PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4197

MICHAEL ALAN LEVENITE, a/k/a

Nomad,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4198

MICHAEL ALAN LEVENITE, a/k/a

Nomad,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4199

TRAVIS CHAD DAILEY, a/k/a "Taz",

Defendant-Appellant. 
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4255

RICHARD FREDERICK CONNOR, a/k/a

Phez,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4468

KEITH ALAN WATSON, a/k/a Tank,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-99-23, CR-99-91)

Argued: October 30, 2001

Decided: January 10, 2002

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Williams and Judge Michael joined. 

COUNSEL

ARGUED: William James Holmes, Virginia Beach, Virginia, for

Appellant Connor; John Warren Hart, JOHN W. HART, P.C., Vir2 UNITED STATES v. LEVENITE
ginia Beach, Virginia, for Appellant Levenite; Marlin Woodrow Griffin, Jr., Hampton, Virginia, for Appellant Dailey; Douglas Fredericks,

Norfolk, Virginia, for Appellant Watson. Fernando Groene, Assistant

United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:

Kenneth E. Melson, United States Attorney, Robert J. Seidel, Jr.,

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

OPINION

NIEMEYER, Circuit Judge: 

Michael Levenite, Travis Dailey, Richard Connor, and Keith Watson were convicted of participating in a large-scale methamphetamine

trafficking conspiracy in Norfolk, Virginia. Levenite was sentenced to

94 months’ imprisonment; Dailey to 174 months; Connor to 21

months; and Watson to 188 months. 

On appeal, all four challenge the testimony of an FBI-paid informant who received expenses and could earn, in the discretion of the

FBI, an additional $100,000 bonus, depending on the informant’s

cooperation and attainment of the objectives of the investigation.

They contend that the use of such testimony violated 18 U.S.C.

§ 201(c) (punishing the bribery of witnesses) and the Due Process

Clause of the Fifth Amendment. They also challenge the district

court’s decision, under Federal Rule of Criminal Procedure 23(b), to

permit an 11-person jury to deliberate and reach a verdict when one

of the jurors had become ill. Connor and Watson challenge the physical configuration of the courtroom, altered to accommodate a trial

involving 13 defendants, arguing that it denied them an ability to look

witnesses in the eye and to consult counsel, in violation of the Confrontation and Assistance-of-Counsel Clauses of the Sixth Amendment. Levenite, Dailey and Connor challenge the sufficiency of

evidence offered to support their convictions. Finally, Levenite challenges two sentencing decisions. 

For the reasons that follow, we affirm. 

I

In April 1993, Jeremiah Saucier moved from California to Norfolk,

Virginia, for the purpose of distributing methamphetamine with HarUNITED STATES v. LEVENITE 3
old Ratliff. Over the next three years, Saucier organized a coast-tocoast drug distribution network which was supplied by Juan Felix in

California. Felix shipped the drugs from California by either FedEx

or UPS to Saucier who then distributed them in Virginia to smaller

distributors such as Keith Watson and Travis Dailey. Watson and

Dailey, in turn, distributed the drugs to yet smaller distributors or to

customers. Several members of the conspiracy were also members of

the Renegade Motorcycle Club (the "Renegades"). 

In October 1996, Saucier was involved in a serious motorcycle

accident, and William Yates, one of Saucier’s customers, took over

leadership of the conspiracy until it was terminated by indictments

filed in February 1999 and subsequent arrests. 

Through the operation of the conspiracy, hundreds of pounds of

methamphetamine, worth millions of dollars, as well as smaller

amounts of cocaine, were distributed over a period of almost six

years. 

Investigation of the conspiracy began in earnest when a drugsniffing dog at the Norfolk airport "alerted on" a package being

shipped to Felix in California. The package contained $145,000 in

U.S. currency that was being sent to Felix in payment for methamphetamine. In addition to using surveillance, court authorized wire

taps, and undercover agents, the FBI engaged Robert Lowe as a paid,

confidential informant. Lowe, who infiltrated the conspiracy and the

Renegades itself and testified at substantial length against the members of the conspiracy at trial, was paid a "salary" as well as expenses.

Under his arrangement with the FBI, Lowe could also earn a lumpsum payment of up to $100,000, at the discretion of the FBI, depending on the extent of his cooperation in the investigation and his effectiveness in helping the FBI attain the objectives of the investigation.

Later, before trial, Lowe was placed in the government’s witness protection program. 

