United States v. Reginald Dargan, Jr. , 738 F.3d 643 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD DUANE DARGAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00578-CCB-3)
Argued: October 30, 2013 Decided: December 24, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Keenan joined.
ARGUED: Brian L. Stekloff, PAUL, WEISS, RIFKIND, WHARTON &
GARRISON, LLP, Washington, D.C., for Appellant. Benjamin M.
Block, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Sean Welsh, Legal Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WILKINSON, Circuit Judge:
Appellant Reginald Dargan, Jr., was convicted by a jury of
three counts arising from the armed robbery of a jewelry store.
He now appeals his conviction, contending that the district
court erred in denying his motion to suppress evidence seized
pursuant to a warrant during a search of his residence. He also
argues that testimony about out-of-court statements made by a
co-conspirator was erroneously admitted in violation of both the
Federal Rules of Evidence and the Confrontation Clause. For the
following reasons, we reject Dargan’s claims and affirm his
conviction.
I.
Shortly after noon on March 30, 2011, three men robbed a
jewelry store located in a mall in Columbia, Maryland. Two of
the participants were armed with firearms, while the third
carried a knife. After waiting for a customer to leave, one of
the men detained a sales clerk at gunpoint. Another held a knife
to the clerk’s leg and forced him to dump a case of Rolex
watches into a bag. Meanwhile, the remaining culprit restrained
a second employee at the back of the store. Once the watch case
was emptied, the three men hastily exited the mall. They escaped
with over thirty men’s Rolex watches, with a retail value of
approximately $275,000.
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The following day, the police issued a news release asking
the public to submit information relevant to the investigation.
The release contained images of the suspects captured by mall
security cameras. Based on tips received, the authorities
arrested three individuals: Deontaye Harvey, Aaron Pratt, and
Gary Braxton. Officials soon doubted Braxton’s involvement,
however, and he was released. The investigation also implicated
a fourth individual, nicknamed “Little Reggie,” who was not
apprehended at that time.
Two months later, appellant Dargan was arrested in
connection with the robbery. Police suspected that Dargan was in
fact Little Reggie, the knife-wielding participant in the
Columbia heist. Investigators subsequently obtained a search
warrant for Dargan’s residence. Attachment A to the warrant
enumerated items subject to seizure, including, among other
things, “[i]ndicia of occupancy.” J.A. 70. During the search,
officers seized a purchase receipt for a Louis Vuitton belt. The
receipt was found in a bag located on top of a dresser in
Dargan’s bedroom. It indicated that the belt cost $461.10 and
that the buyer, who identified himself as “Regg Raxx,” purchased
the belt with cash the day after the robbery.
On October 26, 2011, a federal grand jury returned an
indictment against Dargan, Harvey, and Pratt. As relevant here,
the indictment charged Dargan with conspiracy to interfere with,
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as well as actual interference with, interstate commerce by
robbery in violation of 18 U.S.C. § 1951. It also charged him
with using and carrying a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c).
Prior to trial, Dargan moved to suppress the purchase
receipt for the Louis Vuitton belt seized during the search of
his residence. The district court found that the receipt did not
fall under the terms of Attachment A to the search warrant, but
that the seizure was nevertheless justified under the plain-view
exception to the warrant requirement.
The government also filed a pretrial motion to admit
testimony regarding out-of-court statements made by Dargan’s co-
defendant, Harvey, to a cellmate, Zachary Shanaberger. The
conversation took place after Braxton had been released and
Dargan arrested. Specifically, the government intended to elicit
testimony regarding Harvey’s alleged confession to robbing a
jewelry store in the Columbia Mall with two co-conspirators and
his disclosure that they were all imprisoned in the same
facility at the time of the conversation. In his statements to
Shanaberger, Harvey did not identify the third participant --
whom the prosecution contended was Dargan -- by name.
The government argued that Harvey’s comments were
admissible under Federal Rule of Evidence 804(b)(3), which
provides an exception to the general prohibition against hearsay
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for statements against interest. Dargan not only contested this
assertion, but further contended that the introduction of the
statements at trial would violate his Confrontation Clause
rights. Ruling from the bench, the district court rejected each
of Dargan’s objections and granted the government’s motion.
At Dargan’s trial, the prosecution both introduced the
Louis Vuitton receipt and called Shanaberger as a witness. It
also provided independent evidence directly linking Dargan to
the Columbia robbery. For instance, the government called two
witnesses who each identified Dargan as one of the culprits
depicted in the footage taken by mall surveillance cameras. One
of the witnesses was Dargan’s own godmother, who had known him
for over thirteen years.
