Filed: October 24, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 98-4049(L)

(CR-96-458-WMN)

United States of America,

Plaintiff - Appellee,

versus

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

Defendants - Appellants.

O R D E R

The court grants Appellants’ motion to allow filing of transcript of oral arguments, grants panel rehearing, denies rehearing

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

follows: 

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

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

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

Rodney Montgomery ....”
- 2 -

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

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

and Montgomery ....”

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

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

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

264 months affected their substantial rights. Montgomery and

Marshall were convicted only of the drug trafficking count, and

accordingly were each subject to a statutory maximum penalty of 240

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

Entered at the direction of Judge Wilkins, with the concurrence of Judge Widener and Judge Luttig.

For the Court 

/s/ Patricia S. Connor 

 Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4049

ALLEN JETT, a/k/a Al,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4213

DARNELL MICHAEL JONES, a/k/a

Mookie,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4288

JERRY ANTONIO WILLIAMS, a/k/a

Black Jerry,

Defendant-Appellant.

Rehearing granted, October 24, 2001 for the limited purpose of amending opinion
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4307

WARREN DEVON HILL, a/k/a Red

Dog,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4319

ANTOINE DEPAUL MARSHALL, a/k/a

Chim Chim,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4331

ALAN VINCENT CHAPMAN, a/k/a

Walli,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4332

JOHN LEVI BENTON, a/k/a Levi,

Defendant-Appellant.

 2
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4351

RODNEY MONTGOMERY, a/k/a Boonie,

a/k/a Black,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 99-4019

VICTOR UNDERWOOD, a/k/a Little

Vic,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-96-458-WMN)

Argued: April 3, 2001

Decided: September 18, 2001

Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, dismissed in part, and vacated and remanded in part

by unpublished opinion. Judge Wilkins wrote the opinion, in which

Judge Widener and Judge Luttig joined.

_________________________________________________________________

 3
COUNSEL

ARGUED: Arcangelo Michael Tuminelli, Baltimore, Maryland; William Scott Little, STARK & LITTLE, Baltimore, Maryland; Stephen

Clayton Gordon, FEDERAL PUBLIC DEFENDER'S OFFICE,

Raleigh, North Carolina; Fred Warren Bennett, BENNETT &

NATHANS, Greenbelt, Maryland; Thomas Turner Ruffin, Jr., Washington, D.C., for Appellants. Jamie M. Bennett, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Nancy M. Cohen, Towson, Maryland, for Appellant Jett; David P.

Henninger, LAW OFFICES OF DAVID P. HENNINGER, Bel Air,

Maryland, for Appellant Hill; George A. Dubois, FEDERAL PUBLIC DEFENDER'S OFFICE, Raleigh, North Carolina, for Appellant

Montgomery; William B. Purpura, Baltimore, Maryland, for Appellant Chapman; David R. Solomon, Baltimore, Maryland, for Appellant Underwood. Lynne A. Battaglia, United States Attorney,

Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Following a lengthy trial, Appellants1 were convicted of various

crimes in connection with their participation in a massive narcotics

operation in Baltimore, Maryland. Appellants now raise numerous

challenges to their convictions and sentences. With the exception of

Appellant Jerry Williams' ("J. Williams") claim of ineffective assistance of counsel, which we dismiss, we reject Appellants' challenges

_________________________________________________________________

1 Appellants are Allen Jett, Darnell Michael Jones, Jerry Antonio Williams, Warren Devon Hill, Antoine Depaul Marshall, Alan Vincent

Chapman, John Levi Benton, Rodney Montgomery, and Victor Underwood.

 4
to their convictions. We further conclude that Appellants Darnell

Jones ("D. Jones"), Warren Hill, and Victor Underwood have failed to demonstrate plain error with respect to their challenges under Apprendi v. New Jersey, 530 U.S. 466 (2000). However,

because J. Williams and Appellants Allen Jett, Antoine Marshall, and Rodney 

Montgomery have demonstrated plain error under Apprendi, and because

United States v. Cotton, 2001 WL 901259 (4th Cir. Aug. 10, 2001),

compels us to notice the error, we vacate those Appellants' sentences

and remand for resentencing.

I.

Beginning in the late 1980s, Anthony Jones ("A. Jones") operated

an increasingly large and violent drug distribution ring ("the Jones

organization") in east Baltimore, Maryland. During part of the period

relevant to this appeal, Montgomery supplied the organization with

heroin and cocaine. Marshall and others repackaged the cocaine for

street-level sales. Marshall also transported cocaine from New York

to Baltimore.

As a means of protecting the organization and fostering a reputation as one to be feared and respected, A. Jones engaged in or directed

acts of violence against others. For example, in the fall of 1994, A.

Jones and D. Jones shot Keith Westmoreland to death because Westmoreland was suspected of providing information to law enforcement

authorities. On another occasion, Jett, who served as an enforcer for

the Jones organization, murdered Walter Green ("W. Green") at

A. Jones' direction because W. Green had made disparaging remarks

about A. Jones.

In early 1995, DeShane Carter ("D. Carter"), a partner of A. Jones',

became involved in an altercation with Anthony Green ("A. Green"),

a close associate of rival drug dealer Elway Williams ("E. Williams").

As a result of animosity stemming from that altercation, A. Jones and

D. Carter murdered A. Green on March 31, 1995, sparking an ongoing feud between the Jones organization and the Williams organization. E. Williams subsequently hired Mark Coles and Appellants Hill

and Chapman, known collectively as the "Young Guns," as enforcers.

In October 1995, the Young Guns murdered D. Carter.

