PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL ALAN LEVENITE, a/k/a
Nomad,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MICHAEL ALAN LEVENITE, a/k/a
Nomad,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
TRAVIS CHAD DAILEY, a/k/a "Taz",
Defendant-Appellant.

No. 00-4197

No. 00-4198

No. 00-4199

UNITED STATES v. LEVENITE

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
RICHARD FREDERICK CONNOR, a/k/a
Phez,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
KEITH ALAN WATSON, a/k/a Tank,
Defendant-Appellant.

No. 00-4255

No. 00-4468

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-99-23, CR-99-91)
Argued: October 30, 2001
Decided: January 10, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Williams and Judge Michael joined.

COUNSEL
ARGUED: William James Holmes, Virginia Beach, Virginia, for
Appellant Connor; John Warren Hart, JOHN W. HART, P.C., Vir-

UNITED STATES v. LEVENITE

ginia Beach, Virginia, for Appellant Levenite; Marlin Woodrow Griffin, Jr., Hampton, Virginia, for Appellant Dailey; Douglas Fredericks,
Norfolk, Virginia, for Appellant Watson. Fernando Groene, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Kenneth E. Melson, United States Attorney, Robert J. Seidel, Jr.,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.

OPINION
NIEMEYER, Circuit Judge:
Michael Levenite, Travis Dailey, Richard Connor, and Keith Watson were convicted of participating in a large-scale methamphetamine
trafficking conspiracy in Norfolk, Virginia. Levenite was sentenced to
94 months imprisonment; Dailey to 174 months; Connor to 21
months; and Watson to 188 months.
On appeal, all four challenge the testimony of an FBI-paid informant who received expenses and could earn, in the discretion of the
FBI, an additional $100,000 bonus, depending on the informants
cooperation and attainment of the objectives of the investigation.
They contend that the use of such testimony violated 18 U.S.C.
201(c) (punishing the bribery of witnesses) and the Due Process
Clause of the Fifth Amendment. They also challenge the district
courts decision, under Federal Rule of Criminal Procedure 23(b), to
permit an 11-person jury to deliberate and reach a verdict when one
of the jurors had become ill. Connor and Watson challenge the physical configuration of the courtroom, altered to accommodate a trial
involving 13 defendants, arguing that it denied them an ability to look
witnesses in the eye and to consult counsel, in violation of the Confrontation and Assistance-of-Counsel Clauses of the Sixth Amendment. Levenite, Dailey and Connor challenge the sufficiency of
evidence offered to support their convictions. Finally, Levenite challenges two sentencing decisions.
For the reasons that follow, we affirm.
I
In April 1993, Jeremiah Saucier moved from California to Norfolk,
Virginia, for the purpose of distributing methamphetamine with Har-

UNITED STATES v. LEVENITE

old Ratliff. Over the next three years, Saucier organized a coast-tocoast drug distribution network which was supplied by Juan Felix in
California. Felix shipped the drugs from California by either FedEx
or UPS to Saucier who then distributed them in Virginia to smaller
distributors such as Keith Watson and Travis Dailey. Watson and
Dailey, in turn, distributed the drugs to yet smaller distributors or to
customers. Several members of the conspiracy were also members of
the Renegade Motorcycle Club (the "Renegades").
In October 1996, Saucier was involved in a serious motorcycle
accident, and William Yates, one of Sauciers customers, took over
leadership of the conspiracy until it was terminated by indictments
filed in February 1999 and subsequent arrests.
Through the operation of the conspiracy, hundreds of pounds of
methamphetamine, worth millions of dollars, as well as smaller
amounts of cocaine, were distributed over a period of almost six
years.
Investigation of the conspiracy began in earnest when a drugsniffing dog at the Norfolk airport "alerted on" a package being
shipped to Felix in California. The package contained $145,000 in
U.S. currency that was being sent to Felix in payment for methamphetamine. In addition to using surveillance, court authorized wire
taps, and undercover agents, the FBI engaged Robert Lowe as a paid,
confidential informant. Lowe, who infiltrated the conspiracy and the
Renegades itself and testified at substantial length against the members of the conspiracy at trial, was paid a "salary" as well as expenses.
Under his arrangement with the FBI, Lowe could also earn a lumpsum payment of up to $100,000, at the discretion of the FBI, depending on the extent of his cooperation in the investigation and his effectiveness in helping the FBI attain the objectives of the investigation.
Later, before trial, Lowe was placed in the governments witness protection program.
In February 1999, 30 members of the conspiracy were charged
with trafficking in methamphetamine and related offenses in a 66count indictment, and in June 1999, 11 defendants charged in the
original indictment were charged in a supplemental indictment with