In February 1999, 30 members of the conspiracy were charged

with trafficking in methamphetamine and related offenses in a 66-

count indictment, and in June 1999, 11 defendants charged in the

original indictment were charged in a supplemental indictment with

4 UNITED STATES v. LEVENITE
enhancement offenses. The two indictments were thereafter consolidated for trial. 

Seventeen of the defendants pleaded guilty, and several of them,

including Saucier, Yates, and Felix, testified on behalf of the government at trial. Following trial, the jury acquitted five defendants and

found eight guilty of various offenses, including some lesser included

offenses. Four convicted defendants — Levenite, Dailey, Connor, and

Watson — filed this appeal. 

II

All defendants on appeal contend that the testimony given by Robert Lowe, a paid confidential informant for the FBI, was incompetent

and constitutionally inadmissible. They assert that as part of Lowe’s

compensation, the FBI agreed to pay Lowe "a lump sum cash ‘bonus’

of up to $100,000.00 which was contingent upon the testimony of

Rob Lowe against these defendants and the outcome of this case,

including whether convictions against these specific defendants were

obtained." Characterizing the arrangement as "extremely disturbing"

and offensive, these defendants argue that the FBI’s arrangement with

Lowe violated 18 U.S.C. § 201(c) (punishing bribery of public officials and witnesses) and the Due Process Clause of the Fifth Amendment. Based on these alleged violations, the defendants request a new

trial. 

The government contends that Lowe "was paid for his truthful testimony" and that procedural safeguards were instituted to protect the

defendants from any impropriety, including the government’s full

pretrial disclosure of the arrangement, the defendants’ and court’s

pretrial review of the arrangement through suppression motions, the

defendants’ cross-examination of the FBI’s case agent and Lowe, the

government’s corroboration of Lowe’s testimony through other evidence, and the court’s cautionary instructions to the jury. The government argues accordingly that Lowe’s testimony was both competent

and admissible. 

The FBI first engaged Lowe in September 1996 as a confidential

informant who would gather information about drug distribution and

the Renegades and would report the information to the FBI. At that

UNITED STATES v. LEVENITE 5
time, however, Lowe did not want to testify in any court; his role was

to serve "strictly [as] eyes and ears." Approximately a year later,

Lowe agreed to become a cooperating witness, subject to direction by

the FBI as to "where to go [and] when to go." The relationship was

governed by a four-page written agreement between Lowe and the

FBI, dated October 15, 1997. 

The agreement recited that the FBI was conducting an investigation

into racketeering and drug distribution by "an outlaw motorcycle

organization known as the Renegades" and that Lowe had information

and was willing to "furnish assistance" to the FBI. Under the agreement, Lowe agreed to disclose information to the FBI, to introduce

undercover FBI agents to members of the Renegades, to wear wires

and make recordings, and to testify in "any and all court proceedings."

He agreed not to initiate any criminal acts and not to participate in

unlawful acts except as authorized by the FBI. The FBI retained the

right to control the investigation, as well as the right to terminate it

at any time. 

In accordance with the agreement, Lowe received $2,000 per

month for his services and $1,300 per month for his expenses. Later,

the FBI also purchased a motorcycle for him so that he could become

a member of the Renegades. In addition, the agreement provided for

a potential lump-sum payment of up to $100,000, at the discretion of

the FBI at the end of the case. With respect to this $100,000 payment,

the agreement provided:

The FBI may, at its sole option and choice, elect to furnish

Mr. Lowe with a lump sum of money, not to exceed

$100,000.00, upon the completion of the investigation. Factors to be considered by the FBI in [determining] the amount

shall include, but not be limited to the following: the extent

of cooperation in the investigation by Mr. Lowe, the activities of Mr. Lowe in the furtherance of the investigation and

in attaining the objectives of the investigation, and the

degree of compliance with this Agreement by Mr. Lowe. 

The agreement not only made any payment contingent upon Lowe’s

compliance with the agreement but also upon his maintenance of confidentiality. 

6 UNITED STATES v. LEVENITE
After signing the agreement, Lowe worked virtually full time for

the FBI in connection with the investigation of the Renegades, and he

was elected a member of the Renegade Motorcycle Club. In February

1999, Lowe was formally placed in the Witness Protection Program,

authorized by 18 U.S.C. § 3521, under which he was given protection

and paid additional personal expenses. 

At trial, Lowe testified at length about what he had witnessed, providing substantial evidence against each of the defendants. His testimony against Connor provided most of the evidence supporting

Connor’s conviction. 

