 United States of America v. THOMAS E. SMITH, JR., a/k/a Anthony Young

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
and
MOLITA BRYANT; WESLEY PALMER,
Parties in Interest, No. 04-4574 
v.
THOMAS E. SMITH, JR., a/k/a
Anthony Young,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
and
MOLITA BRYANT; WESLEY PALMER, No. 04-4575 Parties in Interest,
v.
TYRONE SMALLWOOD,
Defendant-Appellant. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-03-245)
Argued: May 26, 2006
Decided: June 30, 2006

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Before WILKINSON and WILLIAMS, Circuit Judges, and
Glen E. CONRAD, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Williams and Judge Conrad joined.
COUNSEL
ARGUED: Frank Salvato, Alexandria, Virginia; Meghan Suzanne
Skelton, Assistant Federal Public Defender, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellants.
Brian David Miller, GENERAL SERVICES ADMINISTRATION,
Office of the Inspector General, Washington, D.C., for Appellee. ON
BRIEF: Lana Marie Manitta, MARTIN & ARIF, Springfield, Vir-
ginia, for Appellant Tyrone Smallwood. Frank W. Dunham, Jr., Fed-
eral Public Defender, Ivan D. Davis, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant Thomas E. Smith, Jr. Paul J.
McNulty, United States Attorney, Erik R. Barnett, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Defendants Thomas E. Smith, Jr. and Tyrone Smallwood appeal
their convictions and sentences arising from their participation in a
large crack cocaine conspiracy and the murder of Conrad Shelton.
Defendants primarily contend that the district court assumed the role
of a prosecutor by rehabilitating government witnesses and frequently
interrupting defense counsel’s cross-examination. They further argue
that venue was lacking in the Eastern District of Virginia. We hold
there was no error in either respect. District courts deserve latitude in
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overseeing the presentation of evidence during a criminal proceeding,
and the essential guarantee of a fair trial was not infringed. We further
hold that venue on all counts was proper in the Eastern District
because several acts in furtherance of the underlying drug conspiracy
were perpetrated there. With respect to all other issues raised, we find
no error, and thus affirm the judgment of the district court.
I.
This case arises from the prosecution of members of a large drug
manufacturing and distribution ring that operated in Virginia, Mary-
land, and Washington, D.C., during the 1990s. Defendants Thomas
Smith and Tyrone Smallwood were key participants in this criminal
organization, which was spearheaded by Walter Fleming, who has
since pleaded guilty. Evidence adduced at trial revealed an extensive
conspiracy dedicated to selling crack cocaine, and we shall undertake
only a summary of those events relevant to the issues presented here.
Smith and Smallwood worked as partners in Fleming’s distribution
scheme. The two maintained several residences, including a Washing-
ton, D.C., apartment that Smith had rented under an alias. Defendants
utilized this apartment to store drugs and convert powder cocaine into
crack. Smith also used his alias to lease a house in Hyattsville, Mary-
land. On November 4, 1996, authorities searched this home, found
both defendants present, and discovered Smallwood attempting to
flush drugs down a toilet. As part of the raid, officers seized drugs,
drug paraphernalia, firearms, body armor, cash, and vehicles, includ-
ing Smith’s Toyota Land Cruiser, which defendants had used to facil-
itate drug transactions. Other evidence introduced at trial showed that
Smallwood had sold large amounts of crack cocaine on numerous
occasions, including two separate sales of one-eighth of a kilogram
of crack for $2800, one of which was conducted near a community
swimming pool. When confronted by the FBI in 2001, Smith stated:
"I am definitely guilty of a drug conspiracy and dealing drugs in the
past."
Smallwood also had a role as an enforcer in Fleming’s drug net-
work, frequently accompanying Fleming on missions to confront indi-
viduals whom Fleming suspected of spreading rumors and stealing
crack. On one mission, Fleming, with Smallwood present, shot a
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member of his own crew, later discarding his weapon in the Anacostia
River. On another, Smallwood joined Fleming to interrogate an indi-
vidual who had spread a story that Fleming was cooperating with
authorities. Fleming later arranged to have this man killed.
Much of the evidence presented at trial concerned the murder of
Conrad Shelton, an addict who did odd jobs for Smith and Smallwood
in exchange for crack cocaine. Shelton’s handyman duties included
washing cars for defendants and their associates. Anthony Brown,
who pleaded guilty to aiding and abetting Shelton’s murder, testified
that Shelton was not paid in crack until he finished the washing
because Shelton would otherwise rush through the job in order to get
high.
