United States v. Antonio Tillmon

954 F.3d 628

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 26, 2019
• Docket: 17-4648
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO TILLMON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Malcolm J. Howard, Senior District Judge. (2:15-cr-00009-H-9)

Argued: October 31, 2018 Decided: February 26, 2019

Before NIEMEYER, AGEE and DIAZ, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer and Judge Diaz joined.

ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney, Barbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. AGEE, Circuit Judge:

After being caught in a sting operation aimed at exposing corrupt law enforcement

officers, Antonio Tillmon was convicted by a jury on multiple counts: conspiracy to

commit drug trafficking, conspiracy to use firearms while drug trafficking, attempted

possession of heroin with intent to distribute, using or carrying a firearm while drug

trafficking, and three counts of federal programs bribery. On appeal, Tillmon challenges

the district court’s denial of his motion for a judgment of acquittal as to these offenses and

its admission of a video-recorded conversation between Tillmon and an undercover agent.

For the reasons discussed below, we affirm the conspiracy, attempted possession and

firearms convictions, but vacate the federal programs bribery convictions.

I.

Tillmon’s prosecution arose from a multi-year FBI investigation into reports of law

enforcement corruption in the counties of Northampton and Halifax, North Carolina. 1 This

investigation, “Operation Rockfish,” began in 2013 after the FBI received information that

Lann Clanton, a police officer with the Weldon, North Carolina, Police Department, was

involved in criminal activity. Operation Rockfish consisted of undercover agents posing as

members of a transnational drug trafficking organization (“DTO”) that transported

kilograms of heroin and cocaine to New York City. Part of the DTO’s strategy was

1 We recite the facts established at trial in the light most favorable to the Government. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). 2 “specifically tr[ying] to recruit law enforcement officers for their ability to badge their way

out of legitimate traffic stops by other law enforcement officers.” J.A. 406.

The FBI established a “general template” for the DTO, setting up a warehouse to

prepare “cocaine” and “heroin” for shipment by storing those drugs in hidden

compartments of vehicles. J.A. 412. No real drugs were used, but a lookalike substance

was packaged to “look like kilograms of illegal drugs that had been seized in other

investigations.” J.A. 411. Ten one-kilogram packages were color-coded to identify the type

of drug each package purportedly contained. Once the packages were loaded into a vehicle

for transport (“the load vehicle”), team members rode in that vehicle, a scout vehicle that

drove ahead of it, and a rear guard vehicle that drove behind it.

Once the ersatz DTO was operational, the FBI used a confidential informant to let

Clanton know about its existence. Clanton then contacted the DTO, where his first

assignment was to recruit law enforcement officers to implement the DTO’s cover strategy.

Clanton’s first recruit was Ikeisha Jacobs, another member of the Weldon Police

Department. Clanton and Jacobs then enlisted other current and former law enforcement

and correctional officers to join their teams.

Jacobs recruited Tillmon, a former coworker, for her team. At the time he was

recruited to the DTO, Tillmon was a police officer with the Windsor, North Carolina,

Police Department. On August 19, 2014, Jacobs invited Tillmon to join her and other team

members for a preparatory meeting. The gathering included Jacobs, two undercover FBI

agents (John and Lisa), and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,

Crystal Pierce, and Tillmon). During the meeting, the undercover agents and Jacobs

3 described the plan for the next day’s transport and explained the DTO’s reason for using

law enforcement officers. They gave the team members a cover story to use if police

stopped them during the transport: they were transporting a vehicle that had been sold out

of state. During the meeting, one undercover agent asked whether the recruits carried guns.

Tillmon indicated that he would carry his gun. Toward the end of the meeting, the agents

told the recruits that they did not have to participate in the operation if they wanted out.

The next morning (“the August 2014 transport”), Tillmon picked up Jacobs and Sue-

Kam-Lang before driving to a prearranged rendezvous point where they met Lisa and other

team members. They all then drove to a warehouse in Rocky Mount, North Carolina. Upon

arrival, Tillmon helped move a large white cooler from one area of the warehouse to the

back of the load vehicle, a white GMC Acadia. One of the undercover agents, Paul, pulled

out ten packages from underneath the ice and drinks in the cooler, counted them, and put

them on the ground. Paul handed the packages to John, another agent, who was underneath

the Acadia putting the packages into a hidden compartment. Tillmon never touched the

packages, but he watched as they were loaded into the compartment in plain view of him

and the other team members. 2 While standing behind the vehicle, Lisa explained to Tillmon

that they were “starting to move H.” J.A. 591–92. Lisa testified at trial that by “H” she

meant “heroin,” though she did not clarify her meaning to the team members at the time.

After the packages were stored in the Acadia, it and two other vehicles caravanned

to National Harbor in Maryland. Jacobs drove the load vehicle, two team members drove

2 The trial evidence shows that Tillmon did not touch, handle, or assist in loading the staged packages into the vehicles during any of the events described. 4 the scout vehicle, and Tillmon and Sue-Kam-Lang followed as the rear guard. When they

arrived at National Harbor, the team members met “Tee,” another undercover agent who

was posing as the supervisor of that portion of the route. Tee and the team boarded an

enclosed car of a Ferris wheel, where Tee paid each member of the group. Tillmon received

$2,000 and then returned to North Carolina.

In October 2014 (“the October 2014 transport”), Jacobs and Tillmon rode together

to the Rocky Mount warehouse. While waiting for drugs to be loaded into the hidden

compartment of the load vehicle, Tillmon was shown a fake bill of sale that would back

their cover story. This time, Tillmon drove the load vehicle to the parking lot of an outlet

mall in Maryland. He then got into a large van, where Tee paid him and the other team

members. Tee paid Tillmon $2,000.

