U.S.A v. Ashley

• Decision Date: 01 June 2010
• Docket Number: No. 08-4015.,08-4015.
• Citation: 606 F.3d 135
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Van Cleve ASHLEY, a/k/a Q, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

606 F.3d 135

UNITED STATES of America, Plaintiff-Appellee,v.Van Cleve ASHLEY, a/k/a Q, Defendant-Appellant.

No. 08-4015.

United States Court of Appeals Fourth Circuit.

Argued: March 25, 2010.

Decided: June 1, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Andrew Howard Baida, Rosenberg, Martin, Greenberg, LLP, Baltimore, Maryland, for Appellant. Christopher John Romano, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON and MOTZ, Circuit Judges, and JOSEPH R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge GOODWIN joined.

OPINION

WILKINSON, Circuit Judge:

Van Cleve Ashley was indicted on three federal charges in connection with his efforts to have a government informant and witness murdered. A jury convicted him on all three counts and he now appeals from two of those convictions. Because each of Ashley's claims on appeal is without merit, we affirm his convictions.

I.

Ashley's convictions arise out of the attempted murder of one Thomas Dixon, a drug dealer turned government informant. Ashley's role was essentially that of a broker, orchestrating a deal between Frank Caruso, a drug dealer whose arrest Dixon had facilitated, and Ramaine “Ra-Ra” York, who was hired to kill Dixon.

The story begins on November 14, 2000, with the arrest of Dixon by members of a federal drug task force working in the Baltimore area. Dixon was carrying more than a million dollars' worth of ecstasy pills. Faced with serious penalties, he immediately agreed to cooperate with federal investigators. The very day of his arrest, Dixon let the government record telephone conversations between him and Caruso, his supplier. Caruso later testified that he came to suspect Dixon was working with investigators during the calls and that his suspicions were confirmed the next day when he learned of Dixon's arrest. His intuitions notwithstanding, Caruso was arrested on federal drug charges in June 2001.

Caruso thereafter hired an attorney who, as it happened, also represented Ashley. Caruso would later testify that he met Ashley for the first time at their attorney's office when Ashley overheard Caruso complaining about Dixon. Ashley approached Caruso, saying that he might know someone with connections to Dixon. Caruso responded that he “would love to be able to discredit, you know, dismantle a witness against me. He's out there selling drugs and living a normal life.” Ashley reiterated that he might know someone who could help. Following this initial encounter, Caruso and Ashley had several subsequent discussions and became, as Caruso put it, “friendly.”

At some point during a meeting at their attorney's office, Caruso provided Ashley the file kept on his case. It is unclear whether this occurred before or after Caruso had received discovery from the government, which definitively revealed Dixon's role in bringing about his arrest. Caruso also gave Ashley a picture of Dixon, directions to Dixon's home, and a Glock 9mm semiautomatic handgun. In early 2002, Ashley met with York, a long-time associate, telling him that Caruso “had a problem down in Baltimore.” On February 24, 2002, York travelled to Baltimore, found Dixon in front of his home, and shot him about six times. Dixon was hospitalized for several months and underwent more than sixty operations but miraculously survived the attack, albeit with permanently debilitating injuries. For these efforts, Caruso paid Ashley $10,000, half of which Ashley passed on to York.

The scheme eventually came to light, and Caruso was charged with retaliating against a federal informant under 18 U.S.C. § 1513(a)(1), while York was charged with conspiracy to retaliate. Both pled guilty. In January 2006, a federal grand jury indicted Ashley on three counts. Count One charged Ashley with conspiring to kill a witness in order to prevent his attendance in court proceedings, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (k). Count Two charged Ashley with conspiring to kill an informant in retaliation for providing information to a law enforcement officer, in violation of 18 U.S.C. §§ 1513(a)(1)(B) and (e). Count Three charged Ashley with the firearms offense set forth in 18 U.S.C. § 924(c).

