Argued: January 29, 2019
from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
Affirmed by published opinion. Judge Floyd wrote the opinion
in which Judge Wilkinson and Judge Diaz joined.
ARGUED: Richard S. Stolker, UPTOWN LAW, LLC,
Rockville, Maryland, for Appellant. Christopher Michael
Rigali, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
ON BRIEF: Robert K. Hur, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
convicted appellant Germaine Cannady of conspiracy to
distribute and possession with intent to distribute cocaine
and heroin, in violation of 21 U.S.C. § 841(a)(1), and
attempted possession with intent to distribute cocaine and
heroin, in violation of 21 U.S.C. § 841(b)(1)(A).
Cannady appeals his conviction on several grounds. First, he
claims there was a fatal variance between the single
conspiracy charged in the indictment and the evidence offered
against him at trial. Second, he claims the district court
erred in refusing to give a jury instruction on multiple
conspiracies. Third, he claims the district court erred in
refusing to sever his trial from his codefendants'.
Finally, he claims the district court erred in denying his
motion for acquittal. For the reasons set forth below, we
reject Cannady's arguments and affirm his conviction.
August 2014, Federal Bureau of Investigation (FBI) agents
arrested Michael Barrett after a search of his recreational
vehicle recovered 25 kilograms of cocaine and six kilograms
of heroin in hidden compartments. Barrett told agents he
purchased the drugs from a supplier in California and was
preparing to sell them in Baltimore to a number of
lower-level distributors, including Cannady. This account was
partially confirmed when, while being interviewed by the FBI,
Barrett received a call from Cannady inquiring about the
days following his arrest, Barrett cooperated with the FBI by
participating in a reverse sting operation. In a series of
recorded phone calls, Barrett spoke with Cannady and other
lower-level distributors and arranged to meet them to deliver
their share of the incoming shipment. On one of these calls,
Cannady told Barrett to make sure the shipment contained
"both," which Barrett later testified referred to
both cocaine and heroin. J.A. 238. Cannady also advised
Barrett how much to charge for the drugs, explaining that he
was not going to let customers "get over on"
Barrett because Cannady had "been out in the field"
and knew the going prices for various drugs. J.A. 239.
Barrett directed Cannady and several other associates to meet
him on August 11. Cannady asked Barrett whether he should
bring three other lower-level distributors- Dominic Parker,
Cornell Brown, and Tavon Hopkins-with him to the prearranged
location. Barrett replied that he preferred for the group to
come in pairs of two and directed Cannady to pick up his
share of the shipment with Parker. When the two arrived
together, they were arrested by waiting FBI agents. A
subsequent search of their car turned up four cell phones and
a police scanner.
jury indicted Cannady and eight codefendants for conspiracy
to distribute and possession with intent to distribute
cocaine and heroin. Each defendant was also individually
charged with attempting to possess with intent to distribute
various quantities of controlled substances based on their
recorded phone calls with Barrett. Five of the defendants
pleaded guilty. The remaining four-Parker, Cannady, Brown,
and Ronald Sampson-proceeded to trial.
was the government's primary witness at trial. He
testified that in the fall of 2013, he began receiving large
quantities of cocaine and heroin from a supplier in
California. Between November 2013 and June 2014, Barrett
received five shipments of drugs, which he sold in Baltimore
and Washington, D.C. through a network of confederates.
According to Barrett, Cannady joined the operation around
February 2014, when Barrett received his third shipment
(consisting of 20 to 25 kilograms of cocaine). Barrett
repeatedly supplied Cannady and others with kilogram
quantities of cocaine and heroin until Barrett's arrest
in August 2014.
described at length the coordinated nature of the
distribution scheme. He arranged for his team to conduct
business in pairs to help avoid detection; Hopkins, who
pleaded guilty before trial, typically partnered with Brown,
while Cannady worked with Parker. When Barrett learned it
would be difficult to obtain cocaine from his California
supplier, he conferred with the group before deciding to
import heroin instead. When Barrett asked the group how much
each of them could sell, Cannady offered to sell three
kilograms of heroin himself, but cautioned Barrett against
importing more than five kilograms total for the group.
Barrett also testified that he referred customers who
requested quantities of drugs smaller than a kilogram to
Cannady or other lower-level distributors. See J.A.
193 ("So if it's somebody that wants something under
a kilo, I'll link them up ...