UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4525

KEYSTON JAMORY WEST, a/k/a D,

a/k/a D-Man, a/k/a Alonzo Green,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4526 ANDREW CHARLES JACKSON, a/k/a

Sway, a/k/a Ricky Antonio Bady,

a/k/a William Benbow,

Defendant-Appellant. 

Appeals from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

W. Craig Broadwater, District Judge.

(CR-00-6; CR-00-46)

Argued: December 5, 2003

Decided: March 15, 2004

Before NIEMEYER and TRAXLER, Circuit Judges,

and Richard D. BENNETT, United States District Judge for the

District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Eric S. Black, TRUMP & TRUMP, Martinsburg, West

Virginia, for Appellant Jackson; William Carroll Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for Appellant West. Paul Thomas Camilletti,

Assistant United States Attorney, Martinsburg, West Virginia, for

Appellee. ON BRIEF: William Cipriani, CIPRIANI & PAULL, L.C.,

Wellsburg, West Virginia, for Appellant West. Thomas E. Johnston,

United States Attorney, Thomas O. Mucklow, Assistant United States

Attorney, Martinsburg, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM:

The Defendants/Appellants, Keyston Jamory West and Andrew

Charles Jackson, were found guilty by a jury in the Northern District

of West Virginia of conspiracy to distribute crack cocaine in violation

of 21 U.S.C. § 841(a)(1),1 the killing of an individual in furtherance

of a continuing criminal enterprise (CCE) in violation of 21 U.S.C.

§ 848(e)(1)(A) (Count 3), and distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 10). West was also convicted

1The conspiracy charged in Count 2 of the first indictment was dismissed by the trial court, and the Government proceeded on the conspiracy charged in a second indictment. That second indictment had been

returned alleging the same conspiracy as the first indictment but added

a specific designation as to 50 grams or more of crack cocaine in compliance with the mandates of Apprendi v. New Jersey, 530 U.S. 466 (2000).

2 UNITED STATES v. WEST
under a separate count with distribution of crack cocaine in violation

of 21 U.S.C. § 841(a)(1) (Count 11). Jackson was also convicted of

engaging in a continuing criminal enterprise (CCE) in violation of 21

U.S.C. § 848 (Count 1), distribution of crack cocaine in violation of

21 U.S.C. § 841(a)(1) (Counts 4, 6, and 9), and the use and carrying

of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 5). 

The Defendants/Appellants claim that the District Court erred in

(1) failing to sever Count 3 (the CCE murder charge) from the

remaining counts and to grant separate trials; (2) failing to grant

motions for judgments of acquittal as to the CCE murder charge

(Count 3) because of insufficient evidence; and (3) abusing its discretion by permitting the Government to rehabilitate a witness by having

the witness read portions of his prior statement. Jackson separately

claims that the District Court abused its discretion in denying his

motion for a continuance on the morning of trial. West separately

claims that the District Court erred in (1) failing to sever the Defendants’ trials; (2) permitting the Government to impeach him with evidence of his conviction of a crime carrying a penalty of more than one

year; (3) permitting the Government to impeach him with evidence of

false statements; and (4) improperly adjusting his sentence under Section 2D1.1(d)(1) of the United States Sentencing Guidelines by consideration of the homicide as relevant conduct of West’s drug dealing.

Finding no prejudicial error in the trial or sentencing, we affirm. 

I.

Andrew Charles Jackson was a drug dealer in Martinsburg, West

Virginia. From 1995 until 2000, he engaged in the distribution of

crack cocaine by obtaining the drug in New York, New York and then

using "runners" to sell the drug in the Martinsburg area. Keyston Jamory West joined with Jackson in the drug dealing operation in 1999.

By this time Jackson was under investigation by law enforcement

authorities. Corporal Ted Snyder, a West Virginia law enforcement

officer, met with a confidential informant named Flora ("Sissy") Ray

who assisted in the investigation by making controlled purchases of

crack cocaine from Jackson in April and May of 1999 under the

observation of law enforcement authorities. 