Before trial, the district court considered and denied motions to

suppress evidence from Lowe, and at trial, it overruled objections to

receipt of Lowe’s testimony. Although the district court permitted

Lowe to testify, it expressed concerns to the government: 

Well, you’ve got this case, and you are going to put it on for

many weeks; and sometimes I’m surprised at the government taking the risks that it does by asking the court to

accept certain evidence when they’ve got other evidence.

And if you wish to present this witness, based on what I’ve

heard, I’m not going to prevent it. 

The court added that Lowe’s arrangement with the FBI "makes me

nervous." 

When the FBI case agent, Kim Wright, was cross-examined at trial

about the agreement with Lowe, she testified that FBI headquarters,

not any individual agent in the field, would determine the size of the

payment that Lowe would receive at the end of the case. She agreed

that the payment would be based in part on the extent to which the

"objectives of the investigation" had been attained and she conceded

that among those objectives were the convictions of conspirators

identified through the investigation. Wright stated that after the case

was over, she would write a recommendation report to FBI headquarters that would be used to determine the amount of payment to Lowe.

The defendants cross-examined both Agent Wright and Lowe

about their arrangement, and at the completion of the case, the district

court instructed the jury as follows:

UNITED STATES v. LEVENITE 7
You have heard testimony from paid informants who were

employed by the Government to investigate the defendants.

The fact that an individual is a paid informant does not disqualify him as a witness. The uncorroborated testimony of

a paid informant may be a sufficient basis for a finding of

guilt if you believe beyond a reasonable doubt that such testimony is both credible and of sufficient weight. It is neither

illegal nor improper to utilize paid informants in the

enforcement of the criminal laws. However, the testimony

of a paid informant must be subjected to a higher degree of

scrutiny as to both weight and credibility. This is true

because you must decide if such a witness has a greater

motive to testify truthfully or falsely. 

Further, if the payment to the informant is fully or partially

contingent upon the content of his testimony at trial or upon

a finding of guilt at trial, then such testimony must be subjected to an even higher degree of scrutiny. 

Challenging Lowe’s testimony, the defendants argue first that the

provision for a bonus of up to $100,000 violated 18 U.S.C.

§§ 201(c)(2) and 201(c)(3), which provide that whoever gives or

receives "anything of value . . . for or because of the testimony under

oath or affirmation given or to be given by such person as a witness

upon a trial" shall be punished. The defendants say "Robert Ira Lowe

was essentially offered, and he accepted, a bribe," in violation of

§ 201(c). 

As we noted recently, § 201 was enacted to strengthen the laws

relating to bribery and not to restrict the government from compensating witnesses that help expose and prosecute criminal activity. See

United States v. Anty, 203 F.3d 305, 308 (4th Cir. 2000); United

States v. Richardson, 195 F.3d 192, 196-97 (4th Cir. 1999). In Anty

we explained:

To interpret § 201(c)(2) to preclude the payment of money

to informants to assist in investigating and prosecuting

crimes, by giving truthful testimony, would not only "rob

the government of its long-standing prerogative[ ]" to do so

as established by statute and recognized practice, it would

8 UNITED STATES v. LEVENITE
also "work an obvious absurdity" in implicitly repealing

numerous statutes that authorize the payment of expenses,

fees, and rewards to witnesses. 

Id. at 309 (quoting Richardson, 195 F.3d at 196). We noted that § 201

explicitly authorizes the government to pay witnesses fees as authorized by law. See 18 U.S.C. § 201(d). As the government points out,

there are several statutes that allow the government to pay informants

and witnesses for their cooperation, services, and testimony. See, e.g.,

21 U.S.C. § 886(a) (authorizing payments in connection with drug

enforcement of "such sum or sums of money as [the Attorney General] may deem appropriate, without reference to any moieties or

rewards to which such person may otherwise be entitled by law"); 18

U.S.C. § 3059B (authorizing payment of reward "to any individual

who assists the Department of Justice in performing its functions").

Thus, we held in Anty that § 201(c) "does not prohibit the United

States from acting in accordance with long-standing practice and statutory authority to pay fees, expenses, and rewards to informants even

when the payment is solely for testimony, so long as the payment is

not for or because of any corruption of the truth of testimony." Id. at

311. Accordingly, the defendants’ statutory argument lacks any merit.

The defendants also argue that even if the arrangement does not

violate § 201, it nevertheless violates their right to due process. They

argue that "payments which are contingent upon a conviction or upon

the outcome of a trial ‘skate very close to, if indeed, do not cross, the

limits imposed by the due process clause,’" quoting United States v.

