United States v. Jeffrey Edelen ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY EDELEN,
Defendant – Appellant.
No. 12-4246
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENDALL TAYLOR, a/k/a Shamsideen Salaam,
Defendant – Appellant.
No. 12-4711
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRELL JOSE CARTER, a/k/a Shorty,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cr-00288-DKC-2; 8:11-cr-00288-DKC-3; 8:11-cr-
00288-DKC-1)
Argued: January 30, 2014 Decided: March 13, 2014
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Gerald Chester Ruter, Baltimore, Maryland; Julie L. B.
Johnson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellants. Jerome M. Maiatico, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant
Darrell Jose Carter. Steven H. Levin, Baltimore, Maryland, for
Appellant Jeffrey Edelen. Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A federal grand jury indicted Appellants Darrell
Carter (“Appellant Carter”), Kendall Taylor (“Appellant
Taylor”), and Jeffrey Edelen (“Appellant Edelen”) (collectively
“Appellants”) for conspiracy to kidnap, in violation of 18
U.S.C. § 1201(c), and use of a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. § 924(c).
Following a jury trial, all three Appellants were convicted of
the conspiracy charge. The jury was unable to reach a unanimous
verdict on the firearms charge, and the district court declared
a mistrial on that count. The court sentenced Appellant Carter
to 420 months imprisonment, Appellant Taylor to 420 months
imprisonment, and Appellant Edelen to 360 months imprisonment.
On appeal, Appellants raise a host of challenges to their
respective convictions and sentences. For the reasons below, we
affirm.
I.
A.
The relevant facts adduced at trial are as follows.
On the evening of January 13, 2011, LaKendra McNair (“Ms.
McNair”), a bank manager employed in Washington, D.C., left work
and returned to her home in Fort Washington, Maryland.
Appellants, who were lying in wait outside her home, accosted
her and forced their way inside. Ms. McNair testified that the
3
men, who were carrying guns and wearing hoods, masks, and
gloves, repeatedly threatened to kill her.
Ms. McNair’s twelve-year-old son, who was upstairs,
heard the commotion and locked himself in a bathroom. He called
his father and advised him that someone was breaking in, at
which point his father called the police. Appellants, who were
now inside the home, forced Ms. McNair to coax her son into the
open. When she did so, Appellants bound his wrists and legs,
covered his head, and separated him from his mother. Both
victims testified that the men continued to point guns at them
and threaten their lives.
Having secured her son, Appellants led Ms. McNair into
the kitchen, instructing her that they intended to hold the boy
hostage until she complied with their demands. Specifically,
they wanted Ms. McNair to go “back to the bank” to get “money
out of the vault.” J.A. 337. 1 When she advised that she could
not enter the bank vault without the assistance of a co-worker,
one of the Appellants, apparently in an effort to impress upon
her the gravity of the situation, recited various personal
details about her friends and family.
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
While the three men were interrogating Ms. McNair,
numerous police officers arrived at the scene. Appellants
directed Ms. McNair to answer the door and assuage the officers’
concerns. As she did so, Ms. McNair saw that her son had been
left unattended in the living room. She seized the opportunity,
took the boy, and fled through the front door. During the
prolonged standoff that ensued, police officers observed
Appellants moving throughout the home. Eventually, one by one,
Appellants walked out of the house and surrendered to the
police. None were carrying guns or wearing masks.
Although police officers conducted a search of the
premises on the night of the attack, they did not recover any
firearms from the scene. In the ensuing months, however, Ms.
McNair and her son continued to find various items hidden
throughout their home, including a ski mask, a pair of gloves, a
taser gun, a .40 caliber firearm, and a .45 caliber firearm.
B.
On May 23, 2011, a federal grand jury in the District
of Maryland returned a two-count indictment charging Appellants
with conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c),
and use of a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). On November 23,
2011, following a ten-day trial, a jury found all three
Appellants guilty of the conspiracy charge. The jury was unable
5
to reach a unanimous verdict as to the firearms charge, and the
district court declared a mistrial on that count.
The district court sentenced Appellants Taylor and
Edelen on March 26, 2012, and Appellant Carter on September 5,
2012. For all three Appellants, the court found a base offense
level of 32, pursuant to United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) §§ 2X1.1(a) and 2A4.1(a), and
applied two enhancements -- the two-level weapons enhancement
under U.S.S.G. § 2A4.1(b)(3) and the two-level vulnerable victim
enhancement under U.S.S.G. § 3A1.1(b). With respect to
Appellants Taylor and Carter, the district court also applied
the two-level obstruction of justice enhancement under U.S.S.G.
§ 3C1.1. Prior to any Chapter Four enhancements, then,
Appellants Taylor and Carter had an adjusted offense level of
38, and Appellant Edelen had an adjusted offense level of 36.