UNITED STATES v. WEST 3
In the summer of 1999, Jackson and West traveled to North Carolina with Vernel Newell (Jackson’s girlfriend), Ricky Nelson, Tim

Patterson and a nineteen year old girl named Vatressa Miller. Upon

their return to Martinsburg from North Carolina, Jackson discussed in

the presence of both Nelson and Patterson that Miller was a "snitch"

and "something had to be done about her." An individual named

Casey Holt was present at a conversation on July 18, 1999 between

West and Jackson in which West expressed concern that Miller knew

his real name. 

On July 19, 1999, Jackson, West, Newell and Holt traveled with

Miller in Holt’s vehicle to an isolated area in Berkeley County, West

Virginia, where they beat Miller with an axe handle and log, punched

and kicked her, and left her to die. Subsequently, the daughter of the

confidential informant Flora Ray advised her mother that West had

admitted to her that he participated in the murder of Vatressa Miller.

When Ray confronted West, he stated that Miller "was a snitch" and

suspected of informing law enforcement authorities of Jackson’s and

West’s drug operation. 

In January of 2000, indictments were returned against Jackson,

West, Newell and Holt. Pursuant to plea agreements, Newell and Holt

cooperated with authorities and provided information with respect to

the murder and the drug distribution ring. Both testified at the trial of

the case, as did other witnesses who testified as to the distribution of

crack cocaine by Jackson and West, as well as Jackson’s possession

of a handgun in connection with drug transactions. 

After his arrest, Jackson was provided with counsel pursuant to the

Criminal Justice Act of 1964, 18 U.S.C. § 3006A (2000). On March

3, 2000, the District Court ordered that the first attorney be removed

and appointed attorney Jeffery Harris to represent Jackson. Three

weeks later, the Court issued an order granting Jackson’s motion to

have Harris replaced by attorney Keith Wheaton, whom Jackson had

privately retained. However, on July 20, 2000, the District Court once

again appointed Harris because of the possibility that the death penalty could be imposed. Attorney Wheaton remained in the case as cocounsel for Jackson. One and a half years later, on the eve of trial in

January of 2002, Wheaton advised the Court that he believed that he

had a conflict of interest because he had previously represented three

4 UNITED STATES v. WEST
of the Government witnesses in the case. In light of the fact that Mr.

Harris was lead counsel, the District Court agreed with the suggestion

of Harris that a second attorney could be appointed to replace Wheaton to assist him in the representation of Jackson. Accordingly, the

Court appointed James Zimarowski as new counsel on January 11,

2002 to assist Harris. The case proceeded to trial on January 15, 2002.

The District Court denied Jackson’s motion for a continuance on the

morning of trial. 

At the trial of the case, West testified and admitted to the distribution of crack cocaine charged in the indictment. West denied any

involvement in the murder of Vatressa Miller and attempted to provide an alibi for both himself and Jackson. At the conclusion of the

trial, West and Jackson were convicted on all pending counts of the

first indictment as well as the single count of conspiracy in the second

indictment. 

II.

West and Jackson jointly raise three challenges to their convictions.

First, they contend that the District Court abused its discretion by not

severing the continuing criminal enterprise ("CCE") murder count

(Count 3) from the remaining counts and conducting separate trials.

Second, they challenge the sufficiency of the evidence with respect

to the CCE murder count. Third, they contend that the District Court

abused its discretion by permitting a Government witness to be rehabilitated by reading portions of a prior statement. 

A.

Pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure,

there may be joinder of offenses in an indictment where they "are of

the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme

or plan". If this joinder of offenses in an indictment "appears to prejudice a Defendant . . . the Court may order separate trials of counts . . .

or provide any other relief that justice requires." Fed. R. Crim. P. 14.

The second indictment in this case, in charging a conspiracy to possess with intent to distribute and to distribute 50 grams or more of

cocaine base (crack cocaine), specifically alleged a series of overt acts

UNITED STATES v. WEST 5
in furtherance of the conspiracy. Overt act #19 specifically charged

that Jackson, West and others "physically assaulted and killed . . .

Vatressa Maria Miller. The purpose of the killing was because defendants . . . Jackson [and] West . . . believed that the said Vatressa

Maria Miller was cooperating with law enforcement officers and

defendants . . . wanted to protect their crack cocaine distribution

activities." 

