UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5867

PAUL WINESTOCK, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-90-454-WN)

Argued: March 7, 1997

Decided: March 27, 1997

Before WILKINSON, Chief Judge, and RUSSELL and HALL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Addison Shorter, Jr., Washington, D.C., for Appellant. John Vincent Geise, Assistant United States Attorney, Barbara

Suzanne Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States

Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Paul Winestock, Jr. was convicted of distribution of cocaine base

and possession with intent to distribute cocaine, both in violation of

21 U.S.C. § 841(a)(1). Winestock appeals his convictions on two

grounds -- that the trial court prevented him from developing an

entrapment defense and that one of the counts on which he was convicted was duplicitous. Finding no merit in either contention, we

affirm the judgment of the district court.

I.

After an extensive investigation into a drug distribution ring in the

Woodridge section of Washington, D.C., government agents arrested

Winestock and twenty-seven of his alleged co-conspirators on

December 5, 1990. Seventeen of the defendants, including Winestock,

were tried together in a sixty-nine day trial beginning in November

1991.

To prove the numerous counts of conspiracy, distribution of

cocaine and cocaine base, and possession with intent to distribute, the

government relied on the testimony of an informant, eight cooperating

witnesses who had been part of the conspiracy, two undercover agents

who had purchased drugs from Winestock and others, and numerous

surveillance agents. The prosecution also introduced dozens of intercepted telephone conversations, telephone and other records, and

items seized in the searches of approximately thirty-two locations.

The jury found Winestock guilty of both distribution of cocaine

base and possession of cocaine with intent to distribute. Because of

the large amounts of drugs involved, Winestock was sentenced to two

concurrent terms of life imprisonment.

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Winestock now appeals.

II.

A.

Winestock first argues that the trial court impermissibly limited the

cross-examination of government special agent T.J. Dade, preventing

Winestock and his co-defendants from developing an entrapment

defense. He suggests that Dade's undercover exchanges with Winestock of cellular phones for crack may have constituted entrapment.

Winestock asserts that the court prevented this line of defense when

it told counsel for a co-defendant to move on to another topic rather

than continuing the entrapment line of questioning during Dade's

cross-examination.

Prior to Dade's testimony, on the nineteenth day of what turned out

to be a sixty-nine day trial, the court had expressed serious concern

about the slow progress of the trial, and especially the abuse of crossexamination. In response, the defense attorneys had submitted a proposal to regulate cross-examination by assigning specific topics to

each attorney. Pursuant to this plan, (and after Winestock's attorney

had already cross-examined Dade for forty-five transcript pages) the

attorney for defendant Walter Smith had submitted to the court an

estimate that he would cross-examine agent Dade for one hour. After

he had used the full hour and was seeking an additional half hour to

finish his cross-examination, the court raised its concerns about continuing questioning focusing on entrapment. The court noted that

counsel had spent more than thirty-five minutes of the first hour

attempting to develop entrapment evidence. He opined that additional

efforts to elicit information from Dade relevant to entrapment would

be a waste of time.

The district court acted well within its discretion in managing the

cross-examination of Agent Dade. The Supreme Court has instructed

that "trial judges retain wide latitude . . . to impose reasonable limits

on such cross-examination based on concerns about, among other

things, . . . interrogation that is repetitive or only marginally relevant."

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). This circuit has

likewise recognized trial judges' "broad discretion to choreograph a

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trial," including the authority to preclude counsel from "needlessly

presenting cumulative evidence." United States v. Tindle, 808 F.2d

319, 327 (4th Cir. 1986). The judge in this case had ample evidence

to conclude that the exchange of cellular phones for drugs, with drug

dealers who had sold copious quantities of heroin, cocaine, and crack

to a variety of other customers, could hardly constitute "governmental

overreaching and conduct sufficiently excessive to implant a criminal

design in the mind of an otherwise innocent party." United States v.

Singh, 54 F.3d 1182, 1189 (4th Cir. 1995). Thus the court's ruling

that defense counsel should not continue endless entrapment questioning was a valid exercise of his authority. In the management of a

mammoth sixty-nine day, seventeen-defendant trial, the district court

quite properly admonished attorneys to avoid repetitive and fruitless

lines of questioning.

B.

Winestock also alleges that count thirty-three of his indictment,

charging him with possession with intent to distribute cocaine, was

duplicitous. He argues that the count impermissibly combined two

separate acts of receiving drug deliveries from two different people

at two different times of the day in two different locations. See United

States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (defining duplicity of charges). On the day in question, Winestock received two kilograms of cocaine from Melvin Ford early in the morning, and five

kilograms of cocaine from Cynthia Brown approximately four and a

half hours later. Winestock argues that he could not be assured of jury

unanimity on count thirty-three, since some of the jurors may have

judged him guilty of only one of the two possessions, while other

jurors may have found him guilty of only the other possession.

Winestock did not object to the alleged duplicity in the charging

document prior to trial as required by Fed. R. Crim. P. 12(b)(2). Such

a failure waives the issue, absent a showing of cause. Fed.R.Crim.P.

12(f); United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985).

Winestock argues to this court that the defect was not apparent on the

face of the indictment, but became evident only during the government's presentation of its evidence. Even if this were true, it neither

explains nor excuses Winestock's failure to object at any point during

trial. Winestock has thus not shown good cause for failing to raise the

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issue of duplicitousness at a time when the government could have

cured any alleged defect or when the court could have given the jury

specific clarifying instructions.

In any event, count thirty-three is not duplicitous. The government

argued that all seven kilograms of cocaine powder received by Winestock on November 10 came from the same supplier in Philadelphia,

known as "Jimmy" or "the little guy." Although the cocaine came in

two separate deliveries, both deliveries were arranged by employees

of "Jimmy." Both packages were labeled with the word "Fire." All

seven kilos were stored by Winestock and his associate in the apartment of one of their friends, Robin Pope. Ample evidence supports

the contention that the seven kilos were part of one single sales transaction between Winestock and "Jimmy," and therefore were properly

charged as one count.

III.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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