United States v. Breeden ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4920
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN ARNETTE BREEDEN,
Defendant - Appellant.
No. 04-4925
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ANTHONY CARPENTER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Samuel G. Wilson,
District Judge. (CR-03-13)
Submitted: August 31, 2005 Decided: September 23, 2005
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Janice L. Redinger, JANICE L. REDINGER, P.L.C., Charlottesville,
Virginia; J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C.,
Charlottesville, Virginia, for Appellants. John L. Brownlee,
United States Attorney, William F. Gould, Assistant United States
Attorney, Charlottesville, Virginia; Thomas E. Booth, DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Shawn A. Breeden and Michael A. Carpenter appeal their
conviction for conspiracy to possess with the intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1) (2000), travel in
interstate commerce to commit a crime of violence to further an
unlawful activity in violation of 18 U.S.C. § 1952(a)(2) (2000),
travel in interstate commerce with intent to kill in violation of
18 U.S.C. § 2261A (2000), and three counts of use of a firearm
during each of the three above offenses in violation of 18 U.S.C.
§ 924(c)(1) (2000). Finding no error, we affirm.
Breeden, Carpenter, Kevin Cassell, and Robert
Outterbridge lived near one another in Washington, D.C., where they
sold drugs. On August 8, 2002, Breeden lost some of his girlfriend
Shelley Holland’s money while gambling and promised her he would
get the money by robbing Kevin Hester, a drug supplier from
Charlottesville, Virginia. Breeden, Carpenter, Cassell, and
Outterbridge drove to Charlottesville and met with a friend of
Breeden’s who gave Cassell some crack cocaine to give to Breeden.
While looking for Hester, the four men robbed a man of his money
and cell phone and assaulted and robbed two people at a bank.
Breeden arranged to meet with Hester to purchase drugs.
When Hester arrived, Breeden greeted Hester as Carpenter approached
Hester from behind. Carpenter pointed his shotgun at Hester and,
as Hester grabbed the barrel of the gun, Carpenter shot Hester in
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the leg. Breeden then took his knife and stabbed Hester multiple
times in the neck and chest. Hester fell to the ground and
Carpenter and Breeden told Outterbridge to shoot Hester again.
Outterbridge shot Hester twice in the head. One of the men took
Hester’s phone and the four men then drove back to Washington, D.C.
Hester died from his injuries.
Breeden and Carpenter claim that the district court erred
in denying their motion for a judgment of acquittal. We review the
district court’s decision to deny a motion for judgment of
acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136
(4th Cir. 2001). If the motion was based on insufficiency of the
evidence, the verdict must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
Breeden and Carpenter claim the Government did not have
sufficient evidence to prove that the Defendants were involved in
a conspiracy to possess cocaine with intent to distribute on the
night of Hester’s death because they only intended to rob drug
dealers. To prove the charged conspiracy, the Government had to
establish (1) an agreement to possess cocaine with intent to
distribute between two or more persons, (2) the Defendant knew of
the conspiracy, and (3) the Defendant knowingly and voluntarily
became part of that conspiracy. 21 U.S.C. § 841; United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996). “Participation in a
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criminal conspiracy need not be proved by direct evidence; a common
purpose and plan may be inferred from a ‘development and a
collocation of circumstances.’” Glasser, 315 U.S. at 80. The
government may rely on the existence of a “tacit or mutual
understanding,” between the defendant and his conspirators, the
length of their association, the defendant’s conduct, and the
nature of the alleged conspiracy as circumstantial evidence of the
conspiracy. United States v. Ellis, 121 F.3d 908, 922 (4th Cir.
1997); Burgos, 94 F.3d at 858.
While Outterbridge testified that there was no agreement
to possess or distribute drugs, he also testified that he expected
to get “money and drugs” from robbing the drug dealers. While in
Charlottesville, Cassell received crack cocaine from one of
Breeden’s associates. Breeden told Hester to bring cocaine to
their meeting, and the conspirators intended to rob Hester of his
possessions including the cocaine. While there was no direct
evidence of an agreement between the men to steal drugs, the
Government presented sufficient circumstantial evidence to prove a
tacit understanding between the men to take drugs from the drug
dealers they intended to rob, and district court did not err in
denying Breeden and Carpenter’s motion for judgment of acquittal on
the drug conspiracy count.