Inasmuch as Appellant Taylor did not qualify as a
career offender, the district court determined that his total
offense level was 38 and his criminal history category was III.
Although this resulted in a guideline range of 292 to 365
months, the court varied upward and sentenced him to 420 months.
Appellant Carter, on the other hand, did qualify as a career
offender based on his two prior convictions for robbery in
Virginia state court. Nevertheless, his offense level remained
38 because the guideline range produced by the career offender
6
designation, 37, was lower. See U.S.S.G. § 4B1.1(b). Although
the career offender designation did raise Appellant Carter’s
criminal history score from V to VI, this change did not affect
his guideline range, which remained 360 months to life in
prison; ultimately, the court sentenced him to 420 months in
prison. The court also determined that Appellant Edelen
qualified as a career offender based on his prior drug
distribution and armed robbery convictions in Washington, D.C.
Consequently, his guidelines were governed by U.S.S.G. § 4B1.1,
which resulted in an offense level of 37, a criminal history
category of VI, and guideline range of 360 months to life in
prison. The court sentenced him to 360 months in prison.
These consolidated appeals followed. We possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
On appeal, Appellants raise eight issues relating to
their convictions and sentences, three of which warrant
discussion. 2 First, Appellant Taylor contends the district court
abused its discretion in accepting his pre-trial waiver of the
right to conflict-free counsel. Second, all three Appellants
2
We have fully considered the other five issues raised by
Appellants and conclude that each lacks merit.
7
contend the district court erred by admitting a text message
into evidence at trial. Third, Appellants Taylor and Carter
contend the district court erred by applying the two-level
obstruction of justice enhancement contained in U.S.S.G. § 3C1.1
to their respective sentences. We address each of these issues
in turn.
A.
We turn first to Appellant Taylor’s argument that the
district court abused its discretion in accepting his pre-trial
waiver of the right to conflict-free counsel. This challenge
presents two separate, but interrelated, inquiries: (1) whether
Appellant Taylor knowingly, intelligently, and voluntarily
waived his right to conflict-free representation, which we
review de novo, see United States v. Brown, 202 F.3d 691, 697
(4th Cir. 2000); and (2) whether the district court properly
exercised its discretion in permitting Appellant Taylor to waive
his attorney’s conflict and proceed to trial, which we review
for abuse of discretion, see United States v. Williams, 81 F.3d
1321, 1324 (4th Cir. 1996). We answer both of these questions
in the affirmative.
1.
On July 12, 2011, over a month after Appellant
Taylor’s initial appearance, Arthur McKinley Reynolds, Jr. (“Mr.
Reynolds”) filed a Notice of Appearance indicating he had been
8
retained as Appellant Taylor’s counsel. On October 26, 2011,
thirteen days before the jury trial was set to begin, the
Government filed a letter alerting the district court to a
potential conflict of interest on the part of Mr. Reynolds,
i.e., that Mr. Reynolds represented an “unindicted co-
conspirator,” William “Puffy” Cole (“Mr. Cole”), who had
“provided information to [Appellants], which resulted in
[Appellants’] targeting of [Ms. McNair].” J.A. 61.
The district court took up the issue at a pretrial
motions hearing on November 1, 2011. During that hearing, the
Government elaborated:
I believe that Mr. Reynolds represents or has
represented William Cole in state court on robbery
charges in Prince George’s County. Mr. Cole is
believed to be the unindicted co-conspirator in this
case. The government provided discovery back in June
and I believe Mr. Reynolds also has the state
discovery and in that there are text messages and
phone records which indicate that Mr. Cole was in
contact with [Appellants] while they were in the house
during this attempted kidnapping and, indeed, there’s
a text message from the previous day that’s sent from
William Cole to [Appellant] Edelen to the effect that
“We have to do something about this. The woman is not
home. We’ve got to do something about this.” I’m
trying not to use the profanity that was in the text
message. And it contains information that was only
known about the victim by a few people and, based on
that information, we intend to present to the jury the
information about how Mr. William Cole knew
information about the victim and they targeted this
victim based on his information about her. And I
believe Mr. Reynolds represents William Cole and also
represents the co-conspirator here, Mr. Taylor.
J.A. 66.
9
Mr. Reynolds affirmed that he had been retained to
represent Mr. Cole in an unrelated state robbery case, which he
described as in “dormant status” because Mr. Cole was in custody
on federal bank robbery charges. J.A. 67. After confirming
that neither the Government nor the defense intended to call Mr.
Cole as a witness, the district court concluded that the
situation presented a “potential conflict.” Id. at 69. The
court then conducted a colloquy with Appellant Taylor to ensure
he understood the potential conflict and desired to keep Mr.
