United States of America v.  Ronald Eric Marshall

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4488 
RONALD ERIC MARSHALL,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4490 
THOMAS ANTHONY TRIPLINE, JR.,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4688 
WILHELMINA ANDERSON,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4689 
JOHN DAVID ANDERSON, JR.,
Defendant-Appellant. 

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 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4694 
RACHELLE LANETT ANDERSON,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-00-33-L)
Argued: May 9, 2003
Decided: June 13, 2003
Before NIEMEYER and MOTZ, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed in part and remanded in part, with instructions, by published
opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and
Judge Goodwin joined.
COUNSEL
ARGUED: Jonathan Alan Gladstone, Annapolis, Maryland; Neil Ian
Jacobs, Rockville, Maryland, for Appellants. Martin Joseph Clarke,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: Arcangelo M. Tuminelli, Baltimore, Maryland, for
Appellant Marshall; Joseph J. Gigliotti, Crofton, Maryland, for
Appellant Tripline; Keith E. Golden, GOLDEN & MEIZLISH,
Columbus, Ohio, for Appellant Wilhelmina Anderson. Thomas M.
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DiBiagio, United States Attorney, Robert R. Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury found Ronald Eric Marshall, Thomas Anthony Tripline, Jr.,
Wilhelmina Anderson, John D. Anderson, and Rachelle Lanett
Anderson (collectively "Defendants") guilty of conspiracy to sell and
offer for sale drug paraphernalia and conspiracy to aid and abet the
distribution and possession with intent to distribute controlled sub-
stances. Ronald Marshall and John Anderson were also convicted of
related charges, including conspiracy to import drug paraphernalia
and participation in a continuing criminal enterprise ("CCE"). With
respect to Ronald Marshall and John Anderson, we remand with
instructions to vacate their conspiracy convictions because those con-
victions constitute predicate offenses for their CCE convictions. In all
other respects, we affirm.
I.
From 1993 to 2000, Defendants played various roles in operating
several stores in Baltimore, Maryland. Along with some ordinary con-
venience store goods, these stores sold chemical diluents, gelatin cap-
sules, glass vials, and similar items which customers purchased and
used to process and package controlled substances.
On January 27, 2000, a federal grand jury indicted Defendants and
nine other co-defendants in a multi-count indictment. After a trial that
exceeded twenty trial days, the jury convicted all Defendants on
Count One of the indictment, which charged conspiracy to:
(1) knowingly sell and offer for sale drug paraphernalia, in violation
of the drug paraphernalia statute, see 21 U.S.C.A. § 863(a)(1) (West
1999); and (2) knowingly aid and abet the distribution and possession
with intent to distribute a controlled substance, in violation of con-
spiracy and drug laws, see 18 U.S.C.A. § 2 (West 2000); 21 U.S.C.A.
§§ 841(a)(1), 846 (West 1999). Ronald Marshall and John Anderson
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were also convicted of: (1) conspiracy to import drug paraphernalia,
to wit, mannitol, in violation of 21 U.S.C.A. §§ 863(a)(3), 846; (2)
multiple counts of importing drug paraphernalia, to wit, mannitol, in
violation of 21 U.S.C.A. § 863(a)(3); (3) engaging in a CCE, in viola-
tion of the CCE statute, see 21 U.S.C.A. § 848(a) (West 1999); (4)
multiple counts of selling drug paraphernalia, to wit, mannitol, in vio-
lation of 21 U.S.C.A. § 863(a)(1); and (5) conspiracy to transport,
transmit and transfer and attempt to transport, transmit, and transfer
a monetary instrument with the intent to promote unlawful activity,
in violation of the money laundering statute, see 18 U.S.C.A.
§ 1956(a)(2)(A) (West 2000).1
The Government’s evidence at trial consisted of testimony by six
of Defendants’ indicted co-defendants, four expert witnesses, and an
FBI agent who had posed as a wholesale broker of drug paraphernalia
for approximately one year. The Government also introduced physical
evidence seized from drug dealers who were followed back to "cut
houses" after they had purchased products at Defendants’ stores.
Taken in the best light for the Government, this evidence established
that, over a period of several years, Defendants and others sold thou-
sands of dollars of drug paraphernalia from retail stores in Baltimore,
Maryland.
