UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4468

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

NERY GUSTAVO RAMOS DUARTE, a/k/a El Diablo,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:10-cr-00308-AW-4)

Submitted: July 31, 2014 Decided: August 14, 2014

Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed and remanded by unpublished per curiam opinion.

Matthew G. Kaiser, Justin Dillon, THE KAISER LAW FIRM PLLC, 

Washington, D.C., for Appellant. Rod J. Rosenstein, United 

States Attorney, Bonnie S. Greenberg, Andrea L. Smith, Assistant 

United States Attorneys, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Nery Gustavo Ramos Duarte was found guilty after a 

jury trial of conspiracy to distribute controlled substances, 

conspiracy to import controlled substances into the United 

States, conspiracy to commit money laundering, and conspiracy to 

smuggle bulk cash. He received a 160-month sentence. On 

appeal, he challenges several evidentiary issues, the 

sufficiency of the evidence on all four of his convictions, and 

the drug quantity attributed to him at sentencing. We affirm

the judgment, but remand for correction of a clerical error.

In 2003, Duarte was stopped by Arkansas law 

enforcement with approximately $1.1 million in cash stashed in a 

secret compartment in a Chevy Tahoe that he was driving after 

just having left the company of a well known leader of a 

significant drug distribution network based out of Guatemala. 

The leader’s name was Napolean Villagran. The evidence at trial 

also showed that in 2004, Duarte collected money and accepted 

cars as payment for drug debts to Villagran and transported 

payments to Villagran in Guatemala. Duarte also delivered 

messages to co-conspirators Jose Sandoval and Marilyn Navas and 

other distributors in the United States on Villagran’s behalf. 

In 2006, Duarte negotiated a debt owed to Villagran by Navas and 

offered her more drugs to sell to cover her debt. Customs 
3

records were introduced that showed that Duarte reentered the 

United States fifty-eight times over a ten-year period.

I.

Duarte first argues that co-conspirator Marilyn 

Navas’s statements during the recorded phone calls with Diego 

Paredes and Duarte constituted inadmissible hearsay that was not 

subject to the co-conspirator exception to the hearsay rule 

under Rule 801(d)(2)(E) of the Federal Rules of Evidence. Under 

this rule, “a statement of the defendant’s co-conspirator is 

admissible against the defendant if it was made during the 

course of and in furtherance of the conspiracy.” United States 

v. Shores, 33 F.3d 438, 442 (4th Cir. 1994) (internal quotation 

marks omitted). A co-conspirator’s statements come in “if the 

court finds (i) that the defendant and the declarant were 

involved in a conspiracy with each other at the time the 

statement was made; and (ii) that the statement was made in 

furtherance of that conspiracy.” Id. (footnote omitted); see

Krulewitch v. United States, 336 U.S. 440, 442 (1949) (holding 

that an out-of-court statement of one conspirator may be 

admitted against his fellow conspirator only if the statements 

were “made pursuant to and in furtherance of objectives of the 

conspiracy charged”).

Duarte correctly argues, and the Government concedes, 

that the drug conspiracy was over when Navas made the recorded
4

calls because she was at that time cooperating in the 

investigation. See United States v. Pratt, 239 F.3d 640, 644 

(4th Cir. 2001) (error to admit recorded telephone conversations 

initiated by cooperating co-conspirators because they were not 

statements made in furtherance of the conspiracy). The 

Government also concedes that Navas’s side of the recorded 

conversations is inadmissible under Rule 801(d)(2)(E). Both 

parties acknowledge that Diego Paredes’ and Duarte’s portions of 

the conversation would be admissible as opposing party’s 

statements under Fed. R. Evid. 801(d)(2)(A).