Dailey, 759 F.2d 192, 201 (1st Cir. 1985). They rightly assert, of

course, that government sponsored or encouraged perjury deliberately

presented to a jury to support a conviction would violate a defendant’s right to due process. See Mooney v. Holohan, 294 U.S. 103,

112 (1935). But they have directed us to no evidence that the government sponsored or suborned perjury. Indeed, most, if not all, of

Lowe’s testimony was corroborated to some degree; where direct corroboration was lacking, circumstantial indications of trustworthiness

existed. 

Nevertheless, arrangements such as the one between the FBI and

Lowe create fertile fields from which truth-bending or even perjury

could grow, threatening the core of a trial’s legitimacy. Yet, even

UNITED STATES v. LEVENITE 9
though compensation for testimony can be troubling, it does not follow that the use of such an arrangement renders such testimony constitutionally inadmissible per se. In Hoffa v. United States, 385 U.S.

293, 311 (1966), the Supreme Court stated about testimony given by

paid informants: 

The established safeguards of the Anglo-American legal

system leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury. 

Id.; see also Anty, 203 F.3d at 312 (noting the importance of protecting the defendant’s right to cross-examine); United States v. Wilson,

904 F.2d 656, 659 (11th Cir. 1990) (same); United States v.

Cervantes-Pacheco, 826 F.2d 310, 313-16 (5th Cir. 1987) (en banc)

(citing Hoffa and discussing procedural safeguards to protect against

abuses). 

The task of obtaining truthful testimony to prosecute criminal matters often presents a difficult challenge to the government. Witnesses

to criminal conduct are routinely either in conspiracy with the defendants or at risk of harm because they bore witness to criminal conduct. In either case, the government frequently faces barriers to

obtaining relevant, truthful testimony. Therefore, it has long been recognized that grants of immunity, plea agreements, and sentencing

leniency are appropriate tools for use in the criminal justice system.

Indeed, the Rules of Criminal Procedure explicitly authorize these

devices, and this court has approved them. See, e.g., Fed. R. Crim. P.

11(e); United States v. Richardson, 195 F.3d 192, 194-97 (4th Cir.

1999). Similarly, the payment of fees to witnesses as an incentive to

come forward and testify has explicitly been approved by Congress.

See, e.g., 18 U.S.C. § 3059B; 21 U.S.C. § 886(a); Anty, 203 F.3d at

309-10 (listing statutes permitting such payments). 

But just as a payment may provide witnesses an incentive to come

forward and testify truthfully at some risk to themselves, so too can

the same payment provide an incentive to witnesses to come forward

and lie simply for the purpose of receiving the payment. Even so, as

long as there are adequate safeguards, the potential corruption should

not condemn the practice. Indeed, in some rare cases, even a payment

10 UNITED STATES v. LEVENITE
contingent on specific truthful testimony might be justifiable. For

instance, when the government is confident before trial about the

truthfulness of a witness’s testimony but unsure that the witness will

adhere to such testimony in the face of external pressure from "the

street" or otherwise, a payment might be approved that is deferred and

dependent on the witness’ giving of truthful testimony. But because

of the vulnerability of such contingent-payment arrangements to corruption, they may be approved only rarely and under the highest scrutiny. 

In recognition of the substantial risk that financial incentives can

corrupt, either through an aggressive prosecutor seeking testimony

inconsistent with the truth or a witness testifying untruthfully to satisfy the government’s objectives, testimony given under an arrangement involving the payment of a fee, "salary," or "bonus," whether

contingent on the content of the testimony or not, may be received in

court only within a structure of procedural safeguards. 

First, a witness-fee payment arrangement must be disclosed to each

defendant against whom the witness will testify before the proceeding

at which the witness testifies. See Giglio v. United States, 405 U.S.

150, 154 (1972) (holding that evidence affecting the credibility of a

key witness is material); Brady v. Maryland, 373 U.S. 83, 87 (1963)

(holding that due process forbids suppression by the prosecution of

[material] evidence favorable to an accused when requested); Anty,

203 F.3d at 312 (noting the importance of protecting a defendant’s

right to be apprised of the government’s compensation arrangement

with a witness). Second, the defendant must be afforded an opportunity to cross-examine the witness about the fee arrangement. Anty,

203 F.3d at 312. Third, the court must instruct the jury about the

heightened scrutiny to be given testimony provided under a fee payment arrangement. Wilson, 904 F.2d at 659. And finally, there can be

no indication that the government is sponsoring or suborning perjury.