 5
In the ensuing months, A. Jones and members of his organization

repeatedly attempted to locate and kill E. Williams. There were also

other acts of violence between the two organizations. For example, on

January 25, 1996, Jett and another member of the Jones organization

engaged in a shootout with the Young Guns. Coles was wounded during the shootout, and a friend of his who had no involvement in the

drug business, Glen Wilson, was killed. As a result of the ongoing

violence, both organizations were forced to limit their drug dealing

activities, causing lost profits for all concerned.

In early February 1996, Appellant John Benton, who is Chapman's

uncle, decided to attempt to broker a truce in an effort to save his

nephew's life. Benton contacted Daniel Ross, an acquaintance of

Benton's and a close associate of A. Jones'. At a meeting arranged

by Ross, the Young Guns agreed to murder E. Williams in exchange

for A. Jones' promise to forgo his efforts to kill them. On February

26, the Young Guns persuaded E. Williams and his driver, Derrick

Rivers, to give them a ride to Coles' house. E. Williams and Rivers

were in the front of the vehicle, and Coles, Chapman, and Hill were

in the rear. During the drive to Coles' house, Chapman asked Rivers

to pull down a side street so that the group could purchase alcohol at

a bar. When the automobile came to a stop, Chapman, Hill, and Coles

began firing their weapons. Rivers was killed almost immediately. E.

Williams was severely wounded but managed to escape.

After the shooting, Benton took the Young Guns to a safe house.

At that time, the Young Guns and Benton believed that E. Williams

had been killed, and A. Jones was so informed. Benton left the safe

house briefly and returned with $15,000 he had obtained from Ross

and A. Jones; he distributed $3,000 each to Chapman, Hill, and Coles

(leaving $6,000 unaccounted for). When it was learned that E. Williams had not died in the shooting, the Young Guns and A. Jones

engaged in further attempts to take E. Williams' life. These efforts

were ultimately abandoned, apparently due to A. Jones' incarceration

on firearms charges in 1996.

While incarcerated, A. Jones continued to mastermind efforts to

eliminate those perceived as a threat to the Jones organization. In May

1996, Jett killed Octavian Henry, a member of the organization who

was suspected of providing information to law enforcement authori-

 6
ties. In February 1997, an attempt was made on the life of Angelo

Carter ("A. Carter"), another member of the Jones organization who

was suspected of being an informant. In a fairly elaborate set up, D.

Jones and J. Williams, who was an enforcer for the Jones organization, invited A. Carter to D. Jones' house; after A. Carter arrived, D.

Jones asked him and J. Williams to go to a nearby restaurant for some

food. What D. Jones and J. Williams knew, but A. Carter did not, was

that the restaurant was to be the scene of an ambush. As J. Williams

and A. Carter waited for their takeout order, Underwood entered the

store and spoke briefly to the pair. As Underwood was leaving, he

shot A. Carter in the leg. At about this time, a bystander observed a

vehicle pull up in front of the restaurant and saw its occupants fire

several shots at A. Carter, who was fleeing the restaurant on foot. One

of these shots, or possibly another from Underwood, hit A. Carter in

the back as he was running. A. Carter survived the attack.

Based upon this evidence, Appellants were convicted of the following crimes:

- Conspiracy to commit murder in aid of racketeering

(E. Williams), see 18 U.S.C.A. § 1959(a)(5) (West

2000): Benton, Chapman, Hill, Jett, and J. Williams;

- Murder in aid of racketeering (Rivers), see 18 U.S.C.A.

§ 1959(a)(1) (West 2000): Chapman and Hill;

- Attempted murder in aid of racketeering (E. Williams),

see 18 U.S.C.A. § 1959(a)(5): Chapman and Hill;

- Murder in aid of racketeering (Westmoreland), see 18

U.S.C.A. § 1959(a)(1): D. Jones;

- Conspiracy to retaliate against witnesses (Henry and

A. Carter), see 18 U.S.C.A. § 371 (West 2000): D. Jones,

Jett, Underwood, and J. Williams;

- Conspiracy to distribute heroin and cocaine, see 21

U.S.C.A. § 846 (West 1999): All Appellants except Benton.

 7
Appellants now raise numerous challenges to their convictions and

sentences.

II.

All Appellants challenge rulings of the district court denying their

motion to sever and rejecting their claim that the Government exercised its peremptory strikes in a racially discriminatory manner. We

conclude that both challenges lack merit.

A.

Prior to trial, the district court denied Appellants' motion for severance under Federal Rule of Criminal Procedure 14. Appellants challenge this ruling on appeal, maintaining that they were prejudiced by

the joint trial. We reject this contention.

Federal Rule of Criminal Procedure 8(b) provides that "[t]wo or

more defendants may be charged in the same indictment . . . if they

are alleged to have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense or

offenses." Ordinarily, defendants who are indicted together should be

tried together; joint trials "promote efficiency and serve the interests

of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal

quotation marks omitted).

A district court may sever defendants if a joint trial will prejudice

the defendant or the Government. See Fed. R. Crim. P. 14. The proponent of severance bears the burden of demonstrating that a joint trial

will cause actual prejudice. See United States v. Reavis, 48 F.3d 763,

767 (4th Cir. 1995). Because "a certain amount of conflict among

defendants is inherent in most multi-defendant trials," United States

v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995), a defendant desiring

severance "must show more than merely that a separate trial would

offer . . . a better chance of acquittal," United States v. Spitler, 800

F.2d 1267, 1271 (4th Cir. 1986) (internal quotation marks omitted).

Rather, severance is appropriate "only if there is a serious risk that a

joint trial would compromise a specific trial right of one of the defen-

 8
dants, or prevent the jury from making a reliable judgment about guilt

or innocence." Zafiro, 506 U.S. at 539. A district court possesses

broad discretion in ruling on a motion for severance. See Smith, 44

F.3d at 1266.

