United States of America v. Willie James Rhynes, a/k/a Big Will

By order filed February 3, 2000:
In Nos. 97-4466(L), rehearing en banc on the witness
exclusion issue of Michael Rhynes is granted.
Parts IV and XVI (only insofar as Part XVI relates
to Part IV) of the published majority opinion
filed 10/26/99 are vacated, with the balance of
the majority opinion to remain in full force and
effect.

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Filed: November 8, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 97-4465(L)
(CR-96-6-V)
United States of America,
Plaintiff - Appellee,
versus
Willie James Rhynes, etc., et al,
Defendants - Appellants.
O R D E R
The court amends its opinion filed October 26, 1999, as
follows:
In volume I, page 3, section 4, lines 11-12 -- the counsel
listing is corrected to add “Mark P. Foster, Jr., Charlotte, North
Carolina, for Appellant Gormley.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4465
WILLIE JAMES RHYNES, a/k/a Big Will,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4466
MICHAEL SEVANE RHYNES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4467
THEODORE ADAMS, a/k/a Cripple
Thado,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4468
PURVIS H. GORMLEY, a/k/a Lightbread,
Defendant-Appellant.

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4469
JOHN WAYNE WHITE, a/k/a Whitey,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4470
LESTER MCCOY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4602
ALEXANDER ADAMS, a/k/a Fats,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4640
MICHAEL SEVANE RHYNES,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-96-6-V)
2

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Argued: December 4, 1998
Decided: October 26, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and WILLIAMS, United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed in part, judgment withheld in part by published opinion.
Judge Williams wrote the opinion, in which Chief Judge Wilkinson
joined. Judge King wrote an opinion concurring in part and dissenting
in part.
_________________________________________________________________
COUNSEL
ARGUED: Noell Peter Tin, FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina;
Claire J. Rauscher, Charlotte, North Carolina; Michael Smith Sco-
field, Charlotte, North Carolina; Gregory Bruce Park, LANGE &
PARK, Charlotte, North Carolina; John Keating Wiles, CHESHIRE
& PARKER, Raleigh, North Carolina, for Appellants. Gretchen C.F.
Shappert, Robert Jack Higdon, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Joseph B. Cheshire, IV, CHESHIRE & PARKER, Charlotte,
North Carolina, for Appellant Willie Rhynes; Barry M. Storick, Char-
lotte, North Carolina, for Appellant White; Mark P. Foster, Jr.,
Charlotte, North Carolina, for Appellant Gormley.
_________________________________________________________________
OPINION
WILLIAMS, District Judge:
Appellants Willie James Rhynes ("W. Rhynes"), his son Michael
Sevane Rhynes ("M. Rhynes"), Theodore Adams ("T. Adams"), Pur-
vis H. Gormley ("Gormley"), John Wayne White ("White"), Lester
McCoy ("McCoy"), and Alexander Adams ("A. Adams") appeal their
3

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convictions. Appellants in this case raise numerous issues, which will
be addressed in turn. For the reasons that will follow, we affirm the
judgments of the district court, except that we withhold judgment for
thirty days on the convictions of W. Rhynes, A. Adams, and T.
Adams on Count I, as more fully explained below.
I.
Defendants were accused of being members of a large scale drug
conspiracy, which had begun in Charlotte, North Carolina, and had
existed over twenty-five years. W. Rhynes was accused of being the
leader of the conspiracy. Defendants were charged with conspiracy to
possess with intent to distribute cocaine, cocaine base, heroin, and
marijuana in violation of 21 U.S.C. § 846. W. Rhynes was also
charged with possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1). T. Adams, W. Rhynes, M. Rhynes, and
Gormley were also charged with conspiracy to commit money laun-
dering in violation of 18 U.S.C. §§ 371 and 1956(h).
Prior to trial, W. Rhynes moved to suppress evidence seized from
his residence and businesses, arguing that the search warrants upon
which the items were seized contained stale information. United
States Magistrate Judge Carl Horn denied that motion, and the district
court adopted that decision.
During the three-week trial in the United States District Court for
the Western District of North Carolina at Charlotte, the United States
of America ("Government") presented over twenty witnesses who
were alleged to be conspirators or participants in the drug trade of
defendants. The Government also presented eight law enforcement
officers, large quantities of drug paraphernalia, and a package con-
taining heroin and cocaine. This package, which was seized from the
United States Express Mail Service, bore the label of S&S Food Mart,
but had the address of, and was delivered to, the Clifford Place Big
Apple Store.
Defendants also called numerous witnesses. One of the witnesses
for defendant M. Rhynes was Corwin Alexander ("Alexander"). Dur-
ing the course of Alexander's testimony, it became clear that he had
been informed of previous testimony in the case. Counsel for defen-
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dant M. Rhynes admitted that he had questioned Alexander about
some of the prior testimony in order to determine whether he would
exercise his rights under the Fifth Amendment to the United States
Constitution if he took the stand. The district court ruled that its
sequestration order had been violated, and struck Alexander's testi-
mony.
At the end of the trial, the jury deliberated for two days and found
all of the defendants guilty of the conspiracy to traffic in controlled
substances. T. Adams was convicted of conspiracy to commit money
laundering, while W. Rhynes, M. Rhynes, and Gormley were acquit-
ted of that charge. Forfeiture judgments in the amount of $1,000,000
were returned against M. Rhynes and W. Rhynes following the guilt
phase of the trial pursuant to 21 U.S.C. §§ 853 and 982.
Defendants all filed motions for judgments of acquittal and for new
trials. While these motions for new trials were still pending, the Gov-
ernment learned that one of its witnesses might have gained informa-
tion about the trial during the trial in violation of the sequestration
order. The Government contacted the trial judge, Judge Charles H.
Haden II, and briefly discussed the problem with him. Defense coun-
sel were not privy to this conversation. Six days after the Government
learned of the allegation, the Government sent a letter to the court and
defense counsel detailing the investigation that it had conducted into
the matter.
A hearing on the motions was held. Judge Haden recused himself
at this hearing because he had become a material witness. Chief Judge
Richard L. Voorhees assumed jurisdiction over the case. After an evi-
dentiary hearing, the district court found that the ex parte communica-
tion was not made at a critical stage of the proceedings, and that
defendants were not prejudiced by the conversation. Therefore, the
district court denied defendants' motions for new trials.
The district court gave all of defendants managerial role enhance-
ments when he sentenced them. W. Rhynes and T. Adams were sen-
tenced to life terms. M. Rhynes and A. Adams were sentenced to
terms of 360 months. Gormley and White were sentenced to terms of
292 months, and McCoy was sentenced to a term of 262 months.
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II.
Appellants first argue that the district court erred in denying their
motions for new trials based on the fact that the Government had a
brief ex parte communication with the district court concerning an
allegation that arose after trial that one of the Government's witnesses
might have violated the district court's sequestration order. We find
that the trial court was within its discretion in denying the motions for
new trials.
The allegation came to light nearly two weeks after the close of
trial, on October 25, 1996. On that date, Assistant United States
Attorney ("AUSA") Robert J. Hidgon ("Hidgon") received notifica-
tion that Carlos Adams ("C. Adams") had accused one of the trial wit-
nesses, later identified as Andy Stinson ("Stinson"), of violating the
court's sequestration order by paying a woman to observe and report
the daily activities of the trial. Joint Appendix at 2016. C. Adams also
alleged that other witnesses had structured their testimony to be con-
sistent with prior testimony. See J.A. at 2017.
Higdon contacted IRS Special Agent Floyd Mitchell ("Mitchell"),
who had been the lead investigator in this case, and directed him to
investigate the allegations. Id. On October 28, 1996, AUSA Hidgon
spoke over the telephone to Judge Haden, with AUSA Gretchen
Shappert ("Shappert") and Mitchell present in Hidgon's office. Hid-
gon advised Judge Haden of the situation. J.A. at 2017, 2363-65.
Mitchell conducted his investigation of the event, speaking to the
four individuals mentioned by C. Adams. These individuals, Gary
Cannon ("Cannon"), Stinson, Tim Perry ("Perry"), and Scott Latti-
more denied all of C. Adams' allegations. See J.A. at 2036-46. In a
letter dated October 31, 1996, AUSA Higdon detailed the results of
Special Agent Mitchell's interviews and included copies of Mitchell's
reports. See J.A. at 1967-70. Defense counsel learned about C.
Adams' allegations through this letter. Following the receipt of the
letter, many of appellants filed new motions for new trials. Judge
Haden recused himself pursuant to 28 U.S.C. § 455(b)(1) due to his
personal knowledge of evidentiary facts placed in dispute by the
appellants' motions.
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Judge Voorhees acquired jurisdiction over the trial. The district
court then held a two-day evidentiary hearing on the matter. Prior to
the hearing, Judge Haden testified via a telephone conference call. He
testified that the telephone call between him and the Government was
two to three minutes in duration. J.A. at 2364. He stated: "I don't
recall that we had any substantive conversation about any action that
the government would take after -- you know, after I was informed
of what the problem was, I just said let's -- you know, let's notify
the defense and we'll take it from there." J.A. at 2363.
At the evidentiary hearing, C. Adams testified that he had visited
with a police officer to discuss a unrelated matter on October 11,
1996. J.A. at 2411. He stated that Cannon asked him if he had been
talking to AUSA Shappert. According to C. Adams, when he said no,
Cannon walked away. Id. Later, he testified, Stinson approached him
and asked him the same question. C. Adams testified Stinson told him
he knew it was not Shappert because she was still in trial. J.A. at
2412. C. Adams asserted that he told Stinson that he had been
informed that the jury was deliberating. C. Adams testified that Stin-
son then stated that he paid a woman to sit in the courtroom and
report the daily events. Id. C. Adams contended that Stinson made a
call to confirm that the jury was deliberating.
C. Adams also testified that he saw Stinson whispering and talking
with others about the instant case. J.A. at 2426-29. He admitted, how-
ever, that he did not overhear these conversations, and that he did not
know specifically what had been discussed. J.A. at 2426-29, 2439.
Appellants tried to establish that C. Adams had been truthful in his
role as a confidential source for the police. J.A. at 2386-88, 2396-97,
2407-08. Appellants also tried to bolster his claims by producing visi-
tation records and phone records, which indicated that Stinson had
made a large number of calls to certain women. J.A. 2487-96, 2496-
01, 2517. Appellants also presented the testimony of their own private
investigator, who asserted that he had spoken to many of the women
who had been in contact with Stinson. See J.A. at 2512-22.
After the hearing, the district court denied the motions for new tri-
als. The district court found "that this brief post-trial conversation
between the Government and Judge Haden was not `a critical stage
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of the proceedings.'" Supplemental Appendix Vol. 1 ("S.A.1") at 8
(citing United States v. Cronic, 466 U.S. 648, 659 (1984)). The dis-
trict court also found that the alleged violation of the sequestration
order was not material, and any evidence of it would be merely cumu-
lative or impeaching evidence. S.A.1 at 12-13.
Appellants now argue that the ex parte communication between the
court and the prosecution about C. Adams' allegations deprived the
defense of timely notice of the violation of the Court's
sequestration order; any meaningful opportunity to contest
the government's decision to unilaterally investigate its own
witness' violation of the Court's order on behalf of the
Court; and any opportunity to participate or provide input
into the investigation of a sequestration order that the Court
deemed so important that it had previously removed defense
witness Corwin Alexander from the witness stand upon
finding an apparent violation.
Brief for Appellants at 13-14.
Appellants also argue that they were deprived of the assistance of
counsel at a "critical stage" of the proceedings in violation of the
Sixth Amendment to the Constitution of the United States. See
Cronic, 466 U.S. at 659 ("The presumption that counsel's assistance
is essential requires us to conclude that a trial is unfair if the accused
is denied counsel at a critical stage of his trial."). Appellants argue
that the district court erred by holding that the contact did not occur
during a critical stage of the proceedings. As motions for new trials
were pending during the time that the ex parte communication
occurred, they maintain that counsel for defendants should have been
present. See Williams v. Turpin, 87 F.3d 1204, 1210 (11th Cir. 1996);
Menefield v. Borg et al., 881 F.2d 696, 698-99 (9th Cir. 1989).
Appellants maintain that the ex parte communication also violated
their due process rights under the Fifth Amendment to the Constitu-
tion. Further, they claim that the fundamental fairness of the trial was
damaged, because the ex parte communication tarnished the appear-
ance of impartiality of the trial.
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Appellants rely primarily on three cases from the Sixth, Third, and
First Circuits, United States v. Minsky, 963 F.2d 870 (6th Cir. 1992),
Yohn v. Love et al., 76 F.3d 508 (3d Cir. 1996), and Haller v.
Robbins, 409 F. 2d 857 (1st Cir. 1969), respectively. In Minsky, Min-
sky moved for the disclosure of all prior statements of one of the two
key witnesses against him pursuant to the Jencks Act, 18 U.S.C.
§ 3500, during his trial. 963 F.2d at 872. After an in camera review
of the routine investigation forms ("FBI 302s"), the court held an ex
parte bench conference with the prosecutors to determine if the
defense had been made aware of the evidence contained therein which
could be used to attack the witness' credibility pursuant to the Jencks
Act and to Brady v. Maryland, 373 U.S. 83 (1963).
The Sixth Circuit found that this ex parte bench conference was a
ground for reversal. The court stated that:
The ex parte conference in the instant case occurred at a
time when the defense was arguing that the FBI 302s were
subject to disclosure under the Jencks Act and Brady. The
release of this material would have allowed the defense to
undermine the credibility of . . . a key government witness.
The government has proffered no explanation why the
defense was denied an opportunity to participate in a confer-
ence at such a critical stage of the proceedings. We refuse
to condone conduct that "undermines confidence in the
impartiality of the court."
Id. at 874 (citing United States v. Earley, 746 F.2d 412, 416 (8th Cir.
1984)). The Sixth Circuit held that the ex parte conference violated
Minsky's right to a fair trial and his rights under the Sixth Amend-
ment.
In Yohn, the judge in Yohn's criminal trial originally decided to
exclude a tape recording of a wiretap. 76 F.3d at 512. The prosecutor
contacted Pennsylvania Supreme Court Chief Justice Robert N.C.
Nix, who spoke with the trial judge. Id. at 513. Although the defense
counsel was present at that time, he did not participate in the conver-
sation because the judge and the prosecutor were on the two available
telephones. Id. at 514. After the conversation with the Chief Justice,
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the trial judge admitted the tape. Yohn was subsequently found guilty.
Id. at 515.
The Third Circuit found that this ex parte communication had
denied Yohn his right to assistance of counsel in a critical stage of the
proceedings. The court stated:
"`Critical stages' are those links in the prosecutorial chain
of events in which the potential for incrimination inheres or
at which the opportunity for effective defense must be
seized or foregone." The only way Yohn's counsel could
have effectively defended Yohn's position was to be able to
participate contemporaneously in the telephone conversation
with the Chief Justice.
Id. at 522 (citing United States ex rel. Reed v. Anderson, 461 F.2d
739, 742 (3d Cir. 1972)). The court also found that this violation was
not a harmless error.
In Haller, Haller filed a Petition for a Writ of Habeas Corpus, con-
tending that his constitutional rights had been violated when the pros-
ecutor in his case had an ex parte communication with the sentencing
judge after his guilty plea. 409 F.2d at 858. The prosecutor informed
the sentencing judge of a statement made by the victim concerning
Haller's behavior during the commission of the crime. Id. at 859. The
First Circuit found that this ex parte communication violated Haller's
due process rights. The court held that it was "improper for the prose-
cutor to convey information or to discuss any matter relating to the
merits of the case or sentence with the judge in the absence of coun-
sel." Id. The court further stated that"not only is it a gross breach of
the appearance of justice when defendant's principal adversary is
given private access to the ear of the court, it is a dangerous proce-
dure." Id.
Appellants maintain that the instant case is analogous to these three
cases in that they did not receive notice of the communication before
it occurred, they did not have the opportunity to be heard during the
ex parte communication, and the Government has not presented a jus-
tification of its decision to proceed ex parte instead of including
defense counsel in the conversation. Moreover, appellants contend
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that their investigation after notification could only be a "tardy rebut-
tal" as described by Haller. 409 F.2d at 859.
We find that the cases relied upon by appellants are distinguishable
from the instant case. Yohn and Minsky are distinguishable because
the ex parte communications in those cases occurred during trial and
had a direct effect on defendants' rights. Haller is also distinguishable
because, in that case, the ex parte communication concerned facts
about defendant's conduct and were made to the judge sentencing
defendant. The communications themselves, in these three cases,
went to the merits of the case being presented against those defen-
dants. The ex parte communication in the instant case, however, did
not concern the presentation of, or the admissibility of, evidence from
the Government's point of view during an ongoing trial. Nor was the
Government attempting to shape the sentence imposed by the district
judge in any fashion. Instead, the communication merely served to
give notice to the district court of a possibility of a violation of its
sequestration order.
Moreover, Yohn, Minsky, and Haller are distinguishable from the
instant case because in this case there was a remedy for any alleged
prejudice suffered by appellants due to the ex parte communication.
The trial judge recused himself, and appellants were able to investi-
gate the allegations. As a result, appellants called numerous witness
at the evidentiary trial, and produced phone records and visitation
logs to support the allegations. Moreover, appellants were able to
present the testimony of their own private investigator who actually
spoke to the women possibly involved. The brief conversation did not
hamper their ability to present evidence from their own independent
investigation.
It may have been better to have the defense counsel made aware
of the allegation at the same time that the district court was; however,
this was not a situation where the opportunity for effective defense
must have been seized or foregone. See Yohn, 76 F.3d at 522. As the
district court properly found, "Judge Haden's recusal from the case
cured any possible taint that could be inferred." S.A.1 at 8. Appellants
were given an opportunity to fully brief their arguments in front of a
judge who had had no ex parte contact with either side. Therefore, the
ex parte communication in the instant case did not occur at a critical
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stage of the proceedings, and the constitutional analysis employed by
appellants is not applicable.
Instead, the true question is whether the district court erred by
denying appellants' motions for new trials.
In determining whether a new trial should be granted under
Rule 33 of the Federal Rules of Criminal Procedure on the
basis of newly discovered evidence, this circuit utilizes a
five-part test: (i) is the evidence, in fact, newly discovered;
(ii) are facts alleged from which the court may infer due dil-
igence on the part of the movant; (iii) is the evidence relied
upon not merely cumulative or impeaching; (iv) is the evi-
dence material to the issues involved; and (v) would the evi-
dence probably result in acquittal at a new trial?
United States v. Chavis, 880 F.2d 788, 792 (4th Cir. 1989) (citing
United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987)). The dis-
trict court's decision to deny a motion for a new trial is reviewed for
an abuse of discretion. See United States v. Singh, 54 F.3d 1182, 1190
(4th Cir. 1995) (citation omitted).
Appellants generally must demonstrate that they can satisfy all five
of these elements. See id. ("Without ruling out the possibility that a
rare example might exist, we have never allowed a new trial unless
defendant can establish all five elements."). In the instant case, appel-
lants cannot establish element three. The evidence that Stinson might
have violated the sequestration order, if believed, would have been
cumulative or impeaching at best. A review of the entire record shows
that the defense thoroughly cross-examined the Government's wit-
nesses about the alleged collusion or collaboration with other wit-
nesses. The record also contains allegations on the part of the defense
that the testimony of the witnesses had been compromised because
they had been housed together, transported together, and held in the
same or adjacent cells immediately before or after testifying. Given
the weight of the evidence against appellants, and the fact that the
jury heard the allegations of witness collaboration, it is unlikely that
they would have been acquitted if the evidence of the alleged viola-
tion of the sequestration order had been presented.
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Further, this evidence would be primarily used to attack Stinson's
credibility as a witness. However, "[t]his circuit has emphasized that
new evidence going only to the credibility of a witness does not gen-
erally warrant the granting of a new trial." United States v. Custis, 988
F.2d 1355, 1358 (4th Cir. 1993) (citing United States v. Stockton, 788
F.2d 210, 220 (4th Cir. 1986)).
Finally, it is clear that the district court did not find the evidence
of a violation of the sequestration order to be believable enough to
warrant a new trial. The district court noted that appellants were "un-
able to point to an instance where any of these government witnesses
changed their testimony to comport with that of another government
witness." S.A.1 at 11. Further, the district court stated, "[a]s for the
testimony of C. Adams, the Court finds that although he appeared to
be a disinterested witness, his testimony was neither credible nor sig-
nificantly corroborated." Id. The district court was in the position to
assess the credibility of the witnesses that appeared before it. "In view
of its findings as to [C. Adams'] credibility, the district court did not
abuse its discretion in denying appellants' motion[s] for a new trial."
United States v. Dorlouis, 107 F.3d 248, 254 (4th Cir. 1997).
III.
Appellants next argue that there was insufficient evidence to con-
vict them of the conspiracy to possess with intent to distribute charge.
To sustain a jury's finding of guilt, we must look at the evidence in
the light most favorable to the Government. United States v. Rusher,
966 F.2d 868, 878 (4th Cir. 1992). When assessing the sufficiency of
the evidence of a criminal conviction on direct review, "[t]he verdict
of [the] jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). We must also "allow the gov-
ernment the benefit of all reasonable inferences from the facts proven
to those sought to be established." United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982).
As appellants were convicted of drug conspiracy in violation of 21
U.S.C. § 846, the Government had to prove beyond a reasonable
doubt that there was "(1) an agreement to possess with intent to dis-
tribute the controlled substance named in the indictment existed
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between two or more persons; (2) that each of defendants knew of the
conspiracy; and (3) that each defendant knowingly and voluntarily
became a part of the conspiracy." United States v. Burgos, 94 F.3d
849, 857 (4th Cir. 1996) (en banc).
A review of the record shows that the Government presented ample
evidence that appellants were involved in a large-scale drug distribu-
tion conspiracy, and had used several businesses to facilitate their ille-
gal drug distribution, including W. Rhynes' numerous Big Apple
Food Stores, M. Rhynes' Pizza Gallery and Hi-Energy Party Shop,
and A. Adams' Little Booker II convenience stores. The first witness
called by the Government, James Edward "Ned" Johnson
("Johnson"), testified that he operated three drug houses, and that W.
Rhynes had served as his supplier. See J.A. at 292-303. Johnson
claimed that he placed property in W. Rhynes' name to bolster W.
Rhynes' reputation, and that he invested in businesses recommended
by W. Rhynes, some of which were owned or operated by some of
the other appellants. See J.A. at 320-49. Johnson also testified that he
obtained cutting agents from W. Rhynes' Wilmore area store, which
was operated by Gormley. J.A. at 308. Johnson's claims were corrob-
orated by his former girlfriend, Gloria Jean Holloway. See J.A. at
488-91.
Theodore Howze ("Howze") testified that he and T. Adams distrib-
uted small amounts of cocaine together beginning in 1984. J.A. at
537, 541. He testified that their supplier was A. Adams, and that on
numerous occasions he had also obtained quantities of mannitol, a
cutting agent, from A. Adams' store. J.A. at 541, 545. He also testi-
fied that he had seen T. Adams distribute heroin. J.A. at 550-51. He
asserted that T. Adams told him that the supplier of the heroin was
W. Rhynes. J.A. at 552. Howze also testified to a single cocaine trans-
action between himself and W. Rhynes, and to numerous heroin trans-
actions between the two. J.A. at 556, 560-61. Howze further testified
that White had supplied him with quantities of heroin. J.A. at 555-
556. Howze also testified that he purchased mannitol and quinine,
another cutting agent, from McCoy at M. Rhynes' store, where
McCoy worked, and that he also once sold four ounces of cocaine to
McCoy. J.A. at 557-58.
The Government also called Thomas Douglas ("Douglas"), who
testified that he purchased drugs from T. Adams, and that T. Adams
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had told him that W. Rhynes was the supplier of the drugs. J.A. at
692, 694-95. He also testified that he purchased a cutting agent from
the store operated by Gormley. J.A. at 705-708. Douglas testified that
White sold him heroin, and that White would purchase heroin from
W. Rhynes for his own personal use and also to sell. J.A. 701-705.
Douglas also testified that on one occasion he purchased drugs from
Willie Marble ("Marble"), who he characterized as a "guy working
for" M. Rhynes. J.A. at 710-715.
Leroy Huntley, Jr. ("Huntley") testified that he obtained heroin
from W. Rhynes in the 1970s. J.A. at 818-20. He testified that in the
1980s, after W. Rhynes had opened his Big Apple Stores on States-
ville Avenue and Cliffwood Place, he purchased cutting agents from
W. Rhynes at both locations. J.A. at 823-24. He also testified that he
bought drugs from White two or three times a day from 1973 to about
1990. J.A. at 826. Huntley also testified that after Melvin Huntley
sold him some heroin that was of poor quality, he asked W. Rhynes
for a refund, because Melvin Huntley had told him that W. Rhynes
was the supplier of the drugs. J.A. at 833. He testified that W. Rhynes
gave him a refund for the drugs. Id. He also testified that T. Adams
sold him cocaine twice in the 1970s. J.A. at 835. Further, he testified
that he was present when T. Adams was robbed and warned the rob-
bers that he was going to tell W. Rhynes about the incident. J.A. at
838.
The Government called Shirley Ingram, Jr. ("Ingram"), who testi-
fied he traded heroin and marijuana in the mid-1970s with A. Adams
until they got into an argument. J.A. at 892-93. He testified that W.
Rhynes was often present when these transactions occurred. J.A. at
893. He testified that he sold stolen items to W. Rhynes and McCoy
in exchange for drugs. J.A. at 894-95, 899-900. He also testified that
T. Adams sold him heroin during the 1980s and 1990s. J.A. at 902-
04. Further, he stated that from the early 1970s until 1985, and then
in the early 1990s, he purchased heroin from White on a daily basis.
J.A. at 906-07. He asserted that the heroin he received from White
was packaged in the same manner as the heroin he received from W.
Rhynes. J.A. at 909.
Gary Cannon testified that he was a long-time user of heroin who
stole to support his habit. J.A. 921. He asserted that his first supplier
15