This Court in United States v. Foutz, 540 F.2d 733 (4th Cir. 1976),

analyzed the balancing of Rules 8 and 14 in reviewing the joinder of

offenses. In Foutz, we noted that:

In the instant case, joinder was initially permissible only

because the offenses were of the same or similar character.

When two or more offenses are joined solely on this theory,

three sources of prejudice are possible which may justify the

granting of a severance under Rule 14 . . . .

Id. at 736. Because the joinder of two separate bank robberies in one

indictment was based solely on their being of the same or similar

character, this Court in Foutz held that there was prejudice which

mandated a severance under Rule 14. Id. at 737-38. 

In this case, the CCE murder charge in Count 3 was also charged

as an overt act in furtherance of the conspiracy charged in the second

indictment. There was specific testimony linking the murder of

Vatressa Miller to the protection and security of the drug distribution

ring. The murder was part of the conspiracy, and part of the common

scheme or plan. As we noted in Foutz, 

When offenses are joined under Rule 8 on the ground that

they ‘are based on the same act or transaction or on two or

more acts or transactions connected together or constituting

parts of a common scheme or plan’, it is manifest that evidence of one offense would ordinarily be admissible at a

separate trial for the other.

Id. at 737. In the present case, the conspiracy to operate the drug distribution ring in Martinsburg, West Virginia, the specific acts of dis6 UNITED STATES v. WEST
tribution and the murder of a suspected "snitch" are clearly

intertwined. Furthermore, the District Court correctly noted that, in

light of Foutz and the existence of a common plan, evidence of one

criminal offense would be admissible at the trial of the other criminal

offenses. 

The evidence of the murder of Vatressa Miller would have been

admissible at a separate trial on the drug charges in this case. This

Court has previously held that evidence of discussion of an uncharged

murder-for-hire was properly admitted and was "inextricably intertwined with [the] crime of selling heroin and conducting an ongoing

criminal enterprise." United States v. Chin, 83 F.3d 83, 88 (4th Cir.

1996). This evidence was not even deemed to be evidence submitted

pursuant to Rule 404(b) of the Federal Rules of Evidence relating to

prior bad acts. In Chin, we noted that such an act was "intrinsic to the

crime charged" and that "[k]illing people was an integral part of [the]

criminal enterprise, . . . and the threat of killing viewed as necessary

to ensure deals were completed . . . ." Id.

The District Court also noted this Court’s opinion in United States

v. Tipton, 90 F.3d 861 (4th Cir. 1996), where a CCE murder charge,

similar to that charged in this case, was deemed to be admissible at

the trial of any other offenses as intrinsic to drug cases. The District

Judge in this case correctly ruled that the evidence with respect to the

murder charge would have been admissible in any separate prosecution and that there was appropriate joinder of offenses. 

West and Jackson argue that they were "confounded" in asserting

their defenses to the CCE murder charge while also facing the joined

drug charges. West places heavy reliance upon Cross v. United States,

335 F.2d 987 (D.C. Cir. 1964), which held that there was prejudicial

joinder when a defendant desired to testify as to one count and to

remain silent as to the other. As the District Court correctly noted in

its analysis, this Court in United States v. Goldman, 750 F.2d 1221,

1225 (4th Cir. 1984), has noted that a Defendant must make a "strong

showing of prejudice." In Goldman, we reviewed the opinion of the

United States Court of Appeals for the District of Columbia Circuit

in Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968), cert. denied,

400 U.S. 965 (1970), which followed that Court’s earlier ruling in the

Cross case. This Court specifically noted in Goldman:

UNITED STATES v. WEST 7
A defendant making a motion for severance pursuant to

Rule 14 has the burden of demonstrating a strong showing

of prejudice, . . . and it is not enough to simply show that

joinder makes for a more difficult defense. . . . The fact that

a separate trial might offer a better chance of acquittal is not

a sufficient ground for severance.

Id. at 1225 (citations omitted). 

The District Judge conducted an appropriate analysis relying on

this Court’s directions in Goldman. Jackson made no proffer other

than to suggest that he would deny being at the scene of the murder.