In early 1996, Smallwood discovered that one of his apartments
had been robbed, and drugs and money taken. Smallwood suspected
that Shelton — with his knowledge of defendants’ residences and
drug operation — had played a role in the theft. On February 11,
1996, Shelton received several phone calls, and told his girlfriend,
Barbara Wyatt, that he was going to Smallwood’s apartment. Accord-
ing to Wyatt, Shelton was nervous and agitated because he had been
involved in stealing crack from Smallwood. Shelton was seen with
more crack than usual that day.
Once Shelton arrived at Smallwood’s apartment, Smallwood
accused Shelton of organizing the burglary, and threatened to kill
him. Smallwood, Smith, Anthony Brown, and Shelton then got in a
car so that Shelton could help the defendants locate the person who
had stolen Smallwood’s drugs and cash. They eventually parked the
car at the mouth of an alley in Washington, D.C., and while Brown
acted as a lookout, Smith shot Shelton in the head. Both defendants
thereafter fired multiple rounds into Shelton’s body, twelve shots in
all. Two of Shelton’s head wounds contained soot and stipple, sug-
gesting shots fired at point-blank range. Ballistic examinations further
revealed that the bullets and cartridges at the scene of the murder
matched guns that defendants habitually carried and that they were
seen with that evening. Shelton’s murder went unsolved for some
time. Years later, when confronted by the FBI, Smith admitted that
he often beat Shelton when narcotics or money were missing, and that
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he "could straighten out the story and clarify what happened when
[Shelton] was killed."
On December 23, 2003, a federal grand jury in the Eastern District
of Virginia indicted Smith for conspiracy to distribute more than fifty
grams of cocaine base (crack cocaine), see 21 U.S.C. § 846 (2000)
(Count One), and both defendants for murder while engaged in a drug
trafficking crime, see id. § 848(e)(1)(A) (Count Two), and the use of
a firearm in relation to a drug trafficking crime, causing the death of
Conrad Shelton, see 18 U.S.C. § 924(c)(1)(A), (j) (2000) (Count
Three). Defendant Smallwood was charged only with Counts Two
and Three because he had pleaded guilty to his role in the drug con-
spiracy in the District of Columbia in 1996.
A jury trial was conducted from February 9 to February 24, 2004,
at the conclusion of which the jury found defendants guilty on all
counts. The district court sentenced Smith to concurrent life sentences
for the drug conspiracy and murder, and to a 120-month consecutive
sentence for the use of a firearm. Smallwood was likewise sentenced
to life in prison for Shelton’s murder, plus an additional 120 months
for the firearm offense. From these convictions and sentences, defen-
dants bring this appeal.
II.
Defendants’ primary contention is that they were denied a fair trial
because the district judge improperly intervened with prosecution-
friendly questions and interruptions. We believe, however, that the
district court acted appropriately in ensuring that matters were clearly
presented to the jury, and that a multi-week trial did not bog down.
A.
We begin with the standard of review. Defendants neglected to
raise at trial any objections to judicial intervention, and so we review
their allegations here for plain error. See United States v. Godwin, 272
F.3d 659, 672 (4th Cir. 2001). Under the Federal Rules of Evidence,
"[t]he court may interrogate witnesses," and "[o]bjections to . . . inter-
rogation by [the court] may be made at the time or at the next oppor-
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tunity when the jury is not present." Fed. R. Evid. 614(b), (c).
Defendants in this case failed to do either. A defendant is, of course,
not required to object to each and every question or comment that a
district court makes, as such interjection would inevitably prove dis-
ruptive at trial. But where, as here, defendants failed to bring even a
single alleged error to the district court’s attention during trial, we
cannot conclude that they preserved this issue for appeal. See Godwin,
272 F.3d at 672.
Defendants nevertheless contend that harmless error review is
required because they filed both a motion in limine and a post-verdict
motion on judicial intervention. This argument must fail, for the for-
mer was premature and the latter dilatory. It is true that motions in
limine may in some circumstances suffice to preserve an error for
appeal. See, e.g., United States v. Ellis, 121 F.3d 908, 918 (4th Cir.