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of heroin, in the mid 1970's, was Melvin Huntley, who stored the
stolen merchandise in one of W. Rhynes' stores. J.A. at 922. He also
testified that Melvin Huntley had told him that W. Rhynes was his
supplier of heroin. J.A. at 923. Cannon further claimed that White had
also been a source for heroin between 1981 and 1990. J.A. at 924. He
contended that White had told him that W. Rhynes was his supplier
as well. J.A. at 937. Moreover, he asserted that he purchased bags for
cocaine and mannitol from one of W. Rhynes' stores. J.A. 929-31. He
claimed that he purchased the same type bag, along with other drug
paraphernalia, from McCoy at M. Rhynes' Party Shop. J.A. at 931-33.
Cannon also testified that in the 1980s he began purchasing cocaine
for personal use from T. Adams. J.A. at 934-35.
Ricky Rivers ("Rivers") testified that he developed a relationship
with W. Rhynes in which Rivers would bring in merchandise
obtained through credit card fraud, and W. Rhynes would pay him for
the merchandise. J.A. at 977-83. He stated that on the fourth transac-
tion, W. Rhynes showed him a plastic bag filled with cocaine base,
and told him that he could make more money selling the drug. J.A.
at 983. Further, River claimed that A. Adams and M. Rhynes were
present when W. Rhynes later showed him a briefcase filled with
drugs and money. J.A. at 986, 988-90.
Joe Richardson ("Richardson") testified that he had been a member
of two drug organizations, and that W. Rhynes, in their first deal,
bought one ounce of cocaine from his partners and himself, after
checking the purity of the product. J.A. at 1083-86. He asserted that
they had numerous transactions after that instance, but he was not W.
Rhynes' primary source of cocaine. J.A. at 1087-91. He further testi-
fied that he acted as the middleman between W. Rhynes and a source
named Jesse. J.A. at 1091. He claimed that W. Rhynes asked him to
look for a source for heroin as well. J.A. at 1094.
The Government also called Patricia Paige ("Paige"), who
described her long-term addiction to heroin. See J.A. at 1136-37. She
admitted that she had a personal friendship and a drug relationship
with T. Adams. J.A. at 1137. She testified that on three occasions she
accompanied T. Adams to one of W. Rhynes' stores to get heroin.
J.A. at 1138, 1141-44. She also testified that T. Adams told her that
W. Rhynes was his supplier. J.A. at 1143-44.
16

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Diane Corry ("Corry") and Michael Pendry both testified that
White sold them heroin in the mid to late 1970s until the 1990s. J.A.
at 1170, 1337-42. Corry asserted that White told her that he obtained
the drugs from W. Rhynes. J.A. at 1173. She also testified that
although she had never seen him distribute drugs, she had seen drugs
in T. Adams' house. J.A. at 1176.
The Government also called United States Postal Inspector Michael
Riddle ("Riddle"), who testified about a controlled delivery he made
of an Express Mail Package to the Cliffwood Place Big Apple store
on May 5, 1994. J.A. at 1229. He testified that the Postal Inspectors
were suspicious of a package addressed to the S&S Food Mart at
1600 Cliffwood Place, and thus had a narcotics dog sniff the package.
After the dog did not make its usual response to contraband, the offi-
cers decided to deliver the package dressed as mail carriers. J.A. at
1229-30. Riddle admitted that the name of the store at that address
was not S&S Food Mart as it was on the label. J.A. at 1231.
Riddle testified that he and another officer went into the store. Id.
He stated that he told the individual behind the counter that he had
a package, and that the individual signed for the package. Id. After-
wards, Riddle identified himself as a police officer and the individual
opened the package revealing the cocaine and heroin inside. J.A. at
1233, 1236-37.
Officer James Kolbay testified that after the controlled delivery of
the package, a consensual search of the Cliffwood store occurred,
which uncovered drug paraphernalia including rolling papers, scour-
ing pads, razor blades, plastic and glassine bags, glass stems, digital
scales, mannitol, and weapons. J.A. at 1253-71, 1274-76, 1292-1305.
Officer Charles H. Witherspoon, Jr. ("Witherspoon") testified that he
was standing outside of the store while it was being searched. J.A. at
1294. Witherspoon stated that Gormley drove up,"carrying a black
handgun . . . in a shooting position, pointing to his left side," and
approached the store. J.A. at 1295.
Witherspoon testified that he and the other investigators present
pulled their weapons, identified themselves as police officers, and
told Gormley to put the weapon down. Id. Gormley did so, retrieved
a black briefcase from his car, and then submitted to a pat down
17

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search. Id. During this search, Witherspoon testified, he took three
weapons from Gormley. J.A. at 1296. Witherspoon also testified that
he found "a small corner bag of cocaine residue" inside the briefcase.
J.A. at 1300. Advertisements for mannitol and numerous business
cards were in the briefcase as well. J.A. at 1302-04.
Officer John Collins ("Collins") testified about an incident that
occurred with defendant White on March 7, 1994, in which he seized
twenty-seven glassine bags of heroin from White. J.A. at 1310-15.
Collins also testified that he seized forty-four bags of heroin on Octo-
ber 25, 1994 from White. J.A. at 1315-30. Collins gave his opinion,
as an officer who had investigated over a thousand heroin cases, that
the forty-four bags of heroin seized were packaged for sale, not per-
sonal use. J.A. at 1319-22. On cross-examination, Collins admitted
that he did not see White selling the drugs to anyone. J.A. at 1323.
Officer James Michael Hart testified that on July 7, 1994, he had
seized drug paraphernalia and two weapons from Hi-Energy Party
Shop, a business originally owned by M. Rhynes that was later sold
to McCoy. S.A.1 at 190-220. He also testified as to the use of the dif-
ferent items of paraphernalia found in the store. S.A.1 at 190-220.
Andy Stinson testified as to his relationship with W. Rhynes, M.
Rhynes, and Lester McCoy. He contended that he began using W.
Rhynes as a supplier in 1989. J.A. at 1360. He also testified that he
had, on one occasion, provided two ounces of cocaine to W. Rhynes
on credit, and on approximately four occasions in 1989 and 1990, W.
Rhynes provided cocaine on credit to Stinson. See J.A. at 1363-65.
Further, Stinson claimed that he had purchased approximately two
and one-half kilograms of cocaine from M. Rhynes. J.A. at 1368.
Stinson also testified that he rented the store to W. Rhynes in which
M. Rhynes opened the Hi-Energy Party Shop, and that drug parapher-
nalia was sold from the store in the 1980. J.A. at 1369-70, 1372.
Marvin Marco Graham ("Graham") testified that he began working
in A. Adams' convenience store in 1986, cleaning, running the cash
register, ordering stock, and running errands. J.A. at 1486-87. He
asserted that one of these errands was to go to a store called Tape City
to pick up packages of cutting agents for A. Adams. J.A. at 1487. He
testified that he saw White and A. Adams processing heroin. J.A. at
18

