PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4149
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
MICHAEL JAMES YOUNG, JR., a/k/a Unc,
Defendant – Appellant.
No. 19-4222
VANCE EDWARD VOLIOUS, JR., a/k/a Dank, a/k/a Black,
Appeals from the United States District Court for the District of South Carolina, at Columbia. J. Michelle Childs, District Judge. (3:17-cr-00575-JMC-1; 3:17-cr-00575- JMC-2)
Argued: November 2, 2020 Decided: February 26, 2021 Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Harris and Judge Thacker joined.
ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina; Aimee Zmroczek, A.J.Z. LAW FIRM, LLC, Columbia, South Carolina, for Appellants. Brook Bowers Andrews, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sandra V. Moser, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellant Michael James Young, Jr. A. Lance Crick, Acting United States Attorney, Greenville, South Carolina, Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
2 DIAZ, Circuit Judge:
Michael James Young, Jr. wanted his ex-wife dead. While serving a prison sentence
for an unsuccessful first attempt on her life, Young concocted a plot for several friends on
the outside, including Vance Edward Volious, Jr., to mail her a bomb and finish the job.
There was but one (big) hitch; the bombmaker he contacted to design the bomb was an
undercover FBI agent, and the bomb his friends tried to send was a dud by design. Young
and Volious were indicted, a jury convicted them on several counts, and they appealed.
Foremost among the questions we must now answer is whether an inert bomb is a
nonmailable item under federal law.
I.
A.
While Young was in prison for attempting to kill his ex-wife (and killing his ex-
father-in-law), he used a contraband cell phone to orchestrate a drug-dealing conspiracy.
Young would contact a supplier, purchase the drugs, and arrange shipment to houses where
Volious and Vincent Meredith (another friend on the outside) lived. Young would then
arrange for another friend, frequently Tyrell Fears, to pick up the drugs and distribute them.
In February 2017, Young used the contraband cell phone to access the dark web and
contact someone he believed to be a Russian bombmaker. After a few months of
negotiations, Young purchased what he thought was a mail bomb and arranged for the
bombmaker to send the device unarmed to Meredith’s house and separately send a prepaid
3 shipping label to Volious’s house. Young asked that the shipping label bear his ex-wife’s
address and asked that both packages contain instructions for arming the device.
What Young didn’t know was that his dark web contact was an undercover FBI
agent. The FBI built an inert device that ostensibly matched what Young asked for. It
contained small amounts of explosives, but by design it couldn’t explode. The FBI then
sent the shipping label to Volious, per Young’s request, and had an undercover postal
inspector hand-deliver the inert device to Meredith’s address.
After Volious received the label and delivered it to Fears, Fears went to Meredith’s
house, followed the instructions for arming the device, and placed the shipping label on the
package. The FBI watched as Fears placed the device between two mail receptacles, where
postal workers normally would have picked it up and placed it into the mail had the FBI
not intercepted it first.
B.
The government charged Young and Volious with the following four counts: (1) a
criminal conspiracy with several objectives; (2) aiding and abetting the transportation of
an explosive in interstate commerce to kill an individual; (3) aiding and abetting the
mailing of a non-mailable item with intent to kill; and (4) aiding and abetting the carrying
of an explosive during the commission of a felony. A jury convicted Young and Volious
on each count, and the court sentenced each to lengthy prison terms.
This appeal followed.
4 II.
Young and Volious make five challenges to their convictions, each with its own
standard of review. The pair makes its first two arguments together, but Volious brings
the final three alone. We discuss each in turn.
Young and Volious’s primary argument is a two-part challenge to their convictions
for aiding and abetting the mailing of a nonmailable item under 18 U.S.C. § 1716(j)(2).
They first contend that the package Fears placed in the mail doesn’t qualify as a
nonmailable item under federal law. 1 Next, they argue that the record evidence is
insufficient to support their convictions for mailing a nonmailable item.
1.