In March 2015 (“the March 2015 transport”), Jacobs asked Tillmon to join her a

third time. When Tillmon arrived at the Rocky Mount warehouse, the agents had a pickup

truck staged with packages of drugs laid out in plain view on the tailgate. The team

members, including Tillmon, walked by the back of the truck as they entered the

warehouse’s office. Inside, Lisa asked everyone if they had guns; after Sue-Kam-Lang

indicated that she did not have a gun, Tillmon gave her one of his extra guns.

The team exited the office and went back into the main part of the warehouse. As

the drugs were being loaded into the hidden compartment of the vehicle, Lisa said, “you

guys got to be carrying from now on . . . a million dollars of heroin, you can’t f[***] around

with that.” Supp. J.A. 1625 at 12:47:16–47:24. She was within three feet of Tillmon as she

spoke.

5 After the drugs were loaded, the team departed, with Tillmon and Jacobs driving the

rear guard vehicle. After the team left the load vehicle at a carport in Maryland, they met

Tee at the same outlet mall parking lot as in October. Each member entered Tee’s vehicle

separately, where they were paid. As Tillmon was paid $2,500, Tee asked him if he was

carrying a gun, and Tillmon confirmed he was. Then Tee indicated he was interested in

getting a small firearm. Tillmon responded, “What [do] you need?” and Tee said he wanted

“a thirty-eight (.38), something small, a revolver that don’t need no shells, know what I

mean?” J.A. 1402. Tillmon recommended a few firearms that would meet Tee’s need to

“just walk right up on ‘em and keep rolling” and “boom-boom and then throw that s[***]

away and [not worry] about it no more.” J.A. 1403–04. Tee asked Tillmon to let him know

if he heard of anything available, and Tillmon replied, “Okay . . . . We’ll talk.” J.A. 1404.

Tillmon exited Tee’s vehicle and returned to North Carolina.

In April 2015, Jacobs asked Tillmon to join her again. When they arrived at the

Rocky Mount warehouse, the undercover agents arrested them. At the time of his arrest,

Tillmon had in his possession his badge, his Windsor police identification, four semi-

automatic pistols, a .223 caliber rifle, and ammunition for each of the guns. 3

A grand jury indicted Tillmon and fourteen others, including Clanton and Jacobs,

in a fifty-four count indictment. Tillmon was charged in ten of the counts. All other

defendants negotiated guilty pleas, but Tillmon pleaded not guilty and invoked his right to

a jury trial on all charges: (1) one count of conspiracy to distribute and possess with intent

3 These items, all of which belonged to Tillmon, were found on his person, in his bag, and in Moody’s vehicle, in which he had come to the warehouse. 6 to distribute controlled substances, namely heroin and cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (Count 1); (2) one count of conspiracy to use firearms during and in

relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2); (3) three

counts of attempted possession with intent to distribute heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(i), 846, and 18 U.S.C. § 2, corresponding to the three transports

(August 2014, Count 28; October 2014, Count 33; and March 2015, Count 48); (4) two

counts of use and carry of a firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. §§ 2, 924(c)(1)(A), corresponding to two of the transports (October

2014, Count 34; and March 2015, Count 49); and (5) three counts of federal programs

bribery, in violation of 18 U.S.C. § 666(a)(1)(B), corresponding to each transport (August

2014, Count 32; October 2014, Count 36; and March 2015, Count 54).

At trial, the Government argued that Tillmon conspired with other law enforcement

officers to use their badges and firearms to assist in transporting a substance they believed

to be heroin out of North Carolina. Because the entire DTO was a sting operation that had

been captured in video and audio recordings, the Government introduced into evidence the

recordings of the preparatory meeting in August 2014 and the interactions at the Rocky

Mount warehouse on each transport day.

At the close of the Government’s evidence, Tillmon moved for a judgment of

acquittal on all counts under Federal Rule of Criminal Procedure 29. The district court

denied the motion on all but one count, granting the motion as to the charge of attempted

possession with intent to distribute heroin based on the August 2014 transport. The district

court reasoned that there was insufficient evidence to support the charge because it was

7 based solely on Lisa’s reference to “H,” and while she was “probably” talking about

heroin, there was no evidence that anyone specifically identified the substance as heroin.

J.A. 1057.

Tillmon’s defense centered on his contention that he did not have the requisite intent

or knowledge to commit the crimes. For example, Tillmon testified that he did not recall

any discussion of his police badge or identification card at the preparatory meeting and that

he did not realize he had a job during the transports or that he would be paid for that job.

He further testified that he did not hear or misheard Lisa’s statements at the Rocky Mount

warehouse about transporting heroin. Tillmon stated that he did not have any understanding

of what was happening, only that others were loading something into a vehicle to be

delivered to Maryland.

During Tillmon’s cross-examination, the Government introduced—over Tillmon’s

objection—a video recording of the conversation between Tillmon and Tee from the March

2015 transport in which Tee requested Tillmon’s assistance in procuring a small-caliber

firearm. Tillmon argued that the recording was unfairly prejudicial because it implicated

him in uncharged violent crimes. The district court overruled the objection, concluding that

any prejudicial effect was overridden by the fact that the video showed there was “a clear

relationship and friendship” between Tee and Tillmon. J.A. 1001.