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1489-90. Graham also testified that A. Adams told him that W.
Rhynes was his supplier of heroin. J.A. at 1491. He testified that he
would often accompany A. Adams to W. Rhynes' Statesville Avenue
Big Apple Store, where A. Adams and W. Rhynes would meet in W.
Rhynes' office. J.A. at 1491. Graham stated that A. Adams would
leave the office carrying a paper bag, which A. Adams would give to
him to hold while A. Adams' drove. J.A. at 1493. He testified that on
one occasion, A. Adams told him: "if the police stopped or got behind
us or anything, for me to jump our of the van and run with the bag
and whatever I did with it, don't throw it down." Id. Graham testified
that he began selling cocaine for A. Adams in 1989 or 1990. J.A. at
1494. He further testified that he witnessed a transaction between
Kent Wallace ("Wallace") and M. Rhynes at M. Rhynes' Pizza Gal-
lery. J.A. at 1504-1506. Graham also testified that he purchased drug
paraphernalia from McCoy at the Party Shop. J.A. at 1503-04.
Manning Sweat, III testified that he went to A. Adams' store on a
daily basis to purchase mannitol. Id. He stated that he began conduct-
ing drug transactions with A. Adams in 1990, supplying the latter
with cocaine. J.A. at 1595-97. He stated that he had a conversation
with A. Adams in which the latter told him that he needed to sell her-
oin instead of cocaine. J.A. at 1599. He stated that he never conducted
any heroin deals, and that he and A. Adams eventually stopped con-
ducting business after A. Adams did not pay him the full amount for
some of the cocaine that he supplied. J.A. at 1599-1600. He also testi-
fied that he bought drug paraphernalia from McCoy at the Party Shop.
J.A. at 1602.
Kenny Funderburk testified that he supplied powder cocaine to M.
Rhynes from 1988 until 1992. J.A. at 1626-31. He also testified that
M. Rhynes was also a supplier of cocaine to others. J.A. at 1631. He
stated that on one of their frequent trips to Washington, D.C., M.
Rhynes told him that there may possibly be a cheaper source of
cocaine for him. J.A. at 1632. Further, he testified that he had given
three kilograms of cocaine to M. Rhynes on credit, and when it was
time for him to pay, M. Rhynes paid for two but told him he could
not pay for the third until Stinson paid M. Rhynes. J.A. at 1633-34.
He testified that although he was eventually paid for this deal, M.
Rhynes later did not pay for another deal, claiming that he had been
19

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robbed. J.A. at 1634. He stated that he stopped doing business with
M. Rhynes because of this incident. J.A. 1634-35.
D.S. Davis, Jr. testified that he was a sometime user of drugs, who
sold drugs in Charlotte in 1987 or 1988. J.A. at 1692. He testified that
he twice approached Corwin Alexander, a friend of M. Rhynes, and
asked Alexander if he would talk to M. Rhynes about allowing him
to have some cocaine on credit. J.A. at 1696-99 He stated that he con-
tacted M. Rhynes directly, and they conducted four drug transactions.
J.A. at 1697-04. He also testified that he purchased bags and cutting
agents from M. Rhynes and McCoy at the Party Shop in late 1990 to
early 1991. J.A. at 1706-07.
Lester Norman, Jr. ("Norman") testified that M. Rhynes was one
of his suppliers of cocaine beginning in 1990 and continuing until his
arrest in 1992. J. A. 1735-38. He testified that he and M. Rhynes
never exchanged the drugs for the money at the same time because
"if something else was to happen, we wouldn't get caught with the
money and the drugs." J.A. at 1741. He also testified that he pur-
chased cutting agents from the Party Shop. J.A. at 1741.
Charles Ivey testified that he witnessed Norman and M. Rhynes
conducting drug transactions, after which he and Norman would then
sell the purchased drugs. J.A. at 1771-1773. He also testified that he
was present when Norman purchased cutting agent from M. Rhynes
and from McCoy at the Party Shop. J.A. at 1775-77. He further stated
that he was present when Tim Perry picked up cocaine from T.
Adams. J.A. at 1777-78.
The Government also called Timothy Perry, who testified that T.
Adams became his supplier of mostly powder cocaine and occasion-
ally crack cocaine in the late 1980s. J.A. at 1834-36. He further stated
that he purchased mannitol for T. Adams, and that T. Adams showed
him how to cut cocaine with the mannitol. J.A. at 1838-39. He stated
the he also purchased the cutting agent from W. Rhynes. J.A. at 1839.
He stated that he once saw T. Adams with heroin. J.A. at 1842-43.
Further, he testified that he purchased drug paraphernalia from M.
Rhynes' Pizza Gallery from McCoy in the early 1990s. J.A. at 1844-
45.
20

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Tyran Hicks ("Hicks") testified that he had purchased drug para-
phernalia from the Party Shop, although he did not know that M.
Rhynes "was affiliated with" it at first. J.A. at 1876. He stated that he
had been told that he resembled M. Rhynes, and that he met Rhynes
in 1991, after he opened a body and repair shop as a front for his own
drug activities. J.A. at 1875, 1877. He stated that M. Rhynes and his
friend Corwin, stopped by his shop, and that he discussed with M.
Rhynes "what [sic] was a good bondsman and a good lawyer." J.A.
at 1878. He also testified that on another occasion, he stopped by the
Party Store and discussed the drug trade, especially heroin, in the
Charlotte area. J.A. at 1879. Further, he contended that after he asked
M. Rhynes about cocaine, the latter gave him Wallace's phone num-
ber, and as a result Wallace and Hicks "made a small drug transac-
tion." J.A. at 1880. He stated that M. Rhynes often referred him to
Wallace. J.A. at 1886. He also testified that he once had a conversa-
tion with M. Rhynes and W. Rhynes, in which W. Rhynes told him
that he could make better money if he would dealing with W. Rhynes.
J.A. at 1884. He testified that he never did any deals with W. Rhynes,
and that W. Rhynes made a veiled threat against him because he was
"selling drugs in the complex in the back of [W. Rhynes'] store. . . ."
J.A. at 1885. He also testified that he bought drug paraphernalia from
McCoy at the Party Shop in 1993 and 1994. J.A. at 1887.
Finally, the Government called Michael Pahutski, who testified
about his connection to W. Rhynes, M. Rhynes, Gormley, and
McCoy. He testified that he had a bookkeeper-client relationship with
these defendants, preparing the books, profit and loss statements, pay-
roll ledgers, and the tax returns for their respective businesses. S.A.1
at 26-29. He testified that W. Rhynes, Gormley and McCoy requested
that he inflate the numbers so that their business would show a profit
and no suspicion would be raised by the Internal Revenue Service.
J.A. at 65-68. Pahutski also testified that he saw mannitol in the
numerous businesses, and that he had a conversation with McCoy
about other drug paraphernalia. S.A.1 at 68-70. He stated that he
started using and distributing cocaine in 1992 and was supplied by
McCoy. S.A.1 at 70-72. He also testified that he purchased drug para-
phernalia, such as a grinder and scales at the Party Shop from McCoy.
S.A.1 at 72-73. Further, Pahutski testified that he purchased cocaine
from Gormley, for almost a year. S.A.1 at 73-74.
21

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Appellants vigorously cross-examined the Government's witnesses
at trial, questioning their credibility and motives for testifying. None-
theless, the jury convicted defendants. Appellant M. Rhynes argues
that viewed in the light most favorable to the Government, the evi-
dence only shows that he engaged in buyer-seller transactions, and "if
[he was] conspiring at all, [he] was conspiring against a co-defendant
and not aiding the charged conspiracy." Brief for Appellants at 23.
Appellant Gormley argues that there was no evidence that he traf-
ficked in marijuana and crack cocaine, and little evidence, other than
Pahutski's testimony about Gormley's personal use of cocaine and the
controlled delivery, that connects him to cocaine and heroin. Appel-
lant White maintains that the evidence merely establishes that he was
a heavy drug user, who sold heroin to support that habit. Appellant
McCoy argues that the evidence only established that he had a legiti-
mate employer-employee relationship with the Rhynes, but did not
demonstrate that he was a member of a conspiracy. The other appel-
lants join in the argument that the Government did not establish that
they were members of a drug conspiracy beyond a reasonable doubt.
Appellants also rely upon a decision from the Tenth Circuit, United
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), which held that
witness testimony should be excluded where the witness is promised
anything of value in exchange for his or her testimony. This decision
has been subsequently rejected and vacated en banc. Furthermore, a
number of circuits have rejected Singleton's analysis. See e.g., United
States v. Haese, 162 F.3d 359 (5th Cir. 1998), cert. denied, 119 S.Ct.
1795 (1999); United States v. Ware, 161 F.3d 414 (6th Cir. 1998),
cert. denied, 119 S.Ct. 1348 (1999). There is no precedent from this
circuit to support appellants' position that we should not consider the
evidence of the Government's cooperating witnesses in making our
determination of whether there was sufficient evidence to convict
these defendants.
Circumstantial evidence, including a defendant's "relationship with
other members of the conspiracy, the length of this association, his
attitude, conduct, and the nature of the conspiracy," may be used to
prove the existence of and the participation in a conspiracy. United
States v. Brown, 856 F.2d 710, 711 (4th Cir. 1998). Further, "[t]o sus-
tain [a] conspiracy conviction, there need only be a showing that [the]
defendant knew of the conspiracy's purpose and some action indicat-
22

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ing his participation." United States v. Collazo, 732 F.2d 1200, 1205
(4th Cir. 1984). Viewed in the light most favorable to the Govern-
ment, there is substantial evidence in the record from which a reason-
able finder of fact could have determined that a drug conspiracy
existed. After there has been a showing that a conspiracy exists, only
a slight connection between defendant and the conspiracy need be
established in order to sustain the conviction. See United States v.
Seni, 662 F.2d 277, 285 n.7 (4th Cir. 1981). Drawing reasonable
inferences from the facts presented to it, such as the familial and busi-
ness relationships between defendants, the jury could find that defen-
dants were knowingly and voluntarily involved in that conspiracy.
Thus, we affirm the trial court's denial of appellants' motion for judg-
ment of acquittal based upon the insufficiency of the evidence.
IV.
Appellant M. Rhynes next argues that the district court abused its
discretion in striking the testimony of one of his witnesses, Corwin
Alexander. Alexander testified that he was M. Rhynes' best friend.
J.A. at 1945C. He spoke about M. Rhynes' involvement with W.
Rhynes' businesses. J.A. at 1945G-J. Further, he testified about his
knowledge of one of the Government's witnesses, D.S. Davis. He
stated that Davis asked him about obtaining some drugs, and he told
Davis that he was not involved with drugs at all. J.A. at 1945K. He
stated that Davis informed him that Davis was a drug dealer. Id. He
also testified about having a conversation with Davis about the
amount of time Davis was facing after he was arrested. J.A. at 1945L.
He stated that Davis told him that, even though he did not have any
incriminating evidence against M. Rhynes, the authorities wanted him
to implicate M. Rhynes, or he would face more time in prison. Id.
While discussing this conversation, Alexander made a statement that
indicated to the Government that he had heard about Davis' prior tes-
timony. See J.A. at 1945.
The Government promptly objected and asked to approach the
bench. At the bench conference, Michael Scofield, counsel for M.
Rhynes, told the district judge that he had discussed Davis' testimony
with Alexander. He stated, "I specifically told him about that testi-
mony and told him I was going to ask him about that, Your Honor.
And I don't think that violates the sequestration order." J.A. at
23

-- 25 of 71 --

1945M. The district court judge indicated that he believed that the
sequestration order had been violated. Counsel for M. Rhynes stated
that he discussed the testimony in order to prepare Alexander to tes-
tify, as Davis had accused Alexander of being a drug dealer as well.
Id. The Government moved to exclude the testimony of Alexander.
The district court judge stated that he found the conduct of M.
Rhynes' counsel to be unprofessional, and excused the witness. J.A.
at 1945M-N. The judge then told the jury to disregard the testimony
that had been offered by Alexander. The judge did not conduct a voir
dire examination of Alexander before excusing him.
After the afternoon recess, counsel for M. Rhynes requested
another bench conference. J.A. at 1945P. At this bench conference,
counsel made a proffer of the testimony that Alexander would have
given because the judge had indicated that he would not revisit his
decision to strike Alexander's testimony. Counsel for M. Rhynes
stated that Alexander would have testified that he never dealt drugs,
and that he knew Davis well enough to form the opinion that Davis
was untruthful. Id. Further, Alexander would have provided corrobo-
ration for M. Rhynes' testimony about an automobile accident and an
insurance settlement, which would provide a legal explanation for
what the Government had presented as M. Rhynes' "unexplained
wealth." Counsel for M. Rhynes also indicated that Alexander would
have challenged Howze's testimony about his dealings with M.
Rhynes, and would have offered his opinion that Stinson, Funderburk,
Norman, Harrison, and Hicks were untruthful. J.A. at 1945R-S. Fur-
ther, counsel for M. Rhynes indicated that Alexander would have
explained that the purpose of a 1994 trip taken by himself and M.
Rhynes had nothing to do with the drug trade, and would have corrob-
orated other details about M. Rhynes' life. J.A. at 1945S. The district
court judge decided to not revisit the issue. J.A. at 1945T.
M. Rhynes argues that his counsel had the duty to investigate and
interview witnesses prior to presenting their testimony. Counsel for
M. Rhynes claims that he discussed Davis' allegation that Alexander
was a drug dealer with Alexander "to determine (1) if Alexander
would invoke the Fifth Amendment if confronted on the stand with
the Davis allegation; (2) if Alexander's expected denial of such
involvement was credible and (3) what relationship had existed
between Alexander and Davis that might prompt such a false allega-
24

-- 26 of 71 --

tion by Davis." Brief for Appellant at 34. M. Rhynes contends that it
would have been a poor defense strategy for his counsel to call a wit-
ness knowing that witness would invoke the Fifth Amendment. See
Chandler v. Jones, 813 F.2d 773 (6th Cir. 1987).
Moreover, M. Rhynes contends that his counsel's interview of
Alexander did not violate Federal Rule of Evidence 615 or the district
court's instructions regarding the sequestration order it was granting.
Rule 615 provides:
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other wit-
nesses, and it may make the order of its own motion. This
rule does not authorize exclusion of (1) a party who is a nat-
ural person, or (2) an officer or employee of a party which
is not a natural person designated as its representative by its
attorney, or (3) a person whose presence is shown by a party
to be essential to the presentation of the party's cause, or (4)
a person authorized by statute to be present.
When the court granted the defense's motion for sequestration, the
district court stated:
THE COURT: Well, I do grant the usual sequestration
rule and that is that the witnesses shall not discuss one with
the other their testimony and particularly that would apply
to those witnesses who have completed testimony not to dis-
cuss testimony with prospective witnesses, and I direct the
Marshal's Service, as much as can be done, to keep those
witnesses separate and apart from the witnesses who have
not yet given testimony who might be in the custody of the
marshal.
J.A. at 273-74. The district court exempted the Government's case
agent and summary witness, and defendants' investigator, "[s]o long
as [he] observe[d] Rule 615 and [did] not talk to the witnesses about
testimony that has just concluded or testimony that has concluded."
J.A. at 275. The district court required the defense to make a repre-
sentation that the investigator would not talk to the witnesses.
25