The first part of Young and Volious’s argument raises a question of statutory
interpretation that we consider de novo. See Stone v. Instrumentation Lab’y Co., 591 F.3d
239, 242–43 (4th Cir. 2009). The relevant statute provides that:
Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, . . . anything declared nonmailable by this section, whether or not transmitted in accordance with the rules and regulations authorized to be prescribed by the Postal Service, with intent to kill or injure
1 Young and Volious also argue in their reply brief that we should resolve this issue in their favor under the rule of lenity. But they likely waived that argument by failing to present it in their opening brief. Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (arguments not raised in opening brief are waived); see also United States v. Everhart, 436 F. App’x 269, 271 (4th Cir. 2011) (rule of lenity defense is waivable); United States v. Husmann, 765 F.3d 169, 180 n.7 (3d Cir. 2014) (Van Antwerpen, J., dissenting) (same). In any event (as we explain), we find no ambiguity in the statute warranting application of the rule.
5 another, or injure the mails or other property, shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1716(j)(2) (emphasis added). The statute also describes which items qualify
as nonmailable:
All kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, reptiles, and all explosives, hazardous materials, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, compositions, or material which may kill or injure another, or injure the mails or other property . . . .
18 U.S.C. § 1716(a) (emphases added).
The government elected at trial to prove only that the device was an “explosive,”
Appellee’s Br. at 21, and chose not to prove that it was an “other device[] or composition[]
which may ignite or explode.” 18 U.S.C. § 1716(a). The evidence at trial showed that the
inert bomb contained high explosives. Young and Volious nonetheless argue that the
package didn’t contain an “explosive” within the meaning of § 1716(a) because the FBI
designed the bomb not to explode. Neither § 1716’s language nor the sparse case law on
the subject support their view.
We begin with the text. Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d
344, 356 (4th Cir. 2020) (“As in all statutory construction cases, we start with the plain text
of the provision.” (internal quotation marks omitted)). Since § 1716 doesn’t define
“explosive,” we must give the word its “ordinary meaning.” Taniguchi v. Kan Pac. Saipan,
Ltd., 566 U.S. 560, 566 (2012). Dictionaries define “explosive,” when used as a noun, to
6 mean an “explosive substance,” Explosive, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/explosive (last visited Feb. 22, 2021), or “[a]n explosive
substance, object, or device,” Explosive, OXFORD ENGLISH DICTIONARY (3d ed. 2016),
https://www.oed.com/view/Entry/66677?redirectedFrom=explosive#eid (last visited Feb.
22, 2021).
In this context, we must interpret the meaning of “all explosives” to exclude
explosive “objects” or “devices” because § 1716(a) lists “other devices or compositions
which may ignite or explode” as a category of nonmailable items separate from “all
explosives.” Reading “all explosives” to encompass “devices or compositions which may
ignite or explode” would render the latter phrase superfluous, which we’re loath to do. See
United States v. Simms, 914 F.3d 229, 241 (4th Cir. 2019), cert. denied, 140 S. Ct. 304
(2019). Indeed, the “canon against surplusage” is at its “strongest” in cases like this one,
where one party’s interpretation “would render superfluous another part of the same
statutory scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013). In such cases,
we favor “competing interpretation[s]” that give “effect to every clause and word of a
statute.” Id. at 385.
The government’s interpretation does just that. The government explains that we
should understand the term “all explosives” in this context to refer only to explosive
substances, not finished devices. Not only does that reading avoid superfluity, but it’s also
consonant with Congress’s use of other terms in the statute. See United States v. Serafini,
826 F.3d 146, 149 (4th Cir. 2016) (to discern a statute’s ordinary meaning, courts look not
7 only “to the language itself, but also the specific context in which that language is used,
and the broader context of the statute as a whole”).
For example, § 1716(a) prohibits individuals from mailing “[a]ll kinds of poison”
and “all articles containing poison.” It also bans people from mailing “inflammable
materials” and “devices or compositions which may ignite.” 18 U.S.C. § 1716(a). In both
cases, Congress used separate language to enact separate bans on mailing (1) a dangerous
substance or material (poison or inflammable materials) and (2) objects incorporating that
substance or material (all articles containing poison or devices or compositions which may
ignite).
That pattern should hold true for explosives too. By banning “all explosives” as
well as “other devices or compositions which may . . . explode,” Congress intended to enact
separate bans on mailing (1) explosive substances or materials and (2) devices or
compositions incorporating those substances or materials.
