UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
FREDDIE WIGENTON, a/k/a Lil D,
Defendant - Appellant.

No. 11-4302

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DESHAWN ANDERSON, a/k/a Buddha,
Defendant - Appellant.

No. 11-4303

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
MARVIN WAYNE WILLIAMS, JR.,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District
Judge.
(1:09-cr-00414-JCC-1,
1:09-cr-00414-JCC-2,
1:09-cr-00414-JCC-3)

Submitted:

June 15, 2012

Decided:

August 3, 2012

Before TRAXLER, Chief Judge, NIEMEYER and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church,

Virginia, for Appellant Deshawn Anderson; Alan H. Yamamoto,
Alexandria, Virginia, for Appellant Freddie Wigenton; Matthew A.
Wartel,
Alexandria,
Virginia,
for
Appellant
Marvin
Wayne
Williams, Jr.;
Neil H. MacBride, United States Attorney,
Michael P. Ben'Ary, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Freddie Wigenton, Deshawn Anderson, and Marvin Wayne
Williams,

Jr.

(collectively,

Appellants)

appeal

their

convictions and sentences arising out of a drug conspiracy and

drug-related killing.

Finding no error, we affirm.

I.
As is relevant to this appeal, the evidence presented
at trial, viewed in the light most favorable to the government,
is as follows.

Starting in approximately 2005, Williams was the

source of crack cocaine, powder cocaine, marijuana, and PCP for

a drug distribution business he operated with Annette Sprow.
Sprow sold hundreds of ounces of crack during the conspiracy.
Wigenton

and

Anderson

would

both

purchase

eight-ball

quantities of crack from Sprow (roughly 3.5 grams), divide them

into smaller quantities, and resell them.

gunpoint
drugs.

During

the

in

apartment,

her

conspiracy,
from

two

men

which

she

robbed
and

Sprow

Williams

at
sold

The robbers stole a .38-caliber pistol, a vehicle, and

some drugs that were inside the vehicle.

Sprow believed she

recognized one of the men, but the other mans face was covered
with a bandana.
very upset.
involved.

When Williams learned of the robbery, he was

He suspected that a man named Kyle Turner was

Turner and Williams had had a dispute a few weeks
3

earlier,

and

Sprow

told

Williams

that

she

had

seen

Turner

wearing the same hat as the robber whose face had been covered.
Williams stated that he would take . . . out the robbers if he
found them.

J.A. 933.

A couple of days after the robbery, Turner asked

Sprow, who was in front of her apartment building, if he could
buy a dipper, which is a cigarette dipped in PCP.

J.A. 480.

Sprow loudly told Turner that she was not selling PCP at that
time.

Williams, who was nearby, called Sprow over to find out

what Turner had said to her.

Sprow then returned upstairs to

her apartment with a friend, Rashourn Niles.

Shortly thereafter, Reginald Moten walked through the
parking lot behind Sprows building with Turner and one other
person.

Moten saw the Appellants standing in the front corner

of the parking lot; they were the only other people he saw in
the area.

As Moten left the lot and walked toward the front of

Sprows building, he heard gunshots and saw flashes.

He quickly

fled.
Sprow

and

Niles

third-floor apartment.

also

heard

the

shots

from

Sprows

Niles looked out of the window and saw

Anderson and Wigenton shooting at Turner, who was lying on the

ground in the parking lot.
ran

into

the

apartment

Seconds later, all three Appellants

along

with

fourth

person.

Sprow

noticed

that

the

three

Appellants

had

guns,

and

she

heard

Anderson ask Wigenton for more bullets.

Williams ordered Sprow to drive the other three men
home, and he gave her his gun so that she could get it away from
the apartment.

During the short ride, Sprow heard Anderson ask

Wigenton if he saw how that MFers body shook when he hit the
ground.

J.A. 490.
When Sprow returned to her apartment, Williams told

her that he had seen Turner in the parking lot, and that when
Williams

overheard

started shooting.
Anderson,

with

Turner

say

J.A. 490.

Wigenton

Sprows

name,

Williams

just

Also shortly after the shooting,

present,

told

Jeremiah

Jackson

that

Anderson and two other individuals had just shot someone who had
robbed Sprow.