Ashley was convicted on all three counts. He does not appeal his witness tampering conviction, but he does appeal his conviction on the retaliation and firearms charges, claiming insufficient evidence on Count Two and a constructive amendment of the indictment on Count Three.

II.

We begin with Ashley's sufficiency of the evidence claim on Count Two. His task here is a daunting one. In assessing a sufficiency challenge, a reviewing court must uphold a jury's verdict “if there is substantial evidence, taking the view most favorable to the Government, to support it.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). “[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” Id. A defendant bringing a sufficiency challenge bears “a heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.1995). The government must be given the benefit of every reasonable inference. Id. Reversal for insufficient evidence is reserved for “the rare case where the prosecution's failure is clear.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.1997) (citation and internal quotation marks omitted).

Count Two charged Ashley with conspiring to violate 18 U.S.C. § 1513(a)(1)(B), which punishes anyone who “kills or attempts to kill another person with intent to retaliate against any person for ... providing to a law enforcement officer any information relating to the commission ... of a Federal offense.” 18 U.S.C. § 1513(a)(1)(B). The term “law enforcement officer” refers to federal officers. 18 U.S.C. § 1515(a)(4). Ashley argues that the government failed to produce evidence that he had the requisite state of mind to sustain a conviction under the provision. See United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). He asserts there was no evidence he knew Caruso's purpose in having Dixon killed was to retaliate against Dixon for giving information to law enforcement. More specifically, he claims there was no evidence he even knew Dixon was a government informant and that, even if there was, there was no indication he knew the law enforcement officers to whom Dixon had provided information were federal officers.¹

Ashley makes much of the fact that the government failed to establish whether Caruso had already received discovery from the government at the time he gave Ashley his case file. But this is a red herring. There was ample evidence that Caruso knew Dixon had provided information to federal agents even before discovery took place. Caruso testified that he “had a very good feeling” that Dixon had been cooperating within a day of Dixon's having been arrested. According to Caruso, after Dixon's arrest “there were several phone calls made to me from Tom Dixon from a, I guess it would be, an FBI phone, and he tried to draw me out to say certain things on the phone.”

This statement would have allowed the jury to conclude not only that Caruso suspected Dixon was cooperating but that Caruso suspected he was cooperating in a federal investigation, especially since Caruso was later arrested on federal charges. Nor was there anything unreasonable in inferring that Caruso's file, assembled in connection with his upcoming federal prosecution, reflected his view of the sources and origins of his predicament, including its federal aspects. We also reject Ashley's claim that the government was required to offer direct evidence that Ashley read the file. It seems entirely reasonable to suppose that he was given the file so that he could read it and that he naturally did so. After all, Ashley was provided the case file after he had volunteered to Caruso that he could help.

If the case file weren't enough, these inferences find support from other evidence in the record. Both Caruso and York testified that they had pled guilty to federal retaliation charges. Since Ashley was the link between them, the jury could reason that he shared their state of mind. Caruso told Ashley he wanted to “dismantle a witness against me. He's out there selling drugs and living a normal life.” A jury could infer that Caruso was upset that Dixon was “leading a normal life” because Dixon had traded information in exchange for his liberty. Caruso also testified that he had not one, but a number of conversations with Ashley about the matter and that “we became friendly,” making it all the more likely Ashley understood exactly what the planned assassination of Dixon was all about. Moreover, Caruso did not give Ashley a picture of Dixon, directions to his home, and a semiautomatic handgun in order to foster amicable relations between the two. As Caruso testified, he gave Ashley the gun “[t]o do whatever he had to do to help me with my case.”

We note too that the district court clearly pointed out the difference between tampering with witnesses and retaliation against informants in its instructions to the jury, telling it that “in the one case, the allegation is the intent of the conspiracy was to prevent testimony,” while in the other, “the intent of the conspiracy is to retaliate for having provided information.” The district court also drew attention to the federal dimension of the charge, instructing the jury that to find Ashley guilty, it must determine that Ashley acted “with specific intent to retaliate against Mr. Dixon for providing to law enforcement officers information about the criminal activities of Fred Caruso in the case...