Young and Volious assert that § 1716(a) doesn’t apply to explosives mailed in such
small quantities, or packaged in such a manner, that they couldn’t possibly do any harm. 2
They argue that the placement of the word “explosives” next to “hazardous materials,
inflammable materials, infernal machines, and mechanical, chemical, or other devices or
compositions which may ignite or explode” suggests that Congress intended to prevent
people from mailing only those objects that could actually cause harm by exploding or
2 We express no opinion on whether, as a matter of fact, the explosives within the FBI’s inert bomb could have caused harm.
8 igniting. Because an inert bomb presents no safety concerns, they assert, it can’t be an
“explosive” within the meaning of § 1716(a).
We disagree. Congress’s use of the word “all” before “explosives” suggests that it
intended to prohibit the mailing of any explosive substance regardless of how it’s packaged
or the quantities in which it’s sent. Were it otherwise, the statute would allow anyone to
send “mail-safe” explosives to a recipient who could use them to assemble a functional
bomb and accomplish the sender’s goal of harming another. That would be an absurd
construction of a statute that exists, as Young and Volious concede, for the “protection of
the public and those mail delivery personnel who might otherwise hold in their possession
parcels which conceal items that might explode and cause harm.” Appellants’ Br. at 11.
And courts, of course, should interpret statutes to avoid absurdities. Lara-Aguilar v.
Sessions, 889 F.3d 134, 144 (4th Cir.), cert. denied sub nom. Lara-Aguilar v. Whitaker,
139 S. Ct. 621 (2018).
Young and Volious’s reading of the statute would force a similarly absurd result by
requiring postal workers and people mailing packages to determine acceptable levels of
explosive materials sent through the mail. Imposing such a duty would require a chemist’s
knowledge of explosive substances, which would be silly, not to mention dangerous.
Indeed, slight miscalculations or unanticipated environmental factors during transit could
potentially cause otherwise “safe” levels of explosives to become unsafe. See United States
v. Sheehan, 838 F.3d 109, 117 (2d Cir. 2016) (discussing evidence that an otherwise
dysfunctional explosive device could unintentionally detonate when exposed to “heat,
shock, or friction”).
9 Simply prohibiting the mailing of all explosives in whatever form is far more
consistent with the statutory purpose as even Young and Volious conceive of it. The best
reading of § 1716’s plain language is therefore that an inert device qualifies as a
nonmailable item if it contains explosives.
Controlling case law also favors the government. Though few courts have examined
§ 1716(j) in this context, we did so in United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995)
(en banc). There, the defendant mailed a package bomb to a federal prosecutor. When the
prosecutor opened the package, the bomb ignited, but didn’t explode. Hamrick, 43 F.3d at
879. The defendant asserted that “since his bomb was dysfunctional, it was not a
nonmailable article.” Id. at 884.
Sitting en banc, we rejected that argument and determined that a reasonable jury
could have found the defendant guilty under § 1716 because his package bomb contained
“inflammable liquified butane” that could have “ignited” during transit. 3 Id. at 879.
Although the Hamrick court didn’t match its analysis to the statutory text explicitly, it’s
clear that the court determined that the package contained an “inflammable material” and
the device in the package constituted a “device which may ignite,” both of which are
categories of items that § 1716 prohibits.
3 The Hamrick court split evenly as to certain issues, but the § 1716 charge wasn’t among them. As Judge Hamilton’s concurring opinion makes clear, the court was unanimous in its view that the jury properly convicted the defendant of violating § 1716. Hamrick, 43 F.3d at 890 (Hamilton, J., concurring).
10 The distinctions that Young and Volious attempt to make between their case and
Hamrick make no difference. First, it matters not that Hamrick concerned “inflammable
materials” and this case concerns “explosives.” In both cases, the packages at issue were
nonmailable because they contained materials that § 1716 seeks to exclude from the mails.