We conclude that the district court did not abuse its discretion in

denying the severance motion. In the first place, we note that only Jett

makes any specific argument regarding prejudice. He maintains that

the evidence against him was weak and that the jury "would likely

have reached a different result" had it not been presented with evidence admissible only against Jett's codefendants. Br. of Appellants

at 36. The remaining Appellants argue generally that they presented

inconsistent defenses and that the mass of evidence made it impossible for the jury to separately assess the culpability of each defendant.

None of these arguments persuades us that the district court abused

its discretion. We have consistently refused to reverse the denial of

a motion for severance when the verdict returned by the jury "demonstrate[s] its ability to follow the instructions and match evidence with

defendants and counts." United States v. Riley, 991 F.2d 120, 125 (4th

Cir. 1993); see, e.g., United States v. Ford, 88 F.3d 1350, 1361 (4th

Cir. 1996). Here, the jury demonstrated its ability to "match evidence

with defendants and counts" when it acquitted Benton of the drug

conspiracy charge. We therefore affirm the denial of the motion for

severance.

B.

During the course of jury selection, the Government used eight of

its 12 peremptory challenges to strike black female venire members.

Appellants objected to the Government's use of its peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny,

arguing that the Government had discriminated on the basis of race

in exercising its challenges, thereby violating the Equal Protection

Clause. We conclude that the district court did not err in rejecting

Appellants' Batson claim.

The exercise of peremptory challenges by the Government in a

racially discriminatory manner violates the Equal Protection Clause.

See Batson, 476 U.S. at 89. A defendant who challenges the exercise

of a peremptory challenge on equal protection grounds bears the bur-

 9
den of proving intentional discrimination by the Government. See id.

at 93 ("As in any equal protection case, the burden is, of course, on

the [party] who alleges discriminatory selection . . . to prove the existence of purposeful discrimination." (internal quotation marks omitted)). The Supreme Court has delineated a burden-shifting procedure

for courts to follow in analyzing a claim of purposeful discrimination

in the jury selection process. See Evans v. Smith, 220 F.3d 306, 312

(4th Cir. 2000), cert. denied, 121 S. Ct. 1367 (2001). The party raising the equal protection challenge must first establish a prima facie

case of purposeful discrimination in the selection process, in light of

all of the "relevant circumstances, including whether there has been

a pattern of strikes against members of a particular race." Edmonson

v. Leesville Concrete Co., 500 U.S. 614, 631 (1991). Once a prima

facie case of discrimination is established, the burden shifts to the

party whose conduct is challenged to come forward with a nondiscriminatory explanation for the use of the peremptory strike. See Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). To satisfy this

burden, the party need offer only a race-neutral explanation for the

strike; the reason need not be worthy of belief or related to the issues

to be tried or to the prospective juror's ability to provide acceptable

jury service. See id. at 767-68. The trial court must then decide

whether the party challenging the selection process has proven that

the decision to exercise the strike was motivated by racial bias. See

id. at 767. "A finding by the district court concerning whether a

peremptory challenge was exercised for a racially discriminatory reason is given great deference by this court; we review that finding only

for clear error." Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995);

see Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion) (explaining that "the best evidence [regarding discriminatory purpose] often will be the demeanor of the attorney who exercises the

challenge," evaluation of which "lies peculiarly within a trial judge's

province" (internal quotation marks omitted)).

Here, the district court initially ruled that Appellants had made out

a prima facie case of a Batson violation. Although the court later

reversed itself on that point, it did so only after the Government had

proffered its explanations for the challenged strikes. And, the court

ruled that even if it assumed that Appellants had made out a prima

facie case, the Government had proffered race-neutral explanations

for the challenged peremptory strikes and Appellants had not demon-

 10
strated that those explanations were pretextual. Accordingly, we consider only the question of whether the district court committed clear

error in accepting the Government's explanations. See Hernandez,

500 U.S. at 359 (plurality opinion).

1. Venire Member #10186

The Government explained that it struck venire member #10186

because she had previously served on a jury that deadlocked and

because she lived in zip code 21206, close to the area in which the

criminal activity occurred. Both of these proffered explanations are

racially neutral. See Malone v. Vasquez, 138 F.3d 711, 720 & n.13

(8th Cir. 1998) (holding that prosecutor's "experience [that] it was not

a good idea to have jurors who were familiar with the area of a crime"

was race-neutral reason for peremptory strike); United States v.

Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (holding that venire member's

prior service on hung jury was legitimate reason for peremptory

strike).

Appellants argue that the Government's "zip code" explanation is

implausible because the Government did not strike another venire

member who lived in zip code 21206 and did not strike venire members who lived in zip code 21205, which is contiguous with the zip

code in which the criminal activity took place. See Purkett, 514 U.S.

at 768 (noting that an implausible explanation for a peremptory strike

may be evidence of purposeful discrimination). Even if we discredit

the Government's "zip code" explanation, however, a legitimate basis

for striking venire member #10186--her prior service on a deadlocked jury--remains, and is unchallenged by Appellants.

2. Venire Members #10180 and #10158

The Government contended that it struck venire members #10180

and #10158 because it was concerned that they lacked the intellectual

capacity to serve as jurors. See United States v. Montgomery, 210

F.3d 446, 453-54 (5th Cir. 2000) (affirming rejection of Batson challenge to strike assertedly based upon intellectual capacity of venire

member). Specifically, the Government noted that venire member

#10180 appeared to have been unable to complete the juror questionnaire; she responded "yes" to a question asking whether she lived in

 11
an apartment or a single-family home, and responded "I don't know

what you mean" to a question asking her to describe her neighborhood, misspelling the word "know." J.A. 262. Venire member #10180

also had difficulty answering the questions of the district court during

voir dire. The Government observed that venire member #10158's

questionnaire contained numerous misspellings and that she seemed

to have trouble understanding and responding to questions during voir

dire.

