PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4484

JENNY NUNEZ,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4504

CARLOS ALBERTO NUNEZ,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-03-161)

Argued: September 22, 2005

Decided: December 21, 2005

Before TRAXLER and GREGORY, Circuit Judges, and

R. Bryan HARWELL, United States District Judge for the

District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Traxler wrote the

opinion, in which Judge Gregory and Judge Harwell joined. 
COUNSEL

ARGUED: Meghan Suzanne Skelton, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Alexandria, Virginia, for Appellants. Sara Elizabeth Flannery, Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Frank

W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia, Mary

E. Maguire, Assistant Federal Public Defender, Carolyn V. Grady,

Assistant Federal Public Defender, Richmond, Virginia, for Appellants. Paul J. McNulty, United States Attorney, Michael J. Elston,

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

OPINION

TRAXLER, Circuit Judge: 

Appellants Jenny Nunez and Carlos Nunez challenge their convictions and sentences for conspiracy to possess with intent to distribute

and distribution of cocaine and heroin, in violation of 21 U.S.C.A.

§ 846 (West 1999); possession with intent to distribute and distribution of cocaine and heroin, in violation of 21 U.S.C.A. § 841(a)(1)

(West 1999) and 18 U.S.C.A. § 2 (West 2000); and attempted possession with intent to distribute cocaine and heroin, in violation of 21

U.S.C.A. § 846 and 18 U.S.C.A. § 2. We vacate and remand for

retrial. 

I.

The evidence at trial, viewed in the light most favorable to the government, see United States v. Burgos, 94 F.3d 849, 854 (4th Cir.

1996) (en banc), reveals the following facts. 

In October 2000, the Drug Enforcement Agency ("DEA") in

Miami, Florida, received a tip that Hymie Acosta was smuggling

cocaine and heroin from Colombia, South America, into the United

States on food carts of airplanes landing at Miami International Airport and that Martha Gray was distributing the drugs for Acosta in the

2 UNITED STATES v. NUNEZ
Miami area. During surveillance, Gray and Acosta were observed at

the home of Carlos and Jenny Nunez, who were married and living

in the Miami area. Following standard operating procedures, the

Miami DEA entered the Nunezes into the DEA indexing computer

program.

Martha Gray was arrested in April 2001, following the seizure of

a shipment of drugs from a flight that landed in Miami. She agreed

to cooperate with authorities in May 2003. Gray testified she had

approached Acosta for a job after she was laid off by American Airlines and began to collect and deliver money for him. She later

became involved with the drug smuggling operation as well. Acosta

would notify Gray of the flight carrying the smuggled drugs and the

expected amount, and Gray would contact Adnan Shwani and Willie

Floyd, their contacts at the airport. Floyd unloaded the drugs from the

food carts and delivered them to Shwani, who delivered the drugs to

Gray. Gray distributed the drugs pursuant to Acosta’s instructions and

collected money. Gray testified that she delivered drugs to Jenny and

Carlos Nunez for Acosta. 

DEA agents in Washington, D.C., began investigating drug trafficking activities of Kerry Bond and his associates, including Reginald Robinson, in the Washington area in the year 2000. This

investigation led to the arrest of several individuals who, in the course

of cooperating with authorities, identified Guillermo "Willie"

Padrone, from Miami, Florida, as their drug source. 

Padrone was arrested in 2002 and also began to cooperate with

authorities. He identified Carlos Nunez as his supplier for powder

cocaine and heroin. Padrone testified that, following a short hiatus

from his former drug-dealing activities, he began dealing drugs in the

fall of 2000 and reconnected with Carlos Nunez as his supplier.1 He

and other witnesses testified regarding the involvement of Carlos and

Jenny Nunez in the distribution scheme. When the Washington DEA

agents indexed the Nunez name in the course of their investigation,

1Padrone testified that, for a short period of time in 1999, he had

obtained powder cocaine from Carlos Nunez in Miami and distributed it

to Robinson and Bond, both of whom lived and distributed the drugs in

the Washington, D.C. area. 

UNITED STATES v. NUNEZ 3
also via standard procedure, the name surfaced as having been previously indexed by the Miami DEA. This led to a cooperative investigation. 

