United States v. Jessica Vennie

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 22, 2019
• Docket: 18-4843
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4843

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JESSICA VENNIE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:16-cr-00485-JKB-8)

Submitted: September 20, 2019 Decided: October 22, 2019

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Rebekah L. Soule, Jonathan C. Su, LATHAM & WATKINS LLP, Washington, D.C., for Appellant. Robert K. Hur, United States Attorney, Leo J. Wise, Assistant United States Attorney, Robert R. Harding, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Following a multi-day jury trial in June 2018, Jessica Vennie was convicted of

racketeering, in violation of 18 U.S.C. § 1962(c) (2012); conspiracy to distribute and to

possess with intent to distribute K2 (synthetic marijuana), in violation of 21 U.S.C. §§ 841,

846 (2012); and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h) (2012).

The district court sentenced Vennie to 72 months in prison. Vennie appeals, raising two

issues pertaining to her convictions and one challenge to her sentence. For the reasons that

follow, we affirm.

I.

Vennie first argues that her case was improperly joined with that of her codefendant,

Jocelyn Byrd. 1 This court reviews “de novo the district court’s refusal to grant defendants’

misjoinder motion to determine if the initial joinder of offenses and defendants was proper

under Fed. R. Crim. P. 8(a) and 8(b) respectively.” United States v. Mackins, 315 F.3d

399, 412 (4th Cir. 2003). If the initial joinder was correct, we then analyze whether the

denial of the defendant’s motion to sever amounts to an abuse of discretion under Fed. R.

Crim. P. 14. Id. But if the joinder was erroneous in the first instance, we review “this

nonconstitutional error for harmlessness, and [will] reverse unless the misjoinder resulted

in no actual prejudice to the defendants because it had no substantial and injurious effect

or influence in determining the jury’s verdict.” United States v. Cannady, 924 F.3d 94,

102 (4th Cir. 2019) (brackets and internal quotation marks omitted).

1 The jury acquitted Byrd of all charges.

2 We first conclude that the district court’s joinder ruling was proper. As the Sixth

Circuit recently observed, “[f]or joinder, the allegations in the indictment are what matter.”

United States v. Ledbetter, 929 F.3d 338, 346 (6th Cir.), pet. for cert. filed, __ U.S.L.W.

__ (U.S. Aug. 22, 2019) (No. 19-5663). Under Rule 8(b), an indictment may join two or

more defendants if those defendants “are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or

offenses.” Here, Vennie and Byrd, both correctional officers employed at Eastern

Correctional Institution (ECI) during the relevant time frame, were charged with a

substantive racketeering offense related to the same alleged enterprise—ECI. The

superseding indictment charged that Vennie and Byrd committed two of the same

racketeering acts. Because the superseding indictment alleged that both women committed

two of the same racketeering acts, in furtherance of the same enterprise, and at the same

general time, the district court acted well within the bounds of Rule 8(b) in allowing

joinder. Accord id. (affirming the joinder of multiple defendants in a RICO prosecution

where “the defendants were charged with participating in or assisting the same racketeering

enterprise” and “[e]very count in the indictment allegedly arose out of defendants’ conduct

on behalf of or in coordination with the” identified enterprise); United States v. Whitfield,

590 F.3d 325, 355 (5th Cir. 2009) (“When otherwise separate offenses are charged as

predicate acts of a substantive RICO count, they may be related to each other in such a way

as to satisfy Rule 8(b)” (alteration and internal quotation marks omitted)).

Vennie next contends that she was prejudiced by the denial of her motion to sever

and thus that the court abused its discretion in denying that motion. But the general rule in

3 this circuit is clear: “when defendants are indicted together, they should be tried together.”

United States v. Dinkins, 691 F.3d 358, 368 (4th Cir. 2012). To show prejudice resulting

from the denial of a pretrial motion to sever, the defendant must satisfy “the heavy burden”

of demonstrating that the jury could not reach “a reliable judgment as to guilt or innocence”

because of the joint trial. United States v. White, 737 F.3d 1121, 1133 (7th Cir. 2013)

(internal quotation marks omitted). Vennie’s efforts to make such a showing fall short.

First, that evidence was offered of no relevance to Vennie’s individual charges is

not dispositive. It is well settled that “a defendant is not entitled to severance merely

because he might have had a better chance of acquittal in a separate trial.” United States

v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010). The Supreme Court has held that limiting

instructions “often will suffice to cure any risk of prejudice” caused by joinder, Zafiro v.

United States, 506 U.S. 534, 539 (1993), and the court gave such a limiting instruction in

this case. Second, the allegedly inflammatory evidence presented to establish Byrd’s

personal relationships with certain inmates cannot be said to have unduly swayed the jury

given that the jury acquitted Byrd of all charges—despite the admission of this evidence.