Anderson reported that he had used a .40-caliber

firearm and that the other two individuals had used .45-caliber
and .38-caliber firearms.
In

the

next

few

days,

Anderson

also

told

Anthony

Hogan, a former football teammate, that Anderson had shot a

dude

and

Anderson

unloaded
again

his

reported

.40-caliber.
that

two

J.A.

other

1018,

individuals

1021.
had

participated in the shooting, one using a .45-caliber firearm

and the other, a .38caliber.
account

to

Jerome

Waters.

Anderson also gave a similar

Anderson

told

Waters

that

the

individual with the .38-caliber weapon had fired a couple of

times before the weapon jammed.

J.A. 944.

Wigenton also told Waters that authorities were trying

to charge him with the killing but that he had thrown his weapon
into the water.
the

shooting

Wigenton also discussed his participation in

with

Jackson,

telling

him

that

they

got

to

shooting at somebody and that Wigenton had later disposed of

the guns by [t]hr[owing] them off [a] bridge or something.
J.A. 875.
The

physical

evidence

collected

from

the

consistent with Appellants accounts of the killing.

scene

was

Manassas

City Police collected several .45-caliber shell casings from the

area at the front corner of the parking lot.

They also found an

unspent .38-caliber round, a .38-caliber shell casing, and ten

.40-caliber casings in the lot.
Turners autopsy revealed 13 gunshot wounds, and .45caliber, .38-caliber, and .40-caliber bullets were all recovered
from

Turners

body.

The

medical

examiner

concluded

that

Turners death was caused by multiple gunshot wounds and that

lethal

or

potentially

lethal

wounds

were

attributable

to

ammunition of each caliber.

Following an investigation, the government filed two
single-count

Juvenile

Informations,

one

charging

Anderson

and

one charging Wigenton with the intentional killing of Turner

6

during

the

course

of

drug

conspiracy,

in

violation

of

21

U.S.C.A. 848(e)(1)(A) (West 1999) and 18 U.S.C.A. 2 (West

2000),

if

they

Certifications
Delinquency

had
To

been

adults.

Proceed

Prevention

The

Under

Act,

(West 2000 & Supp. 2012).

see

the
18

government
Juvenile

U.S.C.A.

also

filed

Justice

5031,

et

and
seq.

The government later successfully

moved to transfer both juveniles to adult prosecution.

In
three-count

December

2009,

superseding

federal

indictment

grand

jury

charging

returned

Appellants

with

conspiracy to distribute crack cocaine (Count One), intentional

killing while engaged in drug trafficking (Count Two), and use
of a firearm in connection with conspiracy to distribute crack
cocaine

resulting

in

death

(Count

Three).

Each

Appellant

pleaded not guilty.

Each

Appellant

filed

pre-trial

motion

seeking

to

have his case severed from that of his co-defendants, or for

suppression of his co-defendants out-of-court statements.

The

district court granted the motions to suppress the statements,

ruling

that

the

Government

will

be

allowed

to

offer

the

statements of each defendant only against the declarant, and not

against the other two co-defendants.

J.A. 138.

The case then proceeded to trial by jury.

The jury

returned guilty verdicts for each Appellant on Counts One and

Three

and

verdict

of

not

guilty
7

for

each

on

Count

Two.

Appellants filed various post-trial motions, which the district

court denied.

Each Appellant received sentences of 25 years on

Count One and 25 years on Count Three, to run consecutively.

II.
Appellants
insufficient

to

first

support

argue

their

that

the

convictions

on

evidence
Count

One.

was
We

disagree.
Sprows testimony about the conspiracy in general and
Appellants respective roles in it was sufficient by itself to
sustain the verdict, and her testimony was also corroborated by
other

witnesses.

Appellants

argue

that

in

light

of

the

significant evidence casting doubt upon the credibility of the

governments witnesses Sprow, in particular the evidence
supporting Appellants guilt on Count One was not sufficient.
However, the question of a witnesss credibility is one for the
jury to decide.

See United States v. Shipp, 409 F.2d 33, 36

(4th Cir. 1969).