We conclude that, even if Navas’s recorded statements 

were not made in furtherance of the conspiracy as required by 

Rule 801(d)(2)(E), or otherwise admissible, the admission of the 

transcripts of the phone calls was harmless. See United States 

v. Graham, 711 F.3d 445, 453 (4th Cir. 2013) (“The incorrect 

admission of a statement under the coconspirator statement 

exclusion from the definition of hearsay is subject to harmless 

error review.”). “Erroneously admitted evidence is harmless if 

a reviewing court is able to say, with fair assurance, after 

pondering all that happened without stripping the erroneous 

action from the whole, that the judgment was not substantially 

swayed by the error.” United States v. Johnson, 587 F.3d 625, 

637 (4th Cir. 2009) (internal quotation marks omitted). The 

contested recorded conversations were brief, conducted partly in 
5

code, and most importantly, were supplemented by the live 

testimony of both Sandoval and Navas. Sandoval’s and Navas’s 

live testimony was more substantial than the recordings. There 

was further evidence presented by the Government with expert 

testimony on money laundering that corroborated that Duarte 

would be aware of both the drug distribution and money 

laundering schemes. And finally, there was uncontradicted 

evidence that Duarte transported $1.1 million hidden in a secret 

compartment in a vehicle that Duarte received at a residence 

where Duarte interacted with co-conspirators in the drug 

distribution network, including the known leader of the 

organization. We therefore conclude that the admission of the 

recorded conversations, although erroneous, was harmless error.

II.

Duarte challenges the district court’s decision to 

permit expert testimony on money laundering both as to the 

qualification of the expert and the need for the testimony, 

ultimately contending that the expert acted as a summary 

witness. The district court’s decision whether to admit expert 

testimony is reviewed for abuse of discretion. F.C. Wheat Mar. 

Corp. v. United States, 663 F.3d 714, 723 (4th Cir. 2011). The 

Government called William DeSantis, an Internal Revenue Service 

(IRS) special agent, as an expert in money laundering. Although 

the general rule is that testimony drawing legal conclusions 
6

should be excluded “when the legal regime is complex and the 

judge determines that the witness’ testimony would be helpful in 

explaining it to the jury, the testimony may be admitted.” 

United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011). 

Here, the prosecution involved a complicated drug 

distribution network spanning Guatemala and the United States. 

The organization used a variety of methods to return the cash 

proceeds to Guatemala. We conclude that the district court’s 

findings that the testimony would be helpful and DeSantis’s 

experience was sufficient to qualify him as an expert were not 

an abuse of discretion.

III.

Next, Duarte asserts that, had he been permitted to 

thoroughly cross-examine the cooperating witnesses Navas and 

Sandoval concerning the penalties they would have faced if they 

had not cooperated, he would have more completely demonstrated 

their motivation to provide information and trial testimony 

adverse to him. Though the court did not allow detailed 

questioning regarding the possible sentences the witnesses 

faced, the court did permit counsel to question the witnesses as 

to whether they had secured a favorable bargain by assisting the

Government, or whether the Government had foregone criminal 

prosecution in exchange for their testimony.
7

A district court’s decision to limit cross-examination 

is reviewed for abuse of discretion. United States v. Scheetz, 

293 F.3d 175, 184 (4th Cir. 2002). Under the Confrontation 

Clause, a defendant has the right to cross-examine witnesses who 

are cooperating with the Government about potential sources of 

bias. United States v. Cropp, 127 F.3d 354, 358 (4th Cir. 

1997). However, the trial court retains the discretion to place 

reasonable limits on cross-examination based on concerns about, 

among other things, harassment, prejudice, confusion, 

repetition, or relevance. Delaware v. Van Arsdall, 475 U.S. 

673, 678-79 (1986). We have “upheld restricting 

cross-examination to the minimum and maximum penalties the 

cooperating government witness was facing, whether the 

cooperating government witness was testifying to gain a reduced 

sentence, and the terms of his plea agreement concerning a 

downward departure.” Scheetz, 293 F.3d at 184 (citing United 

States v. Ambers, 85 F.3d 173, 176-77 (4th Cir. 1996)). An 

improper denial of an opportunity to examine a witness for bias 

is subject to harmless error review. United States v. Turner, 

198 F.3d 425, 430-31 (4th Cir. 1999).

The record plainly reveals that, on cross-examination, 

Duarte illustrated that the Government’s witnesses had motive to 

present adverse testimony or to lie. Restricting counsel from 

delving into the particular details of the sentences each 
8

witness potentially—but did not actually—face was an appropriate 

discretionary limitation. To have allowed further questioning 

on this issue would have simply been cumulative and repetitive. 

Therefore, the district court did not abuse its discretion in 

imposing this limitation. Scheetz, 293 F.3d at 185 (finding 

district court did not abuse its discretion in limiting defense 

counsel from questioning cooperating witnesses regarding their 

Sentencing Guidelines ranges).

IV.