1997). But in the context of improper judicial intervention, pretrial
motions will not typically constitute a proper objection because the
exact nature of any judicial overreaching cannot be known until the
trial is underway. See United States v. Williams, 81 F.3d 1321, 1325
(4th Cir. 1996) (motion in limine did not preserve error where it "was
not based upon nor did it seek a ruling on the precise issue [defen-
dant] now seeks to raise") (emphasis added).
The whole purpose of raising objections is to put district courts on
notice of their alleged mistakes. Defendants’ motion in limine — with
its general request that the trial court "refrain from any actions which
may be interpreted by the jury as favoring the government over the
defense especially regarding the Court questioning or rehabilitating
witnesses" — failed to alert the trial judge to any improper question-
ing with the required specificity. Indeed, far from the contemplated
timely objection, defendants’ motion in limine sought in effect to
charge the district judge with bias before the trial had even so much
as started.
While the motion in limine provided the district court with no indi-
cation of the nature of its errors, defendants’ post-verdict motion gave
the court no opportunity to redress them. A primary purpose of Fed-
eral Rule of Evidence 614(c) is to "assur[e] that objections are made
in apt time to afford the opportunity to take possible corrective mea-
sures." Fed. R. Evid. 614 advisory committee’s note to subdiv. (c). A
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post-trial motion does not suffice to preserve errors of judicial inter-
ference, see Godwin, 272 F.3d at 672, and litigants may not attempt
to blindside district courts by pointing out errors long after the oppor-
tunity to take immediate curative action has passed.
For the reasons set forth above, plain error review is appropriate.
Under this standard, we examine the record for plain error that affects
substantial rights, and even then, we are not required to notice the
error unless it "seriously affect[s] the fairness, integrity or public rep-
utation of judicial proceedings." United States v. Olano, 507 U.S.
725, 732-36 (1993). In the specific context of judicial intervention
claims, "we may not intervene unless the judge’s comments were so
prejudicial as to deny the defendants an opportunity for a fair and
impartial trial." Godwin, 272 F.3d at 673 (internal quotation marks
and alterations omitted). We now turn to the issue at hand.
B.
Defendants’ specific allegations of inappropriate judicial interven-
tion center on the questioning of three witnesses, Walter Fleming,
Gary Stanley, and Anthony Brown, who as noted, had earlier pleaded
guilty to aiding and abetting the Shelton murder. With respect to
Brown, defendants contend that during the government’s direct exam-
ination, the district court bolstered the prosecution’s case by tossing
"softball" questions to Brown. For example, during Brown’s testi-
mony about events at Smallwood’s apartment prior to Shelton’s
death, the following colloquy took place:
Prosecution: What, if anything, did you see Ty [Smallwood]
do then?
The Witness: He was — he looked at Conrad [Shelton], then
he went and turned the music up, and he grabbed one of the
guns, and he pointed it to his head, and he was like, "I
should kill you." But he didn’t at the time.
The Court: Pointed at whose head?
The Witness: At Conrad.
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The Court: Who pointed it?
The Witness: Tyrone Smallwood.
The Court: Who pointed the gun?
The Witness: Ty pointed the gun.
The Court: Next question.
Defendants further contend that the district court was particularly
aggressive during defense counsel’s cross-examination of Brown,
making at least nineteen sua sponte objections to various questions
and repeatedly punctuating the proceedings with requests for counsel
to speed things up. See, e.g., J.A. 1604 ("Let’s go on."); J.A. 1604-05
("No further question on that. It’s enough. It’s collateral. Let’s pro-
ceed."); J.A. 1643 ("Let’s get to the heart of it, Mr. Salvato."). They
likewise argue that the district judge frequently attempted to rehabili-
tate Brown during cross-examination, thereby strengthening the gov-
ernment’s theory that Brown was in fact present during the murder.
For example, when defense counsel was questioning Brown about
possible discrepancies in his account, the district court asked Brown
if he had "go[ne] up to the body after Shelton was shot," suggesting
that Brown was in a position to do so. Defendants raise similar allega-
tions with respect to the questioning of Walter Fleming as they do for
Brown, although as we noted above, defendants did not raise objec-
tions during the trial itself.
With regard to Gary Stanley, Smallwood’s nephew, defendants
contend that the district court improperly expressed disbelief at Stan-
ley’s testimony. Part of the government’s case included evidence that
Smallwood was accidentally shot in the foot during Shelton’s murder.