The jury found Tillmon guilty on the remaining nine counts. After the verdict,

Tillmon renewed his motion for a judgment of acquittal, or, in the alternative, for a new

trial. The district court denied the motions as to all but two counts, granting the motion for

a judgment of acquittal only with respect to the attempted possession with intent to

8 distribute heroin and corresponding firearm conviction arising from the October 2014

transport (Counts 33 and 34). 4 The district court observed that sufficient evidence

supported the jury’s decision to convict on the conspiracy charges (Counts 1 and 2),

attempted possession charge (Count 48), and firearm charge (Count 49), largely based on

Lisa’s reference to the “million dollars[’] worth of heroin” that Tillmon received payment

for accompanying to Maryland during the March 2015 transport. J.A. 1527. Further, and

in relevant part, the district court concluded sufficient evidence supported the three federal

programs bribery convictions (Counts 32, 36, and 54) because the record showed Tillmon

and his co-defendants collectively received more than $5,000 for each transport and he was

told he was transporting drugs valued at more than a million dollars.

Tillmon’s sentencing was affected by two statutory mandatory minimums. Because

the jury attributed at least 1 kilogram of heroin to Tillmon, the two drug offenses (Counts

1 and 32) carried a statutory mandatory minimum of 120 months’ imprisonment. See 21

U.S.C. § 841(b)(1)(A)(i). In addition, the firearm conviction carried a mandatory minimum

sentence of 60 months’ imprisonment that must be served consecutively to any other

sentence. 18 U.S.C. § 924(c)(1)(A) (stating that a term of imprisonment of “not less than 5

4 The district court explained that the Government had not introduced evidence of Tillmon’s specific intent to transport heroin, as the indictment charged in Count 33. Specifically, none of the recordings regarding the October 2014 transport referenced the type of drugs supposedly being transported even though they showed the staged packages being loaded into the load vehicle’s fake compartment, and one of the undercover agents had testified that she thought that substance transported during this transport was supposed to be cocaine. The Government has not cross-appealed the Court’s decision and thus Counts 33 and 34 are not directly at issue on appeal. 9 years” for the possession offense “shall” be imposed “in addition to the punishment

provided for such . . . drug trafficking crime”).

Although the district court calculated Tillmon’s Guidelines range to be 188 to 235

months’ imprisonment for all but the firearm-possession conviction, it granted Tillmon’s

request for a downward variance to the statutory mandatory minimums. Accordingly, the

district court sentenced Tillmon to 180 months’ imprisonment consisting of 120 months’

imprisonment for the conspiracy, attempted possession, and federal programs bribery

offenses (Counts 1, 2, 32, 36, 48, and 54), to be served concurrently, and 60 months’

imprisonment for the firearm offense (Count 49), to be served consecutively to the sentence

on the other counts.

Tillmon noted a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

II.

Tillmon appeals the denial of his renewed motion for a judgment of acquittal on all

seven remaining counts. First, he argues the evidence was insufficient to show his intent to

engage in the drug trafficking offenses, and that if those charges are vacated, then the

firearms charges must also be vacated. Second, he contends that even if the convictions

stand, the evidence was insufficient to show that the drug crimes involved more than 1

kilogram of heroin, so he should not have been subjected to an enhanced sentencing range.

Third, Tillmon challenges the district court’s admission of the video evidence from the

March 2015 transport on the basis that it was cumulative and unfairly prejudicial. Fourth

10 and lastly, he contends the evidence was insufficient to support several elements of the

federal programs bribery charges. We address each argument in turn.

The Court reviews de novo the district court’s denial of a Rule 29 motion for a

judgment of acquittal. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). A

defendant challenging the sufficiency of the evidence “bears a heavy burden.” United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation marks omitted).

The Court reviews whether there is “substantial evidence . . . to support the jury verdict,”

United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (internal quotation marks

omitted), meaning that, to reverse, the record must “demonstrate[] a lack of evidence from

which a jury could find guilt beyond a reasonable doubt,” United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996). Significantly, the jury—not this Court—“weighs the credibility

of the evidence and resolves any conflicts in the evidence presented” when such

determinations need to be made. Id.

The Court reviews the district court’s evidentiary decisions for abuse of discretion.

United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). We “will not vacate a

conviction unless we find that the district court judge acted arbitrarily or irrationally in

admitting evidence.” Id. at 326 (internal quotation marks omitted).

III.

A. Attempted Heroin Possession in March 2015 (Count 48)

Because our consideration of the attempted possession offense facilitates review of

the conspiracy and firearms convictions, we begin with it. Tillmon argues that the

11 Government did not put forward sufficient evidence to establish the necessary mens rea to

support his conviction.

It is a federal crime to “knowingly or intentionally . . . possess with intent to . . .

distribute . . . a controlled substance” like heroin. 21 U.S.C. § 841(a), (b)(1)(A)(i). A

conviction for an attempt to commit this offense, see 21 U.S.C. § 846, “punishes conduct

that puts in motion events that would, from the defendant’s point of view, result in the

commission of a crime but for some intervening circumstance.” United States v. Pratt, 351

F.3d 131, 135 (4th Cir. 2003). To convict Tillmon of the charged offense, the Government

had to prove

that (1) [Tillmon] had the requisite intent to commit a crime; (2) [he] undertook a direct act in a course of conduct planned to culminate in his commission of the crime; (3) the act was substantial, in that it was strongly corroborative of [his] criminal purpose; and (4) the act fell short of the commission of the intended crime due to intervening circumstances.

Id.

In rejecting Tillmon’s renewed motion for a judgment of acquittal, the district court

concluded the evidence was sufficient on each element. Specifically, it observed that Lisa

pointed to the staged packages being loaded into the vehicle and said that the team was

transporting a million dollars’ worth of heroin. Then, Tillmon followed the load vehicle to

Maryland, providing protection during the transport.

Tillmon argues that this evidence was insufficient to demonstrate that he attempted,

or aided or abetted the attempt, to possess with intent to distribute heroin in March 2015.