UNITED STATES v. LEVENITE

enhancement offenses. The two indictments were thereafter consolidated for trial.
Seventeen of the defendants pleaded guilty, and several of them,
including Saucier, Yates, and Felix, testified on behalf of the government at trial. Following trial, the jury acquitted five defendants and
found eight guilty of various offenses, including some lesser included
offenses. Four convicted defendants Levenite, Dailey, Connor, and
Watson filed this appeal.
II
All defendants on appeal contend that the testimony given by Robert Lowe, a paid confidential informant for the FBI, was incompetent
and constitutionally inadmissible. They assert that as part of Lowes
compensation, the FBI agreed to pay Lowe "a lump sum cash bonus
of up to $100,000.00 which was contingent upon the testimony of
Rob Lowe against these defendants and the outcome of this case,
including whether convictions against these specific defendants were
obtained." Characterizing the arrangement as "extremely disturbing"
and offensive, these defendants argue that the FBIs arrangement with
Lowe violated 18 U.S.C. 201(c) (punishing bribery of public officials and witnesses) and the Due Process Clause of the Fifth Amendment. Based on these alleged violations, the defendants request a new
trial.
The government contends that Lowe "was paid for his truthful testimony" and that procedural safeguards were instituted to protect the
defendants from any impropriety, including the governments full
pretrial disclosure of the arrangement, the defendants and courts
pretrial review of the arrangement through suppression motions, the
defendants cross-examination of the FBIs case agent and Lowe, the
governments corroboration of Lowes testimony through other evidence, and the courts cautionary instructions to the jury. The government argues accordingly that Lowes testimony was both competent
and admissible.
The FBI first engaged Lowe in September 1996 as a confidential
informant who would gather information about drug distribution and
the Renegades and would report the information to the FBI. At that

UNITED STATES v. LEVENITE

time, however, Lowe did not want to testify in any court; his role was
to serve "strictly [as] eyes and ears." Approximately a year later,
Lowe agreed to become a cooperating witness, subject to direction by
the FBI as to "where to go [and] when to go." The relationship was
governed by a four-page written agreement between Lowe and the
FBI, dated October 15, 1997.
The agreement recited that the FBI was conducting an investigation
into racketeering and drug distribution by "an outlaw motorcycle
organization known as the Renegades" and that Lowe had information
and was willing to "furnish assistance" to the FBI. Under the agreement, Lowe agreed to disclose information to the FBI, to introduce
undercover FBI agents to members of the Renegades, to wear wires
and make recordings, and to testify in "any and all court proceedings."
He agreed not to initiate any criminal acts and not to participate in
unlawful acts except as authorized by the FBI. The FBI retained the
right to control the investigation, as well as the right to terminate it
at any time.
In accordance with the agreement, Lowe received $2,000 per
month for his services and $1,300 per month for his expenses. Later,
the FBI also purchased a motorcycle for him so that he could become
a member of the Renegades. In addition, the agreement provided for
a potential lump-sum payment of up to $100,000, at the discretion of
the FBI at the end of the case. With respect to this $100,000 payment,
the agreement provided:
The FBI may, at its sole option and choice, elect to furnish
Mr. Lowe with a lump sum of money, not to exceed
$100,000.00, upon the completion of the investigation. Factors to be considered by the FBI in [determining] the amount
shall include, but not be limited to the following: the extent
of cooperation in the investigation by Mr. Lowe, the activities of Mr. Lowe in the furtherance of the investigation and
in attaining the objectives of the investigation, and the
degree of compliance with this Agreement by Mr. Lowe.
The agreement not only made any payment contingent upon Lowes
compliance with the agreement but also upon his maintenance of confidentiality.