The next evidentiary issue Duarte raises is the 

admission of Navas’s testimony that in a recorded telephone 

conversation the person that she referred to as “Diablo” was 

Duarte. Duarte contends that the alias of Diablo had no 

evidentiary value, that it did not connect him to any piece of 

evidence in the case, and the Government did not prove that it 

was Duarte’s alias; therefore, he claims the nickname should 

have been excluded. The Government argues that Navas was only 

questioned about the name to identify that she was speaking with 

Duarte and that counsel did not make a timely objection to the 

identification. We ordinarily review a district court’s 

decision to admit evidence for abuse of discretion. See United 

States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011). With 

respect to the admission of uncontested evidence, the decision 

of the district court is reviewed only for plain error. United 
9

States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993).* We 

conclude the district court did not commit plain error in 

admitting the uncontested evidence identifying that Navas was 

referring to Duarte when she called him Diablo.

V.

Duarte argues that the cumulative effect of the 

challenged district court evidentiary ruling errors deprived him 

of a fair trial and requires reversal. “Pursuant to the 

cumulative error doctrine, the cumulative effect of two or more 

individually harmless errors has the potential to prejudice a 

defendant to the same extent as a single reversible error.” 

United States v. Hager, 721 F.3d 167, 204 (4th Cir. 2013) 

(citations omitted), cert. denied, 134 S. Ct. 1936 (2014). 

Generally, if a court “determine[s] . . . that none of [a 

defendant’s] claims warrant reversal individually,” it will 

“decline to employ the unusual remedy of reversing for 

cumulative error.” United States v. Fields, 483 F.3d 313, 362 

(5th Cir. 2007). In Hager, the court concluded that the 

harmless errors present “were not widespread of prejudicial 

enough to have fatally infected [the defendant’s] trial or 

sentencing hearing.” 561 F.3d at 204. The same situation 

exists here. Although there was one error in admitting Navas’s 

 * Duarte did not object below.
10

recorded telephone conversations after she began cooperating in 

the investigation, we determined it to be harmless. The record 

does not demonstrate that there were other harmless errors 

present that fatally infected the trial. We will not reverse 

the convictions for cumulative error. 

VI.

Duarte argues that the Government failed to adduce 

sufficient evidence to support his convictions. “A defendant 

challenging the sufficiency of the evidence . . . bears a heavy 

burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th 

Cir. 1997) (internal quotation marks omitted). The jury verdict 

must be sustained when “there is substantial evidence in the 

record, when viewed in the light most favorable to the 

government.” United States v. Jaensch, 665 F.3d 83, 93 (4th 

Cir. 2011) (internal quotation marks omitted). “Substantial 

evidence is evidence that a reasonable finder of fact could 

accept as adequate and sufficient to support a conclusion of a 

defendant’s guilt beyond a reasonable doubt.” Id. (alteration 

and internal quotation marks omitted). 

To obtain a conviction for conspiracy to possess with 

the intent to distribute a controlled substance, “the Government 

must prove the following essential elements: (1) an agreement 

between two or more persons to engage in conduct that violates a 

federal drug law; (2) the defendant’s knowledge of the 
11

conspiracy; and (3) the defendant’s knowing and voluntary 

participation in the conspiracy.” United States v. Green, 599 

F.3d 360, 367 (4th Cir. 2010). A defendant may be convicted of 

conspiracy without knowing all of its details, as long as he 

enters the conspiracy understanding that it is unlawful and 

willfully joins in the plan at least once. United States v. 

Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). “[T]he fact 

that a conspiracy is loosely-knit, haphazard, or ill-conceived 

does not render it any less a conspiracy—or any less unlawful.” 

Id. The court reverses for insufficient evidence only in “the 

rare case where the prosecution’s failure is clear.” Beidler, 

110 F.3d at 1067 (internal quotation marks omitted). We have 

reviewed the evidence and find that, viewing the evidence in the 

light most favorable to the Government, substantial evidence 

supports all four counts of conviction.

VII.

Finally, Duarte argues that the district court erred 

in attributing sixty-four kilograms of cocaine to him for

purposes of calculating the Sentencing Guidelines range based on 

the amount of cash found in the Chevy Tahoe. The Government 

contends that the court properly attributed the total amount of 

cash in the Tahoe and converted it to the quantity of drugs 

associated with the amount.
12

“[T]he government must prove the drug quantity 

attributable to a particular defendant by a preponderance of the 

evidence.” United States v. Bell, 667 F.3d 431, 441 (4th Cir. 