Cervantes-Pacheco, 826 F.2d at 315 ("The government of course

must not deliberately use perjured testimony or encourage the use of

perjured testimony"). In addition, when the payment of a fee, "salary,"

or "bonus" is contingent on the content or nature of testimony given,

the court must ascertain (1) that the government has independent

means, such as corroborating evidence, by which to measure the

truthfulness of the witness’ testimony and (2) that the contingency is

UNITED STATES v. LEVENITE 11
expressly linked to the witness’ testifying truthfully. Moreover, when

a witness is testifying under such a contingent payment arrangement,

the government has a duty to inform the court and opposing counsel

when the witness’ testimony is inconsistent with the government’s

expectation. 

Turning to whether these safeguards were applied in this case, first,

there is no dispute that the agreement between the FBI and Lowe was

disclosed to the defendants before trial. Indeed, in this case, the agreement was scrutinized before trial through the defendants’ suppression

motion. 

Second, at trial, the defendants had the opportunity to crossexamine both FBI case agent Wright and confidential informant Lowe

about the terms of the agreement, its operation, and its effect. And

they took that opportunity by cross-examining both. 

Third, the jury was instructed to give Lowe’s testimony heightened

scrutiny. As the court stated to the jury, "the testimony of a paid informant must be subjected to a higher degree of scrutiny as to both

weight and credibility. This is true because you must decide if such

a witness has a greater motive to testify truthfully or falsely." The

court went on to note that if the jury were to conclude that the payment to the informant was "fully or partially contingent upon the content of his testimony at trial or upon a finding of guilt," then the jury

was to subject that witness’s testimony "to an even higher degree of

scrutiny." 

Finally, there was no indication that the FBI or the government

prosecutors were sponsoring or suborning perjury to any degree.

Indeed, when using Lowe during the investigation, the FBI instituted

safeguards by accompanying him, watching him, and debriefing him

promptly after he witnessed various incidents. And during trial, the

government offered not only Lowe’s testimony, but also corroborating testimony, as well as testimony revealing the FBI’s use of the

safeguards. 

In short, the necessary safeguards were fully employed. 

12 UNITED STATES v. LEVENITE
The defendants contend that Lowe’s fee agreement was also contingent on his giving testimony that would convict the defendants.

This assertion, however, is not supported by the record. Lowe was

engaged through a written contract to assist in the investigation and

prosecution of the Renegades. The effort was a long-term and risky

undertaking. Consequently, the FBI was faced with the possibility

that Lowe would abandon his assistance and thereby substantially

damage an important investigation. To provide an incentive for Lowe

to remain involved until his assistance would no longer be necessary

would require deferment of his "bonus" until the case was complete.

Such an incentive to remain involved until the end was precisely

what the agreement in this case provided. It gave the FBI the "sole

option and choice" to provide Lowe with a lump sum payment up to

$100,000, based upon "the extent of cooperation in the investigation

by Mr. Lowe, the activities of Mr. Lowe in furtherance of the investigation and in attaining the objectives of the investigation, and the

degree of compliance with this Agreement by Mr. Lowe." But this

agreement does not mean that payment was contingent on any particular testimony or trial outcome. It means that Lowe was required to

present fully and accurately to the jury whatever he witnessed during

the course of the investigation. Obviously, the objective of this criminal investigation, as any criminal investigation, was to uncover criminal activity and convict the guilty. It was, therefore, not surprising

that the FBI case agent testified that one of the objectives in the investigation was to attain convictions. But that explanation cannot be

interpreted to mean that payment was contingent on anything but

truthful testimony by the witness as to what he saw during the investigation. Indeed, the agreement explicitly required that Lowe not commit any unlawful activities — such as perjury — in carrying out the

agreement. 

In sum, the FBI reasonably found it necessary in this case to enter

into the fee arrangement with Lowe as an undercover informant, and

it appropriately monitored his conduct. There is no evidence that the

government knowingly used or suborned any untruthful testimony.

The arrangement with Lowe was fully disclosed to the defendants,

and the defendants were permitted to cross-examine witnesses fully

about it and argue to the jury that Lowe’s credibility should be discounted or doubted. Finally, the court admonished the jury to evaluate

UNITED STATES v. LEVENITE 13
Lowe’s testimony more carefully because of the arrangement. In these

circumstances, we conclude that the evidence was not constitutionally

inadmissible and that "[t]he Constitution does not require us to upset

the jury’s verdict." Hoffa, 385 U.S. at 312. 

III

All four defendants also contend that the district court abused its

discretion in allowing an 11-person jury to complete deliberations and

return a verdict after one juror fell ill. 

Upon the completion of the eight-week jury trial in this case, after

the alternate jurors had been discharged, a 12-person jury began its

deliberations. On the third day of deliberations — Friday, November

5, 1999 — one juror failed to appear because she was ill with an

intestinal flu. When the district court consulted counsel about their

preference from among several available options for proceeding, two

defendants (not appellants) opted to permit the jury to continue deliberating as an 11-person jury under Federal Rule of Criminal Procedure 23(b). The government and the four defendants in this appeal

proposed delaying the continuation of deliberations for three days

until Monday, November 8, to allow for the possible return of the ill

juror. 

After considering various options — including declaring a mistrial,

impaneling an alternate juror, delaying deliberations for three days, or

proceeding with an 11-person jury — the district court opted to proceed with an 11-person jury, as authorized by Rule 23(b). Explaining

its decision, the court rejected a mistrial as the least desirable alternative. Indeed, a mistrial may not even have been available because any

necessity for one was probably obviated by the authority granted by

Rule 23(b). The court also reasoned that impaneling an alternate juror

would require that the jury begin deliberations anew, a task that the

court thought would be difficult at best, and constitutionally suspect.

The court felt that delaying deliberations until the Monday after the

weekend risked losing more jurors, particularly in view of the fact

that the intestinal flu was contagious. It reasoned that if an 11-person

jury were unable to reach a verdict on Friday, the court would still

have the option of impaneling an alternate juror, should other jurors

14 UNITED STATES v. LEVENITE
be lost by then. The court also supported its decision with the reasoning outlined in the Advisory Committee Notes to Rule 23(b). 

The Advisory Committee Notes to Rule 23(b) observe that the

problem of losing a juror after commencement of deliberations "is

acute when the trial has been a lengthy one and consequently the remedy of mistrial would necessitate a second expenditure of substantial

prosecution, defense and court resources." The Notes also observe

that "[t]o permit substitution of an alternate [juror] after deliberations

ha[d] begun would require either that the alternate participate though

he has missed part of the jury discussion, or that he sit in with the jury

in every case on the chance he might be needed. Either course is subject to practical difficulty and to strong constitutional objection."

(Quoting Wright, Federal Practice and Procedure § 388 (1969)). 

In the circumstances of this case, we conclude that the district court

acted well within its discretion. The parties do not dispute the district

court’s authority to proceed with 11 persons, and the district court

opted for this alternative after assessing the legal risks of impaneling

an alternate juror and the factual risks of losing jurors from delay.

Accordingly, we find no abuse of discretion. See United States v.

Acker, 52 F.3d 509, 515-16 (4th Cir. 1995) (permitting an 11-person

jury under Rule 23 when a juror was excused for an injury and it was

unclear when she would be able to return). 

IV

Defendants Connor and Watson contend that the physical configuration of the trial courtroom denied them their Sixth Amendment

rights of confrontation and the assistance of counsel. 

Because this trial involved 13 defendants and their counsel, size

limitations of the courtroom dictated that each defendant be seated

behind his counsel. Under this seating arrangement, Connor and Watson were seated six feet behind their counsel, and they could see only

the backs of witnesses. While their counsel were free to move about

the courtroom and to cross-examine witnesses face-to-face, security

concerns meant that the defendants themselves could not move about

freely. They were, however, permitted to consult freely with their

UNITED STATES v. LEVENITE 15
counsel, either by leaning forward and speaking directly to counsel or

by passing notes. 

At the beginning of the trial, Watson’s counsel objected to the location of his chair, lamenting that he was "sitting here, the thirteenth

lawyer in a row. I’m some six feet from my client." The substance of

his objection focused on "fundamental fairness." He stated:

The way the courtroom is configured, I’m looking at the

back of the witness’s head, and so I rise most humbly to

object on a basic fundamental fairness in this trial, that is

impossible for these 13 gentlemen to be tried fairly in this

court. 

To meet counsel’s objection, the court stated, "If counsel wishes to

rise during the jury selection process or during the questioning of witnesses so that they can see the witness, they are free to do so." With

that assurance, nothing further was said and the objection counsel for

Watson was making had apparently been accommodated. 