The defense, in turn, attempted to show that Smallwood had suffered
a foot injury several years prior. To this end, it called Stanley, Small-
wood’s nephew, and showed him photographs of feet that were alleg-
edly Smallwood’s. The following colloquy took place:
Defense Counsel: Are you able to see the area where the
injury was in those photographs?
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The Witness: Yes.
The Court: Just a moment. Do you recognize that as your
uncle’s feet?
The Witness: Yes.
The Court: You do?
The Witness: Yes, sir.
The Court: You think you can recognize your uncle’s feet?
The Witness: Yes.
The Court: Next question.
On this basis, defendants contend that the district court led the jury
to believe that Stanley’s testimony was incredible. They further argue
that the prosecution in its closing argument capitalized on the district
court’s involvement by referencing "the great amazement of some in
this courtroom" when discussing Stanley’s testimony that he recog-
nized Smallwood from photographs of feet alone.
C.
Questions of trial management are quintessentially the province of
the district courts. Allegations of judicial intervention during witness
testimony implicate two core trial oversight responsibilities. First,
trial judges "shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to . . .
make the interrogation and presentation effective for the ascertain-
ment of the truth." Fed. R. Evid. 611(a). In this regard, it is "‘settled
beyond doubt that in a federal court the judge has the right, and often
[the] obligation, to interrupt the presentations of counsel in order to
clarify misunderstandings.’" United States v. Morrow, 925 F.2d 779,
781 (4th Cir. 1991) (quoting United States v. Cole, 491 F.2d 1276,
1278 (4th Cir. 1974) (per curiam)); see also Fed. R. Evid. 614(b). It
is neither possible nor desirable for district judges to sit back and
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observe trials as nonchalant spectators, as judicial participation is fre-
quently necessary to ensure that uncertainty sown during testimony
does not culminate in jury room confusion. See, e.g., United States v.
King, 119 F.3d 290, 294-95 (4th Cir. 1997); United States v. Castner,
50 F.3d 1267, 1272-73 (4th Cir. 1995); United States v. Parodi, 703
F.2d 768, 775 (4th Cir. 1983). This obligation is not, of course, with-
out its limits. Trial judges are not backstop counsel, entitled to step
in whenever a point may be more eloquently delivered or a tactical
misstep avoided. But it remains their prerogative to make certain that
matters are clearly presented to the jury.
Second, and related, district courts have an affirmative duty to pre-
vent trials from becoming protracted and costly affairs. Indeed, they
must manage litigation to "avoid needless consumption of time." Fed.
R. Evid. 611(a); see also Morrow, 925 F.2d at 781. Particularly dur-
ing the course of multi-week trials, witness questioning may skitter
off in collateral directions. District judges have the duty to rein in
such questioning when it strays too far from matters in dispute. And
even when testimony is limited to relevant areas, they have the further
obligation to ensure that the presentation of evidence does not become
rambling and repetitious. Judicial resources are not limitless, and
drawn-out trials make jury service increasingly incompatible with
normal family and employment obligations. Trial judges are thus
entirely within their right to keep trial proceedings moving, and, if
necessary, to ask counsel to pick up the pace.
In fulfilling these two fundamental trial management obligations,
district court judges may adopt a variety of approaches. Some may be
more temperate and understated, interposing themselves only infre-
quently. Others may seek greater involvement and take a firmer role.
But "even a stern and short-tempered judge’s ordinary efforts at
courtroom administration . . . do not establish bias or partiality." Cast-
ner, 50 F.3d at 1274 (internal quotation marks omitted); see also
United States v. Cassiagnol, 420 F.2d 868, 877 (4th Cir. 1970). Trials
are serious business. A district judge’s interruptions, even when
abrupt, may be only part and parcel of a pointed adversarial process
designed to develop a clear set of facts in a relatively short amount
of time. A tart remark or two might be what is needed to keep a
lengthy trial on track. The entire goal, of course, is to ensure that trials
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reach fair and just results — but while there is only one goal, there
are many courtroom styles that can achieve it.