He argues that Lisa’s comment about the value of the heroin does not show that he heard

her statement or that he believed the group was trafficking heroin. Tillmon also argues that

12 there was no evidence that he exhibited guilty knowledge because he was not shown a

substance that looked or felt like heroin, nor was there evidence that he directly handled

the packages or saw their contents. Additionally, Tillmon asserts that he did not take a

substantial step towards completion of the offense that strongly corroborated an intent to

possess with the intent to distribute heroin. He argues that neither his presence at the

warehouse nor his driving from Rocky Mount to Maryland with the team proves a specific

intent to possess with the intent to distribute heroin. Consequently, Tillmon contends, the

jury did not have the evidence necessary to convict him.

We disagree with Tillmon. To say that he lacked intent and was “a mere passive

observer of these goings-on, would defy reason.” See United States v. McLamb, 985 F.2d

1284, 1292 (4th Cir. 1993). At a minimum, the following evidence shows Tillmon’s

culpable intent: (1) he had basic law enforcement drug trafficking training; (2) the fake

heroin was packaged in a manner commonly used to traffic controlled substances; (3) the

staged packages were in plain view of Tillmon before and while it was secreted into a

hidden compartment of the load vehicle; (4) while standing about three feet from Tillmon,

Lisa pointed to the staged packages and said that the team was moving heroin valued at a

million dollars; (5) two vehicles accompanied the load vehicle and each team member was

paid thousands of dollars for accompanying the shipment; and (6) Tillmon not only

possessed a firearm for his own use, but also loaned a team member a second firearm

because they all had been instructed to carry firearms. From these facts, a jury could

reasonably conclude that Tillmon had the requisite intent to attempt to possess heroin with

the intent to distribute it.

13 We also reject Tillmon’s contention that the evidence does not show that his conduct

constituted an “attempt” to commit the completed act of possession because he did not take

at least one act calculated to culminate in the completed offense. To the contrary, Tillmon

completed the offense and the only circumstance that prevented the Government from

charging Tillmon with actual possession of heroin was that the substance at issue involved

fake heroin instead of real heroin. This was not a case in which some intervening act early

in the planning prevented Tillmon and his co-conspirators from completing their intended

activity. Rather, they successfully transported the fake substance from North Carolina to

Maryland. And Tillmon willingly participated in doing so—even after Lisa commented in

the warehouse that the staged packages contained heroin and Tillmon watched the team

members stash the packages in the load vehicle, he took his place in the vehicle caravan,

escorted the packages to Maryland, and accepted payment for his part in the scheme.

Tillmon’s arguments misapply the relevant appellate standards. Some of his

contentions ask the Court to assume the role of the jury and revisit credibility

determinations to decide between competing evidence. However, the jury was not required

to believe Tillmon’s defense that he did not understand what the packages were and that

he did not hear Lisa’s reference to moving heroin. E.g., Burgos, 94 F.3d at 862 (“[T]he

jury, not the reviewing court, weighs the credibility of the evidence and resolves any

conflicts in the evidence presented, and if the evidence supports different, reasonable

interpretations, the jury decides which interpretation to believe.” (internal quotation marks

omitted)).

14 Some of Tillmon’s arguments ask us to attach only benign, if not nonsensical,

meaning to his “presence” at the warehouse and in the transport. But we have previously

recognized that presence during obvious criminal activity is relevant to the analysis in a

possession offense. E.g., id. at 869 (citing United States v. Figueroa, 720 F.2d 1239, 1246

(11th Cir. 1983) for the proposition that “when the circumstances surrounding a person’s

presence at the scene of conspiratorial activity are so obvious[, the] knowledge of its

character can fairly be attributed to him”). Here, Tillmon participated in the transport after

Lisa pointed to the packages and stated that they contained a million dollars of heroin. He

loaned a team member a firearm for protection during the transport and then accepted

$2,500 for his “presence.” Although Tillmon never touched the packages himself, his role

in the transport was more than that of “a mere passive observer.” See McLamb, 985 F.2d

at 1292. And the jury was entitled to conclude that Tillmon believed the staged packages

were heroin being transported for distribution, and that he possessed those packages

through his role as a hired guard during the transport of those packages from North Carolina

to Maryland. See Pratt, 351 F.3d at 136–37 (recognizing that a person’s criminal role in a

possession with intent to distribute offense can take various forms).

Lastly, to the extent that Tillmon argues that the district court’s dismissal of the

other attempted possession counts supports dismissal of this count, he ignores the specific

circumstances surrounding the district court’s decisions. The dismissals of the other counts

were not based on a broad assessment of lack of evidence of his intent, but rather on narrow

evidentiary gaps in the Government’s case. All three attempted possession with intent to

distribute counts alleged not just the baseline offense set out in 18 U.S.C. § 841(a)(1), but

15 also the aggravated possession with intent to distribute offense for a violation involving

more than one kilogram of heroin, see § 841(b)(1)(A)(i). See also United States v. Collins,

415 F.3d 304, 312–14 (4th Cir. 2005) (discussing the difference between the baseline

offense and aggravated offense); United States v. Promise, 255 F.3d 150, 152 (4th Cir.

2001) (en banc) (holding that, in light of Apprendi, § 841(b)(1)(A) sets out elements of an

aggravated drug trafficking offense that must be found by a jury rather than constituting

mere sentencing factors). The baseline offense does not require proof of the drug type and

weight; in relevant part, it requires only that the defendant knowingly possessed a

controlled substance of some kind. United States v. Ali, 735 F.3d 176, 186–88 (4th Cir.