Both Connor and Watson now contend, for the first time on appeal,

that they individually, as distinct from their counsel, could not see the

faces of witnesses and that this violated the Sixth Amendment. We

reject this claim because nothing in the defendants’ brief nor in the

record suggests that they can establish the elements required for noticing and correcting plain error. See United States v. Olano, 507 U.S.

725 (1993); Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (noting that a

denial of face-to-face confrontation is subject to harmless error analysis). In addition, Watson and Connor press the argument made by

Watson’s counsel at trial that the placement of these defendants six

feet behind their counsel denied them the assistance of counsel, in

violation of the Sixth Amendment. We disagree. Counsel and client

were free to consult throughout the trial, and there was no evidence

that either defendant’s ability to communicate with his attorney and

assist in his defense was impaired. See United States v. Balsam, 203

F.3d 72, 81-82 (1st Cir. 2000) (holding that defendants seated four to

five feet from defense table and permitted to "consult freely" with

counsel were not denied assistance of counsel); United States v.

Jones, 766 F.2d 994, 1004 (6th Cir. 1985) (holding that in a trial of

18 defendants where the defendants were seated in two rows behind

16 UNITED STATES v. LEVENITE
counsel’s table, there was no Sixth Amendment violation because

defendants were able to communicate with their attorneys during

trial). 

V

Connor, Dailey, and Levenite contend that the evidence presented

by the government was insufficient to support their convictions. Our

standard for reviewing jury verdicts is deferential. We uphold a verdict if "‘there is substantial evidence, taking the view most favorable

to the Government, to support it.’" United States v. Wilson, 135 F.3d

291, 303 (4th Cir. 1998) (quoting Glasser v. United States, 315 U.S.

60, 80 (1942)). 

Connor was convicted on two counts of distributing and aiding and

abetting the distribution of cocaine. In support of these charges, the

government introduced evidence that on July 17, 1998, when confidential informant Lowe went to the Good Fellows Bar to buy drugs,

he went with Connor to a back room where Connor "informed" him

that Billie Joe Fields, a dancer known as "Dixie," "was holding and

had some [drugs] for sale." Lowe then purchased drugs from Fields

and turned the purchased drugs over to a nearby FBI agent. The agent

corroborated the transaction based on the movements of the individuals, although he did not actually hear the conversation between Connor and Lowe. 

Evidence was also introduced that on January 6, 1999, confidential

informant Lowe sought to retrieve cocaine that was owed to him by

Robert Provo. Lowe testified that he was repaid the cocaine when

Connor gave it to Provo to give it to Lowe. The testimony of "Dixie"

Fields corroborated Lowe’s testimony. She overheard a conversation

between Connor and another individual about the same cocaine in

which the individual requested buying cocaine from Connor and Connor stated that "he could not sell it because it [belonged to Provo]."

We are satisfied that the evidence introduced by the government

demonstrated that Connor culpably participated in the drug transactions with which he was charged and had knowledge of the intended

result of each transaction. See United States v. Arrington, 719 F.2d

701, 705 (4th Cir. 1983). 

UNITED STATES v. LEVENITE 17
Dailey challenges his conviction for conspiracy to distribute

methamphetamine, arguing that there was insufficient evidence to

link him in any conspiracy with Saucier, Yates, or Felix. Yet Felix

and John Courtney testified that Dailey was Saucier’s "right hand

man" in the drug distribution ring, even though Dailey and Saucier’s

relationship had not always remained smooth. Saucier testified that he

provided Dailey with quarter-pound quantities of methamphetamine

every two to three months. Gerald Penor buttressed this testimony by

stating that he saw Dailey purchase methamphetamine from Saucier

and that Penor then bought some from Dailey. Numerous other witnesses, including Steven Cooper, Ernest Soricelli, Reid Woodruff,

and Jeremy Bruss testified that they purchased methamphetamine

from Dailey. This evidence amply demonstrates Dailey’s involvement

in a distribution conspiracy in which Saucier sold large quantities of

methamphetamine to Dailey who then distributed them in smaller

quantities to others. 

Dailey also contends that the evidence was insufficient to support

his convictions for two charges of possession of methamphetamine

with intent to distribute in 1996. On these counts, Jerry Lee Penor,

Gerald Penor’s son, provided the key testimony, stating that, beginning in February 1996, he went over to Saucier’s house frequently

and visited Dailey there. Jerry Lee saw methamphetamine there several times, including a "huge mound" of it on the floor at one point.

Jerry Lee later saw Dailey package the methamphetamine and Jerry

Lee delivered some of the drugs to Ratliff who paid Dailey directly.