The district court sentenced Ronald Marshall and John Anderson
to 240 months for engaging in a CCE, and imposed lesser, concurrent
sentences for their other convictions. The court sentenced Thomas
Tripline to 151 months for conspiracy to aid and abet distribution of
controlled substances and 27 months for conspiracy to sell drug para-
phernalia, with the sentences to be served concurrently. Wilhelmina
and Rachelle Anderson were each sentenced to 120 months for con-
spiracy to aid and abet distribution of controlled substances and 24
months for conspiracy to sell drug paraphernalia, with the sentences
to be served concurrently.
On appeal, Defendants challenge their convictions and sentences
on numerous grounds. Only four of these merit discussion.
1John Anderson was also indicted on two additional counts for which
the jury acquitted him.
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II.
Defendants’ most significant contention centers on the fact that
they were convicted of selling and importing not illegal controlled
substances, but rather mannitol, a chemical diluent that can be used
to "cut" heroin. Defendants make three arguments relating to this
issue. First, they argue that the district court erred in refusing to
instruct the jury that mannitol is not "drug paraphernalia" within the
meaning of 21 U.S.C.A. § 863. Second, they maintain that an inter-
pretation of § 863 that would permit the inclusion of mannitol and
other diluents in the definition of drug paraphernalia would render the
statute void for vagueness. Third, Defendants contend that the district
court abused its discretion in not instructing the jury as to the specific
statutory examples of items "primarily intended or designed for use
in . . . ingesting, inhaling, or otherwise introducing" a controlled sub-
stance. See id. We consider each of these arguments in turn.
A.
Title 21, Section 863(a) of the United States Code makes it unlaw-
ful for any person, "(1) to sell or offer for sale drug paraphernalia; . . .
or (3) to import or export drug paraphernalia." The statute defines
"drug paraphernalia" as:
any equipment, product, or material of any kind which is
primarily intended or designed for use in manufacturing,
compounding, converting, concealing, producing, process-
ing, preparing, injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance,
possession of which is unlawful under this subchapter. It
includes items primarily intended or designed for use in
ingesting, inhaling, or otherwise introducing marijuana,
cocaine, hashish, hashish oil, PCP, methamphetamine, or
amphetamines into the human body, such as —
(1) metal, wooden, acrylic, glass, stone, plastic, or
ceramic pipes with or without screens, permanent screens,
hashish heads, or punctured metal bowls;
(2) water pipes;
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(3) carburetion tubes and devices;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning
material, such as a marihuana cigarette, that has become too
small or too short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth
cubic centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.
21 U.S.C.A. § 863(d) (emphasis added).
Section 863(e) further provides that,
In determining whether an item constitutes drug parapherna-
lia, in addition to all other logically relevant factors, the fol-
lowing may be considered:
(1) instructions, oral or written, provided with the item
concerning its use;
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(2) descriptive materials accompanying the item which
explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item,
is a legitimate supplier of like or related items to the com-
munity, such as a licensed distributor or dealer of tobacco
products;
(6) direct or circumstantial evidence of the ratio of sales
of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the
item in the community; and
(8) expert testimony concerning its use.
21 U.S.C.A. § 863(e). Finally, § 863(f)(2) exempts, inter alia, "any
item that, in the normal lawful course of business, is imported,
exported, transported, or sold through the mail or by any other means,
and traditionally intended for use with tobacco products, including
any pipe, paper, or accessory."
Defendants concede that "[t]he general definitional section [of
§ 863] contains a list of gerunds which supports the conclusion that
diluents are covered by the act." Brief of Appellants at 19. They
maintain, however, that the Government failed to show that the man-
nitol they imported and sold was "primarily intended . . . for use" in
connection with unlawful controlled substances, as required by
§ 863(d).