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M. Rhynes contends that neither Rule 615 nor the court's order
indicates that his counsel could not conduct the interview of Alexan-
der as to Davis' allegations. He further cites a leading treatise for the
proposition that "[if] exclusion is ordered, the witnesses should be
instructed not to discuss the case among themselves or with anyone
except counsel for either side." 2 Charles A. Wright, Federal Practice
& Procedure § 415 (2d ed. 1982). M. Rhynes also argues that "[i]f
defense counsel, actively fulfilling his constitutional function, is to be
prohibited from such an interview with his own key witness, there
must be a specific directive by the trial court to prohibit what would
otherwise be a normal and expected Sixth Amendment obligation."
Brief for Appellants at 36. See Geders v. United States, 425 U.S. 80,
87 (1976) (forbidding a sequestration order that prohibited a
defendant-witness from conferring with his counsel). M. Rhynes con-
tends that if the court wanted defense counsel to not speak to wit-
nesses about prior witness testimony, it could have made this known
as it did with defense's investigator.
These arguments fail to persuade us to overturn the district court's
decision. An appellate court is obliged to allow district courts discre-
tion to preserve the integrity of a trial. Substantial deference is due a
district court's evidentiary rulings and reversal may occur only where
there has been an abuse of discretion. General Elec. Co. v. Joiner,
522 U.S. 136, 141 (1997). This deference is especially appropriate
where, as here, the district court's actions are designed to protect the
truthfulness of testimony. As the Supreme Court has stated, "If truth
and fairness are not to be sacrificed, the judge must exert substantial
control over the proceedings." Geders, 425 U.S. at 87.
The judicial system as a whole has a global interest in protecting
the truth-finding process. Conduct such as witness coaching and per-
jury threatens to destroy the integrity of this process. The risk of this
type of conduct inhered in the circumstances of this case. This was
a multi-defendant conspiracy with the potential for a variety of con-
flicting stories from the respective defendants. We cannot say that the
district judge was unreasonably on heightened alert to the risks of tail-
oring. Nor can we say that his actions to combat these risks were
unreasonable.
The sequestration order was drawn to ensure that there was no wit-
ness coaching, collusion among witnesses, or tailoring of testimony.
26

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While cross-examination plays an important role in preventing these
ills, it may not be the complete answer. In fact, the very availability
of a sequestration order under Fed. R. Evid. 615 reflects the judgment
of the drafters that cross-examination may not be wholly sufficient to
safeguard the truth-finding function in all circumstances.
Further, Rule 615 is not the limit of a district court's supervisory
authority over the conduct of a trial. See United States v. Sepulveda,
15 F.3d 1161, 1176 (1st Cir. 1993). The court may take additional
measures to prevent the tailoring and fabrication of witness testimony,
such as prohibiting witnesses from discussing the case with one
another, from discussing the case with any attorney, and from reading
transcripts of the trial testimony of other witnesses. See Michael Gra-
ham, Federal Practice and Procedure, Federal Rules of Evidence
§ 6611, at 216-18 (interim ed. 1992).
Although the dissent challenges the district court's interpretation of
its order, district courts are best able to interpret their own orders. See
Vaughns v. Board of Educ. of Prince George's County , 758 F.2d 983,
989 (4th Cir. 1985). We have noted that district courts are entitled to
"inherent deference" when they construe the same. Anderson v.
Stephens, 875 F.2d 76, 80 n.8 (4th Cir. 1989). Indeed, reversal of a
district court's interpretation of its own order may occur only when
"the record clearly shows an abuse of discretion." Texas N. W. Ry. Co.
v. Diamond Shamrock Ref. & Mktg. Co. (In re Chicago, Rock Island
& Pacific R.R. Co.), 865 F.2d 807, 810 (7th Cir. 1988) (internal quo-
tation marks omitted).
Here the district court's interpretation of its order was a reasonable
one. The purpose of a sequestration order "is, of course, to prevent the
possibility of one witness shaping his testimony to match that given
by other witnesses at the trial." United States v. Leggett, 326 F.2d
613, 613 (4th Cir. 1964). Given the danger of tailoring, allowing an
attorney to inform a witness of other witnesses' testimony poses the
exact same risk as allowing witnesses to speak with one another. If
the attorney is permitted to convey the same information that a wit-
ness was not allowed to obtain from another source, then the seque-
stration order may be effectively nullified. The district court was thus
within its discretion to interpret its order in a manner that prevented
the defense from undermining the very purpose of that order. Even
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were we to think, as the dissent does, that the district court's interpre-
tation resulted in an "overbroad" sequestration order, that would still
not suffice to undermine the district court's reasonable attempt to
ensure the integrity of the proceedings before it.
The dissent complains that neither Rule 615 nor the district court's
order barred any attorney from speaking with any witness. But as
stated above, the district court properly exercised its discretion to
interpret its order in light of the order's manifest intent. The fact that
the text of the order may not have expressly mentioned attorney-
witness communications does not alter this conclusion. In fact, other
circuits have recognized that a sequestration order may cover more
than courtroom exclusion even if the order mentions only exclusion.
See, e.g., United States v. Greschner, 802 F.2d 373, 375 (10th Cir.
1986) (Rule 615 also prohibits discussion of case between witnesses);
Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir.
1981) (Rule 615 prohibits the reading of trial transcripts). These cases
recognize that trial judges are entitled to be on alert to the myriad
ways in which individuals may attempt to circumvent sequestration
orders.
Moreover, the district judge did not find a violation of the order
simply because defense counsel spoke generally about the case with
a witness who was yet to testify. Rather, the district judge sanctioned
the defense because the attorney had conveyed precisely that informa-
tion which the sequestration order was designed to withhold from pro-
spective witnesses -- namely, the testimony of prior witnesses in the
case.
It would undoubtedly benefit every defense witness to know what
a prosecution witness had or had not said on the stand. This is espe-
cially so where, as here, a prosecution witness has linked the defense
witness to the defendant's own alleged illegal activities. A defense
witness equipped with this specific knowledge has an opportunity to
tailor his testimony to respond more convincingly to such allegations.
In this case, Alexander and M. Rhynes stood to gain much from
Alexander's knowledge of Davis' testimony. Davis was the single
most problematic witness from Alexander's point of view. Not only
did Davis testify that M. Rhynes was a drug dealer, but he also linked
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Alexander with M. Rhynes' drug dealing. Davis testified that he
asked Alexander on several occasions to help him procure cocaine
from M. Rhynes. Moreover, Davis testified that Alexander in fact
served as an intermediary between Davis and M. Rhynes after these
conversations. Alexander was put on the stand by M. Rhynes to offer
exculpatory testimony at odds with Davis' inculpatory testimony.
Alexander was also likely to be confronted with Davis' allegations
that Alexander himself was involved in M. Rhynes' drug business. It
is clear that Alexander could be more specific, more credible, and
more forceful in his denials of both M. Rhynes' guilt and his own par-
ticipation in the drug business if Alexander knew beforehand the
details of Davis' testimony. Knowledge of Davis' prior testimony
would enable Alexander to ensure that his words on the stand dove-
tailed comfortably with parts of Davis' account while denying those
parts of Davis' testimony which incriminated Alexander. If Davis'
testimony could be explained away, then Alexander would be free
from the main difficulty plaguing his efforts to exculpate M. Rhynes.
Thus, when it came to light that Alexander had been alerted to Davis'
prior testimony, the district judge was obviously disturbed by this dis-
closure and within his rights to remedy it.
The dissent does not deny that M. Rhynes and Alexander both
stood to gain greatly from Alexander's awareness of Davis' testi-
mony. The dissent also does not deny that Scofield's actions accom-
plished the very result that the sequestration order was designed to
prevent -- namely, one witness' knowledge of the testimony of a
prior witness before the later witness had taken the stand. Yet the dis-
sent believes that it was perfectly acceptable -- indeed commendable
-- for Scofield to relate Davis' testimony to Alexander.
This belief rests, however, on a series of non sequiturs that ring
false alarms concerning our holding today. Contrary to the concerns
expressed by the dissent, counsel had ample room to interview and
prepare witnesses without running afoul of the order. The dissent
makes much of Scofield's attempts to justify his actions to the district
judge. Scofield asserted: "And I don't think[specifically telling Alex-
ander about Davis' testimony] violates the sequestration order. . . .
I've done wrong then because I don't know how else I can prepare
him to testify." Not only are these pleas not dispositive of the issue,
but they are also at odds with Scofield's later views.
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Scofield himself refutes the dissent's argument that the district
judge "prevent[ed] lawyers from lawyering" and that we "hamstring[ ]
attorneys in performing their obligations to competently defend their
clients" by our ruling today. After reflecting upon his actions, Sco-
field not only apologized to the court, but he also commendably
related in detail what he could have and should have done instead.
Scofield told the judge at a bench conference after his violation came
to light:
Your Honor, as I told you in chambers, I now realize that
the proper thing for me to do in interviewing Alexander and
preparing him to testify was that I could have asked him all
the details of whether he had been a dealer and whether he
had done drug deals with Michael Rhynes and that sort of
thing without telling him that Davis had said that he had
done that.
Scofield went on to say:
I wanted to specifically ask him about his relationship with
D. S. Davis. And as I told the court, I did tell him that D.
S. Davis had said that he had done these drug deals and that
I wish I had been more alert in drawing that line about just
asking the questions without saying what D. S. Davis had
said in the court.
Scofield has thus already allayed the dissent's concern that he have
ample room to prepare his witness and discharge his duties to his cli-
ent competently without violating the district judge's order. The pros-
ecutor and district judge had even less difficulty recognizing that "the
highest and best traditions of lawyering" could be upheld without vio-
lating the sequestration order. For example, the prosecutor indicated
his understanding of what would have been proper behavior on Sco-
field's part by saying: "Seems to me the proper way to prepare the
witness is the way the government prepared. We ask what they know.
We don't tell them what went on in the courtroom."
The dissent nonetheless alleges that our claim that counsel could
have performed his duties without violating the order somehow con-
stitutes a "logical fallacy" and "begs the question, `How was counsel
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to discern the limits of the sequestration order?'" The answer to this
supposedly begged question, however, is straightforward. If Scofield
had any doubt about the propriety of his intended conduct, he could
have asked the district judge whether he was permitted to inform
Alexander of Davis' prior testimony. Seeking clarification of the pro-
priety of his proposed course of action in advance would have been
preferable to violating the order by conduct that utterly thwarted the
order's purpose. In the law, it is not usually true that it is better to ask
forgiveness than permission.
Indeed, in attempting to justify the attorney's conduct in this
instance, the dissent simply undermines the ability of district judges
to run a trial. The dissent applies the most stringent canons of statu-
tory construction to a district court's orders and labels any deviation
from these canons a violation of ex post facto principles. In doing so,
it unduly absolves attorneys of their own responsibility, along with
the court, to ensure the proper conduct of a trial. If the dissent's posi-
tion were to prevail, the scenario before us today would be repeated
many times -- namely, attorneys would construe court orders in the
most permissive light and protest any violations with the narrowest
interpretation of the district court's instructions. This is a recipe for
stripping control of court proceedings from presiding judges. A
sequestration order is "a product of common sense and its purpose is
obvious." United States v. McMahon, 104 F.3d 638, 644 (4th Cir.
1997). Both attorneys and trial judges bear responsibility for its
proper implementation. The point here is not to excoriate Scofield or
any other attorneys, who perform a vital role in our adversary system,
but rather to reinforce the proper roles of attorneys and judges. The
abuse of discretion standard on appellate review mandates that, in the
final analysis, a district court's reasonable interpretation of its own
trial orders must be credited.
The dissent's invocation of Scofield's resume and Martindale-
Hubbell rating as justification for his actions is mystifying, to say the
least. The dissent claims that "[n]or is it insignificant that Mr. Sco-
field did not understand `the usual sequestration rule' to bar counsel
from discussing prior trial occurrences with an upcoming witness" --
then supplies a laudatory description of Scofield's professional back-
ground. If anything, the revealing of prior testimony to a prospective
witness on the part of an experienced attorney would be less excus-
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able than the mistake of a novice. But the dissent improperly focuses
on who Scofield is rather than on what Scofield has done. The district
court, in contrast, properly focused on the attorney's conduct and not
on the resume and rating he brought to trial. The law is no respecter
of persons. And the district court was correct not to base its decision
on the length of an attorney's experience or on the trajectory of his
professional career.
The dissent's emphasis on the defense attorney's resume is more
than just an incidental point. It in fact turns the whole matter of defer-
ence on its head. Our deference is owed the district court, not the
defense attorney. And the comparative resumes and experience that
a district judge or counsel may bring to a proceeding are quite beside
the point. Our deference belongs to the district court because it is the
district judge who occupies the sole position of impartiality in a hotly
contested proceeding and because it is the district judge who ulti-
mately is charged with making sure trial proceeds in an honest and
truthful manner. The giving of tailored testimony strikes at the very
heart of the trial judge's charge and it is not reasonable to expect him
to sit passively while the truth of witness testimony is placed in jeop-
ardy. See, e.g., Nix v. Whiteside, 475 U.S. 157, 166 (1986) ("[T]he
very nature of a trial [i]s a search for truth.").
Nor was the district court's order to exclude Alexander's testimony
unreasonable. We have reserved exclusion for exactly those situations
in which it is the defendant or his counsel who causes the infraction.
See United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997).
Indeed, there is "no precedent in which we have overturned the deci-
sion of a district judge to exclude a defense witness when the viola-
tion was plainly the fault of the defendant or defendant's counsel." Id.
The dissent relies on Cropp to argue that the district judge's chosen
remedy was excessive. In Cropp, however, this court refused to find
that the district court had abused its discretion in excluding a witness
even though this court would have chosen a lesser sanction as an orig-
inal matter. Id.; see also United States v. Avila-Macias, 577 F.2d
1384, 1389 (9th Cir. 1978) ("The appropriate sanction for violation of
a witness exclusionary rule is a matter which lies within the sound
discretion of the trial court."). The district judge believed that exclu-
sion was necessary to prevent M. Rhynes' witness from giving tai-
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lored testimony. To reverse on abuse of discretion grounds would
impair the necessary latitude trial courts must possess in safeguarding
the single most important function of a trial.
The dissent nonetheless vaguely alleges that the exclusion order
may violate M. Rhynes' Sixth Amendment rights. The Sixth Amend-
ment does afford, of course, protection of the right to present wit-
nesses. But nowhere in the text of the Constitution is there a right to
violate a valid district court order with impunity. Nor does the Sixth
Amendment prescribe any right for an attorney to tell a witness the
details of prior courtroom testimony. The district judge did nothing
to hinder the defense from presenting its witnesses until the sequestra-
tion order was violated. And as our holding in Cropp demonstrates,
once defendant's counsel has caused a violation of the order, the Sixth
Amendment does not preclude the trial judge from exercising his dis-
cretion to exclude the witness. 127 F.3d at 363.
We do not hold, of course, that every judge must conduct a trial in
this manner. We do not say that every judge must issue this kind of
order, interpret his order in this manner, or impose this sanction. See,
e.g., United States v. Shurn, 849 F.2d 1090, 1094 (8th Cir. 1988)
("The trial court is given broad discretion in the interpretation of Rule
615."). It is not our place to substitute wholesale our judgment for that
of the district court, for "[t]rial judges are much closer to the pulse of
a trial than . . . [we] can ever be . . . ." United States v. Ham, 998 F.2d
1247, 1252 (4th Cir. 1993) (internal quotation marks omitted).
Instead, we hold only that the trial judge's actions did not represent
an unreasonable response to the risks and demands of a complex,
multi-defendant conspiracy case.
Moreover, if there was any error in the exclusion of Alexander's
testimony, then it is subject to harmless error analysis. See United
States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986) (stating that
under Rule 615 "we remain bound by the harmless error rule."). An
error by the district court is considered harmless when "we . . . can
say with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was
not substantially swayed by the error." United States v. Ince, 21 F.3d
576, 583 (4th Cir. 1994) (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)). Given the amount of evidence produced at the
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trial against M. Rhynes, it is unlikely that the jury was substantially
swayed by the error.
The voluminous testimony against M. Rhynes from individuals
who had been directly involved with or familiar with his drug traf-
ficking activities. For example, at least nine witnesses testified to hav-
ing conducted drug transactions with M. Rhynes on many separate
occasions spanning at least half a decade. Another witness testified to
observing M. Rhynes conducting a cocaine transaction from his white
BMW. Yet another testified that he was with M. Rhynes in New York
in 1994 while M. Rhynes was in possession of four kilograms of
crack cocaine and one-half kilogram of heroin. These and other wit-
nesses testified to having received drug paraphernalia from M.
Rhynes and tied M. Rhynes to the drug trafficking activities of W.
Rhynes and Lester McCoy.
When one compares the cumulative evidence against M. Rhynes to
the difference that Alexander's testimony, if believed, could have
made, it is clear that any error is harmless. The dissent seems to
believe that the characterization of Alexander as M. Rhynes' "sole
supporting witness" is talismanic and focuses on M. Rhynes' "lost"
opportunity to challenge the government on a number of issues. How-
ever, the conclusion that M. Rhynes was therefore"clearly denied his
constitutionally protected right to fairly defend himself" does not fol-
low, for the dissent ignores the crucial other side of the equation --
namely, the massive inculpatory evidence against M. Rhynes. In light
of evidence presented against M. Rhynes, it is unlikely that the judg-
ment was substantially swayed by the exclusion of Alexander's testi-
mony.
V.
Appellant M. Rhynes next argues that if the trial court did not err
in striking Alexander's testimony, he received ineffective representa-
tion. M. Rhynes acknowledges that "a claim of ineffective assistance
should be raised in a 28 U.S.C. § 2255 motion in the district court
rather than on direct appeal, unless the record conclusively shows
ineffective assistance." United States v. Williams, 977 F.2d 866, 871
(4th Cir. 1992). M. Rhynes argues that as the district court at the trial
labeled his conduct as "very unprofessional" and an "absolute breach
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of the Rule 615," the record conclusively shows ineffective assis-
tance.
An ineffective assistance of counsel claim involves a mixed ques-
tion of law and fact, and therefore no special deference is owed to the
district court's findings with respect to such a claim. United States v.
DeTemple, 162 F.3d 279, 289 (4th Cir. 1998), cert. denied, 119 S.Ct.
1793 (1999). In order to prove the claim a petitioner must show that
(1) counsel made errors so serious that counsel's representation fell
below an objective standard of reasonableness, and (2) "there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984). This two-part test promulgated by Strickland is also referred
to as the "performance" and "prejudice" components. Fields v. Attor-
ney General of the State of Maryland, 956 F.2d 1290, 1296 (4th Cir.
1992) (citation omitted). We will begin with the prejudice prong of
the Strickland test because if defendant M. Rhynes cannot demon-
strate the requisite prejudice, a reviewing court need not even con-
sider the performance prong. See Luchenberg v. Smith, 79 F.3d 388,
391 (4th Cir. 1995) (citing Strickland, 466 U.S. at 697)).
Appellant M. Rhynes contends that the prejudice prong has been
met because his attorney's actions caused the exclusion of testimony
that was key to his defense. He asserts that given the importance of
the testimony of the excluded witness to his defense, there is a reason-
able probability that, but for his counsel's error, the result of the pro-
ceeding would have been different.
Appellant M. Rhynes has failed to demonstrate that as a result of
his counsel's error his trial was fundamentally unfair or unreliable.
See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). As has been dis-
cussed, the Government presented the testimony of several witnesses
who testified about M. Rhynes' involvement in various facets of the
drug trade. It is true that Alexander could have disputed the testimony
of some of the Government's witnesses, and could have offered testi-
mony as to these witnesses' reputation for dishonesty. However, as
has been previously discussed, defense counsel had ample opportu-
nity to cross-examine each of the Government's witnesses and to
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challenge their veracity. Taking all the facts of the three-week trial
into account, we cannot find that "but for" counsel's error and "but
for" the exclusion of this one witness, defendant would have been
acquitted. Therefore, M. Rhynes' ineffective assistance of counsel
claim must fail.
VI.
Appellant W. Rhynes argues that the district court erred in denying
his motion to suppress the items seized from his home and business
properties because the most recent drug trafficking or money launder-
ing activities alleged in the search warrant affidavit were over two
years old. We disagree.
On January 17, 1996, the Honorable H. Brent McKnight, United
States Magistrate Judge, authorized searches of W. Rhynes' residen-
tial and business properties. J.A. at 173-177. The search warrants
were supported by the applications and forty-page affidavit of Special
Agent Mitchell.
Agent Mitchell's affidavit summarized information provided by
forty-seven cooperating witnesses who implicated defendant W.
Rhynes and his six co-conspirators in drug trafficking and money
laundering. Acts in furtherance of the conspiracy were alleged by the
witnesses to have occurred between 1960 and 1994. The affidavit
described the witnesses' knowledge of defendant's drug trafficking
activities; the interrelationships between defendant's supposedly legit-
imate businesses and drug trafficking; the distribution of drug para-
phernalia and quantities of "cut" in furtherance of drug trafficking; the
laundering of drug proceeds through defendant's businesses; and the
preparation and use of fraudulent tax returns to obtain bank loans and
to justify the purchase of assets and the flow of currency not other-
wise explainable in the legitimate course of defendant's businesses.
Finally, the affidavit indicated that the individuals who prepared
fraudulent tax returns and records on behalf of defendant did so by
receiving documents and papers which defendant maintained at the
respective places of business which were the subject of the search
warrants. J.A. at 185-218.
Defendant's Motion to Suppress was filed on May 5, 1996. J.A. at
163-171. The Government responded on June 18, 1996. J.A. at 231-
36