West, who ultimately chose to testify, similarly made no proffer other

than a denial of being present. The trial judge noted that either defendant could withhold any decision until the last moment prior to testifying. There was no showing by either West or Jackson that there was

any important testimony to offer as to the murder charge other than

their blanket denial. There was no showing as to the need to refrain

from testifying as to the drug charges. There were no specific alibis

proffered. Indeed, West ultimately testified that he was in his vehicle

alone traveling from West Virginia to North Carolina at the approximate time of the murder. Jackson and West did not proffer any specifics as to any alibis. Ultimately, West’s testimony at trial was not

corroborated by any other witnesses. Thus, West and Jackson failed

to make the showing necessary for the granting of severance as to the

CCE murder charge.

B.

Both West and Jackson challenge their convictions on the CCE

murder charge (Count 3) claiming insufficiency of the evidence. "The

verdict of a jury must be sustained if there is substantial evidence,

taking the view most favorable to the Government to support it."

Glasser v. United States, 315 U.S. 60, 80 (1942). The evidence in this

case, viewed in the light most favorable to the Government, was overwhelming not only as to the murder charge, but also as to the fact that

the murder was perpetrated in furtherance of the criminal enterprise

of illegal drug distribution. Two of the participants in the murder of

Vatressa Miller, Newell and Holt, testified not only as to the participation of West and Jackson but also as to their joint concern that Mil8 UNITED STATES v. WEST
ler was an informant for the Government. Flora Ray testified that

West made admissions to her concerning the murder and evidenced

concern that the victim was a "snitch." Two witnesses, Tim Patterson

and Ricky Nelson, testified as to West’s concern that Miller was providing information to law enforcement authorities and West’s specific

comment that "something had to be done about her." 

The standards of this Court for reviewing the sufficiency of the evidence to support any conviction are well established. The question is

whether "any rational trier of facts could have found the defendant

guilty beyond a reasonable doubt." United States v. Tresvant, 677

F.2d 1018, 1021 (4th Cir. 1982)(citations omitted). As Chief Judge

Ervin of this Court noted in subsequent opinions in United States v.

Baker, 985 F.2d 1248, 1251 (4th Cir. 1993), cert. denied, 510 U.S.

1040 (1994), and United States v. Reavis, 48 F.3d 763, 771 (4th Cir.

1995), the question "is not whether the appellate court is convinced

beyond a reasonable doubt." West and Jackson bear a heavy burden

in challenging the sufficiency of the evidence after a jury verdict, and

they fail to meet this burden. The convictions of both on the CCE

murder count are affirmed. 

C.

Both West and Jackson contend that the District Court abused its

discretion by permitting the Government witness, Ricky Nelson, to be

rehabilitated by reading portions of prior statements into the record.

Nelson provided significant testimony for the Government. He testified that he spoke with West after West returned from North Carolina.

According to Nelson’s testimony, West had stated that he believed

that "something had to be done" about Vatressa Miller. He further testified that West was holding a knife in his hand during this conversation. He also testified that Tim Patterson was not present during this

conversation. 

On cross-examination, Nelson was subjected to rigorous and

aggressive cross-examination. Counsel for West impeached Nelson

with a prior statement where Nelson had made no mention of West

holding a knife. Nelson was also challenged with a prior statement in

which he had stated that Patterson was present when West made comUNITED STATES v. WEST 9
ments to him. Portions of cross-examination by West’s counsel proceeded as follows: 

Q.: You don’t know what the truth is, do you Mr. Nelson?

A.: Yeah, I know what the truth is. 

Q.: The truth is you were in trouble with drugs, and you

were cooperating with the police to try to get off the

hook? Isn’t that true, Mr. Nelson? 

A.: No sir. 

Q.: Isn’t it true, Mr. Nelson, that when we met with you,

you said "I’m sticking to my story". Isn’t that true?

You told us that? 

A.: No sir. 

During his cross-examination, counsel for Jackson referred to the

"added features" of Nelson’s testimony and the "favorable treatment"

Nelson had received. After this cross-examination, the District Court

permitted the witness to read prior statements and prior Grand Jury

testimony which were consistent with West’s testimony at trial. 