The Supreme Court has held that the phrase "primarily intended . . .
for use" in the statutory predecessor of § 863(d) states an objective
standard referring "generally to an item’s likely use." Posters N’
Things, Ltd. v. United States, 511 U.S. 513, 521 (1994).2 The Court
2Congress repealed the drug paraphernalia statute at issue in Posters,
21 U.S.C. § 857, and replaced it with 21 U.S.C. § 863. See Crime Con-
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noted that the "objective" nature of the definition of "primarily
intended" reached "beyond the category of items that are likely to be
used with drugs by virtue of their objective features," id. at 521 n.11,
and included, under certain circumstances, mixed-use items. Manni-
tol, of course, is such a mixed-use item. "Thus, while scales or razor
blades as a general class may not be designed specifically for use with
drugs, a subset of those items in a particular store may be ‘primarily
intended’ for use with drugs by virtue of the circumstances of their
display and sale." Id.
The evidence in this case clearly demonstrates that the mannitol
sold by the Defendants was "‘primarily intended’ for use with drugs
by virtue of the circumstances of [its] display and sale." Id. The Gov-
ernment offered evidence that Defendants chose the location of their
stores based on proximity to drug "strips;" gave discounts on diluents
purchased in the proportions necessary for diluting, or "cutting," pure
heroin down to a form that can be safely used; and selected inventory
based on the needs of drug dealers and users.
Further, the Government produced evidence that Defendants sold
chemical diluents used for cutting drugs in separate stores from drug
packaging products to avoid police scrutiny; gave customers eye
droppers to "fake out" police; and kept items like mannitol and glass
vials hidden under counters or in back rooms, rather than displaying
them openly with legitimate goods, like clothes or potato chips. The
proceeds realized from the sale of items with only legitimate uses
were negligible in comparison to the proceeds from the sale of chemi-
cal diluents, vials, or other items with drug-related uses. Numerous
witnesses testified that Defendants knew that their primary customers
were drug dealers, and store employees openly discussed the use of
their products in connection with cutting drugs.
The Government also established through expert testimony that
mannitol was one of the most common diluents used to cut heroin;
that many of the other chemicals sold by Defendants are also common
trol Act of 1990, Pub. L. 101-647, § 2401, 104 Stat. 4858. In all respects
relevant to this case, the two statutes are identical. See Posters, 511 U.S.
at 516 n.5.
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diluents used to cut controlled substances; and that many of the other
items in the Defendants’ stores — e.g. scales, grinding kits, strainers,
latex gloves, razors, and breathing masks — were also commonly
used to cut drugs. Experts also testified that there was no legitimate
pharmacological or food-related use for mannitol in the form
imported and sold by Defendants, and an FBI agent testified that he
had only come across mannitol in the context of drug trafficking.
Thus, in light of the factors courts may consider to determine
whether an item constitutes drug paraphernalia, see 21 U.S.C.A.
§ 863(e), and the circumstances of this case, it is clear that the district
court did not err in rejecting Defendants’ request to instruct the jury
that mannitol did not constitute "drug paraphernalia."3
B.
Defendants’ second argument, that § 863 is void for vagueness if
mannitol can properly be considered "drug paraphernalia," also falls
short. In Posters, the Supreme Court addressed a similar argument
and concluded that the statutory predecesor of § 863 did not fail
because of vagueness. Posters, 511 U.S. at 525-6. Although the Court
recognized that "application [of a statutory prohibition] to multiple-
use items — such as scales, razor blades, and mirrors — may raise
more serious concerns" than application of the prohibition to items
that have no use unconnected with drugs, it concluded that the statute
was not unconstitutionally vague as applied in that case because
"[p]etitioners operated a full-scale ‘head shop,’ a business devoted
substantially to the sale of products that clearly constituted drug para-
phernalia." Id. at 526.
Defendants seek to distinguish Posters on the ground that while
both cases involved the sale of mannitol, the defendants in Posters
3Because we find the statute unambiguous on its face, we need not
address Defendants’ argument with respect to § 863’s legislative history.
See Faircloth v. Lundy Packing Co., 91 F.3d 648, 653 (4th Cir. 1996)
("If the statutory language is clear and unambiguous, our inquiry ends
there as well; we neither resort to an examination of the statute’s legisla-
tive history nor apply the traditional rules of statutory construction."
(citations omitted)).
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also sold items explicitly listed in the "drug paraphernalia" statute.