Reynolds as his attorney. The court advised Appellant Taylor,
inter alia,
the fact that [Mr. Reynolds] represents [Mr. Cole] may
inhibit or prevent [Mr. Reynolds] from being or
feeling completely free to represent you when [Mr.
Cole’s] participation comes up. . . . And this can
affect his decisions in terms of what questions to ask
and how to represent you at a trial. It may also
affect him in his advice to you concerning how to
approach the charges here, whether to talk about a
plea, whether to go to trial, all of those matters
that are very important for an attorney to talk with a
client about.
Id. at 72-73. Appellant Taylor affirmed at all times that he
understood, declined the court’s offer of an opportunity to
consult with independent counsel, and finally, affirmatively
10
stated that he was “giving up th[e] right” to conflict-free
counsel. Id. at 74. 3
During trial, the Government elicited testimony from
Ms. McNair regarding her relationship with Mr. Cole and
presented evidence of a text message sent by a contact
identified as “Puffy” to Appellant Edelen’s cell phone on
January 12, 2011, the day before the attack. Counsel for all
three Appellants cross-examined Ms. McNair as to her
relationship with Mr. Cole. At the close of the second day of
trial, counsel for Appellants Taylor and Carter advised the
court, and Mr. Reynolds, that they intended to call Mr. Cole as
a witness. Nevertheless, for reasons that are not apparent on
the record, neither attorney pursued this course of action.
2.
We first examine the adequacy of Appellant Taylor’s
conflict of interest waiver insofar as it relates to his trial
counsel’s concurrent representation of Mr. Cole. Appellant
Taylor contends the district court’s inquiry “was
3
Specifically, at the close of the court’s colloquy, it
inquired, “Are you giving up, waiving your right to have an
attorney represent you who is completely free of any potential
conflict of interest?” and went on to explain, “In order to have
Mr. Reynolds continue, in effect it means that you are giving up
your right to have an attorney who doesn’t have another client
who may interfere with his representation.” J.A. 73-74.
Appellant Taylor responded, “I'm giving up that right.” Id. at
74.
11
constitutionally inadequate to guarantee [his] waiver was
knowingly and intelligently made.” Appellants’ Br. 45. We
disagree.
A defendant may waive his Sixth Amendment right to an
attorney who is “free from conflicts of interest,” Wood v.
Georgia, 450 U.S. 261, 271 (1981), so long as his waiver is
“‘knowing, intelligent, and voluntary.’” Brown, 202 F.3d at 697
(quoting United States v. Gilliam, 975 F.2d 1050, 1053 (4th Cir.
1992)); see also Holloway v. Arkansas, 435 U.S. 475, 483 n.5
(1978). A waiver is only knowing and intelligent if made with
“sufficient awareness of the relevant circumstances and likely
consequences,” Brady v. United States, 397 U.S. 742, 748 (1970),
and as such, a defendant must know the basis for, and potential
consequences of, his chosen counsel’s alleged conflict in order
to make an “intelligent choice” whether to waive the conflict.
United States v. Duklewski, 567 F.2d 255, 257 (4th Cir. 1977);
see also Hoffman v. Leeke, 903 F.2d 280, 289 (4th Cir. 1990) (“A
defendant cannot knowingly and intelligently waive what he does
not know.”). In practical terms, this means that a defendant’s
conflict of interest waiver is valid if he “waives the conflict
with knowledge of the crux of the conflict and an understanding
of its implications . . . even if [he] does not know each
detail concerning the conflict.” Brown, 202 F.3d at 698
(emphasis omitted).
12
Here, the district court warned Appellant Taylor about
the exact scenario that arose during trial -- the Government’s
presentation of evidence regarding Mr. Cole’s involvement in the
case. Per the district court’s colloquy, Appellant Taylor was
aware that Mr. Reynolds’ representation of Mr. Cole “may inhibit
or prevent [Mr. Reynolds] from being or feeling completely free
to represent [Appellant Taylor] when [Mr. Cole’s] participation
c[ame] up” or “affect [Mr. Reynolds’] decisions in terms of what
questions to ask and how to represent [Appellant Taylor] at
. . . trial.” J.A. 72. He nonetheless elected to waive this
conflict and proceed with Mr. Reynolds as his counsel. Indeed,
the primary assignments of error Appellant Taylor set forth on
appeal -- that Mr. Reynolds’ concurrent representation of Mr.
Cole may have impacted Mr. Reynolds’ decision not to call Mr.
Cole as a witness and the vigorousness of Mr. Reynolds’ cross-
examination of Ms. McNair -- fall squarely within the ambit of
the district court’s warning. Cf. United States v. Akinseye,
802 F.2d 740, 745-46 (4th Cir. 1986) (concluding that a pre-
trial waiver of a potential conflict of interest waives the
actual conflict of interest that ripens, as the defendant was
warned, from that potential during trial).
Tellingly, Appellant Taylor fails to identify any
areas in which the district court’s inquiry, or his own
knowledge, was lacking. He instead points generally to United
13
States v. Urutyan, 564 F.3d 679 (4th Cir. 2009), in which the
district court conducted a “full evidentiary hearing” to
determine the scope of an attorney’s conflict. Appellants’ Br.
45. In Urutyan, however, the district court was faced with the
possibility that a defendant’s counsel of choice had been hired
and paid by a third party who was a member of the defendant’s
alleged criminal enterprise. 564 F.3d at 681-82. The district
court conducted an evidentiary hearing, found a “great
likelihood” that the allegations against defense counsel were
true, and, in a decision that we ultimately upheld, actually
disqualified the attorney over the defendant’s strenuous
objection. Id. at 682-83, 686-87. Quite simply, Urutyan
involved a different and more complex factual scenario than that
presented here and, in any event, does not represent a Sixth
Amendment floor. See, e.g., Johnson v. Zerbst, 304 U.S. 458,
464 (1938) (“The determination of whether there has been an
intelligent waiver of right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding
that case[.]”).
In sum, the record of the colloquy in this case
plainly demonstrates that the court advised Appellant Taylor of
both “the crux of the conflict” and its potential implications
for his defense. Brown, 202 F.3d at 698. Therefore, we
conclude Appellant Taylor was fully aware of the basis for, and
14
the potential implications of, Mr. Reynolds’ concurrent
representation of unindicted co-conspirator Mr. Cole at the time
he waived his right to conflict-free counsel. Consequently, his
waiver is valid as to that conflict.
3.
Appellant Taylor next argues that the district court
had an obligation, notwithstanding his waiver, to disqualify Mr.
Reynolds because his conflict of interest was so severe as to be
unwaivable. We conclude the court acted well within its
substantial discretion in accepting the waiver and allowing
Appellant Taylor to proceed to trial with the counsel of his
choice.
It is well-established that a defendant’s presumptive
right to be represented by the attorney of his choice may be
overcome by the district court’s independent interest in
“ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear
fair to all who observe them.” Wheat v. United States, 486 U.S.
153, 160 (1988). Accordingly, district courts are “allowed
substantial latitude in refusing” -- and in accepting --
“waivers of conflicts of interest.” Id. at 163; cf. Hoffman,
903 F.2d at 288 (“We recognize that a trial court has broad
latitude to permit or prohibit multiple representation.”
(internal quotation marks and citation omitted)). “The
15
evaluation of the facts and circumstances of each case under
this standard must be left primarily to the informed judgment of
the trial court.” Wheat, 486 U.S. at 164.
Although we have never specified the circumstances in
which a district court must override a defendant’s otherwise
valid conflict of interest waiver, the decisions of our sister
circuits provide some guidance. The Second Circuit, for
example, holds that an actual conflict of interest “so egregious
that no rational defendant would knowingly and voluntarily
desire the attorney’s representation” cannot be waived. United
States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995); see also
United States v. Martinez, 143 F.3d 1266, 1270 (9th Cir. 1998)
(citing Lussier with approval). Similarly, the Fifth Circuit
frames the issue in terms of a conflict that is “so severe as to
render a trial inherently unfair.” United States v. Vaquero,
997 F.2d 78, 90 (5th Cir. 1992). We need not settle on a
precise formulation of the controlling principle for the
purposes of this case; the facts alleged by Appellant Taylor
fail to demonstrate the existence of a conflict approaching
either of these standards.
Appellant Taylor has alleged, at most, that Mr.
Reynolds’ concurrent representation of Mr. Cole may have
affected certain aspects of his trial strategy, i.e., his choice
of witnesses and the vigor of one of his cross-examinations.
16
Even if we take these allegations at face value, they
demonstrate a situation that, while concerning, is far from an
actual conflict “so egregious that no rational defendant would
knowingly and voluntarily desire the attorney’s representation,”
Lussier, 71 F.3d at 461, or one “so severe as to render [the]
trial inherently unfair,” Vaquero, 997 F.2d at 90. Indeed, as
discussed in detail supra, Appellant Taylor was specifically
advised of the potential for Mr. Reynolds to make each and every
allegedly deleterious decision of which he now complains, and he
nonetheless sought to proceed with Mr. Reynolds’ representation.
The district court acted well within its substantial latitude
when it granted Appellant Taylor’s request.
B.
We turn now to Appellants’ argument that the district
court erred by admitting into evidence an incoming text message
recovered from Appellant Edelen’s cell phone. We review the
court’s decision to admit this evidence for abuse of discretion
and “will only overturn an evidentiary ruling that is arbitrary
and irrational.” United States v. Cone, 714 F.3d 197, 219 (4th
Cir. 2013) (internal quotation marks and citations omitted).
Appellants contend the text message constitutes inadmissible
17
hearsay under Federal Rule of Evidence 802 because it was
offered for the truth of the matter asserted. We disagree. 4
The text message, which was introduced through the
testimony of Detective Joseph Bunce, was sent to Appellant
Edelen’s cell phone on January 12, 2011, the day before the
attack, by a contact identified as “Puffy.” The message read as
follows: “This bitch is at crystal house cuz her father died
today so I have no idea when she is gonna be going home Ahk. we
got to try something man[.]” J.A. 935-36, 1333. Notably, Ms.
McNair had earlier testified that Mr. Cole, a/k/a “Puffy,” had
been inquiring about her whereabouts around the time of the
attack and that, on January 12, 2011, she had advised him that
4
Although Appellants argue in their joint brief that
“Defendants’ attorneys” objected to the introduction of the text
message on hearsay grounds, Appellants’ Br. 17, this statement
is accurate only insofar as it relates to Appellants Taylor and
Carter. We have found nothing in the record to indicate that
counsel for Appellant Edelen objected to the evidence in
question; to the contrary, his attorney went so far as to admit,
“I’ve tried for months to figure out a way to keep [the text
message] out, and I can’t.” J.A. 905. Although this awkward
presentation begs the question of whether Appellant Edelen can
rely on the objections of Appellants Taylor and Carter in order
to avoid plain error review, see Fed. R. Crim. P. 52(b), we need
not decide this issue in order to resolve the instant appeal.
For the reasons discussed infra, even if we assume that
Appellant Edelen preserved this issue, his claim fails on abuse
of discretion review. See, e.g., United States v. Palacios, 677
F.3d 234, 245 n.6 (4th Cir. 2012) (assuming that defendant
preserved evidentiary objections where arguments failed even
under preserved error standard).
18
she was at her friend Crystal’s house because Crystal’s father
had passed away.
Hearsay is “a statement that: (1) the declarant does
not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c). A
“statement” is an oral or written assertion, Fed. R. Evid.
801(a), and “the matter asserted” is “the fact being asserted by
the declarant in uttering the statement,” United States v.
Lewis, 594 F.3d 1270, 1282 (10th Cir. 2010). In order to
determine whether an out-of-court statement qualifies as
inadmissible hearsay under this Rule, the district court must
“identify[] the actual purpose for which a party is introducing”
the statement at issue. United States v. Gonzales-Flores, 701
F.3d 112, 117 (4th Cir. 2012). A statement is not hearsay if it
is offered for some purpose other than to prove the truth of the
assertion contained within the statement. See United States v.
Pratt, 239 F.3d 640, 644 (4th Cir. 2001).
The district court concluded the text message was not
hearsay because “it’s not being offered for the truth. . . .
[It] [d]oesn’t matter whether [the text message is] true or not.
It only matters that somebody in the house had access to the
information. Circumstantial evidence of communication.” J.A.
901. The Government likewise contends the statement “was
19
offered to show the fact and timing of communication between co-
conspirators, and its effect on [Appellant] Edelen’s knowledge
and state of mind.” Appellee Br. 29-30. Appellants, on the
other hand, paint these justifications as mere pretext, arguing
that the true purpose behind the Government’s introduction of
the text message was to prove the truth of the matter asserted
therein, i.e., “that [Appellants] had access to information that
was truthful regarding Ms. McNair’s whereabouts and personal
details about her life.” Appellants’ Br. 23.
At the outset, we note that the text message, like
most statements, had the potential to serve either hearsay or
non-hearsay purposes. In this vein, the district court offered
to instruct the jury that it could not consider the text message
for the truth of its contents. See J.A. 901 (“[The text
message] is not being offered for the truth. . . . I can tell
the jury that if you wish me to.”). Appellants refused this
offer, and in so doing, explicitly waived an opportunity to
limit the text message to its permissible purposes. See Fed. R.
Evid. 105. As observed by the Seventh Circuit, “the defendants
cannot have it both ways -- [they] cannot refuse a limiting
instruction and then claim on appeal that the evidence was
unfairly prejudicial.” Goetz v. Cappelen, 946 F.2d 511, 514
(7th Cir. 1991); cf. United States v. Tedder, 801 F.2d 1437,
1445 (4th Cir. 1986) (“By refusing a proffered curative
20
instruction, defense counsel made a tactical decision to forego
a remedy that we have repeatedly held to be adequate. This
waiver does not entitle defendants to a new trial.”). In our
view, Appellants’ strategic decision to refuse the district
court’s offer severely undermines their claim that they are
entitled to relief because the jury impermissibly, and
prejudicially, considered the text message for its truth. See
generally United States v. Day, 700 F.3d 713, 727 n.1 (4th Cir.
2012) (“[A] ‘defendant in a criminal case cannot complain of
error which he himself has invited.’” (quoting Shields v. United
States, 273 U.S. 583, 586 (1927))).
Appellants’ theory, in any event, suffers from a
readily apparent flaw –- the “matter asserted” in the text
message was not, as Appellants contend, that they “had access to
information that was truthful regarding Ms. McNair’s whereabouts
and personal details about her life.” Appellants’ Br. 23. To
the contrary, the only factual assertion contained in the text
message was “bitch is at crystal house cuz her father died
today.” J.A. 1333. Irrespective of the truth or falsity of
this description of Ms. McNair’s physical location on January
12, 2011, or the reason for her presence there, the text message
(1) forms a link between Appellant Edelen and “Puffy” by the
simple fact that it “was made,” United States v. Ayala, 601 F.3d
256, 272 (4th Cir. 2010) (“‘[E]vidence is not hearsay when it is
21
used only to prove that a prior statement was made[.]’” (quoting
Anderson v. United States, 417 U.S. 211, 220 n.8 (1974)); and
(2) serves to support an inference that Appellant Edelen had
access to, and likely received, certain information about Ms.
McNair prior to the commission of the offense, which is plainly
probative of his underlying knowledge and intent in targeting
her home. See United States v. Safari, 849 F.2d 891, 894 (4th
Cir. 1988) (a statement is not hearsay if offered to “show . . .
[the listener’s] knowledge”); see also United States v.
Ibisevic, 675 F.3d 342, 349 (4th Cir. 2012) (noting
parenthetically that “statements offered to prove ‘that they
were made and that [the defendant] believed them to be true’”
are not hearsay (quoting United States v. Kohan, 806 F.2d 18, 22
(2d Cir. 1986))). 5
Appellants’ argument to the contrary rests primarily
upon the portion of Ms. McNair’s testimony that corroborates the
5
Appellants pepper their reply brief with vague indictments
against the text message on a variety of evidentiary grounds,
i.e., that the text message was not relevant insofar as
Appellant Edelen’s state of mind was concerned and that the
Government “failed to properly authenticate the text message as
having come from [Mr. Cole]” or otherwise “establish a proper
foundation for the admission of the text message.” Appellants’
Reply Br. 2, 4 n.2. We note that any such issues were neither
preserved below nor properly presented on appeal. See United
States v. Al–Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It
is a well settled rule that contentions not raised in the
argument section of the opening brief are abandoned.”).
22
facts set forth in the text message. In essence, Appellants
reason that because (a) hearsay is offered to prove the truth of
the matter asserted and (b) independent evidence indicates a
statement is, in fact, true, then (c) the statement must be
hearsay. This simplistic deduction overlooks the critical step
of “identifying the actual purpose for which a party . . .
introduce[s]” the statement at issue. Gonzales-Flores, 701 F.3d
at 117 (emphasis supplied). Ms. McNair’s testimony only served
to provide the context necessary for the jury to infer the
identity of the text message’s speaker (“Puffy” = Mike Cole) and
subject (“bitch” = Ms. McNair); it did not alter the non-truth-
dependent purposes for which the text message was ultimately
introduced. Cf. United States v. Lieberman, 637 F.2d 95, 101
(2d Cir. 1980) (noting that “it was proper to receive the
[record] for [a] limited non-hearsay purpose, with other
evidence admitted from which the jury could infer that the
[record] spoke the truth”).
For all these reasons, we conclude the district
court’s decision to admit the text message was neither
“arbitrary [nor] irrational.” Cone, 714 F.3d at 219 (internal
quotation marks and citations omitted). Consequently, the
introduction of this evidence does not raise any Confrontation
Clause concerns, see Ayala, 601 F.3d at 272, and we need not
reach the Government’s alternative argument that the text
23
message fell within the co-conspirator exclusion from the rule
against hearsay under Federal Rule of Evidence 801(d)(2)(E).
C.
Finally, we address Appellants Carter and Taylor’s
challenge to the district court’s application of the two-level
obstruction of justice enhancement contained in U.S.S.G.
§ 3C1.1. In evaluating whether the district court properly
applied this enhancement, we review its legal conclusions de
novo, its factual findings for clear error, United States v.
Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013), and any
unpreserved arguments for plain error, United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010). We will find clear error
only if, after reviewing all the evidence, we are “‘left with
the definite and firm conviction that a mistake has been
committed.’” United States v. Harvey, 532 F.3d 326, 336–37 (4th
Cir. 2008) (quoting In re Mosko, 515 F.3d 319, 324 (4th Cir.
2008)).
Section 3C1.1 provides for a two-level enhancement of
the defendant’s base offense level where
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense[.]
24
U.S.S.G. § 3C1.1. The comments further instruct that “providing
materially false information to a probation officer in respect
to a presentence or other investigation for the court” is a
“type[] of conduct to which this enhancement applies.” Id.
§ 3C1.1 cmt. n.4(H). Material information, as used in § 3C1.1,
means information “that, if believed, would tend to influence or
affect the issue under determination.” Id. § 3C1.1 cmt. n.6.
In order to qualify for this enhancement, a defendant’s
obstructive conduct must be “willful” in the sense that he
“‘consciously act[ed] with the purpose of obstructing justice.’”
United States v. Thorson, 633 F.3d 312, 320 (4th Cir. 2011)
(alteration in original) (quoting United States v. Romulus, 949
F.2d 713, 717 (4th Cir. 1991)).
1.
Subsequent to the jury trial, Appellants Carter and
Taylor met with probation officers, without counsel, 6 to be
interviewed in connection with the preparation of their
presentence reports (“PSRs”). During these interviews, both
Appellants told the probation officers a variation of the same
6
Although the record contains no explanation for the
absence of Appellant Carter’s counsel, it is clear that
Appellant Taylor’s counsel, Mr. Reynolds, advised the probation
officer that he “did not want to be present” during the
interview, and Appellant Taylor, in turn, advised that he had
“no problem” proceeding in the absence of counsel. J.A. 1464.
25
story, i.e., that they had broken into Ms. McNair’s home because
someone had told them that money and drugs were hidden inside;
that no one had brought any weapons to the house because they
“did not expect anyone to be home”; and that their intent was to
steal the money and drugs, not to kidnap anyone. J.A. 1613,
1629. Based on these statements, the probation officers
recommended that the district court apply the obstruction of
justice enhancement. In overruling Appellants’ objections, the
district court found Appellant Carter had “lied to the probation
officer” in a deliberate attempt to “minimize[] his own
responsibility and . . . the sentence that he faces,” id. at
1513, while Appellant Taylor had done the same “with an intent
or in an attempt to lessen the responsibility under the
[G]uidelines[.]” Id. at 1470.
2.
Appellants Carter and Taylor challenge the obstruction
of justice enhancement on two fronts. First, they contend that
the district court’s reliance on their presentence interviews
violated their Fifth Amendment privilege against self-
incrimination and their Sixth Amendment right to counsel.
Second, they claim that their interview statements “were mere
denials of guilt to which the enhancement is not intended to
apply.” Appellants’ Br. 65.
26
a.
We begin with Appellants’ Fifth and Sixth Amendment
claims. Because these issues were not raised below, our review
is for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). Consequently, Appellants
must show (1) there was error; (2) the error was plain; and (3)
the error affected their substantial rights. Olano, 507 U.S. at
732. When these conditions are satisfied, we may exercise our
discretion to notice the error only if it “‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 736 (quoting United States v. Atkinson,
297 U.S. 157, 160 (1936)). Both of Appellants’ claims founder
on the first prong of this inquiry.
i.
Appellants contend their Fifth Amendment rights were
violated during their presentence interviews because they were
“not advised in advance . . . that their statements might be
used against them.” Appellants’ Br. 68. Although Appellants
acknowledge, as they must, that “Miranda warnings are not
required prior to routine presentence interviews,” United States
v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991), they contend that
their interviews were not “routine” in light of the partial
mistrial and outstanding 18 U.S.C. § 924(c) charge. By focusing
on the specter of a potential re-trial, however, Appellants miss
27
a very basic point –- the issue on appeal is simply whether this
evidence can be considered in a sentencing hearing. See, e.g.,
United States v. Tucker, 404 U.S. 443, 446 (1972) (A sentencing
judge’s inquiry is “broad in scope” and “largely unlimited
either as to the kind of information he may consider, or the
source from which it may come.”).
It is well-established in our circuit that a
sentencing court may consider “statements obtained in violation
of Miranda, if they are otherwise voluntary” and reliable.
United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006).
Consequently, it is largely irrelevant for our purposes whether
or not Appellants were entitled to a Miranda warning prior to
their presentence interviews; so long as their statements were
reliable and voluntary, the sentencing court was free to
evaluate them. See id. at 443-44. Here, the record clearly
demonstrates that Appellants voluntarily participated in the
presentence interviews and voluntarily made the statements at
issue. Indeed, Appellants have raised no claim of
involuntariness or actual coercion on appeal. As a result, we
have little trouble concluding the district court did not err,
much less plainly err, by relying on Appellants’ voluntary
statements in its sentencing determination.
28
ii.
Appellants’ Sixth Amendment claims are similarly
unmoored. We have held the right to counsel does not extend to
“routine presentence interview[s]” because such interviews are
not “critical stage[s] of the criminal proceeding[].” Hicks,
948 F.2d at 885 (citations omitted). Even if, as Appellants
contend, Hicks does not govern the presentence interviews at
issue here, the record is simply devoid of any indicia that the
Government deprived Appellants of their right to counsel. As we
have already emphasized, Appellants voluntarily participated in
their presentence interviews. See United States v. Tyler, 281
F.3d 84, 96 (3d. Cir. 2002) (finding no Sixth Amendment
violation where the defendant “voluntarily participated in the
presentence investigation”). Moreover, they have failed to
allege or show they were forced to proceed without their
counsel’s assistance or that their counsel were in any way
excluded from the presentence process. See id.; see also United
States v. Cortes, 922 F.2d 123, 128 (2d Cir. 1990) (finding no
Sixth Amendment violation where counsel was not excluded and
defendant was not forced to proceed). Indeed, the available
29
evidence strongly militates in favor of the opposite conclusion. 7
We find no plain error here.
b.
Having found no constitutional prohibition against the
use of Appellants Taylor and Carter’s interview statements at
sentencing, we turn to the applicability of the Guidelines
themselves. Appellants’ argument on appeal focuses primarily on
the so-called “denial of guilt exception” to the obstruction
enhancement, U.S.S.G. § 3C1.1 cmt. n.2, which reads as follows:
This provision [§ 3C1.1] is not intended to punish a
defendant for the exercise of a constitutional right.
A defendant’s denial of guilt (other than a denial of
guilt under oath that constitutes perjury) [or]
refusal to admit guilt or provide information to a
probation officer, or refusal to enter a plea of
guilty is not a basis for application of this
provision.
Id. In Appellants’ view, their statements to the probation
officers were simply “denial[s] of guilt” within the meaning of
this exception and, as such, cannot form the basis for an
obstruction enhancement. Again, we disagree.
7
As we observed supra, Mr. Reynolds actually advised the
probation officer that he “did not want to be present” during
the interview. J.A. 1464; see also United States v. Saenz, 915
F.2d 1046, 1049 (6th Cir. 1990) (“When a defendant’s counsel
makes a choice not to attend the presentence interview, the
defendant cannot argue on appeal that the government deprived
him of his Sixth Amendment right to counsel.” (citing United
States v. Dickson, 712 F.2d 952, 954 (5th Cir. 1983))).
30
While a defendant who exercises his Fifth Amendment
privilege against self-incrimination by denying his guilt or
refusing to answer a question is undoubtedly protected from
enhancement under U.S.S.G. § 3C1.1, see, e.g., United States v.
Lange, 918 F.2d 707, 709 (8th Cir. 1990), Appellants’ statements
went far beyond a simple denial of guilt. Rather, as the
district court found, Appellants concocted a false story and
admitted guilt to a lesser crime in a concerted effort to secure
a lower sentence. 8 Such behavior is “more than a simple denial
of guilt and c[an] be treated as an obstruction of justice.”
United States v. Johns, 27 F.3d 31, 35 (2d Cir. 1994) (internal
quotation marks and citation omitted); see also United States v.
Manning, 704 F.3d 584, 587 (9th Cir. 2012) (per curiam) (finding
the denial of guilt exception inapplicable where the defendant
“didn’t just deny having the guns; he concocted a story about
what happened to them”); United States v. Gardiner, 955 F.2d
1492, 1500 n.16 (11th Cir. 1992) (finding the denial of guilt
exception inapplicable where a defendant “did slightly more than
assert innocence; he went further and told the probation officer
8
Appellants have raised no cogent challenge to the factual
findings underlying the district court’s application of the
obstruction of justice enhancement on appeal, and we readily
conclude the district court did not clearly err in finding that
Appellants Carter and Taylor acted “willfully,” U.S.S.G.
§ 3C1.1, in “provid[ing] materially false information to [their]
probation officer[s].” Id. § 3C1.1 cmt. n.4(H).
31
an alternative version of the events pertinent to this case”);
United States v. McKay, 183 F.3d 89, 96 (2d Cir. 1999) (finding
the denial of guilt exception inapplicable where defendant
“concocted a story that admitted guilt but reversed the roles he
and another individual played in a crime”). The district court
therefore did not err in applying the obstruction of justice
enhancement to their respective sentences.
III.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
32