2013) (holding that while 21 U.S.C. § 841(a)(1) “requires specific intent to distribute a

controlled substance or to possess with intent to distribute a controlled substance, it does

not require that the defendant have, within that intent, specific knowledge of the controlled

substance[.]”). To convict Tillmon of the aggravated offense, however, the Government

had to introduce proof that Tillmon’s § 841(a)(1) violation involved at least one kilogram

of heroin. See § 841(b)(1)(A) (stating that the enhanced penalties apply if “any person . . .

violates subsection (a)” and that violation “involv[ed]” the type and quantity of drugs

listed). At trial, the Government urged the district court not to dismiss the attempted

possession counts relating to the August and October 2014 transports because there was

sufficient evidence to convict Tillmon of the aggravated charges involving heroin. For

reasons not readily apparent in the record, it did not rely on the fallback position that even

if the evidence did not prove the aggravated offense elements, it was nonetheless sufficient

to convict Tillmon of the attempted § 841(a)(1) baseline offense. The district court in turn

16 dismissed the counts based on the August 2014 and December 2014 transports because of

insufficient evidence to conclude that Tillmon believed the staged packages were heroin,

as opposed to some other controlled substance. By contrast, no such gap exists with respect

to the March 2015 evidence. In the warehouse just prior to that transport, Lisa specifically

referred to the packages as heroin while in Tillmon’s immediate presence.

For these reasons, the district court did not err in denying Tillmon’s renewed motion

for a judgment of acquittal on Tillmon’s conviction for attempted possession with intent to

distribute heroin in March 2015.

B. Drug Trafficking Conspiracy (Count 1)

Tillmon also appeals the district court’s denial of his renewed motion for a judgment

of acquittal with respect to his conviction for conspiracy to distribute and possess with

intent to distribute controlled substances, namely heroin and cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 846 (Count 1). He contends the record contains insufficient evidence

of his intent.

To prove conspiracy to possess drugs with an intent to distribute, the Government

must establish that: “(1) an agreement to possess cocaine [and heroin] with intent to

distribute existed between two or more persons; (2) the defendant knew of the conspiracy;

and (3) the defendant knowingly and voluntarily became a part of this conspiracy.” Burgos,

94 F.3d at 857. Due to the clandestine nature of a conspiracy, the offense is often proved

by circumstantial evidence and the context in which the circumstantial evidence is adduced.

Id. A conspiracy “may be inferred from a development and collocation of circumstances.”

Id. at 858 (internal quotation marks omitted). “Circumstantial evidence sufficient to

17 support a conspiracy conviction need not exclude every reasonable hypothesis of

innocence, provided the summation of the evidence permits a conclusion of guilt beyond a

reasonable doubt.” Id.

The Government must establish proof of each element beyond a reasonable doubt.

Id. And although the Government must satisfy its burden of proving a connection between

the defendant and the conspiracy, it need not prove the defendant “knew the particulars of

the conspiracy.” Id. Instead, it is sufficient to show that the defendant joined “with an

understanding of the unlawful nature thereof and willfully join[ed] in the plan on one

occasion [even if] he played only a minor part.” Id. (internal quotation marks omitted).

Tillmon’s arguments challenging his conviction on Count 1 mirror the arguments

he made regarding the attempted possession conviction. For example, he contends there

was no evidence to support that he knew about an agreement to possess with the intent to

distribute heroin, or that he agreed to join that endeavor. He asserts no one mentioned drug

trafficking at the preparatory meeting. Further, Tillmon asserts no evidence contradicts his

testimony that he did not hear Lisa’s reference to heroin during the March 2015 transport.

He points to the fact that he never saw a substance identified as heroin (because it was all

in packages) and that he never touched the packages. And he points to his taking

photographs on one of the transports as proof that he lacked a criminal mindset.

We disagree with Tillmon and do not need to add much to our preceding analysis

rejecting his arguments regarding the attempted possession conviction. His arguments are

grounded primarily in reweighing the credibility of witnesses and choosing between

different interpretations of conflicting evidence, all of which is squarely in the province of

18 the jury and not reviewable on appeal. The rest of his arguments challenge minor details

that do not affect the substantial evidence recounted above showing that he knowingly and

voluntarily participated in an agreement to possess heroin and cocaine with the intent to

distribute. In sum, Tillmon met with both undercover agents and co-conspirators at the

preparatory meeting; observed the Rocky Mount warehouse operations on three occasions

in which staged packages of heroin or cocaine were loaded into the hidden compartment

of a vehicle; was trained in drug trafficking techniques; participated in the August 2014,

October 2014, and March 2015 transports along with other co-conspirators; heard Lisa

refer to the packages used during the March transport as “heroin”; and received $2,000

(twice) and $2,500 (once) for his services related to these transports.

To accept Tillmon’s arguments, the jury would have had to believe that he—a

trained law enforcement officer—did not know what was happening right in front of him.

Even in cases involving defendants without Tillmon’s background and training, we have

recognized that jurors can find that defendants have the requisite knowledge and intent for

participating in a drug trafficking offense based on their knowledge of circumstances that

are “surreptitious and totally distinguishable from open and normal channels of business,”

such as drugs packaged for transport and stashed in a hidden compartment of a vehicle. See

Ali, 735 F.3d at 188–89. The jury had all the more reason to find Tillmon responsible for

such knowledge given his background and training. Further, the jury would have had to

believe that Tillmon thought he was paid a total of $6,500 to accompany his friend Jacobs

on three innocent drives to Maryland so that he could, on one occasion, take photographs

of the harbor. This conclusion, too, defies common sense. The substantial evidence in the

19 record, including audio and video recordings of the events the witnesses described,

supported the jury’s determination of guilt.

For these reasons, the district court did not err in denying Tillmon’s motion for a

judgment of acquittal with respect to the drug trafficking conspiracy (Count 1).