In this case, we conclude that the trial court’s conduct revealed no
bias and crossed no line. It represented the judge’s permissible
attempt to cabin and control a two-week trial that featured numerous
witnesses, extensive amounts of evidence, and, even on appeal, an
eight-volume joint appendix totaling well over 2600 pages. The
inability of cold transcripts to replicate the human dynamics of a trial
suggests caution in the review of judicial interference claims. It
should thus come as no surprise that we apply a measure of deference
to the judgments of those to whom, after all, the conduct of trial has
been textually entrusted. See Fed. R. Evid. 611(a); 614(a)-(b). While
the record may at times suggest the advisability of greater restraint,
it is in no way indicative of bias or other conduct that deprived defen-
dants of their right to a fair trial.
Many of the interventions were hardly inappropriate. The portions
of the record that defendants cite in their briefs often isolate the dis-
trict judge’s questions from their place in a witness’s entire testimony.
What defendants characterize as softball judicial questioning and
rehabilitation of prosecution witnesses was, properly considered, the
fulfillment of an "obligation to clarify confused factual issues or mis-
understandings." Castner, 50 F.3d at 1273. The court’s interrogation
of Brown about events at Smallwood’s apartment prior to Shelton’s
death, for example, do not appear aimed at establishing witness credi-
bility but at focusing attention on two points — who pointed a gun,
and at whom.
The district court’s sua sponte objections to particular questions
were similarly permissible. The court spoke up when defense counsel
posed questions that were difficult to understand, that had already
been asked and answered, or that were otherwise irrelevant. On occa-
sion, the court’s questions were designed to encourage witnesses to
make themselves more audible. The requests that defense counsel
move things along were also for the most part routine and innocuous.
Finally, with respect to Stanley’s testimony about Smallwood’s foot
injury, "it is settled that a trial judge possesses broad authority to
interrogate witnesses." Godwin, 272 F.3d at 672. In ensuring that the
jury would understand the evidence before it, we cannot say that the
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district court acted inappropriately by verifying the foundation of tes-
timony that bordered on the unusual.
In all events, the district court properly instructed the jury that the
court’s participation during testimony was not to be interpreted as
commentary on the persuasiveness of the evidence itself. As it
expressly reminded jurors: "during the course of the trial, the Court
may have asked questions of a witness. Do not assume that the Court
has held any opinion on matters to which any questions may relate."
The district judge can hardly be faulted for not giving a similar admo-
nition at the end of a particular exchange when there was not during
the trial a single objection. And, as the record reveals, the district
court was actively engaged during the government’s questioning as
well, often breaking in when appropriate.
We recognize that judges can take cases from the hands of counsel,
and can abuse both their courtroom authority and the respect and def-
erence with which jurors may regard them. But it is likewise true that
counsel can take cases from judges, through a variety of dilatory, bad-
gering, and diversionary tactics. The delicacy of the balance suggests
appellate caution in removing the reins from trial judges in basic mat-
ters of litigation management. We find no reason to do so here.
Defendants may not point to isolated portions of a voluminous record
in the apparent assumption that split-second exchanges between trial
participants tarnished a well-run and lengthy case. There was no
reversible error, much less plain error, in the trial court’s conduct.
III.
Defendants next contend that venue was not proper in the Eastern
District of Virginia. They note that many of the events related to the
drug conspiracy occurred outside of Virginia, and that Shelton was
murdered in Washington, D.C.
Our Constitution sets forth the basic parameters for venue in a
criminal case. Under Article III, "[t]he Trial of all Crimes . . . shall
be held in the State where the said Crimes shall have been commit-
ted." U.S. Const. art. III, § 2, cl. 3; see also U.S. Const. amend. VI.
Federal Rule of Criminal Procedure 18 reiterates this principle: "Un-
less a statute or these rules permit otherwise, the government must
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prosecute an offense in a district where the offense was committed."
Together, constitutional and statutory venue provisions protect crimi-
nal defendants from the inconvenience and prejudice of prosecution
in a far-flung district bearing no connection to their offenses. See
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).
At the same time, however, our venue rules do not require the gov-
ernment to prosecute in any particular district when venue lies in mul-
tiple locations. See Ebersole, 411 F.3d at 524; United States v.
Bowens, 224 F.3d 302, 309 (4th Cir. 2000). Where venue require-
ments are met, the prosecution may proceed in that district, notwith-
standing the possibility that the gravamen of the wrongdoing took
place elsewhere. Such a rule is both even-handed and practical: there
is no unfairness in prosecuting a defendant in a district in which he
has committed a crime, and there are good reasons to avoid an inde-
terminate inquiry into the relative seriousness of multi-district mis-
conduct.