Appellants note that both venire members had completed high

school and had been employed for many years. At best, these facts

tend to undermine the Government's explanation for the strikes. Ultimately, however, the district court was required to make a credibility

determination based on numerous factors including the demeanor of

counsel for the Government, and we cannot say that the district court

clearly erred in crediting the Government's explanation. See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).

3. Venire Member #10109

The Government asserted that it struck venire member #10109 primarily because she had a friend who had witnessed a shooting and

was in witness protection; the Government was concerned that the

experience of the venire member's friend "might have an intimidating

effect on [the venire member's] ability to support the government."

J.A. 264. The Government also cited the venire member's youthful

age (22) and concomitant lack of substantial community ties and the

fact that she lived in zip code 21207, near where the criminal activity

took place.

Appellants challenge the Government's explanations on two fronts.

First, they maintain that venire member #10109's employment as a

schoolteacher constituted a sufficient tie to the community. Even if

the facts regarding the venire member's employment would allow a

finding of racial bias, they do not demand such a finding. The contrary conclusion reached by the district court therefore was not clearly

erroneous. See United States v. Spriggs, 102 F.3d 1245, 1255 (D.C.

Cir. 1996) (per curiam) (holding that district court did not commit

clear error in crediting Government's explanation that it struck a

potential juror because it "was looking for . . . people who had raised

 12
families in this city, people who have a stake in our community"

(internal quotation marks omitted)). Second, Appellants point out that

zip code 21207 is not near the area where the criminal activity took

place and that several other venire members lived in that zip code but

were not struck by the Government. Even if we accept Appellants'

argument on this point, Appellants do not challenge the primary basis

for the strike--that the venire member's association with someone in

witness protection might make her hesitant to vote to convict in a case

involving allegations of retaliation against Government witnesses.

4. Venire Members #10101 and #10099

The Government explained that it struck these venire members

because of concern that they might be biased against law enforcement

officers. Venire Member #10101 had been married to a Baltimore

City police officer with 30 years of service in the Eastern District of

Baltimore, the district where the criminal activity took place. The

Government asserted that certain responses given by this venire member during voir dire caused the Government to question whether she

could be impartial, particularly given that the evidence at trial would

include allegations of police corruption. As to venire member #10099,

the Government explained that it believed she might be biased against

the police based on her statement during voir dire that, when her sister

had been robbed, the police did not respond as quickly as they should

have because of the neighborhood in which the crime took place.

Both of these explanations are race neutral. See United States v.

Gonzalez-Balderas, 11 F.3d 1218, 1222-23 (5th Cir. 1994) (accepting, as nondiscriminatory, strike based on Government's concern that

venire member would be biased because of relation to police officers

who served in area that was subject of trial and as to which there

would be allegations of police corruption); United States v. Campbell,

980 F.2d 245, 249 (4th Cir. 1992) (holding that potential dissatisfaction with police response to crime was proper basis for peremptory

challenge).

Appellants do not appear to dispute the neutrality of the Government's explanations for the strikes; rather, they maintain that the evidence does not support the Government's claim of potential bias.

With respect to venire member #10101, Appellants note that she was

divorced and estranged from her former husband. Yet again, this

 13
assertion amounts to nothing more than a conflict in the evidence, and

we cannot say that the district court committed clear error in crediting

the Government's explanation. We also reject Appellants' contention

that the strike of venire member #10099 was improper because she

advised the district court that she could be fair and impartial regardless of any opinion she might have of the police handling of the robbery of her sister. The Government's explanation of a peremptory

strike need not rise to the level of a challenge for cause. See Evans,

220 F.3d at 312.

In sum, we conclude that the district court did not commit clear

error in accepting, as nondiscriminatory, the Government's explanations for the challenged strikes. We therefore reject Appellants' Batson challenge.

III.

We next consider J. Williams' claims concerning the actions of his

trial counsel. On the morning the Government completed its case in

chief, J. Williams wrote notes to two prospective defense witnesses,

Hilton Thomas and Sean Dill. Both were expected to testify regarding

the murder of John Jones. In the letters, J. Williams recounted the testimony of prosecution witnesses, in violation of the witness sequestration order entered by the district court, and advised Thomas and Dill

how to testify. J. Williams gave the letters to his attorney and

instructed him to deliver the letters to Thomas and Dill. Counsel

reviewed the letters and advised J. Williams against giving them to

the witnesses, but J. Williams persisted and counsel offered no further

protest. During the luncheon recess, counsel met with Thomas and

Dill, who were incarcerated, and attempted to show them the letters

through the plexiglass partition in the visiting room. When Thomas

and Dill were unable to read the letters through the partition, counsel

gave the letters to a United States Marshal and asked him to deliver

them. The Marshal read the letters, copied them, and delivered the

originals to Thomas and Dill. The copies were provided to counsel for

the Government, who subsequently moved to exclude the testimony

of Thomas and Dill. The district court granted this motion, and additionally ruled that the letters could be introduced in the Government's

rebuttal case if J. Williams took the stand in his own defense.

J. Williams elected not to testify.

 14
J. Williams now contends that his trial counsel was constitutionally

ineffective. To prevail on this claim, J. Williams must demonstrate

that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland v. Washington, 466 U.S. 668, 688,

694 (1984). A "reasonable probability" is one sufficient to undermine

our confidence in the outcome. See id. at 694.