Appellants

also

argue

with

regard

to

Anderson

specifically that even though Sprow testified she sold drugs to

him, there is no evidence that he redistributed those drugs.
That claim is refuted by the record.

When asked what Anderson

would sell, Sprow answered [c]rack.

J.A. 469.

She testified

he

was

buying

the

crack

[e]ight-ball quantities. 1
Appellants

also

from

her

[m]aybe

once

was

no

week

in

J.A. 470.
contend

that

there

evidence

that it was reasonably foreseeable to Anderson that the quantity

of crack cocaine allegedly distributed in the conspiracy was 50
grams or more.

However, a reasonable jury could easily conclude

that the scope of the conspiracy was reasonably foreseeable to

Anderson.

Sprow testified that Anderson was himself purchasing

eight-balls of crack, which are approximately 3.5 grams each.

And, his involvement in the conspirators retribution for the
robbery of the stash house tended to show his awareness that the
operation was significantly larger than the sales he was making.

III.
Appellants
evidence

on

Count

next
Three,

challenge
which

the

charged

sufficiency
that

of

Appellants

the
used

firearms to murder Turner during and in relation to their drug

distribution conspiracy.

We find this challenge to be without

merit.
The government presented testimony that Williams had a
prior disagreement with Turner and that Williams told Sprow and
1

Although Appellants contend that this evidence was

hearsay, it was evidence of Andersons actions, not evidence of
what anyone said.

others that he would take care of the person responsible for

the robbery, who Williams and Sprow believed to be Turner.

J.A.

480; see also J.A. 933 (testimony that Williams said he would
take . . . out the robbers).

Additionally, Niles testified

that when he looked out of Sprows window, he saw Anderson and

Wigenton shooting Turner.

Both Sprow and Niles testified that

moments after the shooting, all three Appellants ran into the
apartment.
noticed

Sprow saw that all three had guns, and Niles also

that

Anderson

was

holding

gun.

Additionally,

the

Appellants own statements to others implicated them in Turners

murder, and their statements were consistent with the physical
and forensic evidence presented at trial.

IV.
Appellants also maintain that the district court erred
in concluding that the jury, in finding them each guilty on
Count Three, found them guilty of violating 18 U.S.C.A. 924(j)
(West

Supp.

Supp.

2012).

2012),

as

opposed

Appellants

to

argue

18
that

U.S.C.A.
while

924(c)

both

(West

subsections

require proof of a use or carrying of firearms during and in

relation to a drug trafficking crime, 924(j) also requires
proof of a resulting death.

Appellants contend that the jury

was never instructed that to find Appellants guilty of Count

Three, it would have to find that they used firearms to kill
10

That contention, however, is incorrect. 2

Turner.

The court

charged that to establish the first element of the crime alleged

in

Count

Three,

the

government

would

need

to

show

that

the

defendants committed the crime of using a firearm in connection

with the conspiracy to distribute crack cocaine resulting in
death

as

identified

superseding
district
Counts

in

counts

one,

two,

indictment.

J.A.

1408

(emphasis

court

Two

and

read

each

Three

of

both

firearms to kill Turner.

the

three

alleged

that

and

counts
the

three

of

added).
to

the

Appellants

the
The

jury.
used

No other death was referenced in the

indictment.

V.
Appellants next argue that the district court erred in
transferring Wigenton and Anderson to adult prosecution.
review

district

courts

ultimate

decision

to

transfer

We
a

juvenile to adult status for abuse of discretion, reviewing the

2

Because we conclude that the jury was instructed that

it must find that Appellants used firearms to kill Turner in
order to find Appellants guilty of Count Three, we also reject
Appellants arguments that the indictment was constructively
amended and that the district court relied on acquitted conduct
in holding Appellants responsible for Turners murder at
sentencing. Additionally, as to the acquitted-conduct argument,
it is well established that in determining an appropriate
sentence, a district court may consider conduct for which the
jury returned a not-guilty verdict.
See United States v.
Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009).

11

See United States

underlying factual findings for clear error.

v. Robinson, 404 F.3d 850, 858 (4th Cir. 2005).

We find no

abuse of discretion with regard to either Appellant.