See Posters, 511 U.S. at 515 (noting seizure of bongs and roach clips
in addition to mannitol). However, the mere fact that Defendants did
not also sell items explicitly delineated in the statute as drug para-
phernalia does not detract from the overwhelming evidence that they,
like the defendants in Posters, operated "a business devoted substan-
tially to the sale of products that clearly constituted drug parapherna-
lia." Id. at 526. Accordingly, the logic of Posters applies here,
mandating a holding that § 863, like its statutory predecessor, is not
unconstitutionally vague as applied to egregious facts such as those
present in this case.
C.
Finally, Defendants assert that the district court abused its discre-
tion in refusing to include in its instructions to the jury the list of
examples included in the statutory definition of "drug paraphernalia,"
like water pipes and carburetion tubes. See 21 U.S.C.A. §§ 863(d)(1)-
(15); United States v. Helem, 186 F.3d 449, 454 (4th Cir. 1999) (not-
ing that decision to give jury instruction is reviewed for abuse of dis-
cretion).
As is clear from the statute, the list Defendants contend the district
court should have read to the jury is simply illustrative, and illustra-
tive only of examples of the general category, "items primarily
intended or designed for use in ingesting, inhaling, or otherwise intro-
ducing," illegal drugs. 21 U.S.C.A. § 863(d) (emphasis added). The
statutory definition of "drug paraphernalia" also specifically includes
the general category, "items primarily intended or designed for use in
manufacturing, compounding, converting, concealing, producing,
processing, preparing, [or] injecting," illegal drugs. Id. (emphasis
added). In this case, mannitol more closely fits the kind of "drug para-
phernalia" that is "primarily intended . . . for use in . . . producing,
processing, [or] preparing," heroin, than an "item primarily intended
or designed for use in ingesting, inhaling, or otherwise introducing"
heroin. See id.
For this reason, an instruction to the jury that included examples
of items "primarily intended or designed for use in ingesting, inhal-
ing, or otherwise introducing" controlled substances, might well have
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been more confusing than helpful. Certainly, the district court did not
abuse its discretion in refusing to give the requested instruction.
III.
Defendants also argue that because the United States Customs Ser-
vice approved their application to import mannitol, the doctrine of
entrapment-by-estoppel prohibits their prosecution for importation
and sale of mannitol.
"A criminal defendant may assert an entrapment-by-estoppel
defense when the government affirmatively assures him that certain
conduct is lawful, the defendant thereafter engages in the conduct in
reasonable reliance on those assurances, and a criminal prosecution
based upon the conduct ensues." United States v. Aquino-Chacon, 109
F.3d 936, 938-9 (4th Cir. 1997) (citing Raley v. Ohio, 360 U.S. 423,
438-9 (1959)). To assert the defense, a defendant "must demonstrate
that there was ‘active misleading’ in the sense that the government
actually told him that the proscribed conduct was permissible." Id. at
939 (citations omitted).
Defendants rest their entrapment-by-estoppel argument on the fact
that Ronald Marshall filed a form with the United States Customs
Service disclosing his intention to import mannitol. Defendants con-
tend that by failing to prohibit the importation of mannitol, the Cus-
toms Service thereby gave tacit assurances that Ronald Marshall’s
conduct was legal.
This argument has no merit. The Customs Service’s failure to
notify Defendants that the importation of mannitol is illegal if the
mannitol is used as drug paraphernalia simply does not amount to "ac-
tive misleading," as required for an entrapment-by-estoppel defense.
See Aquino-Chacon, 109 F.3d at 939.
IV.
In addition, Defendants contend that Count One of the indictment
is duplicitous because it includes allegations of two crimes in a single
count. Count One of the indictment charges that Defendants did
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knowingly, intentionally, and unlawfully combine, conspire,
confederate and agree with each other . . . to knowingly,
intentionally, and unlawfully commit offenses against the
United States, to wit: (1) knowingly to sell and offer for sale
drug paraphernalia in violation of [21 U.S.C. § 863(a)(1)]
and (2) knowingly to aid and abet the distribution and the
possession with intent to distribute [controlled substances].
The Supreme Court has expressly rejected the contention that such
a count, containing allegations of a single conspiracy to commit two
or more separate crimes, is duplicitous. The Court reasoned, "[t]he
allegation in a single count of conspiracy to commit several crimes is
not duplicitous, for the conspiracy is the crime, and that is one, how-
ever diverse its objects." Braverman v. United States, 317 U.S. 49, 54
(1942) (internal quotation marks and citation omitted).