It also makes no difference that the Hamrick defendant’s bomb was intended to
explode, whereas here the FBI designed the device to prevent that result. We held in
Hamrick that “[a] finding that [the defendant’s] bomb was capable of operating as designed
is . . . unnecessary to support a conviction under section 1716.” 43 F.3d at 884 (emphasis
added). True, the bomb in this case operated precisely as it was designed, since it didn’t
detonate. But in Hamrick, the bomb designer and the bomb sender were the same person:
the defendant. It therefore made sense in that case for the court to refer only to the bomb
designer’s intentions because no one else was involved in the plot. In the context of this
case, we read Hamrick to mean that a conviction under § 1716(j)(2) doesn’t require a
finding that the bomb was capable of operating as the sender intended, so long as the
package mailed contains something that § 1716(a) forbids. Since Young and Volious
mailed a bomb they hoped would explode, and the package contained high explosives, this
case is in line with our en banc precedent.
Young and Volious also cite United States v. Wisdom, 534 F.2d 1306 (8th Cir.
1976), to support their argument, but that case misses the mark. There, the defendant
mailed a package bomb to another person, but the bomb didn’t detonate when the recipient
opened the box. Wisdom, 534 F.2d at 1308. The defendant argued that the package was a
“hoax bomb” that he designed to look realistic, but not explode. The government, on the
11 other hand, presented evidence suggesting that the defendant meant to design a functional
bomb, but made several mistakes that rendered the bomb dysfunctional during travel. Id.
at 1308–09. Accordingly, the issue for the jury to decide was whether the defendant in fact
intended to make a real bomb, not whether the bomb contained explosives. See id. at 1307
(“[T]he defendant admits that the package contained non-mailable material.”).
This case has the opposite facts. No one disputes that Young and Volious intended
to mail a real bomb that would have killed Young’s ex-wife when she opened it—the only
dispute concerns whether the package contained a nonmailable item. In short, Wisdom
sheds little light on this case.
Since the government’s reading of the statutory text is persuasive and Hamrick—
the only controlling case law on the subject—supports that reading, we conclude that, as a
matter of law, an inert bomb that contains explosives qualifies as a nonmailable item under
§ 1716.
2.
Young and Volious next argue that the jury improperly convicted them of aiding
and abetting the mailing of a nonmailable item because the government failed to introduce
enough evidence that the package Fears deposited for mailing actually contained any high
explosives. On review, we must uphold the jury’s conviction “if there is substantial
evidence in the record to support it; that is, there must be evidence that a reasonable finder
of fact could accept as adequate and sufficient to support the defendant’s guilt.” United
States v. Banker, 876 F.3d 530, 540 (4th Cir. 2017) (cleaned up).
12 Young and Volious’s theory is that, while the government introduced evidence that
the inert device tested positive for high explosives before the FBI delivered it to Meredith’s
house, the FBI didn’t retest the device after the agents recovered it from beside the mail
deposit boxes. As a result, Young and Volious contend, a jury couldn’t know whether the
device that the FBI recovered contained high explosives and therefore couldn’t properly
convict them for aiding and abetting the mailing of a nonmailable item.
That argument lacks merit. The jury heard evidence that an FBI bomb specialist
assembled an inert bomb after Young’s dark web inquiry. An FBI chemist testified that he
tested the inert bomb and determined that, while the device couldn’t detonate, it contained
high explosives that are “designed to detonate.” J.A. 536–37.
The government then described a chain of custody that a jury could rely on to
conclude that the bomb’s chemical makeup never changed. A postal inspector personally
delivered the package containing the inert bomb from FBI Headquarters in Quantico,
Virginia to Meredith’s house. Meredith received the box and then left it in his guest
bedroom until Fears arrived. When Fears showed up, the two of them brought the box to
the kitchen, followed the instructions to arm the bomb, and put the shipping label that
Volious delivered onto the box. Fears then took the package containing the inert bomb to
the mail deposit boxes, where he left it (and FBI agents recovered it). There’s no evidence
in the record that any person tampered with or altered the bomb at any point between when
it left Quantico and when FBI agents recovered the package from beside the mail deposit
boxes.
13 The record evidence is more than enough for a reasonable jury to conclude that
Fears placed the same device that the FBI sent to Meredith next to the mail deposit boxes,
and therefore more than enough to convict Young and Volious for aiding and abetting the
mailing of a nonmailable item.
