PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE JEROME MACKINS,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ALONZO MACKINS, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
IVEY WALKER,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
WILLIE JEROME MACKINS,
Defendant-Appellant.

No. 99-4786

No. 99-4845

No. 99-4846

No. 01-4763

UNITED STATES v. MACKINS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ALONZO MACKINS, JR.,
Defendant-Appellant.

No. 01-4764

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-97-22-T)
Argued: October 30, 2002
Decided: January 17, 2003
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Widener and
Judge Williams joined.

COUNSEL
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant Willie Mackins; Milton Gordon Widenhouse, Jr.,
RUDOLF, MAHER, WIDENHOUSE & FIALKO, Chapel Hill,
North Carolina, for Appellant Alonzo Mackins; Joseph Lester Ledford, Charlotte, North Carolina, for Appellant Walker. Gretchen C.F.
Shappert, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Brian Lee Whisler,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.

UNITED STATES v. MACKINS

OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
In this consolidated appeal, Willie Jerome Mackins, Alonzo Mackins, Jr., and Ivey Walker raise numerous challenges to their convictions and sentences. For the reasons stated below, we affirm in part
and vacate and remand in part.
I.
A drug and money laundering conspiracy stretching over sixteen
years (1982-1998) in the Charlotte, North Carolina area lies at the
center of the case. In 1998, a grand jury issued a superceding indictment charging Willie Mackins, Alonzo Mackins, Jr., Larry Mackins,
Ivey Walker, and Leo Simon with conspiring to possess with intent
to distribute cocaine, cocaine base, heroin and marijuana and with
conspiring to commit money laundering offenses affecting interstate
commerce. The indictment also requested forfeiture of certain goods
and monies and charged Willie Mackins with conspiracy to engage in
a counterfeit check scheme and filing a false affidavit.
At trial, the Government produced evidence that Willie and Alonzo
Mackins conspired with Ivey Walker and others to organize and operate various schemes to distribute illegal drugs in violation of 21
U.S.C.A. 841 and 846 (West 1999) and to launder the drug proceeds in violation of 18 U.S.C.A. 1956 and 1957 (West 2000).
During the course of the drug and money laundering conspiracies, the
Mackins brothers owned and operated a number of bonding companies in the Charlotte area, several of which were allegedly used to
launder drug money and provide bonds for members of the drug conspiracy after arrest. The drug conspiracy involved massive quantities
of cocaine powder and cocaine base. The Government also offered
evidence that, from May 1, 1996 through January 1997, Willie Mackins engaged in a conspiracy to defraud financial institutions through
the use of counterfeit checks in violation of 18 U.S.C.A. 371,
513(a), and 1344 (West 2000) and supplied false evidence on an affidavit containing financial information that he had filed with the district court in violation of 18 U.S.C.A. 287 (West 2000).

UNITED STATES v. MACKINS

After considering the evidence, the jury found Willie Mackins

guilty of the counterfeit check charges, the drug charges, the money
laundering charges, and filing a false affidavit. Alonzo Mackins and
Ivey Walker were each found guilty of the drug and money laundering charges. The jury acquitted Larry Mackins and Leo Simon of all
charges. On October 8, 1999, the district court sentenced Willie
Mackins, Alonzo Mackins, and Ivey Walker to life imprisonment for
the drug conspiracy charges and twenty years for the money laundering conspiracy. Willie Mackins received additional sentences of five,
ten, and thirty years for the counterfeit check charges and five years
for the false affidavit charge.
Willie Mackins, Alonzo Mackins, and Ivey Walker raise ten issues
on appeal. After a careful review of the record, we conclude that only
four of these issues merit discussion.1
II.
The most significant issue raised by the Mackins brothers and Ivey
Walker concerns asserted sentencing error under Apprendi v. New
Jersey, 530 U.S. 466 (2000). They contend that the district court committed Apprendi error in using specific drug quantities to determine
their sentences when no such quantities were charged in the indictment or found by the jury. See id. at 490 (holding that "[o]ther than
1

The record reveals no violation of Willie Mackins speedy trial rights

because he requested several of the continuances granted by the district
court and acquiesced in all of the others. See United States v. Grimmond,
137 F.3d 823, 829 and n. 7 (4th Cir. 1998); United States v. Keith, 42
F.3d 234, 239-40 (4th Cir. 1994). Nor did the district court abuse its discretion in transferring venue within the Western District of North Carolina or in proceeding to trial sixty days after unsealing the superceding
indictment. Similarly, the Government clearly produced sufficient evidence with respect to Willie Mackins and Ivey Walkers involvement in
the money laundering conspiracy and Willie Mackins filing of a false
affidavit. Finally, defendants objections to certain sentencing enhancements on Apprendi grounds are meritless. Because these enhancements
are based on facts that do not constitute elements of an offense and
because they resulted in sentences within the statutory maximums, they
do not constitute Apprendi error. See Harris v. United States, 122 S. Ct.
2406, 2414-18 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000).

UNITED STATES v. MACKINS

the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt"); see also United
States v. Cotton, 122 S. Ct. 1781, 1783 (2002) (stating that Apprendi
requires that "[i]n federal prosecutions, such facts must also be
charged in the indictment").
The 1998 superceding indictment charged each of the three defendants with conspiracy to distribute an unspecified quantity of illegal
drugs, subjecting each to a maximum possible term of no more than
twenty years imprisonment. 21 U.S.C.A. 841(b)(1)(C) (West 1999).
The jury made no finding at all, let alone one beyond a reasonable
doubt, of a specific threshold drug quantity; instead, the district court
attributed amounts of illegal drugs to each defendant sufficient to subject each to life imprisonment. See 21 U.S.C.A. 841(b)(1)(A) (West
1999).
Virtually every circuit has held that "Apprendi dictates that in order
to authorize the imposition of a sentence exceeding the maximum
allowable without a jury finding of a specific threshold drug quantity,
the specific threshold quantity must be treated as an element of an
aggravated drug trafficking offense, i.e., charged in the indictment
and proved to the jury beyond a reasonable doubt." United States v.
Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc) (footnote
omitted) (collecting cases). For this reason, as the Government
acknowledges, "the imposition of sentences above 20 years imprisonment [on the drug conspiracy count] in this case was error." Brief
of Appellee at 48. We thus have to determine if this error requires us
to grant appellate relief to any of the defendants.
To do this, we must first ascertain if timely and sufficient objections to the Apprendi sentencing error were raised in the district court.
This initial inquiry is critical because the Supreme Court has recently
held that error of the precise sort at issue here does not divest a court
of jurisdiction and therefore can be forfeited. See Cotton, 122 S. Ct.
at 1785.2 Although forfeited error can still provide the basis for reversal on appeal, it must meet a more exacting standard of review.
2

In addition to their Apprendi sentencing objections, defendants also

contend in their first brief, relying on our opinion in United States v. Cot-

UNITED STATES v. MACKINS

If a defendant has made a timely and sufficient Apprendi sentencing objection in the trial court, and so preserved his objection, we
review de novo. United States v. Candelario, 240 F.3d 1300, 1303-04,
1306 (11th Cir. 2001) ("In cases applying preserved error review, the
reviewing court applies a de novo standard of review when determining whether a defendants sentence violated Apprendi by exceeding
the prescribed statutory maximum." (citations omitted)). In such circumstances, we must reverse unless we find this constitutional error
harmless beyond a reasonable doubt, with the Government bearing
the burden of proving harmlessness. See Chapman v. California, 386
U.S. 18, 24 (1967) (holding that "before a federal constitutional error
can be held harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt"); United States v. Lovern,
293 F.3d 695, 701 (4th Cir. 2002) (concluding that under harmless
constitutional error standard "[t]he government bears the burden of
demonstrating that the error was harmless" (citation omitted)); see
also Fed. R. Crim. P. 52(a). But if a defendant has failed to make a
timely and sufficient Apprendi sentencing objection and, therefore,
failed to preserve his objection in the trial court, we can correct the
forfeited error only if it constitutes "plain error" under Fed. R. Crim.
P. 52(b). Under this standard, a defendant must bear the burden of
proving that the error was plain and that it affected his substantial
rights, as well as convincing the appellate court that it should exercise
its discretion to notice the error because it "seriously affects the fairness, integrity or public reputation of judicial proceedings." United
States v. Olano, 507 U.S. 725, 732 (1993) (internal quotations marks
omitted).
A.
Accordingly, we turn to the initial question of whether each defendant made (1) a timely objection that was (2) sufficient to preserve
his challenge to the Apprendi sentencing error.
ton, 261 F.3d 397 (4th Cir. 2001), that the "failure of the indictment to
allege an amount of cocaine, cocaine base, heroin or marijuana left the
district court without jurisdiction," and so requires that their convictions
be vacated. See Brief of Appellants at 24. After that brief was filed, the
Supreme Court expressly rejected this argument when it reversed our
holding in Cotton. See Cotton, 122 S. Ct. 1781.

UNITED STATES v. MACKINS

We can easily resolve the issue of the timeliness of defendants

objections. Although the defendants raised no challenge, prior to verdict, to the failure of the indictment to charge a specific drug quantity,
all three objected both orally and in writing to the drug quantities
attributed to them prior to sentencing. Since the error here was a sentencing error, see Promise, 255 F.3d at 160, an objection prior to sentencing must be considered timely. See United States v. Stewart, 306
F.3d 295, 310 (6th Cir. 2002) (explaining that "the proper time for a
defendant to raise a challenge to his sentence is at the time the actual
violation occurs at the time of sentencing."); accord United States
v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002) (holding that because
the defendant "raised the argument under Apprendi at sentencing, he
made a timely . . . objection"); United States v. Garcia-Guizar, 234
F.3d 483, 488 (9th Cir. 2000) (holding that objection made in "sentencing memorandum" preserved claim of Apprendi sentencing error);
United States v. Doggett, 230 F.3d 160, 165 (9th Cir. 2000) (holding
that raising "constitutional objections to . . . sentences during the sentencing hearing" preserved Apprendi sentencing objection). Therefore, the defendants objections were timely.
Determination of whether the Mackins brothers and Ivey Walker
made objections prior to sentencing sufficient to raise and preserve
their present Apprendi sentencing claims presents more difficulty.3
3

Defense counsel have not in any way lessened this difficulty by

assuming in their joint principal brief that our review is for "plain error."
See Brief of Appellants at 10, 27, and 30. However, this may be due to
the fact that the Supreme Court did not reverse our decision in Cotton,
on which they heavily relied, until after they had filed their principal
brief. We note that in their joint reply brief, defendants contend that,
unlike the defendant in Cotton, they "did not waive their rights" in the
district court and they rely on and quote from Willie Mackins sentencing memorandum, which is discussed in text infra. See Reply Brief at 67. In any event, as in United States v. Stokes, 261 F.3d 496, 499-500 n.6
(4th Cir. 2001), we cannot allow appellate defense counsels inaccurate
view that his "predecessor[e] at trial had failed" to lodge an objection, to
result in forfeiture of the objection. We note that here, as in Stokes, the
Government, which has been represented by the same prosecutor at trial
and on appeal, has hardly clarified this oversight. Compare Brief of
Appellee at 49 (asserting case governed by Supreme Courts decision in
Cotton) with id. at 64 (asking us to defer our decision until Supreme
Court issues its decision in Cotton).

UNITED STATES v. MACKINS

With respect to Alonzo Mackins and Ivey Walker, close review of

the record reveals that, although they objected to the presentence
reports drug quantity calculations, they never objected to the failure
of the jury to find a specific drug quantity. They did not invoke Jones
v. United States, 526 U.S. 227 (1999), or any other Apprendi precursor. Rather, they challenged the sufficiency of the evidence and the
credibility of the witnesses testifying against them. For example, they
asserted that the probation officer in his reports recommended holding
them responsible for too great a quantity of illegal narcotics because
the agent improperly credited unreliable testimony. Such evidentiary
objections obviously do not question the constitutionality of the jurys
failure to find a specific drug quantity, and so do not constitute an
objection on Apprendi grounds. See, e.g., United States v. Carter, 300
F.3d 415, 428 n.1 (4th Cir. 2002) (stating that because defendants at
sentencing only "asserted [that] the evidence" as to drug quantity was
"unreliable, not that the jury should have made that determination
. . ., they did not preserve [their Apprendi sentencing] objection").
However, in addition to making similar evidentiary objections,
Willie Mackins contended in his sentencing memorandum that the
district courts imputation of a specific quantity of illegal drugs to
him would "impact the offense level to an extent which depends on
findings by the Court regarding . . . the presumption of innocence and
burden of proof beyond a reasonable doubt, due to the differential in
sentencing ranging from a nominal fine to mandatory life under the
statute. McMillian v. Pennsylvania, 477 U.S. 79, 87 (1986)." He also
maintained that "any enhancement for . . . quantity of drugs . . . would
violate the defendants constitutional rights;" that "[w]henever the law
makes conduct illegal, the government is required to prove the elements of this conduct which make it a crime;" and that "the unenhanced statutory maximum of 20 years under 21 U.S.C.
841(b)(1)(C) is applicable due to the aforementioned constitutional
limitations." Moreover, Mackins invoked Apprendi precursors, Jones
and Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Although not artful, we believe that Willie Mackins sentencing memorandum thus stated a sufficient constitutional Apprendi objection to
his sentence to preserve the objection for appellate review.4
4

Both Alonzo Mackins and Ivey Walker maintain on appeal that they
adopted all of Willie Mackins sentencing objections. Alonzo Mackins

UNITED STATES v. MACKINS

As the Eleventh Circuit recently explained:

A defendant may be deemed to have made a constitutional
objection if his objection invokes Apprendi . . . or Jones
. . . [or] if he contends that the issue of drug quantity should
go to the jury . . . . Other potential constitutional objections
include that an element of an offense was not proved, that
the judge cannot determine quantity, or that quantity must
be proved beyond a reasonable doubt (and not by a preponderance of the evidence).
Candelario, 240 F.3d at 1304 (citations and quotation marks omitted).
We and other circuits have recognized similar objections as sufficient
to preserve a claim for appellate review. See, e.g. Stewart, 306 F.3d
at 312; United States v. Harrison, 272 F.3d 220, 224 (4th Cir. 2001);
United States v. Camacho, 248 F.3d 1286, 1288 (11th Cir. 2001),
overruled in part on other grounds by United States v. Sanchez, 269
F.3d 1250 (11th Cir. 2001) (en banc); Garcia-Guizar, 234 F.3d at
488.
In sum, on one hand, because Alonzo Mackins and Ivey Walker
did not make a constitutional Apprendi objection to their sentences in
the district court, we review their present Apprendi sentencing challenge only for plain error. On the other hand, since Willie Mackins
did adequately raise this claim in the district court, he has preserved
it for appellate review, and so we must reverse unless the error is
harmless.
B.
The plain error standard, which applies to the claims of Alonzo
Mackins and Ivey Walker, permits an appellate court to correct an
error only if a defendant demonstrates that (1) there was error; (2) the
did adopt all of the pre-trial motions of his co-defendants. But, despite
our specific request that they do so, neither he nor Ivey Walker has been
able to point to any place in the record in which one or both of them
adopted any of Willie Mackins objections at sentencing; and we have
found no record support for their contention that they did adopt Willie
Mackins sentencing objections.

10

UNITED STATES v. MACKINS

error was plain; and (3) the error affected the defendants substantial
rights. Olano, 507 U.S. at 732; see also Cotton, 122 S. Ct. at 1785.
Even if the error meets all three of these conditions, we may exercise
our discretion to notice that error only if we find that failure to do so
will "seriously affect the fairness, integrity, or public reputation of
judicial proceedings." United States v. Young, 470 U.S. 1, 15 (1985);
see also Cotton, 122 S. Ct. at 1785 (stating that "[i]f all three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if . . . the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings" (internal quotation marks omitted)).
In this case, the Government concedes not only that the district
court erred "by imposing enhanced sentences in the absence of . . .
an allegation [regarding specific drug quantities]," but also that error
was also plain . . . within the meaning of Federal Rule of Criminal
Procedure 52(b)." Brief of Appellee at 47-48. The Government contends, however, that "[e]ven assuming Defendants substantial rights
were affected," thus meeting the third condition under the plain error
standard, "the error did not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings." Id. at 50.
In Cotton, when considering the exact sort of indictment error
alleged here, the Supreme Court found that because the evidence of
the necessary drug quantity was "overwhelming and essentially
uncontroverted," there was "no basis for concluding that the error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Cotton, 122 S. Ct. at 1786 (internal quotation
marks omitted). Alonzo Mackins and Ivey Walker argue that here,
unlike Cotton, the evidence of drug quantity is neither "overwhelming" nor "essentially undisputed."
Specifically, they point to the lack of corroboration of the Governments witnesses as to the fact of the alleged drug conspiracy. But the
relevant evidence for Apprendi purposes is not evidence of the conspiracy itself but evidence of the quantity of illegal drugs involved in
the conspiracy. Even a cursory review of the record reveals that the
conspiracy charged here indisputably involved quantities of cocaine
and cocaine base far in excess of the minimum amounts necessary to
sustain the sentences pursuant to 21 U.S.C.A. 841(b)(1)(A). As in

UNITED STATES v. MACKINS

11

Cotton, the evidence as to quantity was indeed "overwhelming" and

"essentially uncontroverted." Accordingly, Cotton mandates the conclusion that, even if the error here affected Alonzo Mackins and Ivey
Walkers substantial rights, it does not seriously affect the fairness,
integrity, or public reputation of judicial proceedings so as to warrant
notice.
C.
Review of Willie Mackins preserved error claim, however, compels a different conclusion. This constitutional error is harmless only
if the Government can prove, beyond a reasonable doubt, that it did
not affect Mackins substantial rights. See Chapman, 386 U.S. at 24;
Lovern, 293 F.3d at 701. Relying on the Supreme Courts holding in
Cotton, the Government argues that the error did not affect Willie
Mackins substantial rights because the evidence as to him regarding
drug amounts carrying a sentence of life imprisonment was also
"overwhelming and uncontroverted." Brief of Appellee at 49
(quoting Cotton, 122 S. Ct. at 1787).
In so arguing, the Government ignores three critical facts. First, the
Cotton holding rests on an application of plain, not harmless, error
analysis. Thus, in Cotton, the defendant had the burden of proof.
Here, because Willie Mackins preserved his objection, the Government has the burden of proof. Lovern, 293 F.3d at 701; see also
United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001)
(explaining the difference between plain error and harmless error
analysis).
Secondly, in Cotton, the Supreme Court did not hold that the
defendant had failed to prove that the error affected his substantial
rights. Rather, the Court assumed that even if this was so an appellate
court need not notice the forfeited error because the error did not "seriously affect the fairness, integrity, or public reputation of judicial
proceedings." Cotton 122 S. Ct. at 1786. This rationale the final
step necessary to correct an error that is not preserved for appellate
review has no application when a defendant has objected in the
trial court and so preserved his contention for appellate review. See,
e.g., Candelario, 240 F.3d at 1311 n. 15.

12

UNITED STATES v. MACKINS

Third, the Governments argument ignores binding circuit precedent holding that error of the precise sort at issue here does, in fact,
affect a defendants substantial rights. See Promise, 255 F.3d at 160.
In Promise, seven members of the eleven member en banc court held
that when a defendant has been convicted of conspiring to distribute
an unspecified drug amount subjecting him only to a maximum penalty of twenty years, see 21 U.S.C.A. 841(b)(1)(C), a sentence in
excess of twenty years constituted an "error affect[ing] his substantial
rights." Promise, 255 F.3d at 160. Since Willie Mackins, like Marion
Promise, was convicted of conspiracy to distribute an unspecified
drug quantity, subjecting him only to a twenty-year maximum sentence under 841(b)(1)(C), Mackins sentence to life imprisonment
affects his "substantial rights." Thus, the error "entitle[s]" Mackins "to
some appellate relief," Stokes, 261 F.3d at 499, unless for some other
reason the error is harmless because "it did not result in a sentence
greater than that which would otherwise have been imposed." United
States v. Chase, 296 F.3d 247, 250 (4th Cir. 2002).
We have on several occasions determined that this sort of Apprendi
sentencing error was harmless because the defendants conviction on
multiple counts exposed him to a statutory maximum prison term
equal to (or in excess of) the term he actually received, and he did not
demonstrate that the sentencing error otherwise "affect[ed] his substantial rights." See Stokes, 261 F.3d at 500-01, n. 7; United States v.
Angle, 254 F.3d 514, 518-19 (4th Cir. 2001) (en banc). Thus, in
Angle, although a defendant received a 292-month sentence for conspiring to traffic in an unspecified quantity of drugs under
841(a)(1)(C) (which carries a maximum statutory penalty of 240
months), we held the error harmless when the defendant was convicted of three crimes exposing him to a total statutory maximum
term of imprisonment of sixty years (720 months). Id. at 518. As we
explained:
In the case of multiple counts of conviction, the sentencing
guidelines instruct that if the total punishment mandated by
the guidelines exceeds the statutory maximum of the most
serious offense of conviction, the district court must impose
consecutive terms of imprisonment to the extent necessary
to achieve the total punishment.

UNITED STATES v. MACKINS

13

Id. (citing U.S.S.G. 5G1.2(d)); see also Chase, 296 F.3d at 253;
Stokes, 261 F.3d at 501.5
In this case, the jury convicted Willie Mackins of the drug conspiracy charge carrying a maximum statutory penalty of twenty years
(without the aforementioned Apprendi error), 21 U.S.C.A.
841(b)(1)(C), the money laundering conspiracy charge carrying a
maximum statutory penalty of twenty years, 18 U.S.C.A. 1956(h),
three counts of counterfeit check charges carrying maximum statutory
penalties of five, ten, and thirty years respectively, 18 U.S.C.A.
371, 513, and 1344, and the false affidavit charge carrying a maximum statutory penalty of five years, 18 U.S.C.A. 287. In other
words, the convictions exposed Mackins to a total of ninety years. But
the district court had determined a total offense level under the Guidelines sufficient to mandate life imprisonment. Thus, "[e]ven if the district court had not strayed beyond the statutory maximum term of
twenty years imprisonment" on the drug conspiracy count, "the court
would still have been mandated, under U.S.S.G. 5G1.2(d) to impose
consecutive sentences in order to attain prison terms within the prescribed Guidelines range." Stokes, 261 F.3d at 501. It seems likely
that an imposition of consecutive sentences totaling ninety years on
the forty-six-year-old Mackins would equal or exceed the life sentence improperly imposed on him under the drug conspiracy count.
But, of course, we do not know that. Accordingly, we vacate Willie
Mackins life sentence and remand for imposition of a sentence of
ninety years (1080 months).
5

As we did in Stokes, we note here that "nothing in the record suggests

that the district court would not impose the same . . . sentence on [the
defendant], albeit by way of consecutive sentences, upon resentencing
[him]." Stokes, 261 F.3d at 501 n.7. Thus, like the defendants in Stokes,
Willie Mackins "did not request a departure from the Guidelines, [his]
presentence report suggested no basis to depart, and the district court
expressed no inclination to deviate from the applicable range." Id. Thus,
again as in Stokes, Willie Mackins has not demonstrated that "a refusal
to vacate his sentence and order resentencing could in some way affect
his substantial rights." Id. (quoting Angle, 254 F.3d at 518 n.2).

14

UNITED STATES v. MACKINS

III.
Willie Mackins also contends that he presented a "non-frivolous"
double jeopardy claim to the district court, which the court improperly rejected. See U.S. Const. amend. V. Mackins bases this assertion
on the fact that he was acquitted of a drug conspiracy charge in 1993;
he argues that his September 1998 trial and subsequent conviction of
drug conspiracy violated his constitutional right to be free from being
twice put in jeopardy for the same offense.
Conspiracy cases present special challenges in assessing the merits
of a double jeopardy claim. A district court must apply a flexible "totality of the circumstances" test to determine if two alleged conspiracies constitute separate offenses. See United States v. McHan, 966
F.2d 134, 137-38 (4th Cir. 1992); United States v. Ragins, 840 F.2d
1184, 1188-89 (4th Cir. 1988). In making this determination, a court
should consider:
(1) the time periods covered by the alleged conspiracies; (2)
the places where the conspiracies are alleged to have
occurred; (3) the persons charged as co-conspirators; (4) the
overt acts alleged to have been committed in furtherance of
the conspiracies, or any other descriptions of the offenses
charged which indicate the nature and scope of the activities
being prosecuted; and (5) the substantive statutes alleged to
have been violated.
Ragins, 840 F.2d at 1189. When a double jeopardy claim is asserted
in advance of a pending trial, "[o]nce the defendant makes a nonfrivolous showing that two charged conspiracies are one, the government must establish that they are indeed two." McHan, 966 F.2d at
138 (citing Ragins, 840 F.2d at 1192).
Mackins contends that, like the defendant in McHan, he established
before the district court a non-frivolous double jeopardy claim. We
disagree. In contrast to Mackins, McHan relied not only on the face
of the two indictments, but also on the testimony of co-conspirators
in the first trial to demonstrate that both indictments alleged that the
same four co-conspirators purchased marijuana in South Texas and
transported it to and distributed it in Murphy, North Carolina during

UNITED STATES v. MACKINS

15

a period of a few years. Given this evidence, we agreed with the district court that these overlaps raised a "non-frivolous double jeopardy
question about whether there was only one continuous conspiracy."
McHan, 966 F.2d at 138. Of course, we also agreed "that the specific
nature and scope of the conspiracies as well as their time frames
reveal there to have been two" conspiracies rather than one. Id.
In this case, although Mackins referred generally to the transcript
of the 1993 trial (stating that it was incorporated by reference), he did
not attach any portion of the transcript to his pretrial motion or quote
any portion of that testimony in the accompanying memorandum. Nor
did he offer any other evidence to support his double jeopardy claim.
Rather, he relied entirely on the face of the two indictments to argue
that the drug conspiracy charged in the 1998 indictment was the same
drug conspiracy for which he had been acquitted in 1993. Moreover,
Mackins made no effort in either his motion or his memorandum to
apply the Ragins five-factor test to the two indictments in order to
develop a "non-frivolous" double jeopardy claim. Thus, in rejecting
his double jeopardy claim, the district court noted that although the
two conspiracies did overlap to some extent in terms of time, place,
and personnel, Mackins "has presented little more than argument to
support his position and this is simply insufficient to show that the
conspiracy with which he now stands charged is the same conspiracy
for which he was acquitted in 1993."
After reviewing the record, we can only reach the same conclusion.
The 1998 superceding indictment describes a conspiracy that began
seven years before and continued for five years after the 1989-91 conspiracy for which Mackins was acquitted in 1993. Although the 1998
indictment named in addition to Willie Mackins four co-defendants
and twenty-one other co-conspirators, none of these people were
named co-defendants or co-conspirators in the 1993 indictment. No
overt acts were listed in either indictment. Finally, the 1993 indictment refers only to cocaine and heroin, while the 1998 indictment
charges possession with intent to distribute cocaine, cocaine base,
heroin, and marijuana.
Standing alone, the two indictments simply did not present the district court with a non-frivolous double jeopardy claim.

16

UNITED STATES v. MACKINS

IV.
The Mackins brothers and Walker next assert that the district court
violated Fed. R. Crim. P. 8 by improperly joining defendants and
offenses in a single trial. Specifically, they argue that the district court
erred in allowing the counts alleging the 1996-97 conspiracy to
defraud federal banking institutions (Counts 1-3), with which only
Willie Mackins was charged, to be joined with the 1982-1998 drug
conspiracy and money laundering counts common to all three of the
defendants (Counts 4-5).
We review de novo the district courts refusal to grant defendants
misjoinder motion to determine if the initial joinder of offenses and
defendants was proper under Fed. R. Crim. P. 8(a) and 8(b) respectively. See United States v. Lane, 474 U.S. 438, 449 n. 12 (1986)
(stating that appellate review of misjoinder claim under Rule 8 is "for
an error of law"). If the initial joinder was proper, we must then determine if the district court abused its discretion under Fed. R. Crim. P.
14 in denying pre-trial motions to sever. See, e.g., United States v.
Acker, 52 F.3d 509, 514 (4th Cir. 1995). If the initial joinder was not
proper, however, we review this nonconstitutional error for harmlessness, and reverse unless the misjoinder resulted in no "actual prejudice" to the defendants "because it had [no] substantial and injurious
effect or influence in determining the jurys verdict." Lane, 474 U.S.
at 449 (internal quotation marks omitted).6 The Government, of
course, bears the burden of showing that the error was harmless. See,
e.g., Lovern, 293 F.3d at 701.
A.
Fed. R. Crim. P. 8 provides:
6

The Mackins brothers and Walker mistakenly argue that if initial joinder was improper under Rule 8 that fact alone suffices to show prejudice.
The Supreme Court has explicitly rejected this argument. See Lane, 474
U.S. at 449 ("[W]e do not read Rule 8 to mean that prejudice results
whenever its requirements have not been satisfied." (emphasis in original)).

UNITED STATES v. MACKINS

17

(a) Joinder of Offenses. Two or more offenses may be

charged in the same indictment or information in a separate
count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar
character or are based on the same act or transaction or on
two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may
be charged in the same indictment or information if they are
alleged to have participated in the same act or transaction or
in the same series of acts or transactions constituting an
offense or offenses. Such defendants may be charged in one
or more counts together or separately and all of the defendants need not be charged in each count.
Although the requirements for joinder of offenses in Rule 8(a) are
slightly broader than those for joinder of defendants in Rule 8(b)
given that Rule 8(a) permits joinder of offenses of the "same or similar character" neither set of requirements is onerous. Rather, both
permit "very broad joinder . . . at the pleading stage." 1A Charles
Alan Wright, Federal Practice and Procedure 141 (3d ed. 1999). But
even the less rigorous requirements of Rule 8(a) "are not infinitely
elastic," United States v. Randazzo, 80 F.3d 623, 627 (1st Cir. 1996),
and so "cannot be stretched to cover offenses . . . which are discrete
and dissimilar and which do not constitute parts of a common scheme
or plan." United States v. Richardson, 161 F.3d 728, 733 (D.C. Cir.
1998).
In this case, the only connection we see between the 1996-1997
counterfeit check conspiracy alleged in Counts One-Three and the
1982-1998 drug and money laundering conspiracies alleged in Counts
Four and Five is Willie Mackins. Certainly, the indictment does not
allege any explicit connection between the counterfeit check scheme
and the drug and money laundering schemes. Although Count One of
the indictment contains allegations regarding the use of counterfeit
checks to open fraudulent bank accounts in the name of Simmions
Industrial Tooling and JTP Hydraulics, there is no mention anywhere
in the indictment or in any of the testimony at trial that these entities
were used to launder drug money.

18

UNITED STATES v. MACKINS

In denying the misjoinder motions, the district court reasoned that

"[a]cts involving a counterfeit check ring may be used to launder drug
money or simply be part of the overall series of criminal actions."
That may be true as a general matter, but nothing in the indictment
and no evidence produced at trial in this case suggested that counterfeit checks involving existing companies (including a check from the
Mecklenburg County Jail Inmate Trust Account procured by Willie
Mackins) were, in fact, used to launder drug money.
It is, of course, possible to hypothesize that Willie Mackins used
money generated through the counterfeit check scheme to set up new
businesses that could then be used to launder drug money in the drug
and money laundering conspiracy joined by Ivey Walker and Alonzo
Mackins. Alternatively, Willie Mackins may have used the counterfeit
check scheme to generate fraudulent bank accounts for his associates,
which were then used to launder drug money. But neither of these
possibilities (or any other) is explored in the indictment or in the testimony at trial, and the Government has made no effort in its arguments
before this court to establish such a connection.7
For these reasons, we conclude that the district court erred in
allowing joinder of the counterfeit check counts involving only Willie
Mackins with the drug and money laundering conspiracies charged
against Mackins and all other defendants. We therefore turn to the
question of whether this error requires reversal.
B.
The defendants contend that the improper joinder of offenses and
defendants cannot constitute harmless error "unless substantially all
of the evidence adduced at the joint trial would be admissible at sepa7

Moreover, we note that the joinder of the counterfeit check counts

involving only Willie Mackins with the drug and money laundering conspiracy charged against Mackins and all other defendants "offered minimal advantages in terms of judicial efficiency." United States v. Chavis,
296 F.3d 450, 460 (6th Cir. 2002). When, as here, "the offenses [arose]
out of separate and unrelated transactions, there is . . . little saving in
time and money in having a single trial." 1A Charles Alan Wright, Federal Practice and Procedure 143 (3d ed. 1999).

UNITED STATES v. MACKINS

19

rate trials." Brief of Appellants at 44 and 48 (internal quotation marks

omitted). The Government does not take issue with this formulation
but instead summarily asserts that the evidence adduced at the joint
trial would have been admissible at separate trials.
If this harmless error standard applied, we could not conclude that
the improper joinder was harmless. Contrary to the Governments
suggestion, neither all nor substantially all of the evidence regarding
Willie Mackins involvement in the counterfeit check scheme would
have been admissible in a separate trial of the three defendants on the
drug conspiracy and money laundering charges. Indeed, based on the
record before us, we cannot see how any evidence of Willie Mackins
involvement in the counterfeit check scheme would be relevant to
Alonzo Mackins and Ivey Walkers involvement in the drug and
money laundering conspiracies. Similarly, we fail to see how the evidence of the counterfeit check scheme would be admissible under
Fed. R. Evid. 404(b) to support the prosecutions case against Willie
Mackins on the drug and money laundering charges. The purpose of
Fed. R. Evid. 404(b) is to ensure that evidence of "other crimes,
wrongs, or acts" does not come in to prove the character (or propensity) of the accused. Although the rule identifies various bases for
deeming such evidence admissible (i.e., to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident), the Government offers no explanation as to why the evidence pertaining to Willie Mackins involvement in the counterfeit
check scheme would be admissible in a separate trial on the drug and
money laundering charges.
The standard proffered by the parties, however, is not the proper
standard for determining whether misjoinder error is harmless.
Rather, the Supreme Court has instructed "that an error involving misjoinder affects substantial rights and requires reversal only if the
misjoinder results in actual prejudice because it had substantial and
injurious effect or influence in determining the jurys verdict." Lane,
474 U.S. at 449 (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946) (emphasis added)).8 In assessing whether a misjoinder
8

Of course, to the extent that Lane is inconsistent with United States

v. Chinchic, 655 F.2d 547, 551 (4th Cir. 1981), and Ingram v. United
States, 272 F.2d 567, 569 (4th Cir. 1959), on which the defendants rely,
Lane controls.

20

UNITED STATES v. MACKINS

error results in such actual prejudice, the Lane Court considered (1)
whether the evidence of guilt was overwhelming and the concomitant
effect of any improperly admitted evidence on the jurys verdict; (2)
the steps taken to mitigate the effects of the error; and (3) the extent
to which the improperly admitted evidence as to the misjoined counts
would have been admissible at trial on the other counts. Lane, 474
U.S. at 450. Although we have concluded that here, in contrast to
Lane, the evidence as to the misjoined check fraud counts would not
have been admissible at trial on the other counts, after careful study
of the record, we nonetheless believe the misjoinder error was harmless.9
Most importantly, like Lane, this was neither a close case nor one
in which there is any indication that the improperly admitted evidence
"substantially . . . influence[d]" the jurys verdicts. Kotteakos, 328
U.S. at 776. The evidence supporting the guilty verdicts for Willie
Mackins, Alonzo Mackins, and Ivey Walker on the drug and money
laundering counts was simply overwhelming. Similarly, the evidence
of Willie Mackins guilt on the counterfeit check counts was also
overwhelming. Furthermore, despite the defendants claim that there
was "great likelihood" that the evidence pertaining to Willie Mackins
check scheme "spilled over to Alonzo and Ivey on the drug conspiracy and money laundering charges," Reply Brief at 23, none of the
testimony relating to Willie Mackins check scheme directly implicated either of the other two defendants, and only rarely even made
reference to one of them (Alonzo Mackins). As in Lane, the evidence
regarding the misjoined matter in this case, Willie Mackins check
fraud scheme, was "distinct and easily segregated" from the evidence
relating to the heart of the case, the long and successful drug and
money laundering conspiracy. Lane, 474 U.S. at 450 n. 13.
9

Nothing in Lane requires that all three of the considerations discussed

there as indicia of harmlessness are required to establish that a misjoinder error was not prejudicial. Rather, the ultimate inquiry remains the
familiar one set forth in Kotteakos for determining the harmlessness of
non-constitutional error: did the misjoinder have "a substantial and injurious effect or influence in determining the jurys verdict." Lane, 474
U.S. at 449 (quoting Kotteakos, 328 U.S. at 776). In Lane, the Court
carefully examined the facts and evidence of that particular case and concluded that the misjoinder was harmless. We do the same here.

UNITED STATES v. MACKINS

21

Second, also as in Lane, the trial court "provided . . . proper limiting instruction[s]" to mitigate the effect of any possible spillover of
prejudicial evidence. Lane, 474 U.S. at 450. In its initial instructions,
the district court expressly advised the jury that:
A separate crime or offense is charged in each of the six
counts of the indictment. Each charge and the evidence pertaining to it and the defendant to whom it refers should be
considered separately. The fact that you may find an
accused guilty or not guilty as to one of the offenses charged
should not control your verdict as to any other offense
charged.
The court then reiterated this instruction in its final charge on each
count, admonishing the jury on Counts 1-3 to consider each of them
separately and only in relation to Willie Mackins and on Counts 4-5
to consider each charge and each defendant separately. After receiving these instructions, the jury acquitted both Larry Mackins and Leo
Simon of the drug and money laundering charges. This strongly indicates that the members of the jury were quite capable of distinguishing between the different defendants on the different counts and did
not allow the evidence as to the misjoined counterfeit check scheme
to affect their verdicts on the other counts.
We hold, therefore, that although the district court erred under Rule
8 in joining the defendants and offenses, these errors were harmless.
V.
Finally, the Mackins brothers and Walker contend that the district
court erred by instructing the jury disjunctively on the four drugs
involved in the conspiracy, allowing the jury to return a general verdict, and then imposing a sentence that exceeded the statutory maximum for the least-punishable controlled substance charged in the
indictment.
Count Four of the indictment charged the three defendants (and
others) with conspiracy to possess with intent to distribute "a quantity
of cocaine and cocaine base, Schedule II controlled substances, and

22

UNITED STATES v. MACKINS

heroin and marijuana, Schedule I controlled substances." (emphasis

added). After revising its jury instructions to replace the conjunctive
formulation contained in the indictment with a disjunctive one, the
district court instructed the jury that it should convict a defendant on
the drug conspiracy charge if it found beyond a reasonable doubt that
he had conspired to possess with intent to distribute any of the four
drugs listed in the indictment.
Neither the defendants nor the Government asked for a special verdict, and the jury returned a general verdict of guilty. At sentencing,
the district court adopted the findings of the presentence investigation
reports and imposed a life sentence on each of the defendants, basing
this on the finding that Willie Mackins was responsible for 65 kilograms of cocaine and 6 kilograms of cocaine base; Alonzo Mackins
was responsible for 15 kilograms of cocaine, 19 kilograms of crack
cocaine, and 660 grams of heroin; and Ivey Walker was responsible
for 345 ounces of cocaine and 134 ounces of crack cocaine.
Defendants now claim that the district court committed error by
imposing sentences based on the most heavily punishable objects of
the conspiracy (cocaine and cocaine base), even though it is impossible to tell from the jurys general verdict which of the charged objects
of the conspiracy served as the basis for the conviction. In making
this argument, defendants rely on United States v. Rhynes, 196 F.3d
207, 238 (4th Cir. 1999), vacated in part on other grounds on rehg
en banc, 218 F.3d 310 (4th Cir. 2000). In that case, we held that when
a jury returns an ambiguous guilty verdict in a multiple drug conspiracy, a defendant "may be sentenced only up to the maximum for the
least-punished drug offense on which that conspiracy charge is
based." Rhynes, 196 F.3d at 238. According to the defendants,
because marijuana is the least-punished drug offense on which this
drug conspiracy charge is based, each of them could "be sentenced
only up to the maximum" punishment for marijuana, i.e., sixty
months. See 21 U.S.C.A. 841(b)(1)(D) (West 1999). Hence, they
argue that under Rhynes we must order that they be retried on the
drug conspiracy count or re-sentenced to a term of not more than sixty
months.
Since defendants "did not object to the submission of a general verdict, request a special verdict, nor object to the conversion of drug

UNITED STATES v. MACKINS

23

amounts, we review the imposition of [their] sentence[s] for plain

error." See Rhynes, 196 F.3d at 237; Fed. R. Crim. P. 52(b).10
In United States v. Bowens, 224 F.3d 302 (4th Cir. 2000), which
also involved plain error review, we declined to notice Rhynes error
associated with a general verdict convicting the defendant of conspiracy to distribute cocaine base or heroin because "the overwhelming
and essentially uncontroverted evidence show[ed] that [the defendant]
was a major participant in a large crack distribution conspiracy." Id.
at 315. Similarly, in this case, the evidence against the defendants
with respect to cocaine and cocaine base was overwhelming and
essentially uncontroverted. Virtually every government witness who
testified about drugs, testified about the defendants extensive
involvement with cocaine or cocaine base. Thus, here, as in Bowens,
"it is not impossible to determine on which statutory object or objects
. . . the conspiracy conviction was based." Id. (quoting Rhynes, 196
F.3d at 238). Accordingly, as in Bowens, we decline to notice the
Rhynes error, "confident that no miscarriage of justice will result, nor
. . . the fairness or integrity of the proceedings be affected" by our
failure to do so. Bowens, 224 F.3d at 316.11
10

In Rhynes, which was decided before Apprendi, we found that the

district court committed plain error only when a defendants sentence
exceeded the applicable statutory maximum based on the leastpunishable drug type and quantity attributed to him in the presentence
investigation report, which had been adopted by the district court at sentencing. Rhynes, 196 F.3d at 239. When the district court did not impose
a sentence exceeding the statutory maximum, we found no plain error.
Id.; see also Edwards v. United States, 523 U.S. 511, 515 (1998). The
government urges us to find no plain error here for the same reason
the district court imposed no sentence exceeding the statutory maximum
based on the drug type and quantity attributed to each defendant by the
court. However, given Apprendi, we question the continued viability of
this approach: a sentencing court may no longer make determinations as
to drug type and quantity, rather they must be treated as elements of an
offense proved to a jury beyond a reasonable doubt.
11
Of course, Apprendi error with respect to drug quantity requires that
Willie Mackins be resentenced, as explained in part II supra.

24

UNITED STATES v. MACKINS

VI.
For the reasons set forth within, we vacate Willie Jerome Mackins
sentence and remand his case for resentencing consistent with this
opinion. We affirm the judgment of the district court in all other
respects.
AFFIRMED IN PART AND VACATED
AND REMANDED IN PART