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245. In a Memorandum and Recommendation filed by the Honorable
Carl Horn, United States Magistrate Judge, on July 1, 1996, the court
found that the facts in the case were not substantially in dispute. The
Magistrate Judge recommended the denial of defendant Rhynes'
motion, and found that the information contained in Agent Mitchell's
affidavit was sufficient to support a finding of probable cause. J.A. at
246-259. In an Order filed July 22, 1996, the district court adopted the
Magistrate Judge's Memorandum and Recommendation by reference
and denied defendant's motion. J.A. at 260-261.
W. Rhynes argues that the district court erred by adopting the Mag-
istrate Judge's Memorandum and Recommendation. It is well settled
that the district court's rulings with regard to the suppression of evi-
dence are subject to de novo review. United States v. Kitchens, 114
F.3d 29, 31 (4th Cir. 1997); United States v. McDonald, 61 F.3d 248,
154 (4th Cir. 1995); United States v. Smith, 30 F.3d 568, 571 (4th Cir.
1994).
A valid search warrant may issue only upon allegations of "facts
so closely related to the time of issue of the warrant as to justify a
finding of probable cause at that time. Whether the proof meets this
test must be determined by the circumstances of each case." Sgro v.
United States, 287 U.S. 206, 210-11 (1932). This circuit has stated
that "[t]he vitality of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts sup-
plied and the issuance of the affidavit." United States v. McCall, 740
F.2d 1331, 1336 (4th Cir. 1984) (quoting United States v. Johnson,
461 F.2d 285, 287 (10th Cir. 1972)). "Rather, we must look to all the
facts and circumstances of the case, including the nature of the unlaw-
ful activity alleged, the length of the activity, and the nature of the
property to be seized." Id.
In the affidavit all residences searched were alleged to have been
"used to facilitate drug trafficking, money laundering, and filing of
false income tax returns." J.A. at 211; see also J.A. at 212-15. In the
instant case, the nature of the activities alleged were long-term drug
trafficking and money laundering, supported and aided by the opera-
tion of seemingly legitimate businesses through which the defendant
laundered proceeds and facilitated the distribution of illegal drugs.
Moreover, the length of the alleged activity was more than two dec-
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ades, a decidedly long time for which defendant was accused of
engaging in a criminal enterprise. Further, the property to be seized
included books, records, notes, ledgers, financial records, records of
real estate transactions, bank statements, proceeds of drug sales and
address books relating to drug activity, copies of personal income tax
returns, passports, and checkbooks.
A critical issue regarding staleness is "whether there was probable
cause [at the time of issuance of the search warrant] to believe that
the evidence was then located at the premises named in the warrant."
McCall, 740 F.2d at 1337. In this case, the warrant authorized the
police to search for the types of records and personal papers which
are not ordinarily destroyed or moved about from one place to
another. Therefore, there was probable cause to believe that the busi-
ness and personal financial records, etc., of defendant would be
located at his personal residence and place of business. Therefore, the
search warrant was not "stale." Consequently, we affirm the district
court's adoption of the Magistrate Judge's Memorandum and Recom-
mendation.
VII.
W. Rhynes next argues that his conviction of possession of a fire-
arm by a convicted felon in violation of 18 U.S.C § 922(g)(1) cannot
be sustained because his civil rights had been restored. Section
922(g)(1) reads in pertinent part: "It shall be unlawful for any person
. . . who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm or ammunition . . . ." When evaluat-
ing whether federal or state law should be applied the choice-of-law
clause of that section provides: "What constitutes a conviction of such
a crime shall be determined in accordance with the law of the jurisdic-
tion in which the proceedings were held." Id. at § 921(a)(20). An
exemption is provided for any conviction for which a person has had
civil rights restored.1
_________________________________________________________________
1 "Any conviction . . . for which a person has had civil rights restored
shall not be considered a conviction for purposes of this chapter, unless
such . . . restoration of civil rights expressly provides that the person may
not ship, transport, possess, or receive firearms." Id.
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In Beecham v. United States, 511 U.S. 368 (1994), the Supreme
Court adopted this circuit's holding and determined that the choice-
of-law clause of § 922(a)(20) applies to its exemption clause. In
Beecham, both petitioners were convicted of violating § 922(g). Id. at
370. Beecham's prior conviction was a federal conviction, while
Jones had two prior state convictions and one federal conviction. Peti-
tioners' respective states had restored their civil rights; however, the
federal government did not also restore such rights. Id. "Asking
whether a person has had civil rights restored is thus just one step in
determining whether something should `be considered a conviction.'
By the terms of the choice-of-law clause, this determination is gov-
erned by the law of the convicting jurisdiction." Id. Thus, the Court
held that Beecham and Jones could "take advantage of § 922(a)(20)
only if they have had their civil rights restored under federal law. . . ."
Accordingly, W. Rhynes can only take advantage of § 921(a)(20) if
his civil rights have been restored under federal law.
A person who is prohibited from possessing . . . firearms . . .
may make application to the Secretary for relief from the
disabilities imposed by Federal laws . . . and the Secretary
may grant such relief . . . . Whenever the Secretary grants
relief to any person pursuant to this section he shall
promptly publish in the Federal Register notice of such
action, together with the reasons therefor.
18 U.S.C. § 925(c). In the instant case, the parties stipulated that W.
Rhynes had a prior felony conviction. The Secretary of the Treasury's
certified record indicated that W. Rhynes' civil rights had not been
restored under federal law. W. Rhynes contends that because the res-
toration of his civil right to vote was determined under North Carolina
law, the restoration of his civil right to possess a firearm should also
be determined under North Carolina law. However, it is clear that
state restoration of civil rights cannot undo the federal disability flow-
ing from a federal conviction. United States v. Jones, 933 F.2d 1131
(4th Cir. 1993), aff'd 511 U.S. 368 (1994). Therefore, in absence of
restoration of W. Rhynes' civil rights by the Secretary of the Trea-
sury, his conviction of possession of a firearm by a convicted felon
was proper.
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VIII.
Next, appellant Gormley argues that his Sixth Amendment right to
confront the witnesses presented against him was violated when the
district court admitted the testimony of Thomas Douglas and Marvin
Graham. As has been discussed, at trial, the Government presented
evidence designed to prove that defendant Purvis Gormley was
involved in the Rhynes drug organization, and that the Wilmore area
Big Apple Store, which Gormley managed, was the scene of many
activities in furtherance of that conspiracy. Appellant Gormley has
challenged the admission of portions of testimony of two witnesses,
Thomas Douglas and Marvin Graham, as prejudicial hearsay. The
Government contends that the statements were properly admitted pur-
suant to Fed. R. Evid. 801(d)(2)(E), which provides a hearsay excep-
tion for the statements of a co-conspirator. In the alternative, the
Government argues that the admission of said statements was harm-
less error.
Gormley argues that the district court erroneously permitted Doug-
las to testify that a person named "Ralph" told him that the drugs that
Ralph was selling were supplied by Gormley. Douglas stated:
Q. Now, have you ever gotten drugs out of the store in
Wilmore, the Big Apple?
A. Yes, from the guy that used to work in the store named
Ralph.
Q. And when was that that (sic) you got drugs from him?
A. `86 or `87.
Q. On how many occasions?
A. On a few. He was living in the game room in behind
at the Big Apple.
Q. Is the game room part of the building?
A. Yes, sir.
40

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Q. And he was living there?
A. Yes, sir.
Q. And you got drugs from him. Did you get them from
him in the store?
A. Yes, sir, I did.
Q. Now, do you know who Ralph was getting the drugs
from?
A. He said Purvis. It was Purvis.
Mr. Foster: Objection, hearsay.
The Court: Overruled.
J.A. at 709 (emphasis added).
Gormley also challenges the admission of Graham's testimony
regarding the deliveries of drugs to Gormley, on behalf of defendant
W. Rhynes, at the store. Graham stated:
Q. Okay. Did you and Fats [A. Adams] ever talk about
Purvis working at the Big Apple?
A. Yes, sir, we did.
Q. What did you talk about?
A. He just said Will had got Purvis fucked up getting that
shit in the mail.
J.A. at 1500. Gormley argues that these two statements were "classic,
inadmissible hearsay." Brief for Appellant at 50.
The standard for reviewing the district court's findings of fact
regarding the threshold criteria for admission of statements under the
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co-conspirator exception is clear error. United States v. Shores, 33
F.3d 438, 442 (4th Cir. 1994). Pursuant to Federal Rule of Evidence
801(d)(2)(E), an out-of-court statement from a co-conspirator, that
incriminates the defendant (termed a co-conspirator statement) is
admissible in trial if the court finds (i) that the defendant and the
declarant were involved in a conspiracy with each other at the time
the statement was made; and (ii) that the statement was made in fur-
therance of that conspiracy. Id.; United States v. Blevins, 960 F.2d
1252, 1255 (4th Cir. 1992).
In the instant case, a review of the testimony demonstrates that the
witnesses themselves established through their testimony that Gorm-
ley and the declarant ("Ralph" in the case of Thomas Douglas; "Fats"
in the case of Marvin Graham) were involved in a drug conspiracy
with each other. However, the Government did not develop the testi-
mony of these witnesses in order to determine whether the statements
were made in furtherance of the conspiracy. The lack of questioning
by either the Government or the defense regarding the nature of the
circumstances surrounding the alleged conversations renders it
unclear whether the statements were made in furtherance of that con-
spiracy. Even if the statements were not made in furtherance of the
conspiracy, and therefore should not have been admitted, however,
we find that this does not constitute reversible error.
The Government presented ample testimony concerning Gormley's
connection to the conspiracy. This testimony included that of Ned
Johnson, who testified that he purchased cutting agent from Gormley
at the Big Apple store Gormley managed, the testimony of the law
enforcement agents concerning the controlled delivery to that store
and the weapons and drugs found on Gormley at that time, and the
testimony of Michael Pahutski concerning his business and drug rela-
tionship with Gormley. We can say "with fair assurance, after ponder-
ing all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed" by any error
in admitting the statements. Brooks, 111 F.3d at 371. Therefore, if the
district court erred, it was harmless error.
IX.
Appellant White asserts that the district court substantially
impaired his right to effective assistance of counsel by placing time
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restrictions on his counsel's closing argument. We disagree. The dis-
trict court is afforded broad discretion in controlling closing argu-
ments and is only to be reversed when there is a clear abuse of its
discretion. United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir.
1996). "A reversal may be required where counsel is restricted within
unreasonable bounds." United States v. Butler, 317 F.2d 249, 257 (8th
Cir. 1963). In the instant case, a reversal is not required.
After reviewing the closing argument of White's counsel, it does
not appear that the counsel needed more time. Counsel addressed the
credibility of the government's witnesses, read portions of the tran-
scripts to the jury, referred to matters not in evidence, argued his cli-
ent did not have knowledge of the conspiracy, and made other policy-
based arguments. Moreover, after the district court informed him that
he had two minutes remaining, he quickly concluded his remarks. See
J.A. at 1945MM. He did not request any additional time at that time.
"Counsel may not apparently agree or acquiesce in the allotment of
time for argument and afterward complain that the time allowed was
too short." Capriola v. United States, 61 F.2d 5, 11 (7th Cir. 1932).
Therefore, we find that the district court did not abuse its discretion
by imposing the time restrictions on the closing argument.
X.
Appellants next raise numerous issues concerning their sentences.
The most important contention is appellant W. Rhynes' argument that
his sentence must be vacated because the jury's verdict in this multi-
drug conspiracy was ambiguous, and the sentence exceeded the statu-
tory maximum for the drug (marijuana) carrying the lowest statutory
penalty. At trial, the district court told the jury that it could find a
defendant guilty on the conspiracy count if it found that the defendant
had conspired to "distribute or possess with intent to distribute heroin,
or cocaine, or cocaine base or marijuana." J.A. at 1945OO. The court
submitted a general verdict sheet to the jury, and the jury returned a
general verdict finding all of defendants guilty of the conspiracy
count. Neither the Government nor the defense requested a special
verdict as to the object of the conspiracy.
Appellants now argue that it is "impossible to determine which
controlled substance the jury may have found was the object of the
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conspiracy." Post Argument Second Supplemental Brief for Appel-
lants at 2. They contend that the jury could have reasonably found
that the object of the conspiracy was marijuana, "just as easily as it
could have found any of the other controlled substances." Id. at 3.
Therefore, they contend that the sentence by the district court should
not have exceeded the statutory maximum for marijuana. As the
defense did not object to the submission of a general verdict, request
a special verdict, nor object to the conversion of drug amounts, we
review the imposition of the sentence for plain error. United States v.
Olano, 507 U.S. 725, 736 (1993).
The United States Supreme Court has recently addressed the sen-
tencing issue in question in Edwards v. United States, 118 S.Ct. 1475
(1998). The defendants in Edwards were charged with conspiracy to
distribute both cocaine and cocaine base. Edwards, 118 S. Ct. at 1476.
After the close of evidence, the district court instructed the jury that
it could find the defendants guilty if it found that they had conspired
to distribute either cocaine or cocaine base. The jury returned a gen-
eral verdict of guilty, without any indication of whether it found the
conspiracy to be directed to cocaine, cocaine base, or both. The dis-
trict court then sentenced the defendants based on its finding that their
conduct had involved both cocaine and cocaine base.
Before the Supreme Court, the defendants argued that, because the
jury's general verdict may have been based on a "cocaine-only" con-
spiracy, the district court erred in sentencing them under the more
stringent guidelines applicable to cocaine base. Although Justice
Breyer, writing for the unanimous Court, rejected the defendants'
argument, he noted that the outcome would have been different if
their sentences had exceeded the statutory maximum for a cocaine-
only conspiracy: "That is because a maximum sentence set by statute
trumps a higher sentence set forth in the Guidelines." Id. at 1477. But
the defendants could not raise such an argument because "the sen-
tences imposed here were within the statutory limits applicable to a
cocaine-only conspiracy, given the quantities of that drug attributed
to each petitioner." Id. at 1477-78.
In support of this line of reasoning, the Court relied on the Second
Circuit's decision in United States v. Orozco-Prada, 732 F.2d 1076
(2d Cir. 1984). In that case the defendant had been convicted under
44