It is clear that a District Court’s evidentiary ruling will not be

reversed absent an abuse of discretion. United States v. Lancaster, 96

F.3d 734, 744 (4th Cir. 1996); United States v. Queen, 132 F.3d 991,

993 (4th Cir. 1997). A witness may be rehabilitated with a prior consistent statement, which is not deemed to be hearsay, if the statement

is "consistent with the declarant’s testimony and is offered to rebut an

express or implied charge against the declarant of recent fabrication

or improper influence or motive." Fed. R. Evid. 801(d)(1)(B). It is

abundantly clear from the record that counsel for West and counsel

for Jackson made implied charges of improper influence or motive as

to the witness Nelson. Counsel for West directly charged fabrication

in his challenge to Nelson’s knowledge or lack thereof as to the truth.

Consistent with the principles set forth in Tome v. United States, 513

U.S. 150 (1995), the prior statements read to the jury predated any

10 UNITED STATES v. WEST
efforts with respect to alleged recent fabrication or motive to satisfy

Government authorities. See generally 1 McCormick on Evidence

§ 47 (5th ed. 1999). 

The precise question not addressed by West and Jackson in their

briefs or in oral argument before this Court is whether all of the

admitted statements were consistent as required by Rule 801(d)(1)(B).

The record reflects that counsel for Jackson noted in his objection that

Nelson was merely "regurgitating his testimony." With respect to the

presence of the witness, Tim Patterson, during the discussions of the

problems with Vatressa Miller, the prior statements read by Nelson

did not state that Patterson was not present as Nelson had testified.

Thus, some of the admitted statements may not have been consistent

with Nelson’s trial testimony. Any error in admitting these statements

seems harmless, because other portions of the admitted statements

were consistent with Nelson’s testimony and were made well before

any alleged motive to create testimony at trial. The prior consistent

statements were offered to rebut an inference that Nelson fabricated

testimony to satisfy the Government. Therefore, the District Court did

not abuse its discretion in admitting Nelson’s prior statements. 

III.

Jackson raises one additional challenge to his conviction. He contends that the District Court abused its discretion in denying his

motion for a continuance on the morning of trial. It is clear from the

record that Attorney Jeffrey Harris represented Jackson for over one

and a half years prior to the trial of the case, having been appointed

by the District Court. Furthermore, Harris served as lead trial counsel

for Jackson throughout the trial. Attorney Keith Wheaton had acted

as co-counsel until advising the Court on the eve of trial that he

believed he had a conflict of interest because he had previously represented some of the Government’s witnesses. It was Harris’ suggestion

that a second lawyer, James Zimarowski, be appointed by the Court

to assist him at trial. The record reflects that Harris and Zimarowski

are both experienced criminal defense attorneys. Furthermore, the

record of the case clearly indicates that Jackson did not state any

objection or move for a continuance until the morning of trial. 

The District Court in denying a continuance correctly relied upon

our holding in United States v. Robinson, 275 F.3d 371 (4th Cir.

UNITED STATES v. WEST 11
2001). In that case, this Court noted our earlier opinion in United

States v. Boone, 245 F.3d 352 (4th Cir. 2001), in which we held that

a defendant charged with a death-eligible crime is entitled to representation by two attorneys regardless of the Government’s decision

not to seek the death penalty pursuant to 18 U.S.C. § 3005. Nevertheless, in Robinson, we declined to reverse the conviction of a noncapital defendant entitled to representation by a second attorney

because the trial court’s error "did not affect the fairness, integrity, or

public representation of judicial proceedings." 275 F.3d at 384.

Despite the latitude accorded to the District Court by our opinion in

Robinson, the trial judge in this case appointed a second attorney for

the non-capital defendant Jackson to assist lead counsel in the case.

Furthermore, Jackson had the benefit of Attorney Wheaton in pre-trial

preparation until the eve of trial. 

Jackson has failed to show any prejudice from the denial of his

motion for a continuance. The record reflects Harris’ role as lead

counsel. The second attorney, Zimarowski, vigorously conducted the

cross-examination of eleven Government witnesses. As this Court

noted in United States v. Lawrence, 161 F.3d 250, 254 (4th Cir.