J. Williams' ineffective assistance claim faces an additional hurdle.

A defendant may obtain review of an ineffective assistance claim on

direct appeal by first presenting the claim to the district court in a

motion for new trial pursuant to Federal Rule of Criminal Procedure

33. See United States v. Russell, 221 F.3d 615, 619 (4th Cir. 2000).

Because J. Williams did not follow this course, we will review his

claim only if the constitutional violation "conclusively appears" on

the face of the record. Id. at 619 n.5 (internal quotation marks omitted). Our reluctance to review ineffective assistance claims on direct

appeal stems from the fact that "the record is usually inadequately

developed," revealing "only ambiguous symptoms of a more complex

set of relationships which cannot be adequately addressed on direct

appeal." United States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991).

For this reason, ineffective assistance claims usually are better raised

in a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255 (West

Supp. 2001). See id.

Here, we have little difficulty concluding, from the face of the

record, that the performance of J. Williams' counsel fell below an

objective standard of reasonableness. Upon reading the letters, counsel should have been aware that delivering them would at least violate

the witness sequestration order and could also constitute subornation

of perjury. However, we cannot discern from the face of the record

whether J. Williams was prejudiced by his counsel's deficiencies. We

accordingly dismiss this claim.2

_________________________________________________________________

2 J. Williams also maintains that his attorney's actions constituted criminal and ethical violations and thus created an actual conflict of interest

that adversely affected counsel's performance, requiring reversal without

a specific showing of prejudice. See Cuyler v. Sullivan, 446 U.S. 335,

 15
IV.

Jett raises two challenges to his conviction. First, he contends that

the district court erred in allowing the Government to impeach him

with prior written and oral statements when the Government had

failed to disclose those statements prior to trial. Second, Jett maintains

that the conditions of his confinement constituted a denial of access

to counsel in violation of the Sixth Amendment. We reject both of

these claims.

A.

Jett testified in his own defense at trial and denied involvement in

the murders of W. Green, Octavian Henry, and Glen Wilson. Jett further denied any relationship with A. Jones. On cross-examination, the

Government sought to impeach Jett with a letter he had written to a

federal prosecutor offering to provide information about the Jones

organization and with oral statements made during a proffer session.

Jett objected, maintaining that the Government had violated Federal

Rule of Criminal Procedure 16(a)(1)(A) by failing to disclose the

written and oral statements to defense counsel prior to trial. The district court overruled this objection.

As is relevant here, Rule 16(a)(1)(A) requires the Government to

disclose to the defendant "any relevant written .. . statements made

by the defendant" within the possession of the Government and

known to the prosecutor, and the substance of any oral statement

given in response to interrogation by a Government agent "if the

[G]overnment intends to use that statement at trial." The Government

concedes that its failure to disclose the written and oral statements

violated Rule 16(a)(1)(A). See United States v. Scafe, 822 F.2d 928,

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

_________________________________________________________________

348-50 (1980). We reject this claim on its merits. The record is clear that

at the time of trial, J. Williams' counsel was absolutely unaware that his

actions were legally or ethically suspect. Even assuming that an actual

conflict can exist absent counsel's awareness of any problem, we fail to

see--and J. Williams has not demonstrated--how a conflict of which

counsel was unaware could have adversely affected his performance.

 16
16(a)(1)(A) apply to evidence used in rebuttal or on crossexamination).

We conclude, however, that Jett was not substantially prejudiced

by the nondisclosure, and therefore that reversal is not required. See

United States v. Camargo-Vergara, 57 F.3d 993, 998 (11th Cir.

1995). "Substantial prejudice exists when a defendant is unduly surprised and lacks an adequate opportunity to prepare a defense, or if

the mistake substantially influences the jury." Id. at 998-99; see

United States v. Salameh, 152 F.3d 88, 130 (2d Cir. 1998) (per

curiam) ("Substantial prejudice means the prejudice resulting from

the [G]overnment's untimely disclosure of evidence, rather than the

prejudice attributable to the evidence itself." (internal quotation marks

omitted)). We first note that Jett could not have been "unduly surprised" by the statements, since he himself made them. See United

States v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991). Additionally,

Jett's failure to request a continuance when the Government sought

to introduce the written and oral statements on cross-examination

tends to indicate that no prejudice existed. See United States v. Beras,

183 F.3d 22, 27 (1st Cir. 1999). Finally, there is no possibility that

the discovery violation had a substantial influence on the determination of guilt by the jury. The evidence supporting the charges against

Jett was substantial, and the improper admission of Jett's prior statements added little to the Government's case. See United States v.

Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996) (per curiam); United

States v. Stevens, 985 F.2d 1175, 1181 (2d Cir. 1993).

B.

Prior to trial, Jett was transferred from the Baltimore City Detention Center to the Maryland Correctional Adjustment Center

(MCAC). At MCAC, Jett was not allowed contact visits with counsel.

And, because of a malfunctioning telephone system in the visiting

area, counsel sometimes was forced to shout through a plexiglass partition in order to communicate with Jett. Additionally, counsel's

repeated requests that Jett be allowed to listen to and discuss with

counsel a tape that would be introduced at trial were denied. Jett

maintains that these difficulties were so severe as to constitute a violation of his Sixth Amendment right to counsel.

 17
The constitutional guarantee of counsel necessarily includes the

"opportunity for . . . counsel to confer, to consult with the accused and

to prepare his defense." Avery v. Alabama, 308 U.S. 444, 446 (1940).

Complete denial of the assistance of counsel, whether actual or constructive, is per se reversible error. See Perry v. Leeke, 488 U.S. 272,

280 (1989). Not every restriction on counsel's access to the defendant

amounts to a deprivation of the right to counsel, however. See id. at

280-85 (holding that prohibition of consultation between defendant

and defense counsel during brief recess between defendant's testimony on direct and cross-examination did not amount to complete

denial of counsel).