UNITED STATES v. LEVENITE

After signing the agreement, Lowe worked virtually full time for
the FBI in connection with the investigation of the Renegades, and he
was elected a member of the Renegade Motorcycle Club. In February
1999, Lowe was formally placed in the Witness Protection Program,
authorized by 18 U.S.C. 3521, under which he was given protection
and paid additional personal expenses.
At trial, Lowe testified at length about what he had witnessed, providing substantial evidence against each of the defendants. His testimony against Connor provided most of the evidence supporting
Connors conviction.
Before trial, the district court considered and denied motions to
suppress evidence from Lowe, and at trial, it overruled objections to
receipt of Lowes testimony. Although the district court permitted
Lowe to testify, it expressed concerns to the government:
Well, youve got this case, and you are going to put it on for
many weeks; and sometimes Im surprised at the government taking the risks that it does by asking the court to
accept certain evidence when theyve got other evidence.
And if you wish to present this witness, based on what Ive
heard, Im not going to prevent it.
The court added that Lowes arrangement with the FBI "makes me
nervous."
When the FBI case agent, Kim Wright, was cross-examined at trial
about the agreement with Lowe, she testified that FBI headquarters,
not any individual agent in the field, would determine the size of the
payment that Lowe would receive at the end of the case. She agreed
that the payment would be based in part on the extent to which the
"objectives of the investigation" had been attained and she conceded
that among those objectives were the convictions of conspirators
identified through the investigation. Wright stated that after the case
was over, she would write a recommendation report to FBI headquarters that would be used to determine the amount of payment to Lowe.
The defendants cross-examined both Agent Wright and Lowe
about their arrangement, and at the completion of the case, the district
court instructed the jury as follows:

UNITED STATES v. LEVENITE

You have heard testimony from paid informants who were

employed by the Government to investigate the defendants.
The fact that an individual is a paid informant does not disqualify him as a witness. The uncorroborated testimony of
a paid informant may be a sufficient basis for a finding of
guilt if you believe beyond a reasonable doubt that such testimony is both credible and of sufficient weight. It is neither
illegal nor improper to utilize paid informants in the
enforcement of the criminal laws. However, the testimony
of a paid informant must be subjected to a higher degree of
scrutiny as to both weight and credibility. This is true
because you must decide if such a witness has a greater
motive to testify truthfully or falsely.
Further, if the payment to the informant is fully or partially
contingent upon the content of his testimony at trial or upon
a finding of guilt at trial, then such testimony must be subjected to an even higher degree of scrutiny.
Challenging Lowes testimony, the defendants argue first that the
provision for a bonus of up to $100,000 violated 18 U.S.C.
201(c)(2) and 201(c)(3), which provide that whoever gives or
receives "anything of value . . . for or because of the testimony under
oath or affirmation given or to be given by such person as a witness
upon a trial" shall be punished. The defendants say "Robert Ira Lowe
was essentially offered, and he accepted, a bribe," in violation of
201(c).
As we noted recently, 201 was enacted to strengthen the laws
relating to bribery and not to restrict the government from compensating witnesses that help expose and prosecute criminal activity. See
United States v. Anty, 203 F.3d 305, 308 (4th Cir. 2000); United
States v. Richardson, 195 F.3d 192, 196-97 (4th Cir. 1999). In Anty
we explained:
To interpret 201(c)(2) to preclude the payment of money
to informants to assist in investigating and prosecuting
crimes, by giving truthful testimony, would not only "rob
the government of its long-standing prerogative[ ]" to do so
as established by statute and recognized practice, it would

UNITED STATES v. LEVENITE

also "work an obvious absurdity" in implicitly repealing

numerous statutes that authorize the payment of expenses,
fees, and rewards to witnesses.
Id. at 309 (quoting Richardson, 195 F.3d at 196). We noted that 201
explicitly authorizes the government to pay witnesses fees as authorized by law. See 18 U.S.C. 201(d). As the government points out,
there are several statutes that allow the government to pay informants
and witnesses for their cooperation, services, and testimony. See, e.g.,
21 U.S.C. 886(a) (authorizing payments in connection with drug
enforcement of "such sum or sums of money as [the Attorney General] may deem appropriate, without reference to any moieties or
rewards to which such person may otherwise be entitled by law"); 18
U.S.C. 3059B (authorizing payment of reward "to any individual
who assists the Department of Justice in performing its functions").
Thus, we held in Anty that 201(c) "does not prohibit the United
States from acting in accordance with long-standing practice and statutory authority to pay fees, expenses, and rewards to informants even
when the payment is solely for testimony, so long as the payment is
not for or because of any corruption of the truth of testimony." Id. at
311. Accordingly, the defendants statutory argument lacks any merit.
The defendants also argue that even if the arrangement does not
violate 201, it nevertheless violates their right to due process. They
argue that "payments which are contingent upon a conviction or upon
the outcome of a trial skate very close to, if indeed, do not cross, the
limits imposed by the due process clause," quoting United States v.
Dailey, 759 F.2d 192, 201 (1st Cir. 1985). They rightly assert, of
course, that government sponsored or encouraged perjury deliberately
presented to a jury to support a conviction would violate a defendants right to due process. See Mooney v. Holohan, 294 U.S. 103,
112 (1935). But they have directed us to no evidence that the government sponsored or suborned perjury. Indeed, most, if not all, of
Lowes testimony was corroborated to some degree; where direct corroboration was lacking, circumstantial indications of trustworthiness
existed.
Nevertheless, arrangements such as the one between the FBI and
Lowe create fertile fields from which truth-bending or even perjury
could grow, threatening the core of a trials legitimacy. Yet, even