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a general verdict on a count charging conspiracy to violate 21 U.S.C.
§ 841 by distributing both cocaine and marijuana. The verdict did not
specify whether the conviction had been based on cocaine or mari-
juana distribution (or a combination of both). The district court then
sentenced the defendant to eight years' imprisonment, which
exceeded the five-year maximum applicable to marijuana offenses,
but which was less than the fifteen-year limit applicable to cocaine
distribution. Orozco-Prada, 732 F.2d at 1083. The Second Circuit
held that a defendant convicted under a general verdict of conspiracy
to violate § 841 may be sentenced only up to the statutory maximum
for the least-punished drug offense on which that conspiracy verdict
might have been based. Id. at 1083-84. The Second Circuit recently
re-affirmed Orozco-Prada in light of the Supreme Court's ruling in
Edwards. See United States v. Barnes, 158 F.3d 662, 669 (2d Cir.
1998).
Significantly, the Second Circuit premised its decision in Orozco-
Prada to a large extent on the 1975 decision of this court in United
States v. Quicksey, 525 F.2d 337 (4th Cir. 1975). See Orozco-Prada,
732 F.2d at 1083. In Quicksey, the defendants were charged under a
single count of conspiracy, which had two statutory objects: (1) distri-
bution of drugs in violation of 21 U.S.C. § 841 and (2) crossing state
lines in connection with a drug business, as prohibited by 18 U.S.C.
§ 1952 (the "Travel Act"). The jury convicted the defendants under
a general verdict, without specifying which object(s) had been the
basis of the conviction. The district court then sentenced the defen-
dants to prison terms in excess of the maximum permitted by the con-
spiracy statute applicable to the Travel Act violation.
The Quicksey court invalidated these sentences, reasoning that the
sentences improperly exceeded the statutory maximum for the lesser
of the two statutory objects of the conspiracy on which the verdict
could have been based. Quicksey, 525 F.2d at 340-41. Accordingly,
the applicable precedent in the Fourth Circuit-- Quicksey--is consis-
tent with the view expressed by the Supreme Court in Edwards, as
discussed above.
The facts of the current case fall squarely within the ambit of
Quicksey and Edwards. Here, the district court properly instructed the
jury that it could find a defendant guilty on Count I if the jury deter-
45

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mined that such defendant had conspired "to distribute or possess
with intent to distribute heroin, or cocaine, or cocaine base, or mari-
juana." J.A. 1945OO (emphasis added). The jury then returned a gen-
eral verdict finding all defendants guilty of Count I. J.A. 1948. The
Government did not request a special verdict form, as was its obliga-
tion. See Barnes, 158 F.3d at 672 ("[I]t is `the government's responsi-
bility to seek special verdicts.'"). With these general verdicts, it is
thus impossible to determine on which statutory object or objects--
sale of heroin, cocaine, cocaine base, or marijuana--the conspiracy
conviction was based.
Accordingly, as they must be applied here, Quicksey and Edwards
prohibited the district court from imposing a sentence in excess of the
statutory maximum for the least-punished object on which the con-
spiracy conviction could have been based. In this case, the conviction
may have been based on a conspiracy to distribute either heroin,
cocaine, cocaine base, or marijuana (or any combination of these sub-
stances). Thus, no defendant could be sentenced for more than the
statutory maximum for the least-serious, single-drug conspiracy of
which he may have been convicted. See United States v. Dale, 1999
WL 333223, at *3 (6th Cir. May 27, 1999) (reading Edwards to sug-
gest that "the shorter maximum sentence should be used if the verdict
is merely general, rather than specific, and the one drug allows for a
sentence above the maximum for another charged drug.").
The penalties for all such conspiracies are determined by § 841(b).
But this section does not set any concrete, maximum sentence for all
violations involving a particular drug; instead, the maximum sen-
tences vary with the type and amount of drug in question. Accord-
ingly, to determine the applicable maximum sentence for any
defendant, the district court first had to determine how much of any
drug could be attributed to that defendant. See Edwards, 118 S. Ct. at
1477-78 (approving sentences set "within the statutory limits applica-
ble to a cocaine-only conspiracy, given the quantities of that drug
attributed to each petitioner"); Barnes, 158 F.3d at 666-67 (applying
Orozco-Prada analysis based on amount of drugs attributable to each
defendant); Dale, 1999 WL 333223, at *3 (statutory maximum sen-
tences depend on drug amounts disclosed by "the facts of this case").
46

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As it must in any drug conspiracy case, the district court made such
a determination here.2
However, the district court did not determine whether the sentences
it imposed exceeded the statutory maximum applicable to the least-
punished conspiracy of which each defendant might have been
convicted.3 Three of the sentences did exceed the applicable maxi-
mums. The sentences of W. Rhynes, T. Adams, and A. Adams exceed
the maximum "marijuana-only" sentence for which each was eligible,
i.e., five years for Alexander Adams and ten years for Willie Rhynes
and Theodore Adams, given their prior felony drug convictions. See
_________________________________________________________________
2 The Presentence Investigation Reports for the defendants, which the
district court adopted, attributed drugs of the following amounts and
types to each defendant: (a) Willie Rhynes: 3.63 kg. of marijuana, 70.5
kg. of cocaine, 6060.49 grams of heroin, and 9.29 kg. of cocaine base;
(b) Michael Rhynes: 125.61 kg. of cocaine, 528.35 grams of heroin, and
13.9 kg. of cocaine base; (c) Theodore Adams: .01 kg. of marijuana,
1056.7 grams of cocaine, 107.9 grams of heroin, and 24 oz. of cocaine
base; (d) Purvis Gormley: 212.62 grams of cocaine, 56.7 grams of her-
oin, and 141.75 kg. of cocaine base; (e) John White: 1.24 kg. of heroin;
(f) Lester McCoy: .5 kg. of cocaine, 8 grams of heroin, and 500 grams
of cocaine base; and (g) Alexander Adams: 1.25 kg. of marijuana, 18.77
kg. of cocaine, 2.01 kg. of heroin, and 10.32 kg. of cocaine base.
3 The following are the maximums for the least-serious, single-drug
conspiracy for which the individual defendants would have been eligible:
(a) Willie Rhynes: 10 years under § 841(b)(1)(D), based on 3.63 kg. of
marijuana and a prior felony drug conviction; (b) Michael Rhynes: 40
years under § 841(b)(1)(B), based on 528.35 grams of heroin; (c)
Theodore Adams: 10 years under § 841(b)(1)(D), based on .01 kg. of
marijuana and a prior felony drug conviction; (d) Purvis Gormley: 30
years under § 841(b)(1)(C), based on 56.7 grams of heroin and a prior
felony drug conviction; (e) John White: life, as all attributable drug
amounts fall under § 841(b)(1)(A); (f) Lester McCoy: 30 years under
§ 841(b)(1)(C), based on 8 grams of heroin and a prior felony drug con-
viction; and (g) Alexander Adams: 5 years under § 841(b)(1)(D), based
on 1.25 kg. of marijuana.
The following sentences were actually imposed on Count I: (a) Willie
Rhynes: life; (b) Michael Rhynes: 360 months; (c) Theodore Adams: life;
(d) Purvis Gormley: 292 months; (e) John White: 292 months; (f) Lester
McCoy: 262 months; and (g) Alexander Adams: 360 months.
47

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§ 841(b)(1)(D). Each of these sentences thus violates the mandate of
Quicksey and Edwards.
Accordingly, we will follow the remedy employed in Quicksey. We
will withhold judgment as to the sentences of W. Rhynes, T. Adams,
and A. Adams under Count I, giving the Government the choice
between resentencing these defendants consistent with a marijuana
conspiracy conviction, or retrying them on Count I. See Quicksey, 525
F.2d at 341. If the Government chooses to resentence these defen-
dants, we will affirm the convictions and remand for resentencing. If
the Government does not so choose, we will vacate the sentences and
remand for a new trial on Count I.4
XI.
The other issues raised by appellants concerning their sentences are
without merit. Appellants W. Rhynes and M. Rhynes contend that the
district court abused its discretion by not relying upon the jury's
$1,000,000 forfeiture verdict in calculating the quantity of illegal
drugs foreseeable to them for sentencing purposes. Although they rec-
ognize that a sentencing judge is not bound by a jury's verdict in per-
forming the independent sentencing function, see United States v.
Love, 134 F.3d 595 (4th Cir. 1998), cert. denied by Sheppard v.
United States, 118 S.Ct. 2332 (1998), they argue that the judge in this
case was in the same position as an appellate court would be because
_________________________________________________________________
4 A. Adams and T. Adams have argued that the district court failed to
make detailed findings which resolved issue placed in dispute when it
made its determination about the drug quantities attributable to them. T.
Adams has also argued that the district court erred by using an aggregate
drug amount when applying the mandatory life sentence enhancement to
him. In light of the analysis in this section, we need not address these two
issues. We note, however, that both of these issues were based on the
appellants' position that the district court failed to make adequate find-
ings. It is clear from the record that the district court adopted the findings
of the presentence report as its own. "The required finding of the district
court may be made by the court's separate recitation of its finding as to
each controverted matter or the court's express adoption of the recom-
mended findings contained in the presentence report." United States v.
McManus, 23 F.3d 878, 887 (4th Cir. 1994). Therefore, these issues were
without merit.
48

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he did not preside over the trial. They argue that since the judge was
relying on the transcripts and other court documents in making his
determination, he should have deferred to the jury, who actually had
the opportunity to assess the credibility of the witnesses who were
presented at trial. They do not cite any case law that supports this
position.
We do not agree with Appellants' argument. As has been dis-
cussed, under the Sentencing Guidelines, the district court "has a sep-
arate obligation . . . to make independent factual findings regarding
relevant conduct for sentencing purposes." Id. at 605; see U.S.S.G.
§ 1B1.3. It is clear that in this case, the district judge considered all
of the information available to him in making his sentencing determi-
nation. See J.A. at 2687 ("I've been assiduously reading the record
and attempting to be as much up on the case as any judge in my situa-
tion could be."). The Supreme Court has held that district judges
should have "`the fullest information possible concerning the defen-
dant's life and characteristics'" when making this determination.
United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quot-
ing Williams v. New York, 337 U.S. 241, 247 (1949)). Further, 18
U.S.C. § 3661 provides:
No limitation shall be placed in the information concerning
the background, character, and conduct of a person con-
victed of an offense which a court of the United States may
receive and consider for the purpose of imposing an appro-
priate sentence.
As this circuit held in Love that the "attempt to impose . . . forfeiture
verdicts as artificial limitations on the district's judge sentencing dis-
cretion turns 18 U.S.C. § 3661 on its head." 134 F.3d at 605. There-
fore, we find that the district court did not err because it failed to rely
on the jury's forfeiture verdict.
XII.
Appellant M. Rhynes next argues that the district court erred by
adding one point to his Criminal History category based upon his
May 24, 1991, conviction of carrying a concealed weapon and also
increasing his offense level by two points due to his possession of a
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firearm as part of his drug trafficking activities. He argues that the
only evidence at trial of his connection with any firearm was the 1991
conviction. He states that "[t]o also enhance his offense level by 2,
constitutes double-counting and should be prohibited by the rule
against double counting." Brief for Appellant at 57. See United States
v. Stokley, 881 F.2d 114, 117 (4th Cir. 1989).
We find that the sentencing was proper in this regard. The sentenc-
ing brief submitted by the Government summarized the evidence con-
cerning M. Rhynes' possession of a firearm during the course of the
conspiracy, including statements by two witnesses to that effect. Fur-
ther, the presentence reports also detailed the evidence relating to the
possession of weapons by M. Rhynes' co-defendants and co-
conspirators. Under the Sentencing Guidelines, a two level enhance-
ment for possession of a dangerous weapon as part of a drug crime
can be assessed if the possession of a firearm by a co-conspirator was
reasonably foreseeable to a defendant. See U.S.S.G. § 2D1.1(b);
United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (citing
United States v. White, 875 F.2d 427, 433 (4th Cir. 1989)) ("[C]ourts
have attributed weapons carried by co-conspirators to a defendant
when `under the circumstances of the case, it was fair to say that it
was reasonably foreseeable to [defendant] that his co-participant was
in possession of a firearm.'"). Given the nature of the conspiracy in
this case, we find that the possession of weapons by his co-defendants
and co-conspirators was reasonably foreseeable to M. Rhynes. There-
fore, the district court did not err in assessing both a criminal history
point and increasing M. Rhynes' offense level two points.
XIII.
Appellants also argue that the district court erred in applying man-
agement enhancements to each defendant pursuant to U.S.S.G.
§ 3B1.1. To qualify for such an enhancement,"the defendant must
have been the organizer, leader, manager, or supervisor of one or
more other participants." Id. comment n.2. This circuit has detailed
the certain factors which are to be considered in determining whether
U.S.S.G. § 3B1.1. applies. See United States v. Chambers, 985 F.2d
1263, 1268 (4th Cir. 1993). These factors include:
the exercise of decision making authority, the nature of par-
ticipation in the commission of the offense, the recruitment
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of accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.
Id. (citing U.S.S.G. § 3B1.1, comment. n.3).
Appellants argue that the district court did not make factual find-
ings which were specific enough to demonstrate that it applied these
factors. Therefore, they argue that meaningful appellate review is pre-
cluded, and we should vacate the sentence and remand. We normally
review the district court's application of a role enhancement for clear
error. See United States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992).
However, as appellants did not raise any objection to the district
court's lack of factual findings at the sentencing hearing, we shall
review for plain error. See United States v. Davis, 954 F.2d 182, 186-
87 (4th Cir. 1992).
The district court, with a few exceptions, primarily adopted the pre-
sentence reports' recommended findings. We find that there was suf-
ficient evidence in the record, the presentencing reports, and the
testimony presented at the sentencing hearing to support the district
court's findings that managerial enhancements were applicable to
appellants. Therefore, any error by the district court in terms of the
specifics of its factual findings is harmless.
XIV.
Appellants Gormley and McCoy assert that the district court erred
by relying on unreliable hearsay in determining the drug quantities
attributable to them. It is well settled that courts may use reliable
hearsay in making their independent resolutions of this factual issue
at sentencing. See United States v. Terry, 916 F.2d 157, 160 (4th Cir.
1990). It is also well settled that a court may rely upon uncorrobo-
rated hearsay testimony if the testimony is otherwise reliable. United
States v. Bowan, 926 F.2d 380 (4th Cir. 1991). The district court's
evaluation of reliability is reviewed under an abuse of discretion stan-
dard. United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993).
51