Furthermore, multiple sentences may be imposed for a single con-
spiracy if the conspiracy violated two separate statutory offenses and
each provision satisfies the Blockburger test of requiring proof of a
fact that the other does not. Albernaz v. United States, 450 U.S. 333,
338-40 (1981) (citing Blockburger v. United States, 284 U.S. 299,
304 (1934)).
In this case, the two statutory provisions in Count One clearly sat-
isfy the Blockburger test and Defendants do not seriously contend
otherwise. On one hand, a defendant can sell drug paraphernalia with-
out aiding and abetting the distribution and possession with intent to
distribute illegal drugs; on the other hand, a defendant can distribute
and possess with intent to distribute illegal drugs without selling,
mailing, importing, or exporting drug paraphernalia.4 Therefore the
4The fact that Defendants’ convictions for aiding and abetting in this
case were based on the same conduct as Defendants’ convictions for sell-
ing drug paraphernalia does not violate the Double Jeopardy Clause. See
United States v. Dixon, 509 U.S. 688, 704 (1993) (rejecting "same-
conduct" rule and overruling Grady v. Corbin, 495 U.S. 508 (1990));
United States v. Hatchett, 245 F.3d 625, 630-42 (7th Cir. 2001) (conclud-
ing that two offenses were distinct even though under circumstances of
particular case, proof of one offense required proof of same conduct
required to prove second offense).
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district court did not err in sentencing Defendants for both conspiracy
to sell and import drug paraphernalia and conspiracy to aid and abet
the distribution and possession with intent to distribute illegal drugs.
V.
Finally, Ronald Marshall and John Anderson contend, and the
Government agrees, that the district court erred in allowing both their
conspiracy and CCE convictions to stand and for sentencing them for
both crimes. We too agree. "A defendant convicted under 21 U.S.C.
§ 848 (CCE) cannot, in addition, be convicted for any predicate con-
spiracy charges proved as elements of the § 848 offense." See United
States v. Wilson, 135 F.3d 291, 303 (4th Cir. 1998) (citing Rutledge
v. United States, 517 U.S. 292 (1996)). Accordingly, we must remand
to the district court with instructions to vacate Ronald Marshall’s and
John Anderson’s conspiracy convictions. See id. at 303-4.5
5The remaining issues raised by Defendants require only cursory atten-
tion. The district court did not abuse its discretion in admitting video-
taped footage under a "silent witness" theory, see 2 John W. Strong et
al., McCormick on Evidence § 214 (5th ed. 1999), because the Govern-
ment introduced sufficient evidence establishing the reliability of the
footage. Nor did the court abuse its discretion in refusing to admit into
evidence the statement of facts from a witness’s plea agreement when the
probative value of the proferred evidence was minimal. See United States
v. Young, 248 F.3d 260, 268-9 (4th Cir. 2001). Additionally, none of
Defendants’ sentences violated the Supreme Court’s holding in Apprendi
v. New Jersey, 530 U.S. 466 (2000), because none of Defendants were
sentenced above the statutory maximum for the crimes for which they
were indicted and convicted. Moreover, the district court did not err in
failing to require a special verdict on all elements of the CCE count. See
United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993) ("[A] defen-
dant has no right to a verdict on the elements of an offense." (citation
omitted)); United States v. Ellis, 168 F.3d 558, 562 (1st Cir. 1999) (hold-
ing special verdicts are not required in criminal cases). Finally, we have
carefully reviewed the record and conclude that the Government pro-
duced sufficient evidence for a reasonable jury to conclude beyond a rea-
sonable doubt that Tripline was a member of the charged conspiracy and
that sufficient evidence supported (1) the district court’s calculation as to
attributable drug quantities, and (2) its factual findings as to the aggra-
vated roles of some of Defendants.
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VI.
In sum, we remand to the district court to vacate the conspiracy
convictions of Ronald Eric Marshall and John D. Anderson; we
affirm their remaining convictions. We also affirm the convictions of
Wilhelmina Anderson, Rachelle Anderson, and Thomas Anthony Tri-
pline.
AFFIRMED IN PART AND REMANDED IN PART
WITH INSTRUCTIONS
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