10

UNITED STATES v. LEVENITE

though compensation for testimony can be troubling, it does not follow that the use of such an arrangement renders such testimony constitutionally inadmissible per se. In Hoffa v. United States, 385 U.S.
293, 311 (1966), the Supreme Court stated about testimony given by
paid informants:
The established safeguards of the Anglo-American legal
system leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury.
Id.; see also Anty, 203 F.3d at 312 (noting the importance of protecting the defendants right to cross-examine); United States v. Wilson,
904 F.2d 656, 659 (11th Cir. 1990) (same); United States v.
Cervantes-Pacheco, 826 F.2d 310, 313-16 (5th Cir. 1987) (en banc)
(citing Hoffa and discussing procedural safeguards to protect against
abuses).
The task of obtaining truthful testimony to prosecute criminal matters often presents a difficult challenge to the government. Witnesses
to criminal conduct are routinely either in conspiracy with the defendants or at risk of harm because they bore witness to criminal conduct. In either case, the government frequently faces barriers to
obtaining relevant, truthful testimony. Therefore, it has long been recognized that grants of immunity, plea agreements, and sentencing
leniency are appropriate tools for use in the criminal justice system.
Indeed, the Rules of Criminal Procedure explicitly authorize these
devices, and this court has approved them. See, e.g., Fed. R. Crim. P.
11(e); United States v. Richardson, 195 F.3d 192, 194-97 (4th Cir.
1999). Similarly, the payment of fees to witnesses as an incentive to
come forward and testify has explicitly been approved by Congress.
See, e.g., 18 U.S.C. 3059B; 21 U.S.C. 886(a); Anty, 203 F.3d at
309-10 (listing statutes permitting such payments).
But just as a payment may provide witnesses an incentive to come
forward and testify truthfully at some risk to themselves, so too can
the same payment provide an incentive to witnesses to come forward
and lie simply for the purpose of receiving the payment. Even so, as
long as there are adequate safeguards, the potential corruption should
not condemn the practice. Indeed, in some rare cases, even a payment

UNITED STATES v. LEVENITE

11

contingent on specific truthful testimony might be justifiable. For

instance, when the government is confident before trial about the
truthfulness of a witnesss testimony but unsure that the witness will
adhere to such testimony in the face of external pressure from "the
street" or otherwise, a payment might be approved that is deferred and
dependent on the witness giving of truthful testimony. But because
of the vulnerability of such contingent-payment arrangements to corruption, they may be approved only rarely and under the highest scrutiny.
In recognition of the substantial risk that financial incentives can
corrupt, either through an aggressive prosecutor seeking testimony
inconsistent with the truth or a witness testifying untruthfully to satisfy the governments objectives, testimony given under an arrangement involving the payment of a fee, "salary," or "bonus," whether
contingent on the content of the testimony or not, may be received in
court only within a structure of procedural safeguards.
First, a witness-fee payment arrangement must be disclosed to each
defendant against whom the witness will testify before the proceeding
at which the witness testifies. See Giglio v. United States, 405 U.S.
150, 154 (1972) (holding that evidence affecting the credibility of a
key witness is material); Brady v. Maryland, 373 U.S. 83, 87 (1963)
(holding that due process forbids suppression by the prosecution of
[material] evidence favorable to an accused when requested); Anty,
203 F.3d at 312 (noting the importance of protecting a defendants
right to be apprised of the governments compensation arrangement
with a witness). Second, the defendant must be afforded an opportunity to cross-examine the witness about the fee arrangement. Anty,
203 F.3d at 312. Third, the court must instruct the jury about the
heightened scrutiny to be given testimony provided under a fee payment arrangement. Wilson, 904 F.2d at 659. And finally, there can be
no indication that the government is sponsoring or suborning perjury.
Cervantes-Pacheco, 826 F.2d at 315 ("The government of course
must not deliberately use perjured testimony or encourage the use of
perjured testimony"). In addition, when the payment of a fee, "salary,"
or "bonus" is contingent on the content or nature of testimony given,
the court must ascertain (1) that the government has independent
means, such as corroborating evidence, by which to measure the
truthfulness of the witness testimony and (2) that the contingency is