C. Aggravated Offense Drug Weights (Counts 1 and 48)

Tillmon argues that even if the evidence is sufficient to affirm his convictions for

the drug conspiracy and attempted possession offenses, he is at least entitled to

resentencing because the evidence does not support the jury’s finding that his offenses

involved at least one kilogram of heroin. Again, we disagree.

As noted, while the baseline 21 U.S.C. § 841 offense does not require the

Government to prove the quantity of the controlled substance at issue, it does provide for

increased penalties when certain threshold amounts are established. The “specific threshold

drug quantities [are] treated as elements of aggravated drug trafficking offenses, rather than

as mere sentencing factors” and thus must be either admitted by the defendant or found by

a jury to be “reasonably foreseeable to the individual defendant.” United States v. Brooks,

524 F.3d 549, 557–58 (4th Cir. 2008) (internal quotation marks omitted). Here, the

Government had to prove beyond a reasonable doubt that Tillmon was responsible for “one

(1) kilogram or more of heroin,” J.A. 118, the enhanced drug quantity charged in the

indictment. See Promise, 255 F.3d at 156–57. Only then could Tillmon be properly

subjected to a mandatory minimum sentence of 10 years’ imprisonment and a statutory

maximum of life. 21 U.S.C. § 841(b)(1)(A)(i).

20 Tillmon argues that the evidence did not allow the jury to find him responsible for

an offense involving at least 1 kilogram of heroin. Specifically, he asserts the record lacked

evidence that agents ever told him how many kilograms they expected him to transport,

that they ever mentioned the word “kilogram” or its variants, or that Tillmon knew how

much heroin was in each package.

Tillmon’s argument lacks merit. Trial evidence demonstrated the packages each

contained roughly one kilogram of fake drugs, consistent with the way drugs are commonly

packaged for distribution. E.g., J.A. 544 (“Anybody who looks at one of those knows that’s

a brick or a kilo.”). In addition, testimony established that Tillmon had been trained in drug

interdiction as part of his law enforcement duties. Further, the record contained evidence

that ten staged packages were positioned in plain view of Tillmon as they were loaded into

the load vehicle, and each package weighed one kilogram. All told, this evidence is a

sufficient basis for the jury to have found that Tillmon’s drug offenses involved at least

one kilogram of heroin. Therefore, the sentencing enhancement was proper and Tillmon

was properly subjected to a mandatory minimum sentence of 120 months’ imprisonment

and a maximum term of life for his attempted possession (Count 48) and drug trafficking

conspiracy (Count 1) convictions.

D. Firearms Counts (Counts 2 and 49)

Tillmon also appeals the district court’s denial of his motion for a judgment of

acquittal with respect to his charges for conspiracy to use firearms during and in relation

to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2), and use and

carry of a firearm during and in relation to a drug trafficking crime (attempted possession

21 on March 2015), in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 49). But Tillmon’s

sole argument here is that because the evidence was insufficient to support the underlying

drug trafficking conspiracy (Count 1) and attempted possession with the intent to distribute

heroin (Count 48) convictions, he is also entitled to a judgment of acquittal on the

corresponding firearms convictions. Put another way, Tillmon does not challenge that he

conspired to use or carry a firearm as part of the drug trafficking conspiracy, or that he used

or carried firearms during the March 2015 transport, only that he did not commit the

underlying drug offenses and so could not have committed the firearms offenses that

required those predicates.

Because the evidence is sufficient to affirm Tillmon’s convictions for the underlying

drug trafficking offenses, Tillmon’s argument fails. We therefore affirm his convictions

for the firearms conspiracy (Count 2) and using or carrying a firearm (Count 49).

E. Admission of Video Recording

Tillmon next contends that the district court committed reversible error in admitting

a video recording of his conversation with Tee while he was being paid for the March 2015

transport. Specifically, Tillmon asserts that the video improperly suggested that he was

complicit in plotting a murder because Tee said he wanted a firearm to kill someone. 5 On

5 Tillmon also argues the evidence was needlessly cumulative and suggests the district court’s decision is suspect because it had initially ruled the video inadmissible during the Government’s case-in-chief. Even if the evidence was cumulative of other evidence in the record, that would not constitute reversible error on its own in this case. Rule 403 lists cumulativeness as a reason that a district court may decide to rule evidence inadmissible; it does not bar evidence merely because it overlaps with prior evidence. See Fed. R. Evid. 403. (Continued) 22 that basis, Tillmon argues the recording was unfairly prejudicial and inadmissible under

Federal Rule of Evidence 403.

Rule 403 states that a district “court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is a rule of inclusion,

generally favoring admissibility.” United States v. Udeozor, 515 F.3d 260, 264–65 (4th

Cir. 2008) (internal quotation marks omitted). Specifically, we have said that when

considering whether evidence is unfairly prejudicial, “damage to a defendant’s case is not

a basis for excluding probative evidence because evidence that is highly probative

invariably will be prejudicial to the defense.” Basham, 561 F.3d at 326 (internal quotation

marks omitted). Instead, “[u]nfair prejudice speaks to the capacity of some concededly

relevant evidence to lure the factfinder into declaring guilt on a ground different from proof

specific to the offense charged.” Id. at 327 (internal quotation marks omitted) (emphasis

added).