Finally, Vennie does not demonstrate that the testimonial evidence as to retaliatory prison

gang violence was of such a quality or pervasiveness as to create a concern that it unfairly

and irreparably infected the jury. We thus affirm the district court’s joinder ruling.

II.

Vennie next argues the district court erred in denying her motion for a mistrial. We

review the denial of a motion for a mistrial for an abuse of discretion. United States v.

Wallace, 515 F.3d 327, 330 (4th Cir. 2008).

4 Vennie’s motion for a mistrial hinged on one statement made by FBI Special Agent

Joseph Perrino (Agent Perrino). Specifically, on cross-examination, Vennie’s lawyer

questioned Agent Perrino about Agent Perrino’s efforts to prepare a cooperating co-

defendant to testify. When asked if he told this witness the case was proceeding against

Vennie and Byrd, Agent Perrino responded, “Well, sir, you know, we had a guilty plea the

morning of—.” (J.A. 831). 2 The district court immediately stopped Agent Perrino’s

testimony and conferred with the parties outside the jury’s presence.

At this point, Vennie moved for a mistrial on the ground that Agent Perrino’s just

quoted testimony improperly informed the jury of a non-testifying co-defendant’s guilty

plea. See United States v. Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992) (“[E]vidence of a

non-testifying co-defendant’s guilty plea should not be put before the jury.”). In denying

Vennie’s motion for a mistrial, the district court first recognized that whether the

challenged testimony constituted impermissible testimony as to a non-testifying co-

defendant’s guilty plea is questionable because Agent Perrino neither identified the co-

defendant by name nor explicitly linked the mentioned guilty plea to a defendant in this

case. Nonetheless, the district court concluded that, assuming error occurred, such error

was harmless. Thereafter, the district court instructed the jury that any other person’s

decision to plead guilty was a “personal decision[] about their own guilt”; that the jury

should not “speculate about the reasons why” co-defendants were not part of the trial; and

2 Citations to the “J.A.” refer to the joint appendix submitted by the parties.

5 that the jury should not use any individual’s decision to plead guilty “in any way as

evidence against or unfavorable to the defendants on trial here.” (J.A. 844-45).

On appeal, Vennie contends the district court erred in denying her motion for a

mistrial. In support, Vennie posits that the district court erred in allowing Agent Perrino

to inform the jury of a non-testifying co-defendant’s guilty plea and that such error is not

harmless beyond a reasonable doubt. In response, the Government first contends that

Agent Perrino’s testimony on cross-examination did not place before the jury any improper

evidence of a non-testifying co-defendant’s guilty plea. Alternatively, the Government

maintains that any error resulting from the statement is harmless beyond a reasonable

doubt.

It is well settled “that evidence of a non-testifying co-defendant’s guilty plea should

not be put before the jury.” Blevins, 960 F.2d at 1260. The two reasons for this restriction

are: (1) the co-defendant is not present to be cross-examined about his motives for pleading

guilty; and (2) the jury might consider the co-defendant’s guilty plea as evidence of the

defendant’s guilt. Id. Although we have recognized “that the error in introducing the guilty

pleas of non-testifying co-defendants is of constitutional dimension[,]” such error is subject

to harmless error review. Id. at 1262; see United States v. Poole, 640 F.3d 114, 118-19

(4th Cir. 2011) (explaining that the trial court’s “repeated references” to the earlier guilty

pleas of co-defendants is a trial error reviewable for harmlessness and not a structural

error). Under this standard, a mistrial must be declared unless this court is satisfied

“beyond a reasonable doubt” that the impact of the error was harmless. Blevins, 960 F.2d

at 1262. The harmlessness inquiry “requires a quantitative assessment of the likely impact

6 of the error measured against the other evidence presented at trial.” Blevins, 960 F.2d at

1263. In other words, we ask whether “a rational trier of fact would have found [Vennie]

guilty absent the error.” Poole, 640 F.3d at 120.

Even assuming arguendo that Agent Perrino impermissibly apprised the jury of a

non-testifying co-defendant’s guilty plea, the district court did not abuse its discretion in

denying Vennie’s motion for a mistrial on this basis because such assumed error was

harmless beyond a reasonable doubt. Notably, after the challenged testimony arose, the

district court gave the jury an exacting and complete cautionary instruction on this issue,

and this court presumes that a jury follows this type of cautionary instruction. United States

v. Saint Louis, 889 F.3d 145, 155 (4th Cir.), cert. denied, 139 S. Ct. 269 (2018). By way

of this instruction, the district court effectively safeguarded Vennie from any prejudice

resulting from Agent Perrino’s response. Id. at 155-56. Nor is Vennie’s claim of

irreparable prejudice particularly colorable when considered in light of the weight of the

Government’s evidence, which included inculpating testimony by two co-defendants;

testimony from an eyewitness who observed Vennie and two co-conspirators packaging

contraband for Vennie to smuggle into ECI; and robust documentary evidence offered

through various witnesses, which included corroborating text messages and evidence of

financial transactions. Our examination of the entire trial leads us to this inescapable

conclusion: a rational finder of fact would have found Vennie guilty absent the challenged

testimony. Poole, 640 F.3d at 120. Accordingly, we conclude the district court did not

abuse its discretion in denying Vennie’s motion for a mistrial, see Wallace, 515 F.3d at

7 330, because Agent Perrino’s statement “was harmless beyond a reasonable doubt,”

Blevins, 960 F.2d at 1262.