On August 12, 2003, Carlos and Jenny Nunez were arrested in

Miami on a federal arrest warrant issued from the Eastern District of

Virginia. Jenny, who speaks Spanish, was advised of her Miranda

rights in her native language and agreed to submit to questioning by

DEA agents Mary Toomey and Oscar Negron. Agent Toomey speaks

English, but Agent Negron’s native language is Spanish. Thus, Agent

Negron translated Agent Toomey’s questions and Jenny’s answers

during the questioning. On August 14, 2003, Agent Toomey prepared

a written Report of Investigation, (the "Report") from notes taken by

her from Agent Negron’s translation. The Report implicates Carlos

and Jenny Nunez, along with other coconspirators, in the Colombiato-Washington drug distribution conspiracy. 

Carlos thereafter filed a motion to sever his trial from Jenny’s trial,

arguing that her statement could not be redacted in a way that the

jurors would not know that it implicated him and, therefore, that it

would run afoul of his Sixth Amendment rights. Jenny filed a motion

to suppress introduction of her statement, arguing that it was not voluntarily given. The court denied both motions and ruled that the introduction of a redacted statement would sufficiently protect Carlos. 

The government prepared a redacted statement and subpoenaed

Agent Toomey from Florida to introduce it at trial. On the first day

of trial, however, the Supreme Court issued its opinion in Crawford

v. Washington, 541 U.S. 36 (2004), which held that the introduction

of out-of-court testimonial statements is barred by the Confrontation

Clause unless the witness is unavailable and the defendants had a

prior opportunity to cross-examine the witness.2See id. at 68. The following day, the appellants moved to bar Agent Toomey from offering

the Report into evidence because it was not a first-hand account of

2Crawford overruled Ohio v. Roberts, 448 U.S. 56, 66 (1980) (internal

quotation marks omitted), under which an unavailable witness’s statement could be admitted if it bore "adequate indicia of reliability," meaning that it fell "within a firmly rooted hearsay exception" or bore

"particularized guarantees of trustworthiness." 

4 UNITED STATES v. NUNEZ
Jenny’s statements. In light of Crawford, the district court reversed its

earlier ruling, holding that only Agent Negron could testify as a fact

witness regarding Jenny’s statements during the interview. The statement prepared in English by Agent Toomey from her notes of the

translation was a hearsay statement which would run afoul of the

Confrontation Clause. Thus, Agent Negron offered testimony regarding Jenny’s statements, but the Report was not admitted.

After jury deliberations had begun in the trial, the jury sent a note

to the court advising it was unable to locate the Report of Jenny’s

interview. Although the Report had not been introduced into evidence, it had been referred to during the testimony of Agent Negron

and Jenny Nunez. Upon prompting by the district court, the government then moved to reopen the evidence to allow belated admission

of the previously-excluded Report. Because "[e]xtensive use of [the

Report] was made throughout the examination," the district court

noted that it "would have let it go to the jury had [the government]

requested." J.A. 951-52. Accordingly, the district court ruled that it

would "re-open the evidence and let it in." J.A. 952. The Report summarizing the interview of Jenny was then submitted to the jury in its

original unredacted form without affording either Jenny or Carlos an

opportunity to present additional testimony or argument. Both appellants objected to the belated admission of this evidence and moved for

a mistrial, which was denied. 

The jury thereafter returned a verdict convicting Carlos and Jenny

of conspiracy to possess with intent to distribute and distribution of

cocaine and heroin, possession with intent to distribute and distribution of cocaine and heroin, and attempted possession with intent to

distribute cocaine and heroin. Carlos and Jenny moved for a new trial,

arguing that the district court improperly reopened the evidence to

admit the Report. The motions were denied. Carlos was sentenced to

188 months imprisonment, and Jenny was sentenced to 151 months

imprisonment. This appeal followed. 

II.

We first address the appellants’ contention that the district court

abused its discretion when it failed to give their requested jury

instruction regarding multiple conspiracies. The Nunezes contend that

UNITED STATES v. NUNEZ 5
the evidence demonstrated the existence of two distinct distribution

conspiracies, one in the Miami area (involving Acosta, Gray, Shwani,

and Floyd), and a separate one in the Washington area (involving

Padrone, Bond, and Robinson), and that they were therefore entitled

to a multiple conspiracy instruction. We disagree. 

"A multiple conspiracy instruction is not required unless the proof

at trial demonstrates that appellants were involved only in [a] separate

conspirac[y] unrelated to the overall conspiracy charged in the indictment." United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000)

(citations and internal quotation marks omitted). The focus of a conspiracy is the single-mindedness to achieve a particular goal. Generally, "[a] single conspiracy exists where there is one overall

agreement, or one general business venture. Whether there is a single

conspiracy or multiple conspiracies depends upon the overlap of key

actors, methods, and goals." Id. (citation and internal quotation marks

omitted). However, "one may be a member of a conspiracy without

knowing its full scope, or all its members, and without taking part in

the full range of its activities or over the whole period of its existence." United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).

Also, it is not necessary that the conspiracy "have a discrete, identifiable organizational structure." Id. Often, the single conspiracy is comprised of a "loosely-knit association of members linked only by their

mutual interest in sustaining the overall enterprise of catering to the

ultimate demands of a particular drug consumption market." Id.

Here, the evidence was more than sufficient to justify the district

court’s determination that a single conspiracy was at work. According

to the evidence presented by the government, Acosta arranged for the

drugs to be smuggled into the United States on airliners arriving in

Miami from Colombia and notified Gray of the specifics of the shipment. Shwani and Floyd transferred the drugs from the airliners to

Gray, and Gray transported the drugs to the Nunezes in Miami. The

Nunezes, in turn, operated as a conduit to Padrone, who arranged for

transportation and distribution of the drugs to Bond and Robinson for

ultimate distribution in the Washington area. Coconspirators in both

locales described the unique way the drugs were packaged, which

remained unchanged from the time they were smuggled into the country until their delivery in the Washington area. Telephone records

confirmed contact between Padrone and Carlos and between Carlos

6 UNITED STATES v. NUNEZ
and Acosta. And, there was ample evidence that the drugs were

fronted all along the distribution chain. 

In sum, far from demonstrating the existence of two separate and

distinct conspiracies, the evidence revealed that the Nunezes were

intimately connected with the conspirators in both locales and,

indeed, were the common bond between them. If accepted and

believed by the jury, the evidence indicated that the conspirators in

Miami and in the Washington area shared the common goal and

mutual interest to obtain heroin and cocaine from Colombia and distribute it for profit in the Washington area. Accordingly, the district

court did not abuse its discretion in failing to give the requested multiple conspiracy instruction. 

III.

We next address the Appellants’ contention that their convictions

should be vacated because the district court improperly reopened the

evidence after jury deliberations had begun and admitted the Report

summarizing Jenny’s alleged confession. 

A.

A district court’s decision to reopen a case to admit additional evidence is normally "within [its] sole discretion." United States v.

Abbas, 74 F.3d 506, 510 (4th Cir. 1996). In exercising this discretion,

however, the district court is directed to consider several factors:

[T]he court must consider the timeliness of the motion, the

character of the testimony, and the effect of granting the

motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its

case-in-chief. The evidence proffered should be relevant,

admissible, technically adequate, and helpful to the jury in

ascertaining the guilt or innocence of the accused. The

belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing

party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered. 

UNITED STATES v. NUNEZ 7
United States v. Peay, 972 F.2d 71, 73 (4th Cir. 1992) (citation and

internal quotation marks omitted) (emphasis added); see also Abbas,

74 F.3d at 510-11 (noting that courts should examine "(1) whether the

party moving to reopen provided a reasonable explanation for failing

to present the evidence in its case-in-chief; (2) whether the evidence

was relevant, admissible, or helpful to the jury; and (3) whether

reopening the case would have infused the evidence with distorted

importance, prejudiced the opposing party’s case, or precluded the

opposing party from meeting the evidence."). A district court’s refusal

to grant a new trial is also reviewed for an abuse of discretion. See

United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

B.

With these principles in mind, we review the circumstances surrounding the disputed evidence and its ultimate admission as substantive evidence for the jury’s consideration. 

1.

During the government’s case, Agent Toomey and Agent Negron

testified. Agent Toomey, however, was not questioned regarding the

Report because it had been excluded from evidence. Because the

Report was prepared from the translation provided by Agent Negron,

and not from Jenny’s direct statements to the preparer of the Report,

the court had ruled that the Report was hearsay precluded under the

Confrontation Clause and that only Agent Negron could testify as to

Jenny’s statements. Consistent with the district court’s ruling, Agent

Negron testified and provided a short account of the interview process

and a summary of the statements made by Jenny to him concerning

the drug activities of the conspirators. However, Negron made no

mention of Carlos’s involvement in the alleged drug distribution

scheme during his testimony; in fact, the testimony appeared to have

been carefully presented so as to avoid any reference to Carlos by

name. Agent Toomey was recalled by the appellants after the government rested, but again she was not questioned regarding the specifics

of the interview of Jenny, Agent Negron’s translation of Jenny’s

statements to Agent Toomey, or Agent Toomey’s preparation of the

Report.

8 UNITED STATES v. NUNEZ
Carlos and Jenny both testified and categorically denied any

involvement in the alleged drug distribution activities. Carlos had not

been implicated during Agent Negron’s testimony and the Report was

still not in evidence. Consequently, there was no discussion of the

Report during his examination. Jenny was cross-examined by the government regarding the statements Agent Negron had attributed to her

during his examination and, in doing so, the government referred to

some of the information contained in the Report. However, Jenny

denied making the alleged incriminating statements referenced by the

government. The government made no attempt to introduce the

Report at that time and did not seek to recall Agents Negron and

Toomey to introduce the Report as substantive evidence for the jury’s

consideration. 

In contrast to the excerpts of information discussed during the government’s examination of Agent Negron and referred to in the crossexamination of Jenny, the actual Report prepared by Agent Toomey

is a typed, five-page summary of alleged statements made by Jenny

during the interview. It consists of a short "Synopsis," followed by

nine single-spaced paragraphs of "details" of the conspiracy. In addition to memorializing Jenny’s activities, the Report contains her

detailed account of the activities of Acosta, Acosta’s contacts in

Colombia, Gray, Padrone, as well as those of her co-defendant and

husband Carlos, who is mentioned in the Report by name. It sets forth

the manner in which the conspiracy developed, as well as the specifics of how the drugs were transferred from Gray to Carlos, then to

Padrone, and on to the Washington area, and how the money was

returned and divided. Even a cursory comparison of the testimony

presented and the Report reveals a stark contrast between the information provided by the testimony and the detail contained within the

Report. In essence, the Report presents a concise, well-written, closing argument on the conspiracy count, and many of the individual

counts, and was quite incriminating to both Jenny and Carlos. 

Prior to the close of the evidence and the summation, the jury had

been made aware that the Report existed. The Report had been used

to refresh Agent Negron’s recollection during his direct examination

by the government and, no doubt, the jurors were aware that the government had the Report in hand. Perhaps the government even read

directly from it during its cross-examination of Jenny. However, the

UNITED STATES v. NUNEZ 9
Report was not in evidence, nor had its detailed contents ever been

presented in their entirety as substantive evidence against Jenny or

Carlos. 

2.

Under the circumstances, we are constrained to hold that the district court abused its discretion in permitting the Government to

reopen its case to present the written, unredacted Report in its entirety

after summation was closed and the jury had begun deliberations.

First, the government has presented no "reasonable explanation"

for its failure to timely seek introduction of the Report as substantive

evidence during the trial, stating only that it made no effort to introduce the Report as evidence during the appellants’ case or on rebuttal

given that the district court had already ruled it inadmissible. 

Second, as we explain below, even if relevant and helpful to the

jury in ascertaining the guilt or innocence of the Nunezes, the evidence was not "admissible" or "technically adequate" when presented.

Peay, 972 F.2d at 73. 

The appellants contend that admission of the Report violated their

Sixth Amendment rights to confrontation because neither were

afforded an opportunity to cross-examine Agent Toomey or Agent

Negron about the Report. See Crawford, 541 U.S. at 68. In addition,

Carlos argues that the admission of the statement violated his rights

under the Confrontation Clause because the unredacted statement

contained Jenny’s references to Carlos’s participation in the drug conspiracy. See Bruton v. United States, 391 U.S. 123, 135-36 (1968). 

In response, the government argues that, once Jenny testified, the

prior statement became admissible under Rule 613(b) of the Federal

Rules of Evidence. See id. ("Extrinsic evidence of a prior inconsistent

statement by a witness is not admissible unless the witness is afforded

an opportunity to explain or deny the same and the opposite party is

afforded an opportunity to interrogate the witness thereon, or the

interests of justice otherwise require."). The government argues that

Bruton does not apply because, once Jenny testified, Carlos had the

10 UNITED STATES v. NUNEZ
opportunity to cross-examine her and her statements relating to Carlos’s role in the conspiracy became admissible. Thus, the government

argues that, had it moved to introduce the statement after Jenny was

cross-examined, Jenny’s statement, including its implications of Carlos in the conspiracy, would have been admissible as extrinsic evidence in rebuttal. 