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Appellants contend that statements from witnesses who provided
information which was used to determine drug amounts by the federal
case agent, but who did not testify at trial were unreliable. When
viewed in light of the corroborating evidence, these statements were
sufficiently reliable. As long as the factual evidence relied upon has
some minimal indicia of reliability beyond mere allegations, due pro-
cess is satisfied. United States v. Hicks, 948 F.2d 877, 883 (4th Cir.
1991). We find that the district court did not abuse its discretion in
relying upon these statements.
Further, the district court's determination of drug quantity is
reviewed for clear error. United States v. Williams, 880 F.2d 804, 806
(4th Cir. 1989). Based on the district court's use of reliable hearsay,
and the considerable support for the findings in the record, we cannot
find the court's determination of drug quantities attributable to
McCoy and Gormley to be clearly erroneous. Therefore, we affirm.
XV.
Finally, Appellants argue that the district court's jury instruction as
to Count One, the drug conspiracy "constructively amended the
indictment." Brief for Appellants at 70. As Appellants did not object
to the jury instruction at trial, we review for plain error. United States
v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc). "[T]o reverse
for plain error the appellate court must (1) identify an error, (2) which
is plain, (3) which affects substantial rights, and (4) which seriously
affects the fairness, integrity or public reputation of judicial proceed-
ings." United States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993)
(citations omitted).
Appellants contend that as the indictment was worded conjunc-
tively, the Government was required to prove beyond a reasonable
doubt that defendants conspired to possess and distribute heroin,
cocaine, cocaine base, and marijuana. They concede that the statutes
that they were charged with violating "would permit their conviction
upon a showing beyond a reasonable doubt that they conspired to traf-
fic in any" of the substances. Brief for Appellants at 71. Where a stat-
ute is worded in the disjunctive, federal pleading requires the
Government to charge in the conjunctive. The district court, however,
can instruct the jury in the disjunctive. See Turner v. United States,
52

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396 U.S. 398, 420 (1970); United States v. Champion, 387 F.2d 561
(4th Cir. 1967). Therefore, the district court's jury instruction in the
disjunctive did not constructively amend the indictment.
Additionally, a review of the record shows that the district court
properly defined the specific elements of the charged crime for the
jury, and reminded the jury that the Government had the burden to
prove those elements beyond a reasonable doubt. J.A. at 1945NN,
1945SS-1945UU. There was no plain error, and we affirm.
XVI.
For the reasons stated, we affirm appellants' convictions and sen-
tences, except that we withhold judgment on the convictions of W.
Rhynes, A. Adams, and T. Adams on Count I.
AFFIRMED IN PART, JUDGMENT WITHHELD IN PART
53

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Volume 2 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4465 (L)
WILLIE JAMES RHYNES, a/k/a Big Will,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-96-6-V)
Argued: December 4, 1998
Decided: October 26, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and WILLIAMS, United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
KING, Circuit Judge, concurring in part and dissenting in part:
Because I believe the exclusion of appellant Michael Rhynes's
only supporting witness was prejudicially erroneous, I respectfully
dissent from Part IV of the majority decision, which upholds the ulti-
mate penalty of witness exclusion. I otherwise concur in the majority
opinion.

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I.
The district court's decision to exclude the witness Corwin Alexan-
der runs head-on into Michael Rhynes's Sixth Amendment right to
call witnesses in his behalf.1 This right is a cornerstone of our system
of justice: "Few rights are more fundamental than that of an accused
to present witnesses in his own defense. Indeed, this right is an essen-
tial attribute of the adversary system itself." Taylor v. Illinois, 484
U.S. 400, 408 (1988).
Accordingly, we have recognized that excluding a defense witness
is the severest possible penalty for violation of a sequestration order
and that, as such, it should be imposed to remedy only egregious vio-
lations: "Because exclusion of a defense witness impinges upon the
right to present a defense, we are quite hesitant to endorse the use of
such an extreme remedy." United States v. Cropp, 127 F.3d 354, 363
(4th Cir. 1997). Here, I cannot agree that the district court rightly
imposed the ultimate penalty of excluding Corwin Alexander from
the witness stand, where that exclusion was based on a defense attor-
ney's alleged violation of an "interpretation" of a sequestration order.
II.
The district court excluded Corwin Alexander because Michael
Rhynes's court-appointed attorney, Mr. Scofield, in preparation for
defending his client, spoke with Alexander about a prior witness's
testimony. The district court concluded that Mr. Scofield's conversa-
tion with Alexander regarding prior trial testimony had violated the
court's sequestration order. I am unable to find any such violation and
conclude that there was none. As a result, the district court's decision
to exclude Alexander on the basis of a non-existent violation was an
error of law and, by definition, an abuse of discretion. See Koon v.
United States, 518 U.S. 81, 100 (1996) ("A district court by definition
abuses its discretion when it makes an error of law.").
_________________________________________________________________
1 "In all criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor . . . ." U.S.
Const. amend. VI.
56

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A.
Nothing in the district court's sequestration order--which it
described as "the usual sequestration rule . . . that the witnesses shall
not discuss one with the other their testimony"--prohibits attorneys
from discussing anything with anyone.2 Further, no such prohibition
appears on the face of Federal Rule of Evidence 615, 3 or in any other
evidence rule or rule of court, or--until today--in any decision of this
court. Put simply, Mr. Scofield's actions violated no court order or
court rule, and were, indeed, consistent with the highest and best tra-
ditions of lawyering. See Part II.B, infra.
_________________________________________________________________
2 The entirety of the sequestration order, granted orally from the bench
at the outset of trial, is in the record as follows:
Well, I do grant the usual sequestration rule and that is that the
witnesses shall not discuss one with the other their testimony and
particularly that would apply to those witnesses who have com-
pleted testimony not to discuss testimony with prospective wit-
nesses, and I direct the Marshal's Service, as much as can be
done, to keep those witnesses separate from the--those wit-
nesses who have testified separate and apart from the witnesses
who have not yet given testimony who might be in the custody
of the marshal.
J.A. 273-74. Further, there is no gloss on Rule 615 of the Federal Rules
of Evidence, see infra note 3, in any local rules of court--either those of
the Southern District of West Virginia, where the presiding district judge
ordinarily sits, or those of the Western District of North Carolina, where
the case was tried--that might further explain what the district court
meant by the "usual" rule.
3 By its terms, Rule 615 merely provides for the exclusion of certain
witnesses from the courtroom:
At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This rule does not autho-
rize exclusion of (1) a party who is a natural person, or (2) an
officer or employee of a party which is not a natural person des-
ignated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presen-
tation of the party's cause, or (4) a person authorized by statute
to be present.
Fed. R. Evid. 615.
57

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The majority does not contend that the text of Rule 615 prohibited
Mr. Scofield's conversations with Corwin Alexander. And, although
it curiously argues that the district court's oral sequestration order
"was drawn to ensure that there was no witness coaching," ante at 26
(emphasis added), the majority points to nothing in the wording of the
district court's order that even implicitly barred Mr. Scofield, or any
attorney in the case, from speaking with any witness. Nevertheless,
the majority seeks to compensate for this lack of record support by
arguing that the district court was free to "interpret" its sequestration
order in a manner that converted Mr. Scofield's conversation with
Corwin Alexander, after the fact, into a violation of the order.4
I wholeheartedly disagree with this ruling by the majority. The
majority cites no authority for the proposition that an unadorned
sequestration order, although devoid of any reference to lawyers, nev-
ertheless may be interpreted to prohibit lawyers from discussing trial
proceedings with prospective witnesses.5 I likewise can find no nota-
ble authority to support this novel position.
_________________________________________________________________
4 The majority's decision incorrectly implies that we should defer to a
district court's interpretation of the law. See ante at 27. Here, if the dis-
trict court's order was an invocation of Rule 615--the most reasonable
construction of that order--then the district court effectively determined
that Mr. Scofield violated Rule 615, nothing else. The question of
whether Rule 615 prohibits any communication between an attorney and
a witness is a question of law, which this court must review de novo.
Excluding a defense witness for violations of a sequestration order also
has clear Sixth Amendment implications, Cropp , supra, 127 F.3d at 363,
and this Court reviews ultimate constitutional questions de novo. See
United States v. Meglar, 139 F.3d 1005, 1008 (4th Cir. 1998) ("We
review de novo the ultimate question of whether the government violated
a defendant's Fifth and Sixth Amendment rights"). In either event, we do
not owe unquestioning deference to the district court's finding that Mr.
Scofield violated a sequestration order or its decision to exclude
Rhynes's witness. See ante at 27-28.
5 Given the lack of legal support for the district court's broad interpre-
tation of its order, it is obvious that Mr. Scofield did not intend to violate
the sequestration order. When questioned about his discussions with the
witness Alexander in preparation of the defense, he was clear about his
actions: "I specifically told [Alexander] about that testimony and told
him I was going to ask him about that, Your Honor. And I don't think
that violates the sequestration order." J.A. 1945M.
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Indeed, relevant authorities interpret Rule 615 otherwise. Court
decisions and the leading commentators agree that sequestration
orders ordinarily do and should permit witnesses to discuss the case
with counsel for either party: "Sequestration requires that witnesses
not discuss the case among themselves or anyone else, other than the
counsel for the parties." United States v. Walker, 613 F.2d 1349, 1354
(5th Cir. 1980) (emphasis added) (citing Gregory v. United States,
369 F.2d 185 (D.C. Cir. 1966)); accord United States v. Buchanan,
787 F.2d 477, 485 (10th Cir. 1986) ("The witnesses should be clearly
directed, when [Rule 615] is invoked . . . that they are not to discuss
the case . . . with anyone other than counsel for either side.") (empha-
sis added);6 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's
_________________________________________________________________
Nor is it insignificant that Mr. Scofield did not understand "the usual
sequestration rule" to bar counsel from discussing prior trial occurrences
with an upcoming witness. Mr. Scofield is a veteran trial lawyer with
more than thirty years of experience, which has included service as an
Assistant United States Attorney, state public defender, and law school
instructor, as well as private practice. He has been accorded an "AV" rat-
ing in the Martindale-Hubbell Law Directory. 13 Martindale-Hubbell
Law Directory, at NC36P (1998). This rating, which is awarded to only
approximately 20% of the private practice bar, indicates that he is
regarded by his peers as possessing the highest legal ability and adhering
to the highest ethical standards. If the "usual sequestration rule" implies
some limitation on Mr. Scofield's communications with witnesses, then
an attorney with his background and experience would certainly have
been aware of it.
6 In a passage that is internally inconsistent, the Tenth Circuit appears
both to endorse and forbid witnesses subject to sequestration from dis-
cussing the case with counsel:
The witnesses should be clearly directed, when [Rule 615] is
invoked, that they must all leave the courtroom . . . and that they
are not to discuss the case or what their testimony has been or
would be or what occurs in the courtroom with anyone other
than counsel for either side. See 3 Weinstein's Evidence 615-13.
Counsel know, and are responsible to the court, not to cause any
indirect violation of the Rule by themselves discussing what has
occurred in the courtroom with the witnesses.
Buchanan, 787 F.2d at 475 (emphasis added). Notably, while the Tenth
Circuit cites the respected treatise of Judge Weinstein in support of the
59

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Federal Evidence § 615.06 (Joseph M. McLaughlin, ed., 2d ed. 1998)
("[Sequestration] instructions, however, usually permit the witnesses
to discuss their own or other witnesses' testimony with counsel for
either side.") (emphasis added); 2 Charles A. Wright, Federal Prac-
tice & Procedure § 415 (2d ed. 1982) ("If exclusion is ordered, the
witnesses should be instructed not to discuss the case with anyone
except counsel for either side.") (emphasis added).7
_________________________________________________________________
first part of this passage, it cites no authority for the second part. The rea-
son is obvious. If witnesses are allowed to discuss "what occurs in the
courtroom . . . with counsel"--as the court specifically permits--it is
logically impossible for lawyers to take part in the same conversations
without themselves violating the court's admonition against counsel "dis-
cussing what has occurred in the courtroom with the witnesses." Because
this second sentence is nonsensical when read together with the well-
supported rule in the first sentence, its suggestion that lawyer-witness
discussions be limited is entirely unpersuasive.
7 The majority has located a single commentator that would endorse
district court orders explicitly prohibiting witness contacts with attor-
neys: "While Rule 615 provides solely for the exclusion of witnesses
from the courtroom, the court may take further measures . . . such as
ordering [witnesses] . . . not to discuss the case with one another or with
any attorney . . . ." Michael Graham, Federal Practice & Procedure,
Federal Rules of Evidence § 6611, at 216 (interim ed. 1992). Notably,
this statement is not supported by the single case that the treatise cites,
Perry v. Leeke, 488 U.S. 272 (1989). In Perry, the Court held only that
witnesses may be prohibited from speaking with lawyers between direct
and cross examination; it did not approve the practice the treatise
endorses, namely, generally prohibiting lawyer-witness contact as part of
a sequestration order.
Moreover, even if the treatise were correct on the law, it is irrelevant
in this case. The rule it posits--that trial courts may explicitly direct wit-
nesses not to speak with attorneys--does not support the majority's
novel approach. The majority would conclude that, even where a trial
judge has not "taken further measures" and instructed witnesses to avoid
discussing the case with attorneys, it has implicitly forbidden such con-
duct simply by instructing witnesses not to speak to each other. Not even
the lone treatise that the majority cites has taken such an extreme posi-
tion.
Nor do the cases the majority cites provide any more support. The
majority points to cases holding that sequestration orders, though silent
60

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Undeterred by the weight of contrary authority, the majority
upholds the district court's ruling that its order actually prohibited
attorney-witness discussions of testimony as a permissible "interpreta-
tion" of the sequestration order. See ante at 27-28. While acknowl-
edging that such interpretations are reversible if they are "clearly . . .
an abuse of discretion," Texas N.W. Ry. Co. v. Diamond Shamrock
Ref. & Mktg. Co., 865 F.2d 807, 810 (7th Cir. 1988), the majority
concludes that the district court's "interpretation" of the order was
"reasonable." See ante at 27-28.
I cannot agree. If a district court does not exceed its discretion by
interpreting a sequestration order in a manner that is (1) unsupported
by its text; (2) unsupported by Rule 615; (3) unprecedented in this cir-
cuit; (4) contrary to the overwhelming weight of persuasive case law
and scholarship; and (5) arguably unconstitutional, see Part II.B,
infra, then the district court's discretion to interpret its orders is effec-
tively limitless. As a practical matter, the majority's position would
permit district judges, when faced with any trial activity they dislike,
not only to order it stopped prospectively, but to punish it as if it were
a violation of a then-existing order. Such post-hoc exercises of regula-
tory power are wholly inconsistent with our system of justice. See
generally Kaiser Aluminum & Chem. Corp. v. Bonjorno , 494 U.S.
827, 855 (1990) (Scalia, J., concurring) ("[The] principle that the
legal effect of conduct should ordinarily be assessed under the law
that existed when the conduct took place has timeless and universal
appeal.").
The majority's final defense of its ruling underscores a logical fal-
lacy underlying its position. The majority states that Mr. Scofield did
not violate the sequestration order by speaking with Alexander, but
only by informing him of prior testimony. Based on this understand-
_________________________________________________________________
on the matter, may prohibit witnesses from discussing the case with each
other out of court or from reading trial transcripts. See ante at 28 (citing
United States v. Greschner, 802 F.2d 373 (10th Cir. 1986), Miller v. Uni-
versal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981)). But conspicu-
ously absent from these cases is any decision that would implicitly
expand garden-variety sequestration orders to prohibit the only activity
relevant in this case: attorney-witness discussions of testimony.
61