In determining whether to transfer a juvenile to adult
status, the district court must consider:
age

and

social

alleged,

(3)

background,

the

extent

(2)

and

the

nature

(1) the juveniles

nature
of

the

of

the

offense

juveniles

prior

record of delinquency, (4) the juveniles current intellectual

development and psychological maturity, (5) the nature of past
treatment

efforts

regarding

the

juvenile

and

his

response

thereto, and (6) the availability of programs designed to treat

the

juveniles

(West 2000).
factor

behavioral

problems.

See

18

U.S.C.A.

5032

Although the court may decide what weight each

should

predominates.

have,

the

nature

of

the

crime

clearly

United States v. Juvenile Male #1, 86 F.3d 1314,

1323 (4th Cir. 1996).

In determining that Wigenton and Anderson should be
transferred to adult status, the court concluded with regard to
each that five of the six factors weighed in favor of transfer
and that the factor of intellectual development and maturity was
neutral.

At

the

time

of

the

offense,

Anderson just fourteen days short of 17.

both

had

neglected.

had

family

support

and

neither

Wigenton

was

17

and

The court found that

had

been

abused

or

The court further determined that an intentional

12

killing during a conspiracy to distribute crack is a serious

crime.

The court also noted the Appellants extensive juvenile

criminal histories.
had

twice

been

Wigentons criminal record showed that he

convicted

as

an

adult

in

Virginia

courts.

Similarly, Anderson had twice been convicted as an adult for

malicious wounding.

Although the court determined that both had

performed poorly academically, it found that they possessed the

cognitive ability to conform their actions to the law.

The

court determined that the numerous opportunities for treatment

the two had received had not prevented them from continuing to
commit criminal offenses.

Finally, the court concluded that in

light of the Appellants ages and extensive criminal histories,

no programs were available to treat their behavioral problems.
In our view, the courts reasoning was sound, and the court was
well within its discretion with regard to each Appellant.

VI.
Appellants also contend that the district court erred
in denying their severance motions.

We disagree.

We review a district courts denial of a severance

motion for abuse of discretion.

See United States v. Medford,

661 F.3d 746, 753 (4th Cir. 2011).

the

federal

system

indicted together.

for

joint

There is a preference in

trials

of

defendants

who

are

Zafiro v. United States, 506 U.S. 534, 537

13

(1993).

Severance is appropriate only if there is a serious

risk that a joint trial would compromise a specific trial right

of one of the defendants, or prevent the jury from making a
Id. at 539.

reliable judgment against guilt or innocence.

Here, Appellants maintain that severance was required

to protect their Confrontation Clause rights under Crawford v.
Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391
U.S.

123

(1968),

admissions.

regarding

co-defendants

prohibits

the

against

criminal

establishes

admission

that

of

the

Confrontation

testimonial

defendant

unless

hearsay

that

opportunity to cross-examine the declarant.

54.

out-of-court

That is not the case, however.

Crawford

their

statement

is

testimonial

if

Clause

statements

defendant

has

the

See 541 U.S. at 53it

was

made

under

circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a
later trial.

Id. at 52 (internal quotation marks omitted).

The

at

statements

issue

here,

however,

were

made

to

non-law

enforcement witnesses and were not in anticipation of trial.

Additionally,
statements
after

of

Crawford,

even

co-defendants
the

admission

assuming
can
of

that

create
the

non-testimonial
Bruton

statements

by

problem
the

co-

defendants did not violate Bruton because the statements made no

mention of the names of anyone else involved nor provided a
14

See United States v. Najjar, 300

means of identifying them.

F.3d 466, 475 (4th Cir. 2002) (A Bruton problem exists only
where

co-defendants

defendant.).
that

each

regard

on

its

face

implicates

the

Furthermore, the district court charged the jury

defendants

only

statement

to

the

statements
guilt

of

were
the

to

be

considered

defendant

who

made

with
the

See Richardson v. Marsh, 481 U.S. 200, 211 (1987)

statement.
(holding

that

redaction

of

co-defendants

confession,

in

conjunction with proper limiting instruction, prevented Bruton

violation).

