ request to substitute alternates for the two 

belatedly-challenged jurors.

F.

Barahona argues that the district court clearly erred in 

applying a two-level enhancement to his base offense level due 

to co-conspirator Mata’s possession of a firearm.

1.

Barahona’s presentence investigation report (“PSR”) 

calculated a total offense level of 36. The PSR calculated a 

base-offense level of 34 derived from the quantity of drugs 

attributable to Barahona. It then added two levels under 

U.S.S.G. § 2D1.1(b)(1) because Mata’s possession of a handgun 

was “in furtherance of the jointly undertaken criminal activity 

and was reasonably foreseeable by [] Barahona.” J.A. 3039. 

Overruling Barahona’s objection to the two-level enhancement, 

the district court calculated an advisory guidelines range of 

188 to 235 months, and ultimately sentenced Barahona to 132 

months. 
45

2.

Section 2D1.1(b)(1) permits a two-level increase in a 

defendant’s base offense level “[i]f a dangerous weapon 

(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). 

The two-level enhancement “‘should be applied if the weapon was 

present, unless it is clearly improbable that the weapon was 

connected with the offense.’” United States v. Gomez-Jimenez, 

750 F.3d 370, 381 (4th Cir. 2014) (quoting U.S.S.G. § 2D1.1 cmt. 

n.11(A)). In particular, with respect to conspiracy cases, 

“weapons carried by a member of a conspiracy are attributable to 

a co-conspirator when ‘under the circumstances of the case, it 

was fair to say that it was reasonably foreseeable to [the 

defendant] that his co-participant was in possession of a 

firearm.’” Id. (quoting United States v. Kimberlin, 18 F.3d 

1156, 1160 (4th Cir. 1994)). “‘[A]bsent evidence of exceptional 

circumstances, . . . it [is] fairly inferable that a 

codefendant’s possession of a dangerous weapon is foreseeable to 

a defendant with reason to believe that their collaborative 

criminal venture includes an exchange of controlled substances 

for a large amount of cash.’” Kimberlin, 18 F.3d at 1160 

(quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 

1991)). In considering whether a co-defendant’s possession of a 

weapon was foreseeable to the defendant, this Court reviews the 
46

district court’s findings of fact for clear error. United 

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

Applying the above standard, the district court did not 

clearly err in imposing the two-level enhancement based on 

Mata’s possession of a firearm. Contrary to Barahona’s 

assertion that “the firearm had [nothing] to do with” Mata’s 

drug trafficking activities, Def. Br. at 86, Mata testified at 

trial that he had purchased the handgun for protection from a 

drug supplier named Berna, with whom he had quarreled over a 

drug debt. Moreover, agents recovered the gun in the car that 

Mata had driven to Barahona’s house, where he had planned to 

store and cut the latest shipment of cocaine and heroin. 

In any event, there were no “exceptional circumstances” 

rendering Mata’s possession of the handgun unforeseeable to 

Barahona. Kimberlin, 18 F.3d at 1160 (internal quotation marks 

omitted). Barahona seizes on Mata’s statement at trial that the 

handgun “wasn’t to protect the drugs” but rather himself. J.A. 

621. Mata made clear, however, that he “always” carried the 

gun, including when he was transporting drugs. J.A. 621–22. 

Barahona also argues that he and Mata never discussed firearms, 

and that he was unaware Mata even possessed a gun. But the 

simple fact that Mata never discussed the gun with Barahona does 

not make his possession of the gun unforeseeable; nor must 

Barahona have been actually aware of the gun for the two-level 
47

enhancement to apply. Cf. Kimberlin, 18 F.3d at 1159–60 (actual 

knowledge not required where there is a “strong showing of 

foreseeability”).

Finally, to the extent Barahona argues that the two-level 

enhancement was improper because it was not applied to some of 

his co-defendants, this argument must be rejected. Barahona 

cites no authority indicating that failure to apply an 

enhancement to one conspirator bars application of that 

enhancement to other conspirators. Indeed, in “jointly 

undertaken criminal activity,” “relevant conduct is not 

necessarily the same for every participant,” and thus sentencing 

enhancements may apply to one conspirator but not another. 

U.S.S.G. § 1B1.3 cmt. n.2(B). In sum, the district court’s 

application of the two-level enhancement under § 2D1.1(b)(1) did 

not result from a clear error of fact or otherwise an abuse of 

discretion.

III.

For the foregoing reasons, the judgments are

AFFIRMED.