The video evidence was highly probative of Tillmon’s role in the charged conduct

and it specifically rebutted Tillmon’s defense that he did not understand the criminal nature

In addition, the record readily explains the district court’s changed admissibility rulings. When the Government sought to introduce the exhibit in its case-in-chief, the court sustained Tillmon’s challenge to the ability of that witness to authenticate the recording. The court’s decision to sustain Tillmon’s objection related solely to the foundation for its introduction, not whether the recording was admissible on other grounds. By the time the Government later attempted to introduce the recording to rebut Tillmon’s defense, the foundation for its accuracy had been resolved by intervening testimony. This time, Tillmon’s objection to the recording’s admissibility was based on Rule 403, giving the district court its first opportunity to rule on the admissibility of the recording on that ground. 23 of the underlying events and that he lacked the requisite intent to engage in criminal

conduct. For instance, the recording demonstrated Tillmon’s admission to possessing a

firearm during the March 2015 transport; his receiving $2,500 for his participation in that

transport; and his familiarity and rapport with Tee, whom Tillmon believed to be part of

the DTO. All of these actions are specific to the charged offenses and directly relevant to

the jury’s determination of Tillmon’s culpability.

Nor was the video unfairly prejudicial. Tillmon and Tee’s recorded conversation

showed the interactions between Tillmon and another purported member of the DTO in a

way that the other evidence did not. Its probative value—particularly in light of Tillmon’s

defense that he lacked a culpable intent to engage in drug trafficking offenses—outweighed

any minimal prejudice that arose from the subject matter of their conversation. Moreover,

because the jurors also knew that Tee was actually an undercover agent, they knew that his

side of the conversation was role-playing rather than implicating Tillmon in any actual

violent crime.

For these reasons, the district court did not abuse its discretion in admitting the video

evidence.

F. Federal Programs Bribery (Counts 32, 36, and 54)

Lastly, Tillmon appeals the district court’s denial of his motion for a judgment of

acquittal with respect to the three charges of federal programs bribery, in violation of 18

U.S.C. § 666(a)(1)(B) (Counts 32, 36, and 54).

In relevant part, this statute prohibits individuals who are agents of a local

government agency from “accept[ing] . . . anything of value from any person, intending to

24 be influenced or rewarded in connection with any business, transaction, or series of

transactions of such . . . [government agency] . . . involving any thing of value of $5,000

or more.” Id. § 666(a)(1)(B). As a threshold to liability under this statute, the Government

must demonstrate that the local government at issue “receive[d], in any one year period,

benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy,

loan, guarantee, insurance, or other form of Federal assistance.” § 666(b); see also id.

§ 666(d)(5) (defining “in any one-year period”).

Pointing to the amount he was paid for each individual transport, Tillmon asserts

the Government failed to proffer sufficient evidence to establish that his services to the

fake DTO were worth at least $5,000. 6

We have not previously considered § 666(a)(1)(B)’s requirement that charged

conduct involve “any thing of value of $5,000 or more.” But the statutory language reveals

that this element requires proof of the value of whatever was exchanged for the bribe. See

§ 666(a)(1)(B) (requiring that the business, transaction, or series of transactions of the

government agency “involve[d] any thing of value of $5,000 or more”). This has led our

sister circuits to describe the requisite proof as identifying the value of the “subject matter”

of the bribe. United States v. Robinson, 663 F.3d 265, 271–76 (7th Cir. 2011).

The indictment charged Tillmon with accepting cash from the undercover agents

posing as members of the DTO on each of the three transports, with each count

corresponding to one of the transports, and it identified the subject matter of each of the

6 Tillmon challenges the sufficiency of the evidence on two other elements of the offenses as well, but for the reasons discussed, we need not address those arguments. 25 three bribes as “protecting shipments of purported narcotics.” J.A. 149, 153, 171. As we

have already recounted, the record depicted what that protection entailed: Tillmon was to

accompany the drugs on a journey up the East Coast, drive or ride in one of the vehicles

containing or accompanying the narcotics, and recite a cover story if the caravan was

stopped. And once the drugs were delivered to another member of the DTO in Maryland,

he was paid—$2,000 in October 2014; $2,000 in December 2014; and $2,500 in March

2015.

Our sister circuits have recognized that one valid method of valuing an intangible,

such as a service provided, is the amount of the bribe. E.g., United States v. Hardin, 874

F.3d 672, 676 (10th Cir. 2017); United States v. Fernandez, 722 F.3d 1, 12–13 (1st Cir.

2013) (rejecting the value of the bribe test in favor of the value of the “transaction” test but

acknowledging that the bribe amount “may be relevant [evidence] in determining the value

of the bribe’s objective” when “the subject matter of the bribe is a ‘thing of value’ without

a fixed price”); Robinson, 663 F.3d at 271, 275 (“Without excluding other possible

methods of valuation, we agree that the amount of the bribe may suffice as a proxy for

value; at least it provides a floor for the valuation question.”). This approach is akin to

“appraising” the service as an appraiser values a tangible asset—“by looking at how much

a person in the market would be willing to pay for” it. United States v. Marmolejo, 89 F.3d

1185, 1194 (5th Cir. 1996).

The Government properly recognizes that using the straightforward bribe-as-proxy

method does not satisfy its burden in this case. The Government chose to charge Tillmon

separately for each of the three transports, meaning that the Government had the burden to

26 prove that the value of his services on each of the individual transports was $5,000 or more.

Under the bribe-as-proxy method, the Government’s evidence is insufficient because

Tillmon’s aid on each transport was valued at less than $5,000 each time.

Instead, the Government advances three arguments for what other evidence could

have been used to satisfy its burden: (1) that the amount of the bribes paid to the team as a

whole on each transport exceeded $5,000 (the “aggregation theory”); (2) that the market

value of the drugs being trafficked on each transport exceeded $5,000 (the “market value

theory”); and (3) that the amount the Town of Windsor paid for public safety in each year

at issue exceeded $5,000 (the “public safety theory”).

