United States v. Bens

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 15, 2006
• Docket: 05-4736
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4736

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WENDY BENS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (CR-04-40)

Submitted: June 7, 2006 Decided: June 15, 2006

Before WILKINS, Chief Judge, and WILKINSON and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harry D. McKnett, Columbia, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Michael J. Leotta, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Defendant Wendy Bens raises various challenges to his drug-

related convictions. Finding no error, we affirm.

I.

Wendy Bens was a Coast Guard petty officer stationed in

Boston, Massachusetts, whose duties included preventing drugs from

entering the United States from the Caribbean. Defendant was also,

however, involved in trafficking narcotics from the Caribbean to

the United States. In January 2004, Bens arranged for Alison

Alexander to travel to Curacao, Netherlands Antilles, to pick up

cocaine from two of Bens’s associates. On January 27, 2004,

Alexander returned to the United States with 2.4 kilograms of

cocaine stashed in a suitcase, and was promptly arrested at the

Baltimore/Washington International Airport.

Alexander cooperated with authorities, and while law

enforcement agents listened in, he arranged for Bens to retrieve

the suitcase containing the cocaine. On January 31, 2004, Bens and

a fellow Coast Guard officer traveled from Boston to Baltimore and

found the suitcase, its contents since replaced with fake cocaine

by law enforcement. They were later arrested. At the time of his

arrest, defendant was carrying two suits of Coast Guard-issued

bullet-proof body armor, as well as a .45 caliber handgun.

2 Defendant was charged with conspiracy to import cocaine, see

21 U.S.C. §§ 952(a), 960(a), 963 (2000), importing cocaine, see id.

§§ 952(a), 960(a), possession with intent to distribute cocaine,

see id. § 841(a), conspiracy to possess with intent to distribute

cocaine, see id. §§ 841(a), 846, and possession of a firearm in

furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)

(2000). On October 26, 2004, a jury found Bens guilty on all

counts.

II.

Bens first argues that the district court improperly submitted

to the jury a verdict form requesting special findings of fact

designed to serve as the basis for various sentencing enhancements.

The district court’s selection of verdict forms is reviewed for

abuse of discretion, see, e.g., United States v. Hedgepeth, 434

F.3d 609, 612 (3d Cir. 2006); United States v. Martinson, 419 F.3d

749, 753 (8th Cir. 2005), and we find no error here. The special

findings were charged in the indictment, and the district court

required the jury to determine them beyond a reasonable doubt.

Bens does not contend that his sentence violated the Sixth

Amendment or that the verdict form was otherwise prejudicial. The

sentencing in this case moreover took place during the period of

uncertainty between Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 543 U.S. 220 (2005), and indeed, had the

3 district court found the facts itself, this may well have resulted

in Booker error warranting resentencing. Submitting a special

verdict form to the jury was thus not improper under these

circumstances. See Hedgepeth, 434 F.3d at 613-14.

Bens next argues that insufficient evidence supported the

jury’s conclusion that he possessed a firearm in furtherance of a

drug trafficking crime, see 18 U.S.C. § 924(c). “[W]hen a

defendant challenges the sufficiency of the evidence on appeal, the

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Collins, 412 F.3d 515, 519

(4th Cir. 2005) (internal quotation marks omitted). In this case,

a reasonable jury could conclude that Bens possessed a firearm in

furtherance of a drug trafficking crime when the evidence showed

that he brought a gun with him to Baltimore on a trip to acquire

cocaine, and that he was carrying the gun at the time of his

arrest.

Bens next contends the district court abused its discretion in

refusing to declare a mistrial on the ground that the government’s

contact with his fiancée, Lovenska Antoine, impeded his ability to

call her as a witness. According to Bens, Antoine would have

testified that Bens never arranged for Alexander to travel to

Curacao to obtain cocaine, but government investigators deterred

4 her from doing so by visiting her and inquiring about Bens, serving

a subpoena upon her for certain documents, and allegedly acting as

though they worked on Bens’s behalf.

“A criminal defendant’s due process rights are violated if

governmental intimidation of a witness amounts to substantial

government interference with a defense [witness’s] free and

unhampered choice to testify.” United States v. Moore, 11 F.3d

475, 479 (4th Cir. 1993) (internal quotation marks omitted). If a

defendant can make this showing, “the inquiry moves to the question

of whether it was prejudicial or harmless error.” See United

States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991). In this

case, even if the government’s interactions with Antoine somehow

qualify as substantial interference as opposed to standard

investigative work, any error was harmless. Antoine’s prospective

testimony, which pertained to only a single conversation between

Bens and Alexander, would have done little to refute the

government’s evidence at trial, namely, that Alexander returned

from Curacao with drugs and contacted Bens to pick them up, and

that Bens armed himself and traveled to Baltimore for the purpose

of doing so. The district court’s denial of Bens’s motion for a

mistrial was thus not an abuse of discretion.

5 III.

Bens raises other assignments of error, which we have reviewed

with care and find to be without merit. We accordingly affirm

Bens’s convictions and sentence, and dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before us and argument would not aid the decisional

process.

AFFIRMED