2011). We review the district court’s calculation of the 

quantity of drugs attributable to a defendant for sentencing 

purposes for clear error. United States v. Crawford, 734 F.3d 

339, 342 (4th Cir. 2013), cert. denied, 134 S. Ct. 1528 (2014); 

see also United States v. Perez, 609 F.3d 609, 612 (4th Cir. 

2010) (when assessing a challenge to the district court’s 

application of the Guidelines, this court reviews factual 

findings for clear error and legal conclusions de novo). Under 

this standard, we will reverse the district court’s finding only 

if it is “left with the definite and firm conviction that a 

mistake has been committed.” Crawford, 734 F.3d at 342 

(internal quotation marks and citation omitted).

When determining facts relevant to sentencing, such as 

approximated drug quantity, courts are allowed to “‘consider 

relevant information without regard to its admissibility under 

the rules of evidence applicable at trial, provided that the 

information has sufficient indicia of reliability to support its 

probable accuracy.’” Crawford, 734 F.3d at 342 (quoting U.S. 

Sentencing Guidelines Manual § 6A1.3(a) (2010). “Where there is 

no drug seizure . . . the sentencing judge shall approximate the 

quantity of the controlled substance. . . . The judge may 
13

consider, for example, the price generally obtained for the 

controlled substance . . . .” USSG § 2D1.1 cmt. n.5.

At sentencing, the district court attributed 

sixty-three or sixty-four kilograms of cocaine to Duarte. The 

district court used the seized amount of $1.1 million and, based 

on the testimony of a cooperating witness, determined that a 

kilogram of cocaine at the time of the seizure sold for 

approximately $17,000-$18,000. The district court then 

converted the money seized into the applicable quantity of 

drugs, and found the base offense level to be thirty-six under 

USSG § 2D1.1. In so finding, the district court determined that 

Duarte had knowledge of the money, and even if the exact amount 

was not known to Duarte at the time, it was reasonably 

foreseeable to him. The court also determined that Duarte was 

more than a mere courier when it denied Duarte’s argument that 

he should receive a lesser role adjustment. The court believed 

that Duarte “was the eyes and ears of the head guy in 

Guatemala.” 

Duarte argues that he should not be accountable for 

the converted amount of cash, because the Government did not 

prove that he knew how much cash was secreted in the vehicle, 

the Government’s expert testified that couriers frequently do 

not know the quantity of money that they are asked to carry, and 

despite the police surveillance of the Tahoe and Duarte’s 
14

presence around it, the Government did not present testimony 

that Duarte ever looked in the compartment prior to leaving with 

the vehicle. 

The court followed the procedure outlined in the 

Guidelines when there is no drug seizure. See United States v. 

Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (district court did 

not clearly err in calculating drug quantity by converting cash 

to its drug equivalent). Further, “actual knowledge of the type 

or quantity of contraband is not critical to the drug quantity 

determination.” United States v. Fullilove, 388 F.3d 104, 108 

(4th Cir. 2004). Even if the Government did not prove actual 

knowledge, the evidence in the record demonstrated that 

sixty-three to sixty-four kilograms of cocaine was reasonably 

foreseeable considering the scope of the organization and the 

amount of money that Duarte was aware of flowing back to 

Guatemala. Therefore, there was no clear error.

Accordingly, we affirm the judgment but remand to the 

district court for the limited purpose of correcting a clerical 

error. In its written judgment, the district court erroneously 

lists the sentence for count four to run consecutively to the 

sentences for counts one, two, and three. However, the clear 

oral pronouncement at sentencing indicated all counts are to run 

concurrently. Where there is a conflict between a district 

court’s written judgment and its oral pronouncement of the 
15

sentence, the oral sentence controls. United States v. 

Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003) (citing United 

States v. Morse, 344 F.2d 27, 30 n.1 (4th Cir. 1965)). The 

remedy for such a conflict is to remand to the district court 

with instructions to correct the written judgment to conform to 

the oral sentence. Morse, 344 F.2d at 30-31 & n.1. For the 

foregoing reasons, we affirm the judgment but remand with 

instructions to correct the written judgment to reflect the 

district court’s oral pronouncement of Duarte’s sentence. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED AND REMANDED