1998):

A District Court is entitled to broad discretion with

respect to a decision to deny a continuance. . . . Specific

errors must be shown which "undermine confidence in the

outcome of the trial" to constitute reversible error. (Citations

omitted.) 

Jackson has failed to show any such errors in this case. 

IV.

West raises four additional challenges to his convictions. First, he

contends that the District Court abused its discretion by not granting

him a severance from Jackson and that he was prejudiced by a joint

trial. Second, he says the District Court erred in permitting the Government to impeach him during his testimony with a conviction of a

crime carrying a penalty of more than one year. Third, he contends

that the District Court erred in allowing the Government to impeach

him with a false statement not disclosed to him prior to trial. Fourth,

12 UNITED STATES v. WEST
West says that the District Court erred when it applied Sentencing

Guideline section 2D1.1 to his conviction for drug law violations. We

address these additional separate claims by West in turn. 

A.

West contends that the District Court erred in not granting his

motion for severance and granting him a separate trial from Jackson.

The trial judge found appropriate joinder of West and Jackson pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure and

denied a pretrial motion for severance made pursuant to Rule 14.

West argues that the evidence against Jackson was much stronger and

that he was prejudiced by a joint trial. West fails to meet the heavy

burden on this issue. 

The Government’s evidence showed that West and Jackson

engaged in a series of drug transactions which constituted a continuing criminal enterprise. The drug distribution of West and Jackson

was part of the same series of transactions that were connected with

the murder of Vatressa Miller. West and Jackson were jointly charged

in the drug conspiracy. 

As this Court has noted in United States v. Brooks, 957 F.2d 1138,

1145 (4th Cir. 1992), "Defendants who have been charged in the same

conspiracy indictment should ordinarily be tried together." We also

have held in United States v. Roberts, 881 F.2d 95, 102 (4th Cir.

1989), that: 

The issue of whether there is sufficient prejudice to warrant a severance is a question committed to the sound discretion of the trial court. . . . A showing that a defendant would

have a better chance of acquittal in a separate trial does not

establish prejudice sufficient to require severance. (Citations

omitted.) 

The record before the District Court at the time of its ruling showed

insufficient prejudice to warrant a severance. Furthermore, the complete record of this case is replete with evidence of West’s guilt apart

from any evidence introduced against Jackson. Eyewitness testimony

UNITED STATES v. WEST 13
of West’s participation in the murder of Vatressa Miller was presented. West was separately convicted of illegal drug distribution.

Furthermore, the trial judge properly instructed the jury that it was to

give separate consideration to the evidence concerning each Defendant, that each Defendant was entitled to receive separate treatment

and that the jury was to return a separate verdict for each Defendant.

A district court’s denial of a motion for severance "will not be

overturned absent a clear abuse of discretion." United States v. Haney,

914 F.2d 602, 606 (4th Cir. 1990). The District Court did not abuse

its discretion in this case in denying West’s motion for severance. 

B.

West next argues that the District Court erred in permitting the

Government to impeach him with evidence of his conviction of a

crime carrying a penalty of more than one year.

West testified at trial and was cross-examined by the Government

with respect to his activities in Texas when he was eighteen years old.

He was then shown an arrest photograph of himself, at which time

defense counsel objected. The District Court conducted an in camera

evidentiary conference and subsequently admitted the photograph and

evidence of West’s Texas conviction for "unauthorized use of a vehicle." West concedes that that crime carries a penalty of more than one

year. However, West contends that the District Court did not conduct

the appropriate balancing test noted in Rule 403 of the Federal Rules

of Evidence. 

Rule 609(a) of the Federal Rules of Evidence provides that evidence that "an accused has been convicted" of a crime punishable by

imprisonment in excess of one year "shall be admitted if the Court

determines that the probative value of admitting this evidence outweighs the prejudicial effect to the accused." Fed. R. Evid. 609(a).

The record of this case indicates that the District Court, at the evidentiary conference, weighed the probative value of the Defendant seeking to conceal his real name and the fact that he was concerned that

the murder victim, Vatressa Miller, knew that name. After conducting

the balancing test, and noting the standards set forth in Ohler v.

United States, 529 U.S. 752 (2002), the District Court admitted the

14 UNITED STATES v. WEST
evidence. The Court also gave an appropriate cautionary instruction

to the jury that the evidence was being offered as to credibility only.