Although the Government claims its aggregation theory is merely a variation on the

approved bribes-as-proxy method, it is not the equivalent and we cannot use it here. The

Government contends that the jury was permitted to aggregate the bribes paid to all of the

team members on a particular transport to arrive at the requisite $5,000. To be sure,

employing that method brings the dollar amount expended on each transport to more than

$5,000. Fatally for the Government, however, the aggregation method does not arrive at an

amount that reflects the statutory obligation to produce evidence of the value of the subject

matter of the bribe charged in the indictment—that is, Tillmon’s “protecting shipments of

purported narcotics.” J.A. 149, 153, 171. The aggregation method conflates the value of

Tillmon’s services to the DTO with the value of the team’s services to the DTO. The record

does not permit the conclusion that Tillmon single-handedly provided services equal to the

amount paid to the team as a whole. And without such evidence demonstrating that

Tillmon’s services were worth that amount, the aggregation method is not an acceptable

27 valuation method. For these reasons, we reject the aggregation method as an appropriate

valuation method in this case.

The Government’s proposed market value theory fares no better. As our sister

circuits have recognized, in some instances, it may be appropriate to look at the market

value of the bribe from the perspective of the briber or an interested third party as a means

of valuing the subject matter of the bribe. E.g., Fernandez, 722 F.3d at 15 (approving

valuation method for votes related to pending legislation by looking to the briber’s

expected financial gain flowing from the passage of that legislation); United States v.

Curescu, 674 F.3d 735, 738, 741 (7th Cir. 2012) (approving valuation of a bribe given to

falsely certify that plumbing had been completed by a licensed plumber based on the

amount of money the briber did not have to pay a licensed plumber to perform the work);

United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (using market value theory to

value expedited eviction orders based on the savings to the property owners in avoiding

the costs typically incurred in eviction). But even then, in addition to evidence of something

having value to the briber or a third party, the Government also must come forward with

evidence “linking” that valued item to the services the defendant provided. See United

States v. Owens, 697 F.3d 657, 661 (7th Cir. 2012). To reiterate, the Government’s

evidence must bear on the value of the subject matter of the bribe, and that obligation is

not satisfied with evidence of something “to which the subject matter of the bribe is

tangentially related.” Id.

In this case, the Government pointed to something of purported value to the briber—

the market value of the narcotics—but it failed to put forward any evidence linking that

28 value to Tillmon’s protection of the caravan, the subject matter of the bribe. Specifically,

the Government relies on Lisa’s statement during the March 2015 transport that the team

was shipping a million dollars of heroin and argues that because Tillmon was hired to

protect a million-dollar transport on that occasion and to protect similar package quantities

during the other two transports, his services on each transport were worth a million dollars.

The Government then contends that the Court can infer from the evidence that the other

transports involved similar drug packages and that they also thereby satisfied the $5,000

requirement. That reasoning is flawed because no evidence in the record links the purported

value of the drugs to the value of Tillmon’s protection services. As the record stands, the

two are merely tangentially related. The Government could have attempted to provide

evidence sufficient to create the necessary linkage in several ways. For example, it could

have offered evidence that trafficking organizations typically provide protection with a cut

of the profits from eventual sales. Or it could have offered evidence that the cost of

legitimate protection for drug transports involving that amount of drugs costs real DTOs

$5,000 or more. But the Government offered no such evidence. In fact, it failed to introduce

any evidence allowing the inference that the value of Tillmon’s services was connected to

the value of the drugs. Thus, the Government’s market value theory lacks any evidentiary

basis.

The Government’s third argument, the public safety theory of valuation, can be

disposed of quickly. For the first and only time in this appeal, the Government mentions in

a single sentence of its Response Brief that the $5,000 value of Tillmon’s services could

be measured based on the Town of Windsor’s annual public safety budget. Setting aside

29 any concerns regarding the timeliness and adequacy of the Government’s argument, we

observe that Windsor’s entire public safety budget is unrelated to and would vastly

overstate the value of Tillmon’s services to the DTO. As such, it would be an improper

measure of the subject matter of the bribe.

In sum, the Government failed to produce evidence from which a jury could find

that Tillmon’s services to the DTO had a value of $5,000 or more. Though the Government

might have satisfied this requirement in several ways, it failed to introduce any evidence

other than the amount Tillmon was paid as a bribe to establish that the value of his

protection services were worth at least $5,000. And in the absence of evidence to support

that element of the offense, Tillmon’s convictions for federal programs bribery, Counts 32,

36, and 54, cannot stand and we vacate each of these convictions.

IV. Conclusion

For the reasons explained above, we affirm Tillmon’s convictions on the drug

trafficking and firearms offenses (Counts 1, 2, 48, and 49), but we vacate Tillmon’s

convictions for federal programs bribery (Counts 32, 36, and 54).

As the parties agree, the record shows that Tillmon’s sentence cannot be affected by

the vacation of his federal programs bribery convictions. After calculating Tillmon’s

Guidelines range, the district court imposed a downward variant sentence of 180 months’

imprisonment—120 months to run concurrently on Counts 1, 2, 48, 32, 36, and 54; and 60

months to run consecutively on Count 49. Vacating Tillmon’s federal programs bribery

convictions does not change his sentence, which is still 120 months’ imprisonment for

30 Counts 1, 2, and 48, to run concurrently with each other, and 60 months’ mandatory

minimum imprisonment for Count 49, to run consecutively to the others. Because 120

months is the statutory mandatory minimum sentence for the drug trafficking conspiracy

(Count 1) and attempted possession (Count 48) convictions, Tillmon cannot be sentenced

to a lower term of imprisonment on the part of the sentence that was running concurrently

with his sentence for the now-vacated federal programs bribery convictions. Similarly,

Tillmon’s consecutive sentence for Count 49 must continue to run consecutively to the

other term of imprisonment. As such, we need not remand for resentencing.

AFFIRMED IN PART AND VACATED IN PART