Here, although counsel's representation of Jett was unquestionably

rendered more difficult by the conditions at MCAC, those difficulties

were not so severe as to amount to the total denial of access to counsel. The record demonstrates that Jett's counsel vigorously defended

him throughout the trial. And, Jett points to no specific prejudice arising from the problems he had communicating with counsel.

V.

Benton, Chapman, and Hill maintain that the district court erred in

denying their motions for judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29 with respect to the racketeering

charges arising from the murder of Rivers and the attempted murder

of E. Williams.3 We review the denial of a motion for a judgment of

acquittal de novo. See United States v. Romer, 148 F.3d 359, 364 (4th

Cir. 1998). When, as here, the motion for judgment of acquittal is

based on the sufficiency of the evidence, our role is limited to considering whether "there is substantial evidence, taking the view most

favorable to the Government, to support" the verdict. Glasser v.

United States, 315 U.S. 60, 80 (1942). We must bear in mind that

"[t]he jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented." United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Further, "if the

_________________________________________________________________

3 As noted previously, Benton, Chapman, and Hill were convicted of

conspiracy to murder E. Williams in aid of racketeering. Chapman and

Hill were also convicted of murdering Rivers in aid of racketeering and

attempting to murder E. Williams in aid of racketeering.

 18
evidence supports different, reasonable interpretations, the jury

decides which interpretation to believe." Id. Reversal for insufficient

evidence is reserved for cases in which "the prosecution's failure is

clear." Burks v. United States, 437 U.S. 1, 17 (1978). In sum, we

"may not overturn a substantially supported verdict merely because

[we] find[ ] the verdict unpalatable or determine[ ] that another, reasonable verdict would be preferable." United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc); see United States v. Hoyte,

51 F.3d 1239, 1245 (4th Cir. 1995) (observing that a defendant challenging the sufficiency of the evidence to support his conviction bears

"a heavy burden").

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

[w]hoever, as consideration for the receipt of. . . anything

of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or

maintaining or increasing position in an enterprise engaged

in racketeering activity, murders . . . or attempts or conspires

to do so . . ..

Thus, the Government was required to prove (1) that the Jones organization was an enterprise engaged in racketeering activity; (2) that

Benton, Chapman, and Hill conspired to murder E. Williams and that

Chapman and Hill murdered Rivers and attempted to murder E. Williams; and (3) that Benton, Chapman, and Hill committed these acts

either (a) as consideration for the receipt of something of pecuniary

value or (b) for the purpose of gaining entrance to the Jones organization. Cf. United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.

1992) (setting forth similar description of the elements of 18 U.S.C.A.

§ 1959(a)). Benton, Chapman, and Hill do not dispute that the Government presented sufficient evidence regarding the first and second

elements. Rather, they maintain that the Government failed to prove

that their actions against Rivers and E. Williams were taken in

exchange for pecuniary gain or for the purpose of gaining entrance to

the Jones organization.

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

 19
sion that his participation in the conspiracy to murder E. Williams

was undertaken for the purpose of gaining entry into the Jones organization.4 Accordingly, the denial of Benton's motion for acquittal can be

affirmed only if there is sufficient evidence to support a conclusion

that Benton conspired to murder E. Williams in exchange for something of pecuniary value from the Jones organization. The evidence

presented by the Government was certainly adequate for this purpose.

As described above, the Government presented testimony that after

the shooting of Rivers and E. Williams, Benton took the Young Guns

to a safe house, left briefly, and returned with $15,000 obtained from

A. Jones and Ross. Benton distributed $3,000 of this money to each

of the Young Guns, leaving $6,000 unaccounted for.

Benton argues that this evidence allowed the jury to convict him

only "by piling inference upon inference," Direct Sales Co. v. United

States, 319 U.S. 703, 711 (1943), but we do not agree. At a minimum,

a reasonable jury could infer from the speed with which Benton

obtained the money that the parties shared an expectation that completion of the assigned task of murdering E. Williams would be followed by monetary remuneration. And, in light of the evidence that

Benton received $15,000 but dispensed only $9,000 to the Young

Guns, it requires no great leap to conclude that Benton kept the

remaining $6,000. We therefore affirm the denial of Benton's motion

for judgment of acquittal.

We also conclude that substantial evidence supports the convictions of Chapman and Hill. As with Benton, the facts relating to the

payment made following the attempt on E. Williams' life support a

conclusion that Chapman and Hill acted not simply to preserve their

own lives, but also for pecuniary gain. See Concepcion, 983 F.2d at

381 (holding that purposes specified in 18 U.S.C.A. § 1959 need not

be defendant's "sole or principal motive" for committing charged act

of violence). And, the evidence presented at trial also supports a finding that Chapman and Hill engaged in acts of violence against Rivers

and E. Williams for the purpose of gaining entry into the Jones organization. A rational jury could conclude that in betraying their former

employer, Chapman and Hill aligned themselves with the Jones orga-

_________________________________________________________________

4 Indeed, the jury acquitted Benton of participating in the narcotics

dealing activity that was the primary focus of the Jones organization.

 20
nization and that A. Jones, in agreeing to lift the contract on the lives

of the Young Guns, accepted this alliance and allowed them into the

Jones organization.5

VI.

Underwood, whose participation in the attempt on A. Carter's life

led to his conviction for conspiring to retaliate against Government

witnesses, maintains that he was entitled to an alibi instruction. We

review the refusal of the district court to give this instruction for

abuse of discretion, see United States v. Abbas, 74 F.3d 506, 513 (4th

Cir. 1996), bearing in mind that Underwood was entitled to the

instruction if it was supported by the evidence presented at trial, see

United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984).