III.

Finally, Vennie assigns reversible procedural error to the two role enhancements

applied by the district court at sentencing. In reviewing any federal sentence, this court

must first ensure that the district court did not commit any “significant procedural error,”

such as failing to properly calculate the applicable Guidelines range, consider the 18 U.S.C.

§ 3553(a) (2012) factors, or adequately explain the sentence. Gall v. United States, 552

U.S. 38, 51 (2007). If a party asserts on appeal a claim of procedural sentencing error that

it preserved before the district court, we review for abuse of discretion and will reverse

unless we conclude that the error was harmless. United States v. Lynn, 592 F.3d 572, 576

(4th Cir. 2010). In evaluating a challenge to the district court’s computation of a

defendant’s Guidelines range, this court reviews for clear error the underlying factual

determinations made by the district court and reviews de novo its relevant legal

conclusions. See United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).

In the presentence report, the probation officer grouped the three counts of

conviction and relied on the money laundering guideline, U.S. Sentencing Guidelines

Manual § 2S1.1(a)(1) (2016), to determine Vennie’s base offense level. This guideline

directs the use of the base offense level “for the underlying offense from which the

laundered funds were derived,” which, in this case, was racketeering. The racketeering

guideline, USSG § 2E1.1(a)(1), provides for a base offense level of 19. To this, the

probation officer recommended a two-level enhancement under USSG § 2S1.1(b)(2)(B)

8 because Vennie was convicted under 18 U.S.C. § 1956. The probation officer also

recommended a two-level enhancement for abuse of a position of trust, see USSG § 3B1.3,

and a four-level enhancement for being a leader or organizer, see USSG § 3B1.1(a). Over

Vennie’s objections, the district court sustained the Chapter 3 enhancements, but reduced

the role enhancement to three levels for being a manager or supervisor. See USSG

§ 3B1.1(b).

Vennie contends on appeal that the district court procedurally erred in its application

of the Chapter 3 enhancements because it relied on acts apart from the conduct related to

the money laundering conspiracy to support the enhancements. Vennie’s argument finds

support in the Guidelines Commentary to USSG § 2S1.1, which provides: “[A]pplication

of any Chapter Three adjustment shall be determined based on the offense covered by this

guideline (i.e., the laundering of criminally derived funds) and not on the underlying

offense from which the laundered funds were derived.” USSG § 2S1.1 cmt. n.2(C); see

United States v. Howard, 309 F. App’x 760, 769 (4th Cir. 2009) (argued but unpublished)

(finding reversible sentencing error when the district court’s “manager or supervisor”

finding was based on the defendant’s role in the underlying prostitution ring as opposed to

the money laundering). However, upon review of the record, we conclude that both

enhancements were properly applied—even with the limitation on what aspects of

Vennie’s conduct may be considered. See Attkisson v. Holder, 925 F.3d 606, 624 (4th Cir.

2019) (recognizing that we may “affirm on any grounds supported by the record” (internal

quotation marks omitted)).

9 As to USSG § 3B1.3, Vennie’s position as a correctional officer at ECI is

undoubtedly a position of trust, and there is no room to credibly doubt that Vennie used

that position to facilitate the money laundering conspiracy. Specifically, the trial testimony

established that Vennie dictated the price, the method, and the timing of payments made in

exchange for Vennie smuggling contraband into the prison. Vennie’s smuggling efforts

were orchestrated by an ECI inmate, aided by his nonincarcerated girlfriend. Implicit in

the court’s ruling on this issue is the conclusion that Vennie’s role as a correctional officer

in the prison in which this inmate was housed enhanced her ability to successfully dictate

these terms. This conclusion is eminently logical and required no further discussion.

The record also confirms that Vennie’s conduct solely related to the money

laundering conspiracy warranted the three-level enhancement under USSG § 3B1.1(b).

The trial evidence established that Vennie was critical in (1) designing the money

laundering scheme through which she hid her ill-gotten gains in PayPal accounts issued in

the names of her sister and cousin; and (2) directing payments to those accounts, which

were made to compensate Vennie for smuggling contraband into ECI. Cf. Howard, 309 F.

App’x at 769. Although it did not entirely accept the defense’s argument on this point, the

district court, which was intimately familiar with Vennie’s criminal conduct, made this

finding “even with respect to the money laundering specifically.” (J.A. 1182). We thus

hold that, regardless of the rationale expressed at sentencing, the district court properly

applied both enhancements.

10 Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED