United States v. Robinson ( 2002 )

Filed: January 7, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 00-4851(L)
(CR-98-442)
United States of America,
Plaintiff - Appellee,
versus
Joseph Brooks Robinson, et al.,
Defendants - Appellants.
O R D E R
Upon consideration of appellants’ petition for rehearing,
IT IS ORDERED that the petition for rehearing is granted for
the limited purpose of making one revision to the opinion.
The court amends its opinion filed December 17, 2001, as
follows: On page 14, first full paragraph, lines 4-8 -- the
sentence beginning “In the first place” is deleted, and is replaced
with the following sentence:
- 2 -
In the first place, while Longshore testified that both
Appellants participated in telling the story of the
murder, she did not state that their voices were jumbled
together in such a way as to prevent her or each
Appellant from hearing and understanding what was being
said.
Entered at the direction of Judge Wilkins, with the
concurrence of Judge Williams and Judge Michael.
For the Court
/s/ Patricia S. Connor
Clerk
Rehearing granted for limited purpose
of making one revision to opinion, by
order filed 1/7/02
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4851
JOSEPH BROOKS ROBINSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4853
STANLEY LEON OBANION, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-442)
Argued: October 29, 2001
Decided: December 17, 2001
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Wilkins wrote the
opinion, in
which Judge Williams and Judge Michael joined.
____________________________________________________________
COUNSEL
ARGUED: Fred Warren Bennett, Greenbelt, Maryland; Martin
Greg-
ory Bahl, FEDERAL PUBLIC DEFENDER'S OFFICE, Baltimore,
Maryland, for Appellants. Jan Paul Miller, Assistant United
States
Attorney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public
Defender, Denise C. Barrett, Assistant Federal Public
Defender, Balti-
more, Maryland, for Appellants. Stephen M. Schenning,
United States
Attorney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt,
Maryland, for Appellee.
____________________________________________________________
OPINION
WILKINS, Circuit Judge:
Joseph Brooks Robinson and Stanley Leon Obanion, Jr.
(collec-
tively, "Appellants") appeal their convictions on various
charges
stemming from a series of violent carjackings committed
between
December 29, 1997 and January 2, 1998. Appellants maintain
that
venue on one of the counts was improper; that evidence
obtained dur-
ing searches of their homes should have been suppressed;
and that the
district court abused its discretion in admitting the
testimony of Crys-
tal Longshore. Additionally, Robinson maintains that he was
deprived
of his statutory right to the assistance of two attorneys.
For the rea-
sons set forth below, we affirm.
I.
On the evening of December 29, 1997, Appellants and two
com-
panions, Larry Erby and Brian Brown, were walking through
their
neighborhood in Fort Washington, Maryland, when Robinson
stated
that "he needed a car for the night" and that he planned to
rob some-
one. J.A. 475. After Obanion and Erby indicated assent to this
plan
(Brown did not wish to participate), Robinson, who was armed
with
a semi-automatic pistol, stepped into the street and
attempted, unsuc-
cessfully, to flag down passing motorists. While these
efforts were
ongoing, the group observed a green Acura pull into a
driveway a
2
short distance down the street. Obanion took the firearm
from Robin-
son and ran over to the vehicle, with Robinson and Erby
following.
As the driver, Louis Perkins, exited, Obanion pointed the gun
at his
head and demanded his keys and his wallet. While Perkins
complied,
Robinson and Erby got into the automobile; once he had
Perkins'
keys and wallet, Obanion entered the driver's seat and
drove away.
Obanion drove the group to southeast Washington, D.C.,
where
they came upon a man walking on the side of the road.
Obanion
pulled over and Robinson exited, holding the gun. He
demanded
money from the man, and when the man said he had none,
Robinson
shot him. After Robinson returned to the vehicle and
Obanion drove
away, Robinson said that he had shot the man "because he
felt like
it" and because he needed to kill someone in order to "earn
his
stripes," a tattoo to which one becomes entitled upon
killing someone.
J.A. 489.
As Appellants and Erby headed back toward Maryland,
two of the
tires on the stolen Acura blew out. As the men were trying
to deter-
mine what to do, a tow truck driven by Matthew Dozier
happened
upon them and pulled over. Dozier towed the Acura to a
neighbor-
hood in the District of Columbia, where he unhooked the
vehicle and
began to fill out some paperwork in the cab of the tow
truck. Robin-
son and Obanion, who were standing at the back of the Acura
with
Erby, began to argue about who should kill Dozier. Obanion
won the
argument by reminding Robinson that Robinson had already
killed
someone that night and that it was Obanion's turn to earn his
stripes.
Obanion shot Dozier four times as Dozier begged for his
life. Appel-
lants and Erby then got into the tow truck and began to
drive away.
As they pulled away from the curb, Robinson observed that
Dozier
was still moving. Obanion jumped out of the truck, ran back
to
Dozier, and shot him once more. Obanion returned to the
truck,
excited and singing. Dozier later died of the gunshot
wounds inflicted
by Obanion.
The group again headed toward Maryland, with Robinson
driving
the tow truck. On the way, Robinson stated that the group
needed to
steal another car for use the next day in more carjackings
and rob-
beries. As they were driving through a residential
neighborhood in
Maryland, they observed a white Nissan Maxima, which was
driven
3
by Hurley Enoch. Robinson followed Enoch, eventually
trapping him
in a cul-de-sac. Robinson stole Enoch's wallet at gunpoint
and he and
Erby drove off in the Maxima; Obanion followed in the tow
truck.
Shortly thereafter, Obanion abandoned the tow truck and
joined Rob-
inson and Erby in the Maxima.
Appellants drove Erby home, then proceeded to the home
of Crys-
tal Longshore, arriving at about 3:00 a.m. on the morning of
Decem-
ber 30. Longshore and her boyfriend—whom Appellants had
come to
see—were asleep on the couch in the living room. From her
position
on the couch, Longshore listened as Robinson and Obanion
described
the murder of Dozier. She then watched as they acted out
the scene,
with Obanion playing the part of the doomed victim.
Appellants also
showed Longshore Dozier's wallet and driver's license.
Later that
morning, Longshore observed Appellants leave in a white
Nissan
Maxima.
At approximately 8:45 that evening, Corporal Copeland of
the
Prince George's County Police Department spotted the
stolen Max-
ima. When Copeland turned on his emergency lights, the
driver of the
Maxima accelerated suddenly. Copeland chased the vehicle
until it
crashed into a parked automobile; as Copeland exited his
patrol car,
he observed the driver of the Maxima running away from the
scene.
Copeland called for assistance, and Corporal Landers
responded to
the scene with a police dog. Landers swept the area, leaving
his patrol
car running so that the vehicle would be warm when he and
the dog
returned to it. Upon returning to his starting point, Landers
realized
that his patrol car was gone. The vehicle was found
approximately 40
minutes later, but several items, including a police jump
suit, a rain-
coat, a neoprene mask, and a pair of gloves, were missing
from the
trunk.
Shortly after this incident, Obanion returned to
Longshore's apart-
ment carrying a police duffel bag. Obanion emptied the
contents of
the bag onto the living room floor, revealing the items
stolen from the
police vehicle. Robinson arrived at the apartment
approximately 20
minutes later, out of breath. Robinson told those present
that he had
just finished running from the police.
Three days later, on January 2, 1998, Appellants again
met up with
Erby. Also present were Erby's brother, Leroy Erby (Leroy),
and
4
Kenneth Maxwell. Obanion announced that he wanted to
commit
another carjacking and robbery that evening, and persuaded
the others
to help him by promising them a share of the proceeds of the
robbery.
Using a Datsun belonging to the Erbys' sister and driven by
Leroy,
the group proceeded to a suburban Maryland neighborhood,
where
Appellants and Maxwell exited the vehicle and began
running
through the yards. The three came upon Bruce Chase, who
was
removing packages and purses from his girlfriend's
automobile. Rob-
inson approached Chase and demanded the purses at
gunpoint. Chase
handed the purses to Robinson and began to back away,
turning
briefly to shout at his girlfriend, who had come outside, to
get back
in the house. When Chase turned around again, Obanion was
pointing
the gun at him. Chase's girlfriend then activated the panic
alarm in
the house, which could be heard outside. Upon hearing the
alarm,
Appellants and Maxwell ran back to the Datsun and all five
men
drove off.
Chase got into his own vehicle and pursued the Datsun.
The pursuit
eventually led to another neighborhood, where Chase
briefly lost sight
of the Datsun. While they were out of sight, Obanion exited
the Dat-
sun with the gun. When Chase drove into the neighborhood,
Obanion
shot at Chase's vehicle, striking Chase in the leg. Chase was
able to
drive away and get medical treatment.
Leroy drove the Datsun to another part of the same
neighborhood,
where Appellants exited. Appellants ran through the
neighborhood
and came upon Gloria Ryan, who was backing her minivan out
of her
garage. In the van were Ryan's two children, aged six and
five, and
an infant whom Ryan was babysitting. Ryan heard a thump
behind
her and stopped, believing that she had hit someone or
something.
She turned to find Robinson standing next to the driver's
side door,
pointing a gun at her head. Robinson demanded that she get
out of the
minivan and hand over the keys. After telling her children
to get out
of the vehicle, Ryan exited as well. Obanion removed the car
seat
holding the infant and threw it on the lawn.
Appellants then drove to where the Erbys and Maxwell
were wait-
ing and picked them up. As they were driving away, they were
spot-
ted by police, who pursued them to their neighborhood in
Fort
Washington. Obanion, who was driving, crashed the minivan
into a
5
mailbox and all five men fled on foot. They were
subsequently appre-
hended.
Based on these events, Appellants were charged with
conspiracy to
commit carjackings, see 18 U.S.C.A. § 371 (West 2000); using
and
carrying a firearm during and in relation to a crime of
violence (the
carjacking conspiracy), see 18 U.S.C.A. § 924(c)(1) (West 2000);
causing death by use of a firearm during the course of the
§ 924(c)
offense, see 18 U.S.C.A. § 924(j) (West 2000); three counts of
car-
jacking and one count of attempted carjacking, see 18
U.S.C.A.
§ 2119 (West 2000); and four counts of using and carrying a
firearm
during a crime of violence (the substantive carjacking
offenses), see
18 U.S.C.A. § 924(c)(1). Following a jury trial, Appellants
were con-
victed of all charges. Both were sentenced to life
imprisonment.
II.
Appellants' primary contention on appeal is that venue on
the
§ 924(j) count was improper in the District of Maryland.
Appellants
maintain that because the carjacking and murder of Matthew
Dozier
took place solely in the District of Columbia, venue was
proper only
in that jurisdiction. We hold that the logic of United States
v.
Rodriguez-Moreno, 526 U.S. 275 (1999), compels the
conclusion that
venue on the § 924(j) count was proper in the District of
Maryland.
Article III of the Constitution provides, as is relevant
here, that
"[t]he Trial of all Crimes . . . shall be held in the State
where the said
Crimes shall have been committed." U.S. Const. art. III, § 2,
cl. 3.
The Sixth Amendment reinforces this command, stating that
"[i]n all
criminal prosecutions, the accused shall enjoy the right to
a speedy
and public trial, by an impartial jury of the State and
district wherein
the crime shall have been committed." U.S. Const. amend. VI;
see
Fed. R. Crim. P. 18 ("Except as otherwise permitted by
statute or by
these rules, the prosecution shall be had in a district in
which the
offense was committed."). When multiple counts are alleged
in an
indictment, venue must be proper on each count. See United
States v.
Bowens, 224 F.3d 302, 308 (4th Cir. 2000), cert. denied, 121
S. Ct.
1408 (2001). Venue on a count is proper only in a district in
which
an essential conduct element of the offense took place. See
id. at 309.
The burden is on the Government to prove venue by a
preponderance
6
of the evidence. See United States v. Barsanti, 943 F.2d 428,
434 (4th
Cir. 1991).
In order to understand Appellants' venue challenge and
our resolu-
tion of that challenge, it is necessary to examine the first
three counts
of the indictment against Appellants. Count One of the
indictment
charged Appellants with conspiracy to commit carjackings;
this count
identified all of the carjackings and the murder of Dozier
as overt acts
in furtherance of the conspiracy. Count Two charged
Appellants with
using and carrying a firearm during and in relation to a
crime of vio-
lence, namely, the conspiracy to commit carjackings "as set
forth in
Count One of this Indictment." Supp. J.A. 5. Count Three, the
§ 924(j) count, charged Appellants with causing the death of
a person
through the use of a firearm "in the course of the violation
of 18
U.S.C. § 924(c) as set forth in Count Two of this Indictment."
Id. at
6.
In determining where a crime was committed for purposes
of
venue, "a court must initially identify the conduct
constituting the
offense (the nature of the crime) and then discern the
location of the
commission of the criminal acts." Rodriguez-Moreno, 526 U.S.
at
279; see United States v. Anderson, 328 U.S. 699, 703 (1946).
Sec-
tion 924(j) applies to "[a] person who, in the course of a
violation of
[§ 924(c)], causes the death of a person through the use of
a firearm."
18 U.S.C.A. § 924(j). Thus, the conduct elements of a § 924(j)
viola-
tion are (1) the use of a firearm to cause the death of a
person and (2)
the commission of a § 924(c) violation. The conduct elements
of the
§ 924(c) violation, in turn, are (a) the use of a firearm and (b)
the
commission of a crime of violence. See Rodriguez-Moreno, 526
U.S.
at 280.
In Rodriguez-Moreno, the Court addressed the question
of the
proper venue for a charge of using or carrying a firearm
during a
crime of violence, kidnaping, under § 924(c)(1). The
defendant kid-
naped the victim in Texas and subsequently took him to New
Jersey,
New York, and Maryland. See id. at 276-77. While in
Maryland, the
defendant obtained a gun and threatened the victim with it.
See id. at
277. The defendant was subsequently convicted in the
District of New
Jersey of kidnaping and violating § 924(c)(1). See id. The
Supreme
Court rejected the defendant's argument that venue on the
latter count
7
was improper in New Jersey because the use of the firearm
occurred
only in Maryland. The Court reasoned that in § 924(c)(1),
"Congress
proscribed both the use of the firearm and the commission
of acts that
constitute a violent crime" and that when the underlying
crime of vio-
lence is a continuing offense that may be prosecuted in more
than one
jurisdiction, the related § 924(c)(1) charge is also a
continuing
offense. Id. at 281. Thus, the Court concluded that venue on
the
§ 924(c)(1) offense was proper in any jurisdiction in which
the under-
lying crime of violence may be prosecuted. See id. at 281-82.
The logic of Rodriguez-Moreno compels us to conclude
that venue
on the § 924(j) count was proper in the District of Maryland.
The rele-
vant conduct elements of the crime alleged in Count Three
of the
indictment were that Appellants caused the death of
Matthew Dozier
through the use of a firearm during the course of violating
§ 924(c)(1), i.e., while using or carrying a firearm during a
conspiracy
to commit carjackings. Under the logic of Rodriguez-Moreno,
because conspiracy to commit carjackings is a continuing
offense, see
United States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990), so
too is
the § 924(c)(1) violation alleged in Count Two of the
indictment.
And, because the continuing § 924(c)(1) violation underlies
the
§ 924(j) charge and is a necessary conduct element of that
charge,
venue on the § 924(j) count was proper in any jurisdiction
where the
§ 924(c)(1) count could have been prosecuted. Since venue on
the
§ 924(c)(1) count was undisputedly proper in the District of
Mary-
land, the district court did not err in denying Appellants'
motion to
dismiss the § 924(j) count for improper venue.
III.
During the course of the investigation, law enforcement
officers
executed search warrants at Robinson's and Obanion's homes.
The
applications for the warrants were supported by an
affidavit by Spe-
cial Agent Michael McCoy of the FBI.1 McCoy's affidavit
stated that
he was involved in a joint federal-state investigation of "a
racketeer-
ing enterprise responsible for the distribution of narcotics
and the
commission of numerous violent crimes to include murders,
assaults
____________________________________________________________
1
McCoy submitted the same affidavit in support of both
search war-
rants.
8
with intent to murder, armed carjackings, and armed
robberies." J.A.
41. The affidavit set forth allegations regarding the
carjackings and
murder of Matthew Dozier, as well as numerous other
violent crimes
committed by members of the self-titled "Fort Washington
Crew," id.
at 43, which was alleged to consist of Appellants, the
Erbys, Max-
well, and others. In conclusion, McCoy attested that the
crimes
described in the affidavit "are racketeering acts [as] defined
in Title
18 U.S.C. Section 1961" and that "the combination of these
acts com-
mitted by this group constitutes participating in the affairs
of an enter-
prise, the activity of which affects interstate commerce
through a
pattern of racketeering." Id. at 46. Attachment A to the
affidavit iden-
tified particular items to be seized during the search,
including items
of clothing worn during the carjackings and items taken
from Corpo-
ral Landers' patrol car and from the victims of the
carjackings.
Attachment A also identified as items to be seized"[b]ooks,
ledgers,
journals, notations, letters, photographs, graffiti, news
articles, tele-
phone books and other items of evidentiary value." Id. at 48.
Prior to trial, Appellants moved to suppress the fruits
of the
searches. As to both searches, Appellants maintained that
the search
warrants were not supported by probable cause. As to the
search of
Obanion's home in particular, Appellants maintained that the
search-
ing officers flagrantly disregarded the terms of the
warrant and that
the appropriate remedy for this violation was blanket
suppression of
all items seized. The district court denied the motion to
suppress. In
considering Appellants' challenge to the validity of the
warrants, we
review the legal conclusions of the district court de novo
and its fac-
tual findings for clear error. See United States v.
Photogrammetric
Data Servs., Inc., 259 F.3d 229, 237 (4th Cir. 2001). We review
the
denial of the request for blanket suppression for abuse of
discretion.
See United States v. Borromeo, 954 F.2d 245, 246 (4th Cir.
1992).
A.
The Fourth Amendment provides in pertinent part
that"[t]he right
of the people to be secure in their persons, houses, papers,
and effects,
against unreasonable searches and seizures, shall not be
violated, and
no Warrants shall issue, but upon probable cause." U.S.
Const.
amend. IV. "This fundamental right is preserved by a
requirement that
searches be conducted pursuant to a warrant issued by an
independent
9
judicial officer." California v. Carney, 471 U.S. 386, 390
(1985).
Although we review de novo the denial of the motion to
suppress by
the district court, the determination of probable cause by
the issuing
magistrate is entitled to great deference from this court.
See United
States v. Wilhelm, 80 F.3d 116, 118-19 (4th Cir. 1996).
As the Supreme Court has noted, "probable cause is a
fluid concept
— turning on the assessment of probabilities in particular
factual
contexts — not readily, or even usefully, reduced to a neat
set of legal
rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). In
evaluating
whether probable cause exists, it is the task of the issuing
magistrate
"to make a practical, common-sense decision whether, given
all the
circumstances set forth in the affidavit . . . there is a fair
probability
that contraband or evidence of a crime will be found in a
particular
place." Id. at 238; see Mason v. Godinez, 47 F.3d 852, 855 (7th
Cir.
1995) ("Probable cause means more than bare suspicion but
less than
absolute certainty that a search will be fruitful."). The
probable cause
standard does not
require officials to possess an airtight case before
taking
action. The pieces of an investigative puzzle will
often fail
to neatly fit, and officers must be given leeway to
draw rea-
sonable conclusions from confusing and
contradictory infor-
mation, free of the apprehension that every
mistaken search
or seizure will present a triable issue of probable
cause.
Taylor v. Farmer, 13 F.3d 117, 121-22 (4th Cir. 1993). Indeed,
the
Supreme Court in Gates specifically cautioned against
"hypertechni-
cal" scrutiny of affidavits lest police officers be
encouraged to forgo
the warrant application process altogether. Gates, 462 U.S.
at 236(internal quotation marks omitted).
Appellants' first argument regarding the existence of
probable
cause is that the affidavit failed to set forth any facts
tying them to
the carjackings or to the racketeering enterprise alleged
in the affida-
vit. We disagree. Even if the affidavit was not a model of
precision,
it was nevertheless constitutionally adequate. First,
McCoy's affidavit
informed the magistrate that Obanion's fingerprints had
been found
in the carjacked Maxima and in Landers' patrol car.
Additionally, the
affidavit stated that the Erbys and Maxwell had provided
investigat-
10
ing officers with information regarding the involvement of
themselves
and Appellants in the carjackings and various other crimes
alleged to
be involved in the racketeering enterprise.
In the same vein, Appellants maintain that the affidavit
does not
provide any facts to support a conclusion that evidence of
racketeer-
ing or any other crime would be found in the Robinson or
Obanion
homes. We reject this contention as well. The affidavit and
Attach-
ment A identified specific items of clothing worn by
Appellants and
specific items taken during the various carjackings and
robberies.
Additionally, McCoy attested that in his experience many
perpetrators
of criminal acts do not dispose of the clothing worn during
the crime.
McCoy's personal experience was unquestionably relevant to
the
existence of probable cause. See United States v. Faison, 195
F.3d
890, 893 (7th Cir. 1999). These facts, taken together, are
sufficient to
create a fair probability that evidence of the crimes would
be located
in Robinson's and Obanion's homes.2
B.
During the search of Obanion's home, law enforcement
officers
seized a number of items that were arguably not within the
scope of
the search warrant. For example, the officers seized
various docu-
ments related to a dispute between Obanion, his mother, and
the
Prince George's County school board; some of Obanion's
juvenile
court records; pages of homework; and a list of names and
addresses
for a family reunion. Appellants argue that the seizure of
these and
other items constituted a flagrant disregard of the terms
of the warrant
____________________________________________________________
2
Appellants also argue that the affidavit did not set
forth probable
cause to believe that Appellants had engaged, or were
engaged, in the
crime of racketeering. Having reviewed the affidavit, we
conclude that
it did set forth probable cause to believe that Appellants
were guilty of
racketeering.
In light of our conclusion that the search warrants were
based upon
probable cause, we do not address the Government's
alternative conten-
tion that the searches were sustainable under the "good
faith" exception
to the warrant requirement. See United States v. Leon, 468
U.S. 897, 913
(1984).
11
justifying blanket suppression of all items seized, including
those that
were within the scope of the warrant.
In order to be valid under the Fourth Amendment, a
search warrant
must, inter alia, "particularly describ [e] the place to be
searched, and
the persons or things to be seized." U.S. Const. amend. IV. The
pur-
pose of this particularity requirement is to avoid "a
general, explor-
atory rummaging in a person's belongings." Andresen v.
Maryland,
427 U.S. 463, 480 (1976) (internal quotation marks omitted).
See gen-
erally Stanford v. Texas, 379 U.S. 476, 481-85 (1965)
(describing his-
tory and purpose of particularity requirement). A
sufficiently
particular warrant describes the items to be seized in such
a manner
that it leaves nothing to the discretion of the officer
executing the
warrant. See Marron v. United States, 275 U.S. 192, 196
(1927).
A search is not invalidated in its entirety merely because
some
seized items were not identified in the warrant. See United
States v.
Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997). Rather,
invalidation
of an entire search based on a seizure of items not named in
the war-
rant is an "extraordinary remedy" that "should be used only
when the
violations of the warrant's requirements are so extreme
that the search
is essentially transformed into an impermissible general
search."
United States v. Chen, 979 F.2d 714, 717 (9th Cir. 1992). Put
another
way, searching officers may be said to have flagrantly
disregarded the
terms of a warrant when they engage in "indiscriminate
fishing" for
evidence. Id. For example, the Tenth Circuit affirmed a
finding of fla-
grant disregard when law enforcement officers, acting
pursuant to a
warrant that authorized seizure of marijuana and several
specifically
identified firearms, seized "anything of value," including
televisions,
VCRs, stereos, a lawn mower, cameras, a clock radio, and a
screw-
driver set. United States v. Foster, 100 F.3d 846, 848 & n.1,
850-51
(10th Cir. 1996); see United States v. Medlin, 842 F.2d 1194,
1198-
99 (10th Cir. 1988) (concluding that seizure of 667 items of
property
not identified in warrant authorizing search for stolen
firearms consti-
tuted flagrant disregard of the terms of the warrant).
We conclude that the extraordinary remedy of blanket
suppression
is not warranted here. Simply put, the record does not
demonstrate the
kind of wholesale seizure that prompted the holdings in
Foster and
Medlin. In many cases, items that were not identified in the
warrant
12
were seized because they were part of a larger item of
evidentiary
value. For example, a grocery list was seized because it was
found
inside a date book containing names and addresses; Obanion
does not
dispute that the date book was an item within the scope of
the war-
rant. Similarly, a page of Spanish homework was seized not
for the
evidentiary value of the homework, but rather because the
back of the
page contained notations and telephone numbers relevant to
the inves-
tigation. Furthermore, we note that the officers suspended
the search
and obtained a second warrant before seizing an item found
above the
ceiling tiles in Obanion's bedroom. Such scrupulous regard
for the
protections afforded by the Fourth Amendment belies any
intent to
disregard the terms of the warrant. We therefore affirm
the denial of
blanket suppression.
IV.
Appellants next challenge the admission of Longshore's
testimony
regarding Appellants' verbal description of the murder of
Matthew
Dozier. Longshore testified that although she was not
looking at
Appellants as they described the murder and could not
identify which
Appellant made any given statement, she could discern two
separate
voices and knew that Robinson and Obanion were jointly
describing
the crime. Further, Longshore testified that at no point did
either indi-
vidual contradict or deny the other's portion of the
account. The dis-
trict court admitted Longshore's testimony, reasoning that
to the
extent statements by Robinson were admitted against
Obanion and
vice-versa, the statements were adoptive admissions under
Federal
Rule of Evidence 801(d)(2)(B), and thus were not excludable
hearsay.3
Rule 801(d)(2)(B) provides that "[a] statement is not
hearsay" if the
statement is offered against a party and if the party against
whom the
statement is offered "has manifested an adoption [of] or
belief in" the
truth of the statement.
____________________________________________________________
3
To the extent the statements were introduced against
the Appellant
who made them, they were admissible pursuant to Federal
Rule of Evi-
dence 801(d)(2)(A) (providing that a party's own statement is
not hear-
say when introduced against that party).
13
When a statement is offered as an adoptive
admission, the
primary inquiry is whether the statement was such
that,
under the circumstances, an innocent defendant
would nor-
mally be induced to respond, and whether there are
suffi-
cient foundational facts from which the jury could
infer that
the defendant heard, understood, and acquiesced in
the state-
ment.
United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996). A
party
may manifest adoption of a statement in any number of ways,
includ-
ing [through] words, conduct, or silence. See Marshall v.
Young, 833
F.2d 709, 716 n.3 (7th Cir. 1987). We review the admission of
evi-
dence by the district court for abuse of discretion. See
United States
v. D'Anjou, 16 F.3d 604, 610 (4th Cir. 1994).
Appellants maintain that because Longshore could not
identify
which Appellant said what, "the record does not
sufficiently show that
either [Appellant] heard, understood, or acquiesced in the
statements
of the other." Appellants' Br. at 46. We disagree. In the first
place,
while Longshore testified that both Appellants
participated in telling
the story of the murder, she did not state that their voices
were jum-
bled together in such a way as to prevent her or each
Appellant
from hearing and understanding what was being said. We
there-
fore conclude that the circumstances were such that, had
either
Appellant disagreed with a statement by the other, he
would have
made his disagreement known. Moreover, the scenario
described by
Longshore, in which both Appellants provided parts of the
tale, con-
tained ample facts from which a jury could conclude that
each Appel-
lant adopted the statements of the other.
V.
Finally, Robinson maintains that he is entitled to
reversal of his
§ 924(j) conviction under United States v. Boone, 245 F.3d
352 (4th
Cir. 2001). In Boone, a panel of this court held that a
defendant
charged with a death-eligible crime is entitled, under 18
U.S.C.A.
§ 3005 (West 2000), to representation by two attorneys
regardless of
whether the Government actually seeks the death penalty.
See Boone,
245 F.3d at 358. In light of that holding, Boone's conviction
was
vacated. See id. at 364.
14
Because Robinson did not object to the asserted violation
of
§ 3005, our review is for plain error.4 See Fed. R. Crim. P.
52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). In order
to dem-
onstrate plain error, Robinson must show that an error
occurred, that
the error was plain, and that the error affected his
substantial rights.
See Olano, 507 U.S. at 732; United States v. Jackson, 124 F.3d
607,
614 (4th Cir. 1997). Even if Robinson can satisfy these
requirements,
correction of the error remains within our discretion,
which we
"should not exercise . . . unless the error ``seriously
affect[s] the fair-
ness, integrity or public reputation of judicial
proceedings.'" Olano,
507 U.S. at 732 (second alteration in original) (quoting
United States
v. Young, 470 U.S. 1, 15 (1985)).
Applying Boone — as we must, see Baker v. Corcoran, 220
F.3d
276, 290 n.11 (4th Cir. 2000), cert. denied, 121 S. Ct. 1194(2001) —
we conclude that Robinson has satisfied the first three
prongs of plain
error analysis. While Robinson was provided with two
attorneys dur-
ing pretrial proceedings, one of those attorneys was
relieved of his
duties after the Government elected not to seek the death
penalty
against Robinson. Under Boone, the failure to provide
Robinson with
two attorneys throughout trial was plain error even
though the Gov-
ernment withdrew its notice of intent to seek the death
penalty. More-
over, because a violation of § 3005 is not reviewable for
harmlessness, see Boone, 245 F.3d at 361 n.8, the error
necessarily
affected Robinson's substantial rights, see United States v.
David, 83
F.3d 638, 647 (4th Cir. 1996).
We decline, however, to exercise our discretion to notice
the error.
Simply put, the error here — the failure to provide a
non-capital
defendant with the benefit of a provision designed to
provide addi-
____________________________________________________________
4
Robinson asserts that plain error review does not apply
because a vio-
lation of § 3005 is a structural defect. We disagree. Even if
a violation
of § 3005 is a structural defect, cf. Boone, 245 F.3d at 361
n.8 (noting
that a violation of § 3005 is not amenable to harmless-error
analysis), it
is well settled in this circuit that plain error review
applies to forfeited
structural errors. See, e.g., United States v. David, 83 F.3d
638, 647-48
(4th Cir. 1996) (applying plain error analysis to forfeited
structural
error).
15
tional protection to capital defendants—did not affect the
fairness,
integrity, or public reputation of judicial proceedings.5
VI.
For the reasons set forth above, we conclude that none
of Appel-
lants' challenges to their convictions have merit.
Accordingly, we
affirm.
AFFIRMED
____________________________________________________________
5
To the extent that § 3005 benefits even non-capital
defendants during
the period when the Government is deciding whether to seek
the death
penalty, see Boone, 245 F.3d at 360, Robinson received that
benefit.
16