12

UNITED STATES v. LEVENITE

expressly linked to the witness testifying truthfully. Moreover, when

a witness is testifying under such a contingent payment arrangement,
the government has a duty to inform the court and opposing counsel
when the witness testimony is inconsistent with the governments
expectation.
Turning to whether these safeguards were applied in this case, first,
there is no dispute that the agreement between the FBI and Lowe was
disclosed to the defendants before trial. Indeed, in this case, the agreement was scrutinized before trial through the defendants suppression
motion.
Second, at trial, the defendants had the opportunity to crossexamine both FBI case agent Wright and confidential informant Lowe
about the terms of the agreement, its operation, and its effect. And
they took that opportunity by cross-examining both.
Third, the jury was instructed to give Lowes testimony heightened
scrutiny. As the court stated to the jury, "the testimony of a paid informant must be subjected to a higher degree of scrutiny as to both
weight and credibility. This is true because you must decide if such
a witness has a greater motive to testify truthfully or falsely." The
court went on to note that if the jury were to conclude that the payment to the informant was "fully or partially contingent upon the content of his testimony at trial or upon a finding of guilt," then the jury
was to subject that witnesss testimony "to an even higher degree of
scrutiny."
Finally, there was no indication that the FBI or the government
prosecutors were sponsoring or suborning perjury to any degree.
Indeed, when using Lowe during the investigation, the FBI instituted
safeguards by accompanying him, watching him, and debriefing him
promptly after he witnessed various incidents. And during trial, the
government offered not only Lowes testimony, but also corroborating testimony, as well as testimony revealing the FBIs use of the
safeguards.
In short, the necessary safeguards were fully employed.

UNITED STATES v. LEVENITE

13

The defendants contend that Lowes fee agreement was also contingent on his giving testimony that would convict the defendants.
This assertion, however, is not supported by the record. Lowe was
engaged through a written contract to assist in the investigation and
prosecution of the Renegades. The effort was a long-term and risky
undertaking. Consequently, the FBI was faced with the possibility
that Lowe would abandon his assistance and thereby substantially
damage an important investigation. To provide an incentive for Lowe
to remain involved until his assistance would no longer be necessary
would require deferment of his "bonus" until the case was complete.
Such an incentive to remain involved until the end was precisely
what the agreement in this case provided. It gave the FBI the "sole
option and choice" to provide Lowe with a lump sum payment up to
$100,000, based upon "the extent of cooperation in the investigation
by Mr. Lowe, the activities of Mr. Lowe in furtherance of the investigation and in attaining the objectives of the investigation, and the
degree of compliance with this Agreement by Mr. Lowe." But this
agreement does not mean that payment was contingent on any particular testimony or trial outcome. It means that Lowe was required to
present fully and accurately to the jury whatever he witnessed during
the course of the investigation. Obviously, the objective of this criminal investigation, as any criminal investigation, was to uncover criminal activity and convict the guilty. It was, therefore, not surprising
that the FBI case agent testified that one of the objectives in the investigation was to attain convictions. But that explanation cannot be
interpreted to mean that payment was contingent on anything but
truthful testimony by the witness as to what he saw during the investigation. Indeed, the agreement explicitly required that Lowe not commit any unlawful activities such as perjury in carrying out the
agreement.
In sum, the FBI reasonably found it necessary in this case to enter
into the fee arrangement with Lowe as an undercover informant, and
it appropriately monitored his conduct. There is no evidence that the
government knowingly used or suborned any untruthful testimony.
The arrangement with Lowe was fully disclosed to the defendants,
and the defendants were permitted to cross-examine witnesses fully
about it and argue to the jury that Lowes credibility should be discounted or doubted. Finally, the court admonished the jury to evaluate