An alibi is "[a] defense that places the defendant at the relevant

time of crime in a different place than the scene involved and so

removed therefrom as to render it impossible for him to be the guilty

party." Black's Law Dictionary 71 (6th ed. 1990). Underwood's

"alibi" defense consisted of testimony from himself and others that he

was present at the restaurant at the same time as A. Carter but that he

did not shoot A. Carter and left the scene before the shooting

occurred. As the Government points out, this is not an alibi; it is simply an assertion of innocence. Accordingly, the district court did not

abuse its discretion in denying the requested instruction.

VII.

We turn now to Marshall's challenge to his conviction. Marshall

was charged only with the narcotics conspiracy. In addition to evidence regarding Marshall's role in narcotics dealing, the Government

presented evidence that Marshall assisted in disposing of the body of

Charles Addison, Jr., who was accidentally shot to death while mem-

_________________________________________________________________

5 Chapman and Hill also contend that the evidence was insufficient to

support their convictions for conspiring to distribute cocaine and heroin.

Based on the evidence presented at trial, a rational jury could conclude

that Chapman and Hill became members of the narcotics conspiracy that

was the focus of the Jones organization by agreeing to murder E. Williams.

 21
bers of the conspiracy were packaging cocaine for sale. Marshall

asserts that the presentation of this evidence amounted to a constructive amendment of the indictment.

A constructive amendment occurs "[w]hen the[G]overnment,

through its presentation of evidence and/or its argument, or the district court, through its instructions to the jury, or both, broadens the

bases for conviction beyond those charged in the indictment." United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). A constructive

amendment is a structural error not subject to review for harmlessness. See United States v. Floresca, 38 F.3d 706, 712 (4th Cir. 1994)

(en banc).

We conclude that the presentation of the challenged evidence did

not constructively amend the indictment by allowing the jury to convict Marshall of a crime not charged by the grand jury. The evidence

regarding Marshall's involvement in the disposal of Addison's body

was plainly relevant to his participation in the narcotics conspiracy,

in that the testimony established that the decision to leave the body

in an alley was made in order to prevent the police from discovering

the cocaine packaging operation in progress at the time of the shooting. Accordingly, the evidence was intrinsically related to the charged

conspiracy and its presentation did not amend the indictment.6 See

United States v. Hughes, 213 F.3d 323, 329 (7th Cir.) (holding that

introduction of evidence of uncharged criminal activity did not constructively amend indictment because evidence "completed the story

of the crime or crimes charged and was necessary to enable the jury

to fully understand and make sense of" charged conspiracy (internal

quotation marks omitted), vacated, 121 S. Ct. 423 (2000), judgment

reinstated in pertinent part, 248 F.3d 1160 (7th Cir. 2001) (unpublished order).

_________________________________________________________________

6 For this reason, Marshall's alternative argument--that the admission

of the evidence violated Federal Rule of Evidence 404(b)--also fails. See

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (holding that evidence of other crimes, wrongs, or acts is admissible when it is "inextricably intertwined" with the charged offense (internal quotation marks

omitted)).

 22
VIII.

All Appellants except Benton were convicted of conspiring to distribute cocaine and heroin and were sentenced to varying terms of

imprisonment--ranging from 262 months to life--for those convictions. However, none of these sentences was based on findings

regarding the type and quantity of narcotics attributable to each

Appellant. Rather, in each case the district court applied a crossreference to the murder guideline based on the various homicides with

which, the district court found at sentencing, each Appellant had been

involved during the course of the narcotics conspiracy.7 See United

States Sentencing Guidelines Manual § 2D1.1(d)(1) (1997).8 The drug

trafficking count of the indictment did not allege a specific quantity

of narcotics, and the jury was not instructed to make a finding regarding the quantity of drugs involved in the conspiracy.

Appellants now challenge their sentences, maintaining that their

_________________________________________________________________

7 While the district court was correct that application of the crossreference made findings regarding drug type and quantity unnecessary

for purposes of applying the sentencing guidelines, the court erred in failing to make such findings for purposes of determining the maximum

statutory penalty faced by each Appellant. See United States v. Bowens,

224 F.3d 302, 314 (4th Cir. 2000) (indicating that 21 U.S.C.A. § 841 sets

forth different maximum penalties depending upon the quantity and type

of narcotics involved in the offense, as to which the district court must

make findings at sentencing), cert. denied, 121 S. Ct. 1408 (2001). In

short, the district court improperly assumed that each Appellant was subject to a statutory maximum penalty of life imprisonment. Without a

finding regarding the applicable statutory maximum, the district court

simply could not know whether the guideline sentence it imposed was

within statutory limits. See Edwards v. United States, 523 U.S. 511, 515

(1998) ("[A] maximum sentence set by statute trumps a higher sentence

set forth in the Guidelines."). However, in light of our conclusion that,

under Apprendi, the statutory maximum penalty for all Appellants was

20 years, we need not remand for correction of this error.

8 The murder guideline, U.S.S.G. § 2A1.1, sets a base offense level of

43, resulting in a presumptive life sentence in all cases. See U.S.S.G.

Ch.5, Pt.A (sentencing table). The variations among Appellants' sentences resulted from downward departures by the district court as to

some Appellants.

 23

convictions for conspiring to distribute an unspecified quantity of heroin and cocaine subjected them to a maximum penalty of 20 years

pursuant to 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2001). Because

Appellants failed to raise this claim before the district court, our

review is for plain error.9 See Fed. R. Crim. P. 52(b); United States

v. Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate plain

error, Appellants must show that an error occurred, that the error was

plain, and that the error affected their substantial rights. See Olano,

507 U.S. at 732; United States v. Jackson, 124 F.3d 607, 614 (4th Cir.

1997). Even if Appellants can satisfy these requirements, correction

of the error remains within our discretion, which we "should not exercise . . . unless the error `seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.'" Olano, 507 U.S. at 732

(second alteration in original) (quoting United States v. Young, 470

U.S. 1, 17 (1985)).