The jury also convicted Young and Volious of aiding and abetting the carrying of
“an explosive during the commission of [a] felony,” in violation of 18 U.S.C. § 844(h).
Mailing a nonmailable item with intent to kill under § 1716(j) was the predicate felony.
Young and Volious now make a single challenge to those convictions: that they can’t be
guilty of violating § 844(h) because they didn’t violate § 1716(j). As already discussed,
however, the law and the evidence at trial support their convictions under § 1716(j). Since
their sole argument against their convictions for aiding and abetting the carrying of an
explosive during the commission of a felony fails, we decline to disturb the jury’s
convictions.
C.
Volious next argues that we should vacate his conviction for the conspiracy charged
in count one because the indictment fatally varied from the evidence presented at trial.
When the government presents evidence that “broadens the bases for conviction
beyond those charged in the indictment,” a “variance” occurs. United States v. Cannady,
924 F.3d 94, 99 (4th Cir. 2019). But “[n]ot all variances between an indictment and the
proof offered at trial are ‘fatal.’” Id. A variance is fatal, and violates the Fifth Amendment
right to be indicted by a grand jury, “only if the appellant shows that the variance infringed
14 his ‘substantial rights’ and thereby resulted in actual prejudice.” Id. (quoting United States
v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994)). We review de novo a defendant’s challenge
to his conviction based on a claim that a fatal variance occurred at trial. United States v.
Malloy, 568 F.3d 166, 177 (4th Cir. 2009).
Volious argues that, while the government charged him with participating in a single
conspiracy with two different objectives—dealing drugs and mailing a bomb to Young’s
ex-wife—the evidence at trial showed that there were, in fact, two separate conspiracies to
accomplish those goals. Although a variance may have occurred at trial, we decline to
overturn Volious’s conviction because he hasn’t shown that the variance actually
prejudiced him.
A single conspiracy “exists where there is one overall agreement, or one general
business venture,” United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005), even when
that agreement or venture has multiple objects, United States v. Bolden, 325 F.3d 471, 492
(4th Cir. 2003) (“Courts have uniformly upheld multiple-object conspiracies . . . .”). As
the Supreme Court has put it, “[a] single agreement to commit several crimes constitutes
one conspiracy,” but “multiple agreements to commit separate crimes constitute multiple
conspiracies.” United States v. Broce, 488 U.S. 563, 570–71 (1989).
Our cases distinguish single conspiracies from separate, independent conspiracies
“based on the overlap in actors, methods, and goals.” United States v. Bartko, 728 F.3d
327, 344–45 (4th Cir. 2013); United States v. Brown, 811 F. App’x 818, 823 (4th Cir.
2020). The jury heard enough evidence to determine that the same actors—Young,
15 Meredith, Fears, and Volious—were involved in both the drug conspiracy and the bomb
plot, 4 but the overlap largely ends there.
The methods of accomplishing the drug conspiracy and the mail bomb plot were
different in important respects. While Young used a contraband cellphone to facilitate both
criminal objectives from prison, Young contacted a new source to obtain the bomb and he
used a new covert messaging application to coordinate the bomb’s delivery with Fears. No
evidence suggests that the drug dealing operation required Volious, Fears, or Meredith to
reship any packages to other third parties. Nor did the drug dealing ever extend to Florida,
where Young’s ex-wife lived at the time and where she would have received the package
containing the bomb. See United States v. Jeffers, 570 F.3d 557, 567 (4th Cir. 2009)
(instructing courts to consider whether the two conspiracies have “the same geographic
spread”). More importantly, the group’s drug-dealing efforts never involved violence of
any kind. See id. (instructing courts to consider whether the two conspiracies have “the
same results”).
4 Although Volious argues that he wasn’t involved in the bomb plot, see Appellants’ Br. at 21–24 (citing testimony from Meredith and Young suggesting that Volious knew nothing about the bomb plot), the government presented evidence to the contrary, see Appellee’s Br. at 6–7 (citing testimony from Fears that Volious delivered the shipping label to Fears with the knowledge that the package contained a bomb and was intended for Young’s ex-wife). At the very least, Volious delivered the bomb’s shipping label to Fears. And that’s likely enough for the jury to have properly determined that Volious was involved in the bomb conspiracy. See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993) (“[O]ne may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities or over the whole period of its existence.”).