14

UNITED STATES v. LEVENITE

Lowes testimony more carefully because of the arrangement. In these

circumstances, we conclude that the evidence was not constitutionally
inadmissible and that "[t]he Constitution does not require us to upset
the jurys verdict." Hoffa, 385 U.S. at 312.
III
All four defendants also contend that the district court abused its
discretion in allowing an 11-person jury to complete deliberations and
return a verdict after one juror fell ill.
Upon the completion of the eight-week jury trial in this case, after
the alternate jurors had been discharged, a 12-person jury began its
deliberations. On the third day of deliberations Friday, November
5, 1999 one juror failed to appear because she was ill with an
intestinal flu. When the district court consulted counsel about their
preference from among several available options for proceeding, two
defendants (not appellants) opted to permit the jury to continue deliberating as an 11-person jury under Federal Rule of Criminal Procedure 23(b). The government and the four defendants in this appeal
proposed delaying the continuation of deliberations for three days
until Monday, November 8, to allow for the possible return of the ill
juror.
After considering various options including declaring a mistrial,
impaneling an alternate juror, delaying deliberations for three days, or
proceeding with an 11-person jury the district court opted to proceed with an 11-person jury, as authorized by Rule 23(b). Explaining
its decision, the court rejected a mistrial as the least desirable alternative. Indeed, a mistrial may not even have been available because any
necessity for one was probably obviated by the authority granted by
Rule 23(b). The court also reasoned that impaneling an alternate juror
would require that the jury begin deliberations anew, a task that the
court thought would be difficult at best, and constitutionally suspect.
The court felt that delaying deliberations until the Monday after the
weekend risked losing more jurors, particularly in view of the fact
that the intestinal flu was contagious. It reasoned that if an 11-person
jury were unable to reach a verdict on Friday, the court would still
have the option of impaneling an alternate juror, should other jurors

UNITED STATES v. LEVENITE

15

be lost by then. The court also supported its decision with the reasoning outlined in the Advisory Committee Notes to Rule 23(b).
The Advisory Committee Notes to Rule 23(b) observe that the
problem of losing a juror after commencement of deliberations "is
acute when the trial has been a lengthy one and consequently the remedy of mistrial would necessitate a second expenditure of substantial
prosecution, defense and court resources." The Notes also observe
that "[t]o permit substitution of an alternate [juror] after deliberations
ha[d] begun would require either that the alternate participate though
he has missed part of the jury discussion, or that he sit in with the jury
in every case on the chance he might be needed. Either course is subject to practical difficulty and to strong constitutional objection."
(Quoting Wright, Federal Practice and Procedure 388 (1969)).
In the circumstances of this case, we conclude that the district court
acted well within its discretion. The parties do not dispute the district
courts authority to proceed with 11 persons, and the district court
opted for this alternative after assessing the legal risks of impaneling
an alternate juror and the factual risks of losing jurors from delay.
Accordingly, we find no abuse of discretion. See United States v.
Acker, 52 F.3d 509, 515-16 (4th Cir. 1995) (permitting an 11-person
jury under Rule 23 when a juror was excused for an injury and it was
unclear when she would be able to return).
IV
Defendants Connor and Watson contend that the physical configuration of the trial courtroom denied them their Sixth Amendment
rights of confrontation and the assistance of counsel.
Because this trial involved 13 defendants and their counsel, size
limitations of the courtroom dictated that each defendant be seated
behind his counsel. Under this seating arrangement, Connor and Watson were seated six feet behind their counsel, and they could see only
the backs of witnesses. While their counsel were free to move about
the courtroom and to cross-examine witnesses face-to-face, security
concerns meant that the defendants themselves could not move about
freely. They were, however, permitted to consult freely with their