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ing of the order, the majority concludes that "counsel had ample room
to interview and prepare witnesses without running afoul of the
[sequestration] order." See ante at 29.
But this conclusion begs the question, "How was counsel to discern
the limits of the sequestration order?" Those limits--as declared after
the fact by the district court--did not appear on the face of the order,
in Rule 615, in controlling precedent, or even in persuasive authori-
ties. In fact, the majority makes it virtually impossible for counsel to
know whether they have "ample room" to perform essential tasks
without violating an order, because the majority today effectively
grants district courts limitless discretion to expand their orders
through post-hoc "interpretation."8
_________________________________________________________________
8 The majority also asserts that Mr. Scofield could have asked the dis-
trict court whether the "usual sequestration rule" prohibited any commu-
nication between himself and Alexander. See ante at 31. However, any
reasonable attorney would have believed that the district court's invoca-
tion of the "usual sequestration rule" was a reference to Rule 615, since
there was no other controlling rule or standing order. Nothing in Rule
615 or related authority could have raised any doubt for Mr. Scofield
about "the propriety of his intended conduct." See ante at 31.
In my view, the majority's assertion also reveals a misunderstanding
of what lawyers must do to prepare for trial and fulfill their obligations
to their clients. Mr. Scofield knew that he had an obligation to prepare
for Alexander's testimony and that his preparation included ascertaining
whether Davis's testimony, especially that part relating to Alexander,
was true. The majority apparently would have no problem if (hypotheti-
cally) Mr. Scofield had asked Alexander during trial preparation: "You
sold drugs to Davis in August 1997, isn't that true?" Yet, if Mr. Scofield
asked: "Davis testified that you sold drugs to Davis in August 1997. Is
that testimony true?" then the majority would hold that Mr. Scofield vio-
lated the "usual sequestration rule" because his question included the
words: "Davis testified." We are simply--and unnecessarily--splitting
hairs when, under these circumstances, we condemn Mr. Scofield and
punish his client with the ultimate penalty of witness exclusion.
62

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B.
1.
Not only were Mr. Scofield's actions consistent with the order the
district court actually issued and the text of Rule 615, they were con-
sistent with well-established policies underlying the rule. We have
recognized that Rule 615 is "designed to discourage and expose fabri-
cation, inaccuracy, and collusion." Opus 3 Ltd. v. Heritage Park, Inc.,
91 F.3d 625, 628 (4th Cir. 1996). Put differently, Rule 615 helps to
smoke out lying witnesses: "It is now well recognized that sequester-
ing witnesses `is (next to cross-examination) one of the greatest
engines that the skill of man has ever invented for the detection of
liars in a court of justice.'" Id. (citing 6 Wigmore on Evidence § 1838,
at 463).9
While courts may in their discretion decide to go beyond the provi-
sions of Rule 615 and bar witness-to-witness conversations about
prior testimony, with the view that such an order is appropriate to
enhance the truth-seeking process, preventing lawyers from lawyering
is simply inappropriate. The majority nevertheless concludes that a
lawyer-to-witness discussion of prior testimony"poses the exact same
risk as allowing witnesses to speak with one another." See ante at 27.
This proposition is simply unfounded and inaccurate. Lawyers are
not like witnesses, and the majority ignores critical differences
_________________________________________________________________
9 The majority founds its holding on the necessity "to protect the truth-
fulness of testimony." See ante at 26. However, the search for truth was
not furthered by excluding Alexander's testimony. I agree, for example,
that if Alexander had been permitted to testify and his testimony had
contradicted Davis's testimony, then one--either Alexander or Davis--
was not, in all likelihood, testifying truthfully. However, I trust the
adversary system to separate the liars from the truthful. The search for
truth would have been better served by permitting the jury to determine
who was telling the truth. By contrast, the district court's exclusion of
Alexander's testimony left Davis's testimony uncontradicted and could
have led the jury to believe, and rely upon, untruthful testimony. Put sim-
ply, excluding Corwin Alexander as a witness did nothing to further the
search for truth.
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between them that are dispositive in this case. Unlike witnesses, law-
yers are officers of the court, and as such, they owe the court a duty
of candor. Model Rules of Professional Conduct Rule 3.3 (1995). Of
paramount importance here, that duty both forbids an attorney from
knowingly presenting perjured testimony and permits the attorney to
refuse to offer evidence he or she reasonably believes is false. Id.
Rule 3.3(a)(4), (c). Similarly, an attorney may not "counsel or assist
a witness to testify falsely." Id. Rule 3.4(b). And if an attorney
believes that a non-client witness is lying on the witness stand about
a material issue, he is obliged to "promptly reveal the fraud to the
court." Id. Rule 3.3, cmt. 4. The Supreme Court has emphasized the
importance of attorneys' duty of candor: "Any violation of these stric-
tures would constitute a most serious breach of the attorney's duty to
the court, to be treated accordingly." Geders v. United States, 425
U.S. 80, 90 n.3 (1976) (citing to parallel provisions of Model Code
of Professional Responsibility).
Consequently, lawyers' ethical obligations to the court distinguish
them from trial witnesses, whose discussions with other prospective
witnesses may properly be forbidden by sequestration orders. Further,
if an attorney has inappropriately "coached" a witness, thorough
cross-examination of that witness violates no privilege and is entirely
appropriate and sufficient to address the issue. In Geders, Chief Jus-
tice Burger, for a unanimous Court, endorsed cross-examination as
the swift antidote for witness coaching:
The opposing counsel in the adversary system is not without
weapons to cope with "coached" witnesses. A prosecutor
may cross-examine a defendant as to the extent of any
"coaching" . . . . Skillful cross-examination could develop a
record which the prosecutor in closing argument might well
exploit by raising questions as to the defendant's credibility,
if it developed that defense counsel had in fact coached the
witness as to how to respond . . . .
Geders, 425 U.S. at 89-90.
Nevertheless, the majority concludes that Mr. Scofield's discussion
with Corwin Alexander warranted excluding Alexander as a witness:
"Conduct such as witness coaching and perjury threatens to destroy
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the integrity of this process. The risk of this type of conduct inhered
in the circumstances of this case." See ante at 26. In other words, the
majority implies that by discussing prior trial testimony with Corwin
Alexander, Mr. Scofield necessarily coached Alexander or made it
likely that Alexander would commit perjury.10 To the contrary, I
intrinsically trust in lawyers' abilities to discharge their ethical obliga-
tions, including their duty of candor to the court, without being
policed by overbroad sequestration orders. Furthermore, I trust that,
if an attorney is lax in his duty of candor, that laxness can be exposed
--even exploited--by skillful cross-examination.
2.
But subjecting lawyers to overbroad sequestration orders is not
simply a benign redundancy. Instead, such orders affirmatively harm
the adversarial process by hindering attorneys from discharging their
duties to the client. To a client, an attorney owes competence. Model
Rules Rule 1.1. To fulfill this basic duty, the attorney must prepare
carefully for the task at hand: "Competent representation requires . . .
thoroughness and preparation reasonably necessary for the representa-
tion." Id. Rule 1.1(a).
In the context of a complex and protracted trial, like the one that
took place here, thorough preparation demands that an attorney inter-
view and prepare witnesses before they testify. Indeed, what lawyer
would call a witness without appropriate and thorough pre-trial inter-
views and discussion? The answer is obvious--none who takes seri-
ously the ethical obligation of providing competent representation.
Notably, more than one lawyer has been punished, found ineffective,
or even disbarred for incompetent representation that included failure
to prepare or interview witnesses. United States v. Tucker, 716 F.2d
576 (9th Cir. 1983) (defense counsel ineffective for failing to inter-
view witnesses); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974)
(same); In re Warmington, 568 N.W.2d 641, 668 (Wis. 1997) (lawyer
disbarred for, among other things, "failing to supervise the prepara-
tion of an expert witness"); In re Wolfram , 847 P.2d 94, 96 (Ariz.
_________________________________________________________________
10 For the sake of clarification, I note that nothing in the record even
remotely suggests that Mr. Scofield improperly coached Alexander or
encouraged him to commit perjury.
65

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1993) (failure to interview witnesses cited among reasons for sus-
pending attorney).
By stretching Rule 615 to implicitly prohibit attorneys from speak-
ing to witnesses regarding prior trial testimony, the majority ham-
strings attorneys in performing their obligations to competently
defend their clients. Our adversarial system works best when lawyers
are permitted and encouraged to engage in effective lawyering. This
is precisely the sentiment Mr. Scofield expressed to the district court
when the court told him that he had violated the sequestration order:
"I'm sorry then, Your Honor. I've done wrong then because I don't
know how else I can prepare [Alexander] to testify."11 J.A. 1945M.
And in the context of a criminal trial, like this one, a defense attor-
ney's duty to her client assumes constitutional stature: "In all criminal
prosecutions, the accused shall . . . have the Assistance of Counsel for
his defence." U.S. Const. amend. VI. We have rightly recognized that
even the "powerful policies behind sequestration" must bend to the
dictates of the Constitution. Opus 3 Ltd., 91 F.3d at 628.12 So it must
be here.
_________________________________________________________________
11 The majority also says that "Scofield not only apologized to the
court, but he also commendably related in detail what he could have and
should have done instead." See ante at 30. However, the colloquies
quoted by the majority demonstrate nothing more than an attorney trying
desperately to obtain reconsideration of an erroneous ruling in order to
get his only supporting witness to the stand. If anything, Mr. Scofield
assumed responsibility so that he, not his client, would be punished. This
after-the-fact mea culpa does nothing to allay my concern that the major-
ity's holding unreasonably burdens the ability of lawyers to properly rep-
resent their clients and prepare for trial.
12 It is important to note that Rule 615, on its face, does not require
exclusion of all witnesses from the courtroom. While an absolute rule
would no doubt promote the truth-seeking policy behind Rule 615, con-
stitutional considerations have required that exceptions be built into the
Rule itself. Opus 3 Ltd., 91 F.3d at 628 ("confrontation and due process
considerations" drive Rule 615's exceptions). Parties or their representa-
tives, as well as expert witnesses, are authorized by Rule 615 to remain
in the courtroom, hear testimony, and subsequently testify. Rule 615(1)-
(3). In criminal cases these exceptions in practice are applied to allow the
66

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In my view, sequestration orders that prevent attorneys from per-
forming their duties as counsel, including discussing trial proceedings
with future witnesses, may well violate a criminal defendant's Sixth
Amendment rights. The Supreme Court has explicitly forbidden some
sequestration orders that prohibit a defendant-witness from conferring
with counsel. Geders, 425 U.S. at 87; accord United States v. Allen,
542 F.2d 630, 633 (4th Cir. 1976). And at least one court has
extended this reasoning to sequestration orders preventing counsel
from discussing prior testimony with non-defendant witnesses:
It has been held that to deprive a party . . . of the right to
consult with counsel as the trial proceeds is to infringe its
right to due process of law. This court believes that similar
considerations apply to the right of a party to have his coun-
sel free to discuss with prospective witnesses developments
in the case, including the testimony of other witnesses.
United States v. Scharstein, 531 F. Supp. 460, 463-64 (E.D. Ky.
1982) (emphasis added).
Given the constitutional significance of the duties Mr. Scofield was
seeking to carry out, I cannot agree that the district court was within
its discretion to hinder his performance of those duties with an expan-
sive, unprecedented, and after-the-fact "interpretation" of its seque-
stration order. I certainly cannot agree that, because his attorney took
actions that neither the Supreme Court, this court, nor any district
court in this circuit has ever expressly forbidden, Michael Rhynes
should have been penalized with the exclusion of his sole supporting
witness. To the contrary, where an attorney seeks to perform his
_________________________________________________________________
prosecution's case agent--the FBI, DEA, IRS, or BATF agent--to
remain at counsel table with the prosecutor, hear the other witnesses tes-
tify, and nevertheless testify on behalf of the prosecution.
And in this very case, the Government's case agent and summary wit-
ness were specifically exempted from the sequestration order. J.A. 274.
Accordingly, the text of Rule 615 further emphasizes the erroneous
nature of the ruling challenged here, and underscores the inappropriate-
ness of the district court's comment that Mr. Scofield's representation of
his court-appointed client was "unprofessional."
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constitutionally-mandated duty to effectively represent a criminal
defendant, he must be free to interview defense witnesses and to dis-
cuss with them all appropriate matters, without being muzzled by an
overbroad sequestration order.13
III.
While I agree with the majority that harmless error analysis applies
to the district court's erroneous exclusion of Corwin Alexander, I am
satisfied that the erroneous exclusion of Michael Rhynes's sole cor-
roborating witness, who would have sought to rebut much of the Gov-
ernment's evidence against Michael Rhynes, cannot have been
harmless. This is an error of constitutional magnitude--a deprivation
of Michael Rhynes's Sixth Amendment right to call witnesses on his
behalf. For this constitutional error to be harmless, the Government
must establish, to the satisfaction of this Court beyond a reasonable
doubt, "that a rational jury would have found the defendant guilty
absent the error." United States v. Neder, 119 S. Ct. 1827, 1838
(1999).
In its effort to surmount this hurdle, the majority claims harmless
error because the "amount" of evidence against Rhynes was, in its
view, "voluminous" or "massive."14 See ante at 34-35. Even if this
_________________________________________________________________
13 If a district court, in its discretion, determines to grant a sequestration
order that exceeds the express bounds of Rule 615, the order should at
least comport with the following: (1) it should be explicit; (2) it should
be of record and timely; (3) it should be entered only after appropriate
input from counsel; and (4) it should be tailored as narrowly as possible
to achieve its purposes without hindering counsel in performance of their
duties to clients and the court. Such criteria seem especially prudent in
light of the "confusion about how far the scope of a bald Rule 615 order
extends for the sanction of excluding testimony." United States v.
McMahon, 104 F.3d 638, 648 (4th Cir. 1997) (Michael, J., dissenting).
14 The majority supports its opinion by relying on the "voluminous tes-
timony against M. Rhynes." See ante at 34. However, there is nothing in
the Sixth Amendment guaranteeing a criminal defendant the right to call
witnesses only when the Government's case is weak; on the contrary,
when the Government's case is based upon "voluminous" evidence, a
trial court should be especially vigilant in ensuring that a defendant is
accorded his Sixth Amendment right to defend himself.
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assessment is accepted as true, that would not be sufficient. Alexan-
der's proposed testimony, summarized below, would have contro-
verted most of the Government's evidence against Rhynes. And
importantly, "overwhelming" but genuinely "contested" evidence
does not satisfy the "reasonable doubt" harmless error standard. See
Neder, supra, 119 S. Ct. at 1837-39.
As the appellants have pointed out, Alexander would have sought
to corroborate several details of Michael Rhynes's own testimony, to
discredit several of the Government's witnesses, and to counter a
number of the inferences the Government sought to draw from its evi-
dence. See ante at 24 (summarizing evidence proposed to be pres-
ented by Alexander). Specifically, Alexander would have testified
about his close relationship with Michael Rhynes and would have said
that Alexander had never dealt drugs with Michael Rhynes or with
anyone else. Further, he would have testified that he knew at least
seven of the Government's witnesses well, and that each of them had
a reputation for untruthfulness. Alexander would have corroborated
Michael Rhynes's testimony that he received a particular sum of
money from an insurance settlement and not, as the Government had
contended, from illegal sources. Finally, Alexander would have testi-
fied that he accompanied Michael Rhynes on a trip to New York,
which the Government claimed had been a drug-related trip. Alexan-
der would have explained that he and Michael Rhynes had gone to see
a basketball game and that they had had no involvement with drugs,
on this trip or otherwise.15
When he lost Alexander as a witness, Michael Rhynes lost the
opportunity to independently challenge the Government on all of
these issues. Michael Rhynes was, by this ruling, clearly denied his
constitutionally-protected right to fairly defend himself, and he is now
serving a prison sentence of thirty years. I simply cannot conclude
that a criminal defendant's loss of his sole supporting witness could,
under these circumstances, be harmless.
_________________________________________________________________
15 Presumably the Government would have challenged the credibility of
these aspects of Alexander's testimony. The assessment of Alexander's
credibility and the weight to be accorded his testimony--if any--was
properly for the jury to determine.
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IV.
Respectfully, I would vacate Michael Rhynes's conviction and
remand his case to the district court for a new trial.
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