When a criminal offense does not include a specific venue provi-
sion, venue "‘must be determined from the nature of the crime alleged
and the location of the act or acts constituting it.’" United States v.
Cabrales, 524 U.S. 1, 6-7 (1998) (quoting United States v. Anderson,
328 U.S. 699, 703 (1946)); see also Bowens, 224 F.3d at 308. This
inquiry is twofold. We must "initially identify the conduct constitut-
ing the offense," United States v. Rodriguez-Moreno, 526 U.S. 275,
279 (1999), because venue "on a count is proper only in a district in
which an essential conduct element of the offense took place," United
States v. Villarini, 238 F.3d 530, 533-34 (4th Cir. 2001). We must
then determine where the criminal conduct was committed. See
Rodriguez-Moreno, 526 U.S. at 279; United States v. Barnette, 211
F.3d 803, 813 (4th Cir. 2000). When defendants are charged with
multiple counts, venue must lie as to each individual count. See
United States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2002). With
these principles in place, we turn to the indictment, explaining why
venue was proper for each of the three charges.
Count One charged Smith with conspiracy to distribute more than
fifty grams of cocaine base. See 21 U.S.C. § 846 (2000). In a conspir-
acy case, "a prosecution may be brought in any district in which any
act in furtherance of the conspiracy was committed," and "proof of
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acts by one co-conspirator can be attributed to all members of the
conspiracy." United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir.
1995); see also 18 U.S.C. § 3237(a); Bowens, 224 F.3d at 311 n.4.
Acts in furtherance of a criminal conspiracy include exploits large and
small, dealings that represent turning points in the conspiracy and
those that merely enable it to continue its operations. See, e.g., Al-
Talib, 55 F.3d at 928 (acts in furtherance of conspiracy include arrival
by plane in district and travel by car through district).
We conclude that venue for Count One was proper in the Eastern
District of Virginia because various acts in furtherance of the drug
conspiracy took place there. To begin with, Akil Nurriden, a co-
conspirator, lived in Alexandria, Virginia. In July 1996, law enforce-
ment agents searched his residence and found approximately $40,000,
as well as firearms, ammunition, and crack cocaine stashed in a secret
console in his vehicle. Walter Fleming, the conspiracy’s putative
leader, testified that he had cooked the crack found in Nurriden’s
vehicle. Nurriden’s contacts with the Eastern District were alone suf-
ficient to establish venue, see Al-Talib, 55 F.3d at 928, but the con-
spiracy engaged in other conduct in the Eastern District as well.
Fleming used drug proceeds to purchase several cars for the drug
operation in Arlington, Virginia, and had a hidden drug compartment
installed in a vehicle in Manassas, Virginia. Finally, Smith registered
his Toyota Land Cruiser in Virginia using a Manassas address. Both
defendants used this vehicle to make drug transactions. In short, "[f]ar
more insubstantial acts have served to establish venue in similar con-
spiracy cases." Id.
Count Two charged defendants with the murder of Shelton while
engaged in a drug trafficking crime. See 21 U.S.C. § 848(e)(1)(A). As
relevant here, the "essential conduct elements," Bowens, 224 F.3d at
309, of a § 848(e)(1)(A) violation are a drug trafficking offense and
an intentional killing. Compare Rodriguez-Moreno, 526 U.S. at 280.
As we explained above, the underlying drug offense of conspiracy
had a sufficient connection to the Eastern District of Virginia. For this
reason, venue was also proper for Count Two. It is of no moment that
defendants killed Shelton in Washington, D.C., because the drug con-
spiracy, an essential element of the § 848(e)(1)(A) offense, involved
acts that were perpetrated in the Eastern District. See, e.g., Robinson,
275 F.3d at 377-79 (venue proper where an essential conduct element
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took place in district, even though murder occurred outside district);
Barnette, 211 F.3d at 814 (same).
This same analysis applies to Count Three, which charged defen-
dants with violating 18 U.S.C. § 924(c)(1)(A) and (j). Section 924(c)
prohibits using or carrying a firearm "during and in relation to any . . .
drug trafficking crime." Section 924(j), in turn, punishes "[a] person
who, in the course of a violation of [§ 924(c)], causes the death of a
person through the use of a firearm." As relevant here, the essential
elements of a § 924(c)(1)(A) offense are use of a firearm and commis-
sion of a drug trafficking offense. See Rodriguez-Moreno, 526 U.S.
at 280 ("[W]e interpret § 924(c)(1) to contain two distinct conduct
elements."); Robinson, 275 F.3d at 378. Because acts in furtherance
of the drug conspiracy took place in the Eastern District, the drug traf-
ficking element of § 924(c) is satisfied. And because a violation of
§ 924(c) is itself a conduct element of § 924(j), see Robinson, 275
F.3d at 378, venue was proper for Count Three.