16

UNITED STATES v. LEVENITE

counsel, either by leaning forward and speaking directly to counsel or

by passing notes.
At the beginning of the trial, Watsons counsel objected to the location of his chair, lamenting that he was "sitting here, the thirteenth
lawyer in a row. Im some six feet from my client." The substance of
his objection focused on "fundamental fairness." He stated:
The way the courtroom is configured, Im looking at the
back of the witnesss head, and so I rise most humbly to
object on a basic fundamental fairness in this trial, that is
impossible for these 13 gentlemen to be tried fairly in this
court.
To meet counsels objection, the court stated, "If counsel wishes to
rise during the jury selection process or during the questioning of witnesses so that they can see the witness, they are free to do so." With
that assurance, nothing further was said and the objection counsel for
Watson was making had apparently been accommodated.
Both Connor and Watson now contend, for the first time on appeal,
that they individually, as distinct from their counsel, could not see the
faces of witnesses and that this violated the Sixth Amendment. We
reject this claim because nothing in the defendants brief nor in the
record suggests that they can establish the elements required for noticing and correcting plain error. See United States v. Olano, 507 U.S.
725 (1993); Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (noting that a
denial of face-to-face confrontation is subject to harmless error analysis). In addition, Watson and Connor press the argument made by
Watsons counsel at trial that the placement of these defendants six
feet behind their counsel denied them the assistance of counsel, in
violation of the Sixth Amendment. We disagree. Counsel and client
were free to consult throughout the trial, and there was no evidence
that either defendants ability to communicate with his attorney and
assist in his defense was impaired. See United States v. Balsam, 203
F.3d 72, 81-82 (1st Cir. 2000) (holding that defendants seated four to
five feet from defense table and permitted to "consult freely" with
counsel were not denied assistance of counsel); United States v.
Jones, 766 F.2d 994, 1004 (6th Cir. 1985) (holding that in a trial of
18 defendants where the defendants were seated in two rows behind

UNITED STATES v. LEVENITE

17

counsels table, there was no Sixth Amendment violation because

defendants were able to communicate with their attorneys during
trial).
V
Connor, Dailey, and Levenite contend that the evidence presented
by the government was insufficient to support their convictions. Our
standard for reviewing jury verdicts is deferential. We uphold a verdict if "there is substantial evidence, taking the view most favorable
to the Government, to support it." United States v. Wilson, 135 F.3d
291, 303 (4th Cir. 1998) (quoting Glasser v. United States, 315 U.S.
60, 80 (1942)).
Connor was convicted on two counts of distributing and aiding and
abetting the distribution of cocaine. In support of these charges, the
government introduced evidence that on July 17, 1998, when confidential informant Lowe went to the Good Fellows Bar to buy drugs,
he went with Connor to a back room where Connor "informed" him
that Billie Joe Fields, a dancer known as "Dixie," "was holding and
had some [drugs] for sale." Lowe then purchased drugs from Fields
and turned the purchased drugs over to a nearby FBI agent. The agent
corroborated the transaction based on the movements of the individuals, although he did not actually hear the conversation between Connor and Lowe.
Evidence was also introduced that on January 6, 1999, confidential
informant Lowe sought to retrieve cocaine that was owed to him by
Robert Provo. Lowe testified that he was repaid the cocaine when
Connor gave it to Provo to give it to Lowe. The testimony of "Dixie"
Fields corroborated Lowes testimony. She overheard a conversation
between Connor and another individual about the same cocaine in
which the individual requested buying cocaine from Connor and Connor stated that "he could not sell it because it [belonged to Provo]."
We are satisfied that the evidence introduced by the government
demonstrated that Connor culpably participated in the drug transactions with which he was charged and had knowledge of the intended
result of each transaction. See United States v. Arrington, 719 F.2d
701, 705 (4th Cir. 1983).

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UNITED STATES v. LEVENITE

Dailey challenges his conviction for conspiracy to distribute

methamphetamine, arguing that there was insufficient evidence to
link him in any conspiracy with Saucier, Yates, or Felix. Yet Felix
and John Courtney testified that Dailey was Sauciers "right hand
man" in the drug distribution ring, even though Dailey and Sauciers
relationship had not always remained smooth. Saucier testified that he
provided Dailey with quarter-pound quantities of methamphetamine
every two to three months. Gerald Penor buttressed this testimony by
stating that he saw Dailey purchase methamphetamine from Saucier
and that Penor then bought some from Dailey. Numerous other witnesses, including Steven Cooper, Ernest Soricelli, Reid Woodruff,
and Jeremy Bruss testified that they purchased methamphetamine
from Dailey. This evidence amply demonstrates Daileys involvement
in a distribution conspiracy in which Saucier sold large quantities of
methamphetamine to Dailey who then distributed them in smaller
quantities to others.
Dailey also contends that the evidence was insufficient to support
his convictions for two charges of possession of methamphetamine
with intent to distribute in 1996. On these counts, Jerry Lee Penor,
Gerald Penors son, provided the key testimony, stating that, beginning in February 1996, he went over to Sauciers house frequently
and visited Dailey there. Jerry Lee saw methamphetamine there several times, including a "huge mound" of it on the floor at one point.
Jerry Lee later saw Dailey package the methamphetamine and Jerry
Lee delivered some of the drugs to Ratliff who paid Dailey directly.
Although the dates of these transactions are not entirely precise, there
was ample evidence that the transactions occurred substantially during the period alleged in the indictment.
Finally, Levenite challenges the sufficiency of evidence to support
his conviction for possession of a firearm and explosive materials by
a convicted felon. While he does not challenge the proof that he was
a convicted felon and that the firearms in question traveled in interstate commerce, he challenges the sufficiency of the evidence demonstrating that he had possession of them. There was evidence, however,
that Levenite was the "enforcer" for the Renegades and that, at times,
he carried a 9 mm weapon. Karen Twiddy testified that Levenite kept
a Walther PPK on his bedside table and also had an assault rifle. Mark
Baker stated that he saw an SK-47 assault rifle at Levenites house.