We conclude that all Appellants have demonstrated error. Although

Appellants' convictions on the drug conspiracy charge subjected them

to a maximum statutory penalty of 20 years (240 months), each

Appellant received a sentence greater than 20 years. As explained in

United States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en

banc), this was error. Moreover, the error was plain. See id. at 160.

Accordingly, we turn to the question of whether the error affected

Appellants' substantial rights.

An error affects substantial rights when it is prejudicial, i.e. when

it "actually affect[s] the outcome of the proceedings." United States

v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). Chapman, Hill, and

D. Jones, each of whom received a life sentence on the drug trafficking conviction, cannot demonstrate that their substantial rights were

_________________________________________________________________

9 Appellants maintain that Antoine Marshall objected to the failure to

allege specific drug quantity in the indictment in a pretrial motion and

maintain that they joined in this objection prior to trial. We disagree. The

portion of Marshall's motion to which Appellants refer argues only that

the Government improperly charged Marshall with distributing a "mixture or substance" containing cocaine or heroin; at no point does the

motion claim that drug quantity is an element of the offense. Indeed, several times the motion argues that drug quantity is an issue for sentencing,

not for trial.

 24
affected because they also received life sentences for murder in aid

of racketeering. Underwood, who received a sentence of 262 months

on the drug trafficking conviction, cannot demonstrate that the error

affected his substantial rights because he was convicted of two

offenses carrying a total maximum statutory penalty of 300 months.10

Had the district court been aware when it sentenced Underwood that

the maximum penalty for his drug trafficking conviction was 20

years, U.S.S.G. § 5G1.2(d) would have obligated the court to achieve

the guideline sentence of 262 months "by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total

punishment mandated by the guidelines." United States v. Angle, 254

F.3d 514, 518 (4th Cir. 2001) (en banc).

In contrast, J. Williams, Jett, Marshall, and Montgomery have demonstrated

that the error affected their substantial rights. J. Williams and Jett,

both of whom received life sentences on the drug trafficking convictions, were each convicted of three counts carrying an aggregate statutory maximum penalty of 35 years.11 Had the district court been

aware at the time of sentencing that the maximum statutory penalty

for the drug trafficking convictions was 20 years, it would have been

required to impose consecutive sentences for each count of conviction

in order to approximate, as closely as possible, the guidelines sentence of life imprisonment. See U.S.S.G. § 5G1.2(d); see also United

States v. Saccoccia, 58 F.3d 754, 786 & n.28 (1st Cir. 1995) (approving a 660-year sentence imposed pursuant to § 5G1.2(d) as "the functional equivalent of life without parole"). But, because we cannot say

that 35 years imprisonment is the functional equivalent of a life sentence, we conclude that J. Williams' and Jett's substantial rights were

_________________________________________________________________

10 In addition to the 240-month statutory maximum penalty for the drug

trafficking conviction, Underwood was subject to a statutory maximum

penalty of five years for conspiring to retaliate against Government witnesses in violation of 18 U.S.C.A. § 1513(a)(1). See 18 U.S.C.A. § 371.

11 In addition to the 20-year statutory maximum penalty for the drug

trafficking conviction, Williams and Jett faced a ten-year statutory maximum penalty for conspiring to commit murder in aid of racketeering, see

18 U.S.C.A. § 1959(a)(5), and a five-year statutory penalty for conspiring to retaliate against Government witnesses in violation of 18 U.S.C.A.

§ 1513(a)(1), see 18 U.S.C.A. § 371.

 25
affected by the imposition of life sentences on the drug trafficking

convictions. We also conclude that Montgomery's sentence of 292

months and Marshall’s sentence of 264 months affected their

substantial rights. Montgomery and Marshall were convicted

only of the drug trafficking count, and accordingly were each subject to a

statutory maximum penalty of 240 months. As we held in Promise,

an error such as this affects substantial rights. See Promise, 255 F.3d

at 160-61.

In Promise, those members of the en banc court that considered the

question were equally divided regarding whether to notice an

Apprendi error like the errors here. Compare id. at 161-64 (Wilkins,

J., joined by Wilkinson, C.J, and Williams and Traxler, JJ.) (arguing

that error should not be noticed) with id. at 186-91 (Motz, J., joined

by Widener, Michael, and King, J.J.) (arguing that error should be

noticed). Thus, the question was left open for a subsequent panel.

Recently, a panel of this court held that the imposition of a sentence

greater than that allowed by a defendant's conviction must be noticed

on plain error review. See United States v. Cotton, 2001 WL 901269,

at *5-*7 (4th Cir. Aug. 10, 2001). We are compelled to follow Cotton

and accordingly must notice the plain errors in the sentences of

J. Williams, Jett, and Montgomery. See Etheridge v. Norfolk & W. Ry.

Co., 9 F.3d 1087, 1090 (4th Cir. 1993) ("A decision of a panel of this

court becomes the law of the circuit and is binding on other panels

unless it is overruled by a subsequent en banc opinion of this court

or a superseding contrary decision of the Supreme Court." (internal

quotation marks omitted)).

IX.

For the reasons set forth above, we reject all of Appellants' challenges to their convictions except for J. Williams' claim of ineffective

assistance of counsel, which we dismiss. We therefore affirm Appellants' convictions. However, we vacate the sentences of J. Williams,

Jett, Marshall, and Montgomery and remand for resentencing.

AFFIRMED IN PART, DISMISSED IN PART,

AND VACATED AND REMANDED IN PART

 26