16 The goals of the drug conspiracy and bomb plot were also different. One operated
to make money by selling drugs and the other endeavored to murder someone with no
connection to the drug activity, for free, with a mail bomb. As Volious argues, we generally
recognize multiple-object conspiracies only when the conspiracies’ objectives are at least
somewhat similar to each other. See, e.g., Bartko, 728 F.3d at 332, 344–45 (all conspired
to conduct fraudulent financial scheme); Brown, 811 F. App’x at 823 (all conspired to sell
and possess drugs); Cannady, 924 F.3d at 100 (same); Jeffers, 570 F.3d at 567 (same).
Nonetheless, even if the evidence at trial varied from the indictment’s charge,
Volious hasn’t shown that such a variance prejudiced him. Cannady, 924 F.3d at 100 (“The
defendant bears the burden of establishing a prejudicial variance.”). “[T]o show actual
prejudice stemming from a multiple conspiracy variance,” Volious “must prove that there
[were] so many defendants and so many separate conspiracies before the jury that the jury
was likely to transfer evidence from one conspiracy to a defendant involved in an unrelated
conspiracy.” Id. (cleaned up).
Volious argues that the number of defendants on trial (four) and conspiracies at play
(two) indicate that the jury likely transferred evidence of Young’s complicity in both
conspiracies to Volious. We disagree.
We’ve previously determined that potential variances in cases similar to, and even
more complex than, this one didn’t result in actual prejudice because they presented no risk
of jury confusion. See, e.g., United States v. Kennedy, 32 F.3d at 883 (no prejudice in case
with eight defendants and three conspiracies); United States v. Squillacote, 221 F.3d 542,
575 (4th Cir. 2000) (finding no prejudice in a case with “a small number of conspirators
17 engaged in a limited number of illegal activities”). Indeed, even the cases that Volious
cites suggest that any variance in this case wasn’t prejudicial. 5
Moreover, this case presents no unusually complex facts that might confuse a jury,
or cause it to misunderstand the necessary facts, and then transfer evidence of guilt from
one defendant to another. To the contrary, both potential conspiracies in this case are
relatively simple and easy to understand. See Squillacote, 221 F.3d at 575 (no risk of jury
confusion in part because the “case was relatively straightforward”). Since Volious hasn’t
demonstrated actual prejudice, any variance wasn’t fatal and thus isn’t cause for reversal.
D.
Volious next argues that the district court erred by failing to instruct the jury that it
could determine that multiple conspiracies took place. Again, we disagree. We review a
“district court’s denial of a proposed jury instruction for abuse of discretion.” Cannady,
924 F.3d at 101.
Courts need not give multiple conspiracy instructions “unless the proof at trial
demonstrates that appellants were involved only in separate conspiracies unrelated to the
overall conspiracy charged in the indictment.” Id. Even in such cases, a court’s failure to
give a multiple conspiracy instruction is reversible only when “the evidence of multiple
5 Compare Berger v. United States, 295 U.S. 78 (1935) (variance non-prejudicial in case with two conspiracies involving four defendants), United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986) (variance non-prejudicial in case with two possible conspiracies involving 11 defendants), and United States v. Jones, 880 F.2d 55 (8th Cir. 1989) (variance non-prejudicial in case with five defendants and two conspiracies), with Kotteakos v. United States, 328 U.S. 750 (1946) (variance prejudicial in case with eight or more conspiracies involving 19 defendants).
18 conspiracies [was] so strong in relation to that of a single conspiracy that the jury probably
would have acquitted on the conspiracy count had it been given a cautionary multiple-
conspiracy instruction.” Bartko, 728 F.3d at 344 (cleaned up).