It is clear from the record, and from the District Court’s ruling on

post-trial motions, that the evidence was also admitted to show the

identity of the Defendant, which was related to other evidence involving Vatressa Miller. In addition, West was in possession of his criminal record prior to trial and made his decision to testify with full

knowledge of his prior conviction. 

West has shown no prejudice from the admission of this evidence.

Indeed, West’s admission to drug activities is far more serious than

the unauthorized use of a motor vehicle when he was eighteen years

old. The record does not indicate an abuse of discretion by the District

Court in its ruling on this evidentiary issue. 

C.

West next contends that the District Court erred in permitting the

Government to impeach him with evidence of a false statement not

made known previously to him. 

During the cross-examination of West, the Government confronted

him with a photograph and a police report referencing an individual

named "Alonzo Green." Over objection of defense counsel, the District Court permitted the Government to question West about this photograph. West admitted that the photograph was of himself and that

he had lied to North Carolina law enforcement authorities to conceal

his own identity. Defense counsel contended that any statement by

West should have been disclosed to him in pre-trial discovery, as

required by Rule 16 of the Federal Rules of Criminal Procedure. Furthermore, counsel for West argued that the evidence did not involve

a crime of dishonesty. The District Court admitted the evidence on the

issue of Defendant’s identity as well as his credibility. 

West’s argument on this issue is without merit. First, Rule

16(a)(1)(A) of the Federal Rules of Criminal Procedure requires the

Government to disclose to a defendant "any relevant oral statement

made by the defendant, before or after arrest, in response to interrogaUNITED STATES v. WEST 15
tion by a person the defendant knows was a Government agent." A

false statement made by a defendant offered in response to a question

in another matter with respect to routine information does not amount

to a statement within the purview of Rule 16. See, e.g., Pennsylvania

v. Muniz, 496 U.S. 582 (1990). Furthermore, the indictment in this

case listed the name of "Alonzo Green" as an alias of West. It was

not an abuse of the District Court’s discretion to admit direct evidence

of the alias used by West. 

D.

Finally, West argues District Court error in the application of section 2D1.1(d)(1) of the United States Sentencing Commission Guidelines.

With respect to drug offenses, section 2D1.1 provides base offense

levels for defendants convicted under 21 U.S.C. § 841. Section

2D1.1(d)(1) specifically provides for a cross-referencing of Guideline

section application "if a victim was killed under circumstances that

would constitute murder." The District Court accordingly adjusted the

sentence to a base offense level of 43 by applying section 2A1.1. As

we noted in United States v. Pauley, 289 F.3d 254, 258 (4th Cir.

2002), on a similar "murder cross-reference" Guideline question,

"whether a particular cross-reference should be applied depends on

whether the conduct to which the cross-reference refers is ‘relevant

conduct’" as defined in section 1B1.3. The District Court had previously ruled that the CCE murder count was part of the same acts and

in furtherance of the drug conspiracy. Accordingly, the murder was

found by the Court to be "relevant conduct" resulting in crossreferencing at sentencing. 

West acknowledges that his argument on this issue is essentially a

renewed challenge on the sufficiency of the evidence on his CCE

murder charge. He contends that, assuming arguendo that he was

involved with that murder, the evidence was insufficient to establish

that the murder was part of a drug conspiracy or in furtherance of a

continuing criminal enterprise. For the reasons set forth earlier,

West’s challenge to the sufficiency of the evidence is without merit.

There is abundant evidence to support the District Court’s finding that

West participated in the murder of Vatressa Miller because he feared

16 UNITED STATES v. WEST
she was a "snitch" and was a threat to the drug distribution conspiracy. The evidence is quite clear that West felt "something had to be

done" about Miller to protect the drug operation. 

This factual determination by the District Court at sentencing is

reviewed by this Court for clear error. 18 U.S.C. § 3742; United

States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). Finding none, we

hold that the murder cross-reference was appropriate in the sentencing

of West and affirm that sentence. 

V.

For the reasons set forth above, we affirm the convictions and sentences of Jackson and West. 

AFFIRMED.

UNITED STATES v. WEST 17