The common denominator in every count in this case was a drug
offense which involved various acts in the Eastern District. While the
government may well have been able to try defendants in other dis-
tricts, our venue rules make clear that where venue lies, the choice
among acceptable fora is one for the prosecution.1
1Defendants also argue that even if venue was proper in the Eastern
District, the district court abused its discretion in refusing to transfer their
case to the District of Columbia. See Fed. R. Crim. P. 21. As in the civil
context, see Saudi v. Northrop Grumman Corp., 427 F.3d 271, 277 (4th
Cir. 2005), district courts are vested with substantial discretion in decid-
ing whether a criminal case merits transfer to another district, and we
conclude that the district court did not abuse its discretion here. As the
district court explained, transfer was not warranted in this case because,
inter alia, the Eastern District was geographically proximate to Washing-
ton, D.C., thereby causing little additional inconvenience, and because
more than twelve other participants in this same conspiracy had already
been prosecuted in the Eastern District. See United States v. Smallwood,
293 F. Supp. 2d 631, 640 (E.D. Va. 2003).
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IV.
Defendant Smallwood next raises two issues relating to his 1996
plea agreement in the District of Columbia, in which he pleaded
guilty to distributing crack cocaine. See United States v. Smallwood,
311 F. Supp. 2d 535, 538 (E.D. Va. 2004). In this agreement, Small-
wood promised to assist authorities investigating the Fleming drug
ring, and the Government agreed that it would "not use against [Smal-
lwood], in any criminal proceeding, any of the information or materi-
als provided to the United States by [Smallwood]."
Smallwood first argues that his plea agreement entirely prevented
the government from prosecuting him for Shelton’s murder and the
related firearm offense in the Eastern District. We disagree. The plea
agreement made no mention of Shelton’s murder. Paragraph 18 of
Smallwood’s plea agreement specifically provided that other United
States Attorney’s Offices "remain[ed] free to prosecute [Smallwood]
for any offense(s) committed within their respective jurisdictions." As
we have explained in our venue discussion above, both the murder
and firearm charges in this case required proof of a drug conspiracy,
acts in furtherance of which took place in the Eastern District. They
were thus "committed" there for the purposes of the plea agreement,
and that agreement accordingly did not bar Smallwood’s prosecution
here.
Smallwood next contends that his plea agreement granted him "de-
rivative use" immunity, and that the district court consequently erred
in failing to conduct a "Kastigar hearing." See Kastigar v. United
States, 406 U.S. 441 (1972). The government responds that the plea
agreement conferred "use immunity" only, and that a hearing was not
required. Use immunity prevents the prosecution from directly utiliz-
ing immunized testimony itself; derivative use immunity is broader,
and additionally precludes the use of evidence that may be derived there-
from.2 See, e.g., United States v. Dudden, 65 F.3d 1461, 1467 (9th
Cir. 1995); see also 18 U.S.C. § 6002.
2The district court expressly found that the government honored Small-
wood’s use immunity, see Smallwood, 311 F. Supp. 2d at 540 n.7, and
he does not contend otherwise on appeal.
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In Kastigar, the Supreme Court held that, consistent with the Fifth
Amendment right against self-incrimination, the government may
compel a defendant to testify if it accords him both use and derivative
use immunity. See Kastigar, 406 U.S. at 453; see also 18 U.S.C.
§ 6002; United States v. Squillacote, 221 F.3d 542, 558-59 (4th Cir.
2000); United States v. Harris, 973 F.2d 333, 336 (4th Cir. 1992).
When the government brings charges against such an immunized
individual, it must in a Kastigar hearing "demonstrate that all its evi-
dence came from sources independent of the compelled testimony."
Harris, 973 F.2d at 336.
Here, however, the defendant has provided information voluntarily
by agreement rather than by compulsion. In these situations, there is
no Fifth Amendment interest at stake, and the government is not obli-
gated to provide use or derivative use immunity, much less both. See
Dudden, 65 F.3d at 1467 (explaining that "the government can grant
the defendant varying degrees of immunity" when testimony is not
compelled); United States v. Kilroy, 27 F.3d 679, 685 (D.C. Cir.