Even if the evidence at trial showed that two conspiracies existed, there’s no reason
to believe that the jury would have acquitted Volious of the conspiracy count if the district
court had given a multiple-conspiracy instruction. As charged, the indictment lists four
objectives to the conspiracy: three relating to the bomb plot and one for “Distributing
Controlled Substances.” J.A. 89–90. Since Volious doesn’t contest that he knowingly
participated in Young’s drug-dealing operation, a reasonable jury could have convicted
him of the conspiracy count for that conduct, regardless of whether a separate conspiracy
was afoot.
And even if the jury had been instructed that they could consider the drug conspiracy
and bomb plots as separate conspiracies, it could have reasonably convicted Volious for
participating in the bomb conspiracy. Some trial evidence indicated that Volious knew
only about the drug ring (and not the bomb plot), but other evidence suggested that Volious
delivered the shipping label to Fears with knowledge that Fears would use it to mail a
dangerous package to Young’s ex-wife. Since the jury could reasonably resolve that
factual conflict in the government’s favor, we conclude that the evidence in Volious’s favor
is not so strong that the jury likely would have acquitted him if the court had given his
proposed multiple-conspiracy instruction. The court therefore didn’t abuse its discretion
in declining to give the instruction.
19 E.
Volious’s final argument is that the district court erred by denying his pre-trial
motion to sever his trial from Young’s. In reviewing a district court’s ruling on a motion
to sever a criminal trial, we must first “determine if the initial joinder of the offenses and
defendants was proper under Fed. R. Crim. P. 8(a) and 8(b) respectively.” Cannady, 924
F.3d at 102. If so, “we must then determine if the district court abused its discretion under
Fed. R. Crim. P. 14 in denying [the] pre-trial motion[] to sever.” Id.
Federal Rule of Criminal Procedure 8(a) doesn’t apply here because it pertains to
joining offenses, rather than defendants. Rule 8(b) states that:
The indictment or information may charge [two] or more defendants if they 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed. R. Crim. P. 8(b); see also Cannady, 924 F.3d at 102 (“Rule 8 permits very broad
joinder at the pleading stage.”) (cleaned up).
The indictment alleges that Volious and Young were involved in both the drug
conspiracy and the mail bomb plot. Even assuming arguendo that Volious wasn’t involved
in the bomb plot, he still would have been a part of the same “series of transactions” that
generated the indictment. And while Volious argues that the government misjoined him
because he wasn’t involved in Young’s previous attempt on his ex-wife’s life, that
attempted murder isn’t at issue here. This prosecution concerned the events that took place
20 after Young was tried and convicted for that crime. We therefore have no reason to believe
that Volious and Young’s initial joinder was improper.
If two defendants are properly indicted together, courts “generally adhere to the
principle that defendants indicted together should be tried together, and a defendant must
show that he was prejudiced by the denial of a severance motion in order to establish that
the district court abused its broad discretion in that regard.” Cannady, 924 F.3d at 102
(cleaned up); see also United States v. Lawson, 677 F.3d 629, 639 (4th Cir. 2012) (joint
trials are “highly favored” in conspiracy cases). Demonstrating prejudice is a high hurdle.
It exists “only if there is a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.” United States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010) (quoting
Zafiro v. United States, 506 U.S. 534, 539 (1993)).
Volious identifies no specific trial right that the district court’s decision
compromised. Instead, he argues that he suffered prejudice because the government’s main
witness, Fears, wasn’t credible. But Volious cites no authority that permits a district court
to prejudge a trial witness’s credibility when determining whether to sever a defendant
from a joint trial. Volious also contends that joining the two trials “allowed the government
to greatly bolster Fear[s]’s conspiracy testimony and, consequently, substantially
strengthen [its] case both as to the conspiracy and substantive counts.” Appellants’ Br. at
33. But Volious was “not entitled to severance merely because he might have had a better
chance of acquittal in a separate trial.” Cannady, 924 F.3d at 103.
21 Here, Volious remained free to combat the government’s “bolstering” of Fears’s
testimony by cross-examining Fears at trial and introducing evidence that conflicted with
his account. He and Young indeed did so. And even if a joint trial created a more favorable
environment for Fears’s testimony, there’s no indication that it did so to the extent that the
jury was unable to render a reliable verdict. The district court therefore correctly denied
the motion to sever.
III.
For the reasons given, we affirm the district court’s judgment.
AFFIRMED