Although the dates of these transactions are not entirely precise, there

was ample evidence that the transactions occurred substantially during the period alleged in the indictment. 

Finally, Levenite challenges the sufficiency of evidence to support

his conviction for possession of a firearm and explosive materials by

a convicted felon. While he does not challenge the proof that he was

a convicted felon and that the firearms in question traveled in interstate commerce, he challenges the sufficiency of the evidence demonstrating that he had possession of them. There was evidence, however,

that Levenite was the "enforcer" for the Renegades and that, at times,

he carried a 9 mm weapon. Karen Twiddy testified that Levenite kept

a Walther PPK on his bedside table and also had an assault rifle. Mark

Baker stated that he saw an SK-47 assault rifle at Levenite’s house.

18 UNITED STATES v. LEVENITE
Kenneth Connor testified that he saw Levenite with a 9 mm gun, and

Ernest Soricelli testified that he saw a "Street Sweeper" shotgun at

Levenite’s house. Confidential informant Lowe testified that he twice

purchased weapons from Levenite, a .38 special Derringer and a

Mossberg shotgun. Finally, during a search of Levenite’s house conducted on February 24, 1999, the FBI seized a Walther PPK 7.65 caliber semi-automatic pistol, a 12-gauge Street Sweeper shotgun, a Mac11 9 mm semi-automatic pistol, a Poly-Tech AKS 7.62 caliber semiautomatic assault rifle, over 700 rounds of ammunition, an offensive

hand grenade, a grenade simulator, and four detonators. The evidence

to support Levenite’s conviction for possession of firearms and explosive materials was ample. 

VI

Finally, Levenite contends that the district court erred in enhancing

his sentence (1) by the number of firearms involved in his convictions, under U.S.S.G. § 2K2.1(b)(1)(C), and (2) by reason of a previous conviction, under U.S.S.G. § 4A1.1. 

First, the district court enhanced Levenite’s offense level by three

levels because he was in possession of ten weapons, including four

detonators. Levenite contends that a detonator is not a weapon that

should enhance his sentence. We disagree. 

The commentary to U.S.S.G. § 2K2.1 defines a firearm to include

a "destructive device" and states that the definition of "destructive

device" is found in 26 U.S.C. § 5845(a). See U.S.S.G. § 2K2.1, cmt.

n.1, 4. Section 5845(f)(3) defines the term destructive device to

include "any combination of parts either designed or intended for use

in converting any device into a destructive device . . . and from which

a destructive device may be readily assembled. The term ‘destructive

device’ shall not include any device which is neither designed nor

redesigned for use as a weapon." We have held that in determining

whether a device falls under this definition, the government must

present evidence demonstrating that the defendant intended to use

such components "as a weapon." United States v. Blackwell, 946 F.2d

1049, 1054 (4th Cir. 1991). 

In this case, the government proved that Levenite was the "enforcer" for the Renegades Motorcycle Club, a function that did not

UNITED STATES v. LEVENITE 19
provide a legitimate reason or commercial purpose for the use of detonators. FBI special agent Thomas Mohnal testified that detonators

are designed and manufactured to set off an explosive such as dynamite and that the four detonators in this case worked as they were

designed. The government also presented evidence that the detonators

were seized from Levenite’s house along with other firearms and grenades. Although the evidence is circumstantial, we conclude that sufficient evidence supported the district court’s conclusion that the

sentence should be enhanced three levels based upon its finding that

Levenite intended to use the detonators as weapons. 

The district court also enhanced Levenite’s sentence based on his

1984 Pennsylvania conviction for driving under the influence. Levenite was sentenced to a range of 2 days to 23 months for the conviction and served 2 days. He contends that this conviction does not

fulfill the Sentencing Guidelines’ requirement that the conviction be

one for which the sentence of imprisonment exceeds one year and one

month. Again, we disagree. 

The district court applied U.S.S.G. § 4A1.1(a), which directs the

district court to "[a]dd three points for each prior sentence of imprisonment exceeding one year and one month." The sentence of imprisonment referred to is the maximum sentence imposed, not the time

actually served, see id. § 4A1.2(b) & cmt. n.2, as long as the defendant served some period of imprisonment, id. § 4A1.2 cmt. n.2. 

Although Levenite served only 2 days for the conviction, the maximum sentence imposed was 23 months, fulfilling the Sentencing

Guidelines’ requirement for the enhancement. 

For the foregoing reasons, the judgments of the district court are

AFFIRMED.

20 UNITED STATES v. LEVENITE