UNITED STATES v. LEVENITE

19

Kenneth Connor testified that he saw Levenite with a 9 mm gun, and

Ernest Soricelli testified that he saw a "Street Sweeper" shotgun at
Levenites house. Confidential informant Lowe testified that he twice
purchased weapons from Levenite, a .38 special Derringer and a
Mossberg shotgun. Finally, during a search of Levenites house conducted on February 24, 1999, the FBI seized a Walther PPK 7.65 caliber semi-automatic pistol, a 12-gauge Street Sweeper shotgun, a Mac11 9 mm semi-automatic pistol, a Poly-Tech AKS 7.62 caliber semiautomatic assault rifle, over 700 rounds of ammunition, an offensive
hand grenade, a grenade simulator, and four detonators. The evidence
to support Levenites conviction for possession of firearms and explosive materials was ample.
VI
Finally, Levenite contends that the district court erred in enhancing
his sentence (1) by the number of firearms involved in his convictions, under U.S.S.G. 2K2.1(b)(1)(C), and (2) by reason of a previous conviction, under U.S.S.G. 4A1.1.
First, the district court enhanced Levenites offense level by three
levels because he was in possession of ten weapons, including four
detonators. Levenite contends that a detonator is not a weapon that
should enhance his sentence. We disagree.
The commentary to U.S.S.G. 2K2.1 defines a firearm to include
a "destructive device" and states that the definition of "destructive
device" is found in 26 U.S.C. 5845(a). See U.S.S.G. 2K2.1, cmt.
n.1, 4. Section 5845(f)(3) defines the term destructive device to
include "any combination of parts either designed or intended for use
in converting any device into a destructive device . . . and from which
a destructive device may be readily assembled. The term destructive
device shall not include any device which is neither designed nor
redesigned for use as a weapon." We have held that in determining
whether a device falls under this definition, the government must
present evidence demonstrating that the defendant intended to use
such components "as a weapon." United States v. Blackwell, 946 F.2d
1049, 1054 (4th Cir. 1991).
In this case, the government proved that Levenite was the "enforcer" for the Renegades Motorcycle Club, a function that did not

20

UNITED STATES v. LEVENITE

provide a legitimate reason or commercial purpose for the use of detonators. FBI special agent Thomas Mohnal testified that detonators
are designed and manufactured to set off an explosive such as dynamite and that the four detonators in this case worked as they were
designed. The government also presented evidence that the detonators
were seized from Levenites house along with other firearms and grenades. Although the evidence is circumstantial, we conclude that sufficient evidence supported the district courts conclusion that the
sentence should be enhanced three levels based upon its finding that
Levenite intended to use the detonators as weapons.
The district court also enhanced Levenites sentence based on his
1984 Pennsylvania conviction for driving under the influence. Levenite was sentenced to a range of 2 days to 23 months for the conviction and served 2 days. He contends that this conviction does not
fulfill the Sentencing Guidelines requirement that the conviction be
one for which the sentence of imprisonment exceeds one year and one
month. Again, we disagree.
The district court applied U.S.S.G. 4A1.1(a), which directs the
district court to "[a]dd three points for each prior sentence of imprisonment exceeding one year and one month." The sentence of imprisonment referred to is the maximum sentence imposed, not the time
actually served, see id. 4A1.2(b) & cmt. n.2, as long as the defendant served some period of imprisonment, id. 4A1.2 cmt. n.2.
Although Levenite served only 2 days for the conviction, the maximum sentence imposed was 23 months, fulfilling the Sentencing
Guidelines requirement for the enhancement.
For the foregoing reasons, the judgments of the district court are
AFFIRMED.