The prosecution also introduced several text messages
recovered from Dargan’s phone pursuant to a search warrant. The
messages were exchanged between Dargan and Harvey during the
direct lead-up to the robbery. The conversation ceased during
the actual commission of the crime. Shortly before 11:15 that
morning, Harvey texted Dargan to “Get dressed . . . . We on. Da
way.” J.A. 620. At 11:16, he further instructed Dargan to “Bring
da knife out.” Id. Finally, at 11:43, Dargan texted Harvey to
inform him that “We out front.” Id.
On November 8, 2012, the jury found Dargan guilty of each
of the three counts listed above. The district court sentenced
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him to 135 months of incarceration, in addition to a period of
supervised release and restitution. This appeal followed.
II.
Dargan first contends that the seizure of the Louis Vuitton
belt receipt violated the Fourth Amendment because the receipt
did not fall under any of the items enumerated in Attachment A,
which delineated the warrant’s scope. The Fourth Amendment
provides 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, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” In
interpreting the Fourth Amendment, the thought of unfettered
police discretion is unthinkable, and any practice of minute
judicial management is impractical, and the question thus must
always be where the balance lies.
A.
The last clause of the Fourth Amendment contains a
“particularity requirement,” which “is fulfilled when the
warrant identifies the items to be seized by their relation to
designated crimes and when the description of the items leaves
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nothing to the discretion of the officer executing the warrant.”
United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).
The Framers included this provision in order to end the
practice, “abhorred by the colonists,” of issuing “general
warrants.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
The requirement is designed to preclude broadly-phrased warrants
from authorizing officers to conduct “exploratory rummaging in a
person’s belongings.” Andresen v. Maryland, 427 U.S. 463, 480
(1976) (internal quotation marks omitted). Thus, when executing
a warrant, officers are limited by its terms. Williams, 592 F.3d
at 519.
Nevertheless, a warrant is not intended to impose a
“constitutional strait jacket” on investigating officers. United
States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988)
(internal quotation marks omitted). Courts must refrain from
interpreting warrant terms in a “hypertechnical” manner, and
should instead employ a “commonsense and realistic” approach.
Williams, 592 F.3d at 519 (internal quotation marks omitted);
see also Illinois v. Gates, 462 U.S. 213, 231 (1983) (using
similar language with respect to judicial review of affidavits).
This rule of construction strikes a middle ground by ensuring
that warrants serve their central purpose -- precluding officers
from conducting fishing expeditions into the private affairs of
others -- while simultaneously preserving the flexibility of law
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enforcement to adapt to the unforeseen circumstances that
necessarily arise in an investigation predicated on incomplete
information.
Interpreting warrants in a commonsense manner serves the
further, significant purpose of encouraging officers to obtain
judicial approval prior to conducting a search. United States v.
Phillips, 588 F.3d 218, 223 (4th Cir. 2009). This court, along
with many others, has stated a strong preference for officers to
obtain a warrant prior to intruding on constitutionally
protected domains. United States v. Srivastava, 540 F.3d 277,
288 (4th Cir. 2008). A warrant cabins executive discretion,
gives the imprimatur of lawful authority to potentially
intrusive police conduct, and helps to ensure that valuable
evidence is not later excluded as a result of an illicit search.
See Gates, 462 U.S. at 236. A “grudging or negative attitude by
reviewing courts towards warrants” is inconsistent with this
approach. Id. (internal quotation marks omitted).
An overly stringent rule of construction would encourage
warrantless searches by reducing the benefits a warrant
provides. Officers are motivated to secure judicial approval in
part because of the safe harbor it represents. The sense of
confidence a warrant affords, however, is diminished to the
extent that its terms are subject to an excessively narrow
interpretation. Faced with such an interpretation, “police might
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well resort to warrantless searches, with the hope of relying on
consent or some other exception to the Warrant Clause that might
develop at the time of the search.” See id. Courts can help to
head off this eventuality by consistently adopting a commonsense
reading of a warrant’s scope.
B.
Here, Attachment A to the warrant, which enumerated the
items subject to seizure, relevantly included “[i]ndicia of
occupancy, residency, of the premises . . . including but not
limited to, utility and telephone bills, [and] canceled
envelopes.” J.A. 70. The officers conducting the search could
plausibly have thought that the occupant of the premises was
also the purchaser identified on the belt receipt discovered in
the bedroom. The receipt, which listed the buyer as “Regg Raxx,”
therefore constituted at least some indication of occupancy and
fell within the terms of Attachment A.
This conclusion is corroborated by the warrant’s inclusive
language: Attachment A states that “[i]ndicia of occupancy”
“includ[es]” but is “not limited to” certain listed items
(“utility and telephone bills, [and] canceled envelopes”). Id.
This “broad and inclusive language” cautions against a miserly
construction. Phillips, 588 F.3d at 225. The fact that the
warrant does not explicitly mention receipts is not
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determinative: “law enforcement officers may seize an item
pursuant to a warrant even if the warrant does not expressly
mention and painstakingly describe it.” Id. Indeed, “[a] warrant
need not -- and in most cases, cannot -- scrupulously list and
delineate each and every item to be seized.” Id.
Here, the officers were lawfully in the residence pursuant
to the search warrant. Furthermore, they were justified in
opening the bag on top of the dresser in Dargan’s bedroom to
determine whether its contents matched any of the items they
were authorized by the warrant to seize. Attachment A, for
example, lists “[a]ny and all diaries, journals, or notes.” J.A.
70. These documents -- as well as a host of other physically
diminutive objects described in the attachment -- could easily
have been placed in the retail bag. Contrary to Dargan’s
contention, the officers were not required to assume that the
retail bag contained only retail items. See Williams, 592 F.3d
at 522. People put all kinds of things in bags for reasons of
convenience, carry, or concealment.
The facts of this case underscore the fallacy of Dargan’s
contention that only items listed by name may be seized during
the execution of a search warrant. That would require officers
possessed of incomplete knowledge to identify ex ante every item
of evidence that will be relevant and the precise form that it
will take -- a plainly unrealistic expectation. The officers in
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the instant case may not have foreseen that indicia of occupancy
located at the residence would take the form of a sales receipt
but, once faced with precisely that scenario, they were entitled
to seize the receipt under a commonsense reading of the
warrant’s terms. In no way could the search and seizure of the
receipt be characterized as an “exploratory rummaging.” The
central value animating the particularity requirement was
therefore preserved. See United States v. Robinson, 275 F.3d
371, 381 (4th Cir. 2001).
III.
Dargan next objects to the admission of Shanaberger’s
testimony regarding out-of-court statements made by co-defendant
Harvey to Shanaberger while the two were incarcerated together
following the robbery. Specifically, Dargan seeks to exclude
testimony with respect to two statements: Harvey’s confession to
robbing the Columbia Mall with two co-conspirators, and his
comment that all three co-conspirators were incarcerated in the
same facility at the time of his conversation with Shanaberger.
Dargan contends not only that the statements are inadmissible
under Federal Rule of Evidence 804(b)(3), but also that their
introduction violated his constitutional right to confrontation.
We address both contentions below.
11
A.
As a general matter, the Federal Rules of Evidence ban the
introduction of hearsay testimony at trial. Rule 804, however,
carves out an exception to this broad prohibition for specific
categories of hearsay considered especially reliable. See
Williamson v. United States, 512 U.S. 594, 598-99 (1994). As
relevant here, 804(b)(3) provides that a statement made by an
unavailable declarant is admissible if it is one that “a
reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it
. . . had so great a tendency to . . . expose the declarant to
civil or criminal liability.” The statement must also be
“supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one
that tends to expose the declarant to criminal liability.” Id.
The district court’s decision to admit Shanaberger’s testimony
under this rule is reviewed for abuse of discretion. United
States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995).
It is undisputed that Harvey, having invoked his Fifth
Amendment right not to testify, was unavailable within the
meaning of 804(b)(3). See id. Dargan contends, however, that the
government failed to carry its burden with respect to the two
remaining elements: inculpation and corroboration.
12
The first of these requirements has been held to restrict
admission to “those declarations or remarks within the
confession that are individually self-inculpatory.” Williamson,
512 U.S. at 599. Whether this standard is satisfied can only be
determined by viewing the statement in light of the surrounding
circumstances. Id. at 603.
Here, both the context and content of the challenged
statements indicate their self-inculpatory quality. First,
Harvey made the statements to a cellmate rather than, for
instance, a police investigator. He thus had no obvious motive
to “shift blame or curry favor.” United States v. Jordan, 509
F.3d 191, 203 (4th Cir. 2007) (internal quotation marks
omitted). Second, the statements are intrinsically inculpatory
to the extent they demonstrate Harvey’s knowledge of
“significant details about the crime,” Williamson, 512 U.S. at
603, and “implicate him in a conspiracy,” United States v.
Udeozor, 515 F.3d 260, 267 (4th Cir. 2008). Harvey’s admission
that he committed the robbery with the assistance of two co-
conspirators not only revealed his knowledge of the number of
participants, but also potentially subjected him to conspiracy
liability. His statement that each of the participants was
currently incarcerated at the same facility further evidenced
his specific knowledge of the identities of the other robbers.
13
The statements were therefore sufficiently inculpatory to
satisfy this element of the rule.