Assuming that the government is correct regarding the propriety of

introducing the Report in rebuttal, however, that fact does not cure the

problem at hand. At best, the Report would only have been admissible

at that point if it had been properly introduced through the agents.

Jenny and Carlos would have been afforded an opportunity to crossexamine the agents on the Report and to meet the very incriminating

nature of the Report with additional evidence and cross-examination

on their part. And, at a minimum, Jenny and Carlos would have had

the ability to address the Report and argue its relevance and weight

to the jury during summation. Because this was not done, the evidence was not "admissible [or] technically adequate" when presented.

Peay, 972 F.2d at 73.

Finally, and for the same reasons outlined above, the district

court’s decision to reopen the evidence to admit the Report after the

jury had retired for deliberations and in response to the jury’s request

infused the evidence with distorted importance, prejudiced the appellants’ case, and denied the appellants a fair opportunity to respond to

the additional evidence. See id.; Abbas, 74 F.3d at 511. 

At best, the Nunezes had some opportunity to examine Agent

Negron about the limited statements he attributed to Jenny during his

testimony that were also contained in the Report. However, there was

no reason for the appellants to cross-examine Negron regarding specifics of the Report that had not been related to the jury or the specifics of the preparation of the Report. Nor could Agent Negron fully

respond to specific questions regarding the Report’s preparation, as

Agent Toomey prepared it two days after the interview was completed from the notes she took from Agent Negron’s translation. At

no time did Jenny or Carlos have a reason to cross-examine Agent

Negron regarding all of the statements in the Report. In addition,

Jenny’s alleged statements regarding Carlos’s role in the conspiracy

were only contained within the written Report, which was not admitUNITED STATES v. NUNEZ 11
ted until well after Carlos’s opportunity to cross-examine Jenny had

passed.3

In sum, we think it clear that the district court abused its discretion

in reopening the evidence to allow admission of the incriminating

Report after jury deliberations had begun. In doing so, the Report

gained distorted importance, prejudiced the appellants’ case, and precluded the appellants from "having an adequate opportunity to meet

the additional evidence offered." Peay, 972 F.2d at 73 (citation and

internal quotation marks omitted). Cf. United States v. Bayer, 331

U.S. 532, 538 (1947) (noting that the reopening of a case to admit a

document four hours after the jury had begun deliberating would be

prejudicial to the government because it "would then have had no

chance to comment on it, summation having been closed," and to the

codefendant who, "with no chance to cross-examine or to comment

would be confronted with a new item of evidence against him");

United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991) (finding no

abuse of discretion in district court’s refusal to reopen a case for the

defendant after both parties had presented proof, rested, made closing

arguments, and the district court rendered a verdict).4

3Carlos also argues that admission of the Report violated his Fifth

Amendment rights to due process under Doyle v. Ohio, 426 U.S. 610,

611 (1976), because it included a reference to his decision not to waive

his rights and cooperate with agents. In light of our decision that the

belated admission of the Report was an abuse of discretion based upon

the concerns of the Confrontation Clause, we express no opinion as to

whether the Doyle error was harmless because Jenny alerted the jury to

the fact that Carlos had exercised his right to remain silent. 

4For the same reasons, the district court abused its discretion in failing

to grant a new trial. In light of our decision, we note, but find it unnecessary to rule upon, appellants’ alternative claim that the district court

improperly inserted itself into the trial by suggesting to the government

that it move to reopen the evidence. We also find it unnecessary to

address appellants’ claims that the district court erred in limiting Jenny’s

cross-examination of Agent Negron, and that their sentences must be

vacated under United States v. Booker, 125 S. Ct. 738 (2005). The district court is free to consider these issues anew should they arise on

retrial. 

12 UNITED STATES v. NUNEZ
For the foregoing reasons, we vacate the convictions and sentences

imposed upon Jenny and Carlos Nunez and remand for retrial.

VACATED AND REMANDED

UNITED STATES v. NUNEZ 13