VII.
Appellants next maintain that, as a matter of law, the
jurys not-guilty verdict on Count Two precluded conviction on
Count Three.

That is incorrect.

inconsistent

jury

verdicts

call

question

United States v. Green, 599 F.3d 360, 369 (4th Cir.

cite

the

resulting

the

verdicts.

Appellants

the

into

or

Although

of

not

validity

2010).

legitimacy

do

It is well established that

doctrine

of

guilty

collateral

estoppel as support for their position, that doctrine applies

only when a factual issue has been determined by a valid and
final
parties.

judgment

in

prior

action

between

the

See Ashe v. Swenson, 397 U.S. 436, 443 (1970).

15

same
It

does

not

trial.

apply

to

inconsistent

jury

verdicts

in

single

See United States v. Powell, 469 U.S. 57, 68 (1984).

VIII.
Appellants also argue that the district court erred in
refusing to give the jury a special verdict form offered to the
court by Anderson.

We review a district courts refusal to

submit a special verdict form requested by a defendant for abuse

of discretion.

See United States v. Udeozor, 515 F.3d 260, 270-

71 (4th Cir. 2008).

Although

We find no abuse here.

Andersons

special

verdict

form

is

not

included in the joint appendix, it appears from the record that

the form indicated that if the jury found a defendant not guilty
on some accounts, it was required to find him not guilty on
others.

Appellants maintain that the district courts refusal

to use this form prevented the court from correctly analyzing

the Count 2 acquittals effect as a predicate offense on the
Count 3 conviction.

Appellants brief at 66.

As we have

explained, however, a jurys verdict on one count does not have

a preclusive effect on any other count.
therefore

well

Andersons

form

within
and

in

its

discretion

having

separately.

16

the

The district court was

in

jury

refusing
consider

to

employ

the

counts

IX.
Appellants also contend that the district court erred
in

admitting

statements.
courts

grand
We

decision

jury

review
to

testimony

for

admit

abuse

of

evidence.

as

prior

consistent

discretion
See

United

district
States

v.

Lighty, 616 F.3d 321, 351 (4th Cir. 2010).

We discern no abuse

of

party

discretion

examination
witnesss

to

grand

here.
point
jury

When
out

an

adverse

apparent

testimony

and

uses

inconsistencies
his

trial

cross-

between

testimony,

a
as

happened in this case, the doctrine of completeness permits

the government to attempt to rehabilitate the witness through
use of other portions of the grand jury testimony consistent
with the witnesss trial testimony to the extent necessary to
prevent

misunderstanding

or

distortion.

United

States

v.

Hedgepeth, 418 F.3d 411, 422 (4th Cir. 2005) (internal quotation
marks omitted).

X.
Appellants next argue that the district court erred in
denying their motion to vacate the guilty verdicts on Counts One
and Three because of the governments failure to timely disclose
approximately 70 pages of Bureau of Alcohol, Tobacco, Firearms
17

and

Explosives

regarding

what

violation,

is

reports.

The

sanction,
reviewed

if

for

decision

any,

to

abuse

of

of

impose

district
for

discretion.

court

discovery
See

United

States v. Hastings, 126 F.3d 310, 316 (4th Cir. 1997).

We

conclude that the district court was well within its discretion
in denying Appellants motion.
In

so

doing,

the

district

court

observed

that

the

pages at issue were made available for review 11 days prior to

trial
before

and

that

Appellants

trial.

had

Additionally,

adequate
the

court

time

to

noted

review
that

it

them
was

represented to the court that Williams attorney actually did

review

them

at

the

United

States

Attorneys

Office

and

that

defense counsel had divided document reviewing responsibilities

and shared the information they obtained from their reviews.
The court added that although Appellants contend that the pages
were Brady material, see Brady v. Maryland, 373 U.S. 83 (1963),
they did not even approach the level of materiality necessary
for

Brady

to

be

implicated.

J.A.

1563.

On

appeal,

the

Appellants offer no significant challenge to any of the district

courts analysis.

XI.
In sum, finding no error, we affirm the Appellants
convictions

and

sentences.

We
18

dispense

with

oral

argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid in
the decisional process.

AFFIRMED

19