Rule 804(b)(3) also requires that statements against
interest be supported by corroborating circumstances. Our court
has enumerated several factors relevant to this particular
inquiry, including:
(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the
declarant’s motive in making the statement and whether
there was a reason for the declarant to lie, (3)
whether the declarant repeated the statement and did
so consistently, (4) the party or parties to whom the
statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the
conduct in question.
United States v. Kivanc, 714 F.3d 782, 792 (4th Cir. 2013)
(quoting Bumpass, 60 F.3d at 1102 (citations omitted)).
Considered together, these factors indicate that the
corroborating circumstances requirement was satisfied here.
Harvey had not pled guilty at the time of his statement, and
thus remained exposed to the full range of penal consequences
attached to his illicit conduct. See id. at 793. Furthermore, as
noted, the statements were made to a fellow prisoner; Harvey
thus had no motive to manipulate his narrative to please the
authorities. See Jordan, 509 F.3d at 203. Finally, the gist of
the statements was confirmed by a wealth of independent evidence
introduced by the government at trial, including the series of
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text messages between Dargan and Harvey discussing Dargan’s use
of a knife during the planned robbery. The district court
therefore did not abuse its discretion under the Federal Rules
in admitting Shanaberger’s testimony.
B.
Dargan also contends that the introduction of Harvey’s out-
of-court statements violated his constitutional right to
confront opposing witnesses. The Confrontation Clause of the
Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” This provision bars the admission of
“testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53-54 (2004).
“As Crawford and later Supreme Court cases make clear, a
statement must be ‘testimonial’ to be excludable under the
Confrontation Clause.” Udeozor, 515 F.3d at 268. The primary
determinant of a statement’s testimonial quality is “whether a
reasonable person in the declarant’s position would have
expected his statements to be used at trial -- that is, whether
the declarant would have expected or intended to ‘bear witness’
against another in a later proceeding.” Id. (citing Crawford,
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541 U.S. at 52). This definition flows from the Court’s
recognition that “the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations as
evidence against the accused.” Crawford, 541 U.S. at 50.
Under this standard, Harvey’s comments to Shanaberger are
plainly nontestimonial. Harvey made the challenged statements to
a cellmate in an informal setting -- a scenario far afield from
the type of declarations that represented the focus of
Crawford’s concern. The Supreme Court itself has noted, as a
general matter, that “statements from one prisoner to another”
are “clearly nontestimonial.” Davis v. Washington, 547 U.S. 813,
825 (2006). Harvey’s jailhouse disclosures to a casual
acquaintance were not made with an eye towards trial. He had no
plausible expectation of “bearing witness” against anyone. See
United States v. Jones, 716 F.3d 851, 856 (4th Cir. 2013). The
Confrontation Clause is therefore inapplicable, though such
statements must, to be admissible, still satisfy the
requirements of the Federal Rules of Evidence, here 804(b)(3).
Dargan devotes a significant portion of his brief to
contending that Shanaberger’s testimony was inadmissible under
the Supreme Court’s holding in Bruton v. United States, 391 U.S.
123 (1968). In that case, Bruton and his co-conspirator were
tried jointly. The latter declined to testify, but his
16
confession -- which directly implicated Bruton -- was admitted
against him at trial. The district judge gave a limiting
instruction that the confession did not qualify as evidence
against Bruton. Id. at 124-25, 128. On appeal, the Supreme Court
reversed, noting the “substantial risk” that the jury would
ignore the limiting instruction and thereby violate Bruton’s
Confrontation Clause rights. Id. at 126.
Dargan’s reliance on Bruton is misplaced for several
reasons. First, Dargan and Harvey were not tried jointly. Harvey
pled guilty and Dargan received an individual trial. The formal
structure of a Bruton claim is therefore absent. The
“substantial risk” that a confession admitted against one
defendant might affect the jury’s verdict regarding his co-
defendant is not presented on these facts. See United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009).
Second, and more significantly, Bruton is simply irrelevant
in the context of nontestimonial statements. Bruton espoused a
prophylactic rule designed to prevent a specific type of
Confrontation Clause violation. Statements that do not implicate
the Confrontation Clause, a fortiori, do not implicate Bruton.
See, e.g., United States v. Clark, 717 F.3d 790, 816 (10th Cir.
2013) (“[T]he Bruton rule, like the Confrontation Clause upon
which it is premised, does not apply to nontestimonial hearsay
statements.”) (citation and internal quotation marks omitted).
17
Our conclusion that Harvey’s statements were nontestimonial
therefore suffices to dispatch Dargan’s Bruton argument as well. *
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
*
We have reviewed the additional arguments contained in the
supplemental pro se brief and find nothing of merit therein.
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