Breeden and Carpenter claim that the Government did not
sufficiently prove that they traveled in interstate commerce “with
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intent to commit any crime of violence to further any unlawful
activity.” See United States v. Gallo, 782 F.2d 1191, 1194 (4th
Cir. 1986). The Government was only required to prove that Breeden
and Carpenter intended to commit “any crime of violence,” not a
crime of violence against a specific person. Cassell,
Outterbridge, and Holland all testified that the four men decided
while in Washington, D.C., to travel to Charlottesville to rob drug
dealers for money. The Government presented sufficient evidence to
prove that they entered into interstate travel to commit a crime of
violence.
Breeden and Carpenter also claim that the Government did
not prove their intent to rob drug dealers was to further an
unlawful activity. For purposes of § 1952, “unlawful activity
includes any ‘business enterprise’ involving narcotics or
controlled substances.” 18 U.S.C. § 1952(b)(1) (2000). This court
has construed “business enterprise” to mean a continuous course of
conduct rather than a sporadic casual involvement in the proscribed
activity. United States v. Corbin, 662 F.2d 1066, 1073 n.16 (4th
Cir. 1981). Breeden and Carpenter had a history of drug dealing
and not a sporadic or casual involvement. The Government presented
sufficient evidence that Breeden and Carpenter intended to rob drug
dealers for money and drugs and that the robbery showed a pattern
of continuous drug dealing sufficient to constitute a business
enterprise.
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Breeden and Carpenter claim the Government did not
provide sufficient evidence to prove they traveled in interstate
commerce “with the intent to kill, injure, harass, or intimidate
another person, and in the course of, or as a result of, such
travel places that person in reasonable fear of the death of, or
serious bodily injury to, that person.” 18 U.S.C. § 2261A.
Breeden and Carpenter claim the government did not present any
evidence that they intended to harm Hester before they left
Washington, D.C.; rather, they claim the Government only proved
that they were going to rob drug dealers. Holland testified that
Breeden told her that he was going to rob Hester and that she
begged him not to rob Hester. Cassell testified that Breeden
wanted to go to Charlottesville to get money from Hester.
Outterbridge testified that after Carpenter talked with Breeden,
Carpenter told Outterbridge they were going on a “mission.”1
Breeden then told Outterbridge they were going “to Virginia to rob
some people.” Breeden armed himself with a knife and Carpenter
took a shotgun before leaving Washington, D.C. The Government
presented sufficient evidence that before they left Washington,
D.C., Breeden and Carpenter intended to intimidate, harass, and
injure Hester by robbing him.
1
Breeden and Carpenter’s argument that Cassell, Outterbridge,
and Holland gave conflicting or inconsistent testimony on various
matters is meritless. In evaluating the sufficiency of the
evidence, we do not “review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
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Breeden and Carpenter also claim that they did not put
Hester into reasonable fear of death or serious bodily injury.
Hester saw Carpenter’s shotgun and had enough time to grab the
barrel. Hester may not have known for long that he was in danger,
but his efforts to grab the barrel of a shotgun pointed directly at
him demonstrate that he had a reasonable fear of death or serious
bodily injury sufficient to satisfy the requirement of 18 U.S.C.
§ 2261A. See United States v. Wills, 346 F.3d 476, 499 (4th Cir.
2003). The Government presented probative evidence that Breeden
and Carpenter entered into interstate travel to harm Hester, and
the district court did not err in denying Breeden and Carpenter’s
motion for judgment of acquittal.
Breeden claims that he was entitled to a hearing under
Kastigar v. United States, 406 U.S. 441 (1972), to determine
whether the Government made derivative use of his statement to
federal investigators. Whether a defendant’s statement was
voluntary is a question of law that is reviewed de novo.
Arizona v. Fulminante, 499 U.S. 279, 287 (1991). Breeden agreed to
speak to federal investigators about the robberies he committed
prior to Hester’s death in an attempt to persuade the Government to
not recommend the death penalty. The Government agreed not to use
the statement against him as direct evidence, but reserved the
right to make derivative use of it. A Kastigar hearing to
determine if the government made derivative use of a statement is
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required where the government has violated evidentiary privileges,
but when no such violations occur a hearing is unnecessary. See
United States v. Squillacote, 221 F.3d 542, 549-560 (4th Cir.
2000); United States v. McHan, 101 F.3d 1027, 1035 (4th Cir. 1996).
Breeden claims his proffer was involuntary because it was
based on a misunderstanding by his counsel, but a confession that
is a result of factors unrelated to government misconduct is not
involuntary within the meaning of the Due Process Clause.
Colorado v. Connelly, 479 U.S. 157, 167 (1986). Breeden’s
statements were not used against him as direct evidence. The
proffer agreement gave the Government the right to use that
statement derivatively. As the Government was permitted to use the
statements derivatively and the Government did not violate the
proffer agreement or any evidentiary privileges, no Kastigar
hearing was required because it was not necessary to determine if
the Government could use the statements derivatively. The district
court did not err when it denied Breeden a Kastigar hearing.
Carpenter claims violations of his Fifth Amendment and
Due Process Clause rights because his pretrial confession was
involuntary. We review the voluntariness of a confession de novo.
Fulminante, 499 at 287. Carpenter waived his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and initially denied any
role in the murder. In order to induce Carpenter to confess, the
agents misrepresented the strength of their case against Carpenter
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by saying that one of the robbery victims was a government
informant, that they had surveillance video of Carpenter at a gas
station, and that Breeden and Outterbridge had implicated Carpenter
in Hester’s killing.
The agents also told Carpenter that they would subpoena
members of his family to appear before the federal grand jury, his
family would have to pay their own expenses, and if they failed to
appear or committed perjury they would be sent to jail. Carpenter
continued to deny any role in the murder. Finally, the agents told
Carpenter that Cassell had confessed, and they gave Carpenter
specific details of the offense that only someone who had witnessed
the murder could know. Carpenter thereupon admitted that he and
Breeden had killed Hester.
At trial, the Government did not introduce Carpenter’s
statement into evidence and Carpenter did not testify. In
Chavez v. Martinez, 538 U.S. 760, 767 (2003), the plurality of the
Supreme Court held that “[s]tatements compelled by police
interrogations of course may not be used against a defendant at
trial, but it is not until their use in a criminal case that a
violation of the Self-Incrimination Clause occurs.” The Martinez
plurality found that the mere use of compulsive questioning,
without more, did not violate the Fifth Amendment. Martinez, 538
U.S. at 767. Carpenter did not suffer a violation of his Fifth
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Amendment rights because the Government did not introduce his
statement into evidence.
Carpenter also claims the Government violated his Due
Process Clause rights by coercing his confession. “The test for
determining whether a statement is voluntary under the Due Process
Clause ‘is whether the confession was extracted by any sort of
threats or violence, [or] obtained by any direct or implied
promises, however slight, [or] by the exertion of any improper
influence.’” United States v. Braxton, 112 F.3d 777, 780 (4th Cir.
1997). The mere existence of coercive police activity does not
render a confession involuntary. The police officers’ conduct must
be such that the defendant’s will is “‘overborne’ or his ‘capacity
for self-determination is critically impaired.’” Id. at 780.
“[C]ourts must consider ‘the totality of the circumstances,
including the characteristics of the defendant, the setting of the
interview, and the details of the interrogation.’” Id. at 781.
While law enforcement officers’ deception is relevant in
determining the voluntariness of a confession, it is not
determinative. See Frazier v. Cupp, 394 U.S. 731, 739 (1969). The
federal agents’ misrepresentations did not make Carpenter’s
confession involuntary because he repeatedly denied any role in the
murder of Hester after each of those misrepresentations. Only
after federal agents gave Carpenter true details from Cassell’s
statement did Carpenter finally confess. The federal agents’
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misrepresentations did not hinder Carpenter’s capacity for self-
determination and they did not affect the voluntariness of his
confession.
Carpenter finally claims his confession was involuntary
because the federal agents threatened to arrest his family;
however, the federal agents did not threaten to arrest Carpenter’s
family members. The agents told Carpenter that if he did not tell
the truth, they would subpoena members of his family to appear
before the federal grand jury, and if they failed to appear or
committed perjury they would be sent to jail. These statements are
true and do not threaten to do anything illegal to Carpenter’s
family. Although the federal agents did say Carpenter’s family
would have to bear their expenses to appear before the grand jury,
we conclude that under the totality of the circumstances this
misrepresentation did not coerce Carpenter to confess. The
district court did not err when it denied Carpenter’s motion to
suppress his confession because no Fifth Amendment or Due Process
Clause violation occurred.
Accordingly, we affirm Breeden and Carpenter’s
convictions. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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