1994) ("The fact that [18 U.S.C. § 6002] affords derivative use immu-
nity does not . . . compel a conclusion that the plea agreement
afforded more than a direct use immunity."); United States v. Eliason,
3 F.3d 1149, 1154-55 (7th Cir. 1993); United States v. Crisp, 817
F.2d 256, 258 (4th Cir. 1987). Rather, when immunity is included in
a bargained-for plea agreement, the degree of protection to which a
defendant is entitled is a matter of contract interpretation that depends
on the language in the agreement itself. See Crisp, 817 F.2d at 258.
In this case, the plea agreement unambiguously conferred use
immunity only. Paragraph 14 specifically provides that "the United
States will not use against [Smallwood], in any criminal proceeding,
any of the information or materials provided to the United States by
[Smallwood]." The clear import of this language is that immunity is
limited to the information that Smallwood himself provided. There is
no suggestion in the agreement that the government is also prohibited
from using information derived from immunized testimony and mate-
rials. Compare Harris, 973 F.3d at 334, 336 (derivative use immunity
where agreement stated that "[n]othing contained in any statement or
testimony given by you pursuant to this agreement or any evidence
developed therefrom, will be used against you directly or indirectly")
(emphasis added). Thus, to the extent that a full Kastigar hearing is
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ever appropriate in non-compulsion cases, see United States v.
McHan, 101 F.3d 1027, 1035-36 (4th Cir. 1996), it was not required
in this case.3 The government may offer various levels of immunity
in a plea agreement, and it is the role of courts to enforce the arrange-
ment the parties have struck.4
V.
Defendants finally challenge their sentences, contending that the
district court contravened United States v. Booker, 543 U.S. 220
(2005), by treating the Sentencing Guidelines as mandatory. See
United States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005) (describ-
ing statutory Booker error). Defendants did not raise this objection in
the court below, and we thus review for plain error. See United States
v. Collins, 412 F.3d 515, 524 (4th Cir. 2005).
3Smallwood additionally draws our attention to United States v. Kilroy,
27 F.3d 679 (D.C. Cir. 1994), and United States v. Plummer, 941 F.2d
799 (9th Cir. 1991), and argues that courts have been willing to infer
derivative use immunity from contextual ambiguity in the word "use."
These citations are inapposite, because Smallwood’s plea agreement is
unambiguous. In Kilroy, the agreement in question referred specifically
to "use immunity." 27 F.3d at 685. Smallwood’s agreement lacks this
language, which the Kilroy court described as a specialized term of art
with "a common understanding . . . in the criminal justice world" that
included derivative use immunity. Id. (internal quotation marks omitted).
In Plummer, the Ninth Circuit found that "use" included derivative use,
but the agreement at issue in that case included broader language stating
that information provided by the defendant "will not be used against him
or to incriminate him." 941 F.2d at 803 (emphasis added). In addition,
a government investigator who had participated in the defendant’s inter-
views had offered inconsistent testimony about whether the agreement
conferred use or derivative use immunity. Id. at 804-05. In this case, by
contrast, there is no similarly broad language, nor has there been any
inconsistency in the government’s position. We express no opinion on
whether the language in the agreements at issue in Kilroy and Plummer
would be sufficient to confer derivative use immunity, but rather that
they do not compel a different result in this case.
4Defendants raise various other allegations of error pertaining to evi-
dentiary matters and the sufficiency of the evidence. We have reviewed
these claims and find them to be without merit.
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Defendants are correct that the district court committed plain error
by imposing sentences under the mandatory Guidelines regime. See
Collins, 412 F.3d at 524-25. But they cannot show the error was prej-
udicial, see White, 405 F.3d at 223-24, and their Booker claim thus
fails. While the district court did acknowledge that the Guidelines
conferred limited discretion, it "made no statements at sentencing
indicating that it wished to sentence [defendants] below the guideline
range." Id. at 223-24. In fact, the district court separately remarked to
both defendants that the murder of Shelton was a "terrible crime." On
the record before us, there is, therefore, "no nonspeculative basis for
concluding that the treatment of the guidelines as mandatory" affected
defendants’ sentences. Id. at 223.
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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