United States v. Thomas , 282 F. App'x 244 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOLOTHAL THOMAS, a/k/a Itchy-Man,
Defendant - Appellant.
No. 06-5159
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUADO SHAWAN COUNTESS, a/k/a Bam, a/k/a Eduardo Countess,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:04-cr-00232-CCB)
Submitted: May 7, 2008 Decided: June 10, 2008
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Terry L.
WOOTEN, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
Arcangelo M. Tuminelli, Baltimore, Maryland, for Appellant Solothal
Thomas; Joseph J. McCarthy, DELANEY, MCCARTHY & COLTON, PC,
Alexandria, Virginia, for Appellant Eduado Shawan Countess. Rod J.
Rosenstein, United States Attorney, Jason M. Weinstein, Andrea L.
Smith, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal jury convicted Appellants Solothal Thomas and Eduado
Shawan Countess of conspiracy to use, and use of, an interstate
commerce facility in the commission of a murder-for-hire, in
violation of 18 U.S.C.A. §§ 1958 (West 2000 & Supp. 2008) (Counts
Two and Three); conspiracy to possess a firearm in furtherance of
a drug trafficking crime (a conspiracy to distribute 1,000 or more
kilograms of marijuana) and a crime of violence (the murder-for-
hire conspiracy), in violation of 18 U.S.C.A. §§ 924(o) (West 2000
& Supp. 2008) (Count Four); possession of a firearm in furtherance
of the same drug trafficking crime and crime of violence, in
violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008) (Count
Five); and possession of a firearm in furtherance of the same drug
trafficking crime and crime of violence resulting in death, in
violation of 18 U.S.C.A. §§ 924(j) (West 2000 & Supp. 2008) (Count
Six). The jury also convicted Countess of conspiracy to distribute
1,000 kilograms or more of marijuana, in violation of 21 U.S.C.A.
§§ 846 and 841(b)(1)(A) (West 1999 & Supp. 2008) (Count One). The
district court sentenced both men to multiple life sentences and to
other concurrent and consecutive terms in addition to those life
sentences. Finding no reversible error in Appellants’ convictions,
we affirm.
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I.
On appeal, Appellants raise a number of arguments challenging
their respective convictions, including the following: (1) the
district court erred in instructing the jury that a motor vehicle
is a “facility in interstate . . . commerce” under 18 U.S.C.A. §
1958 when the Government put on evidence that the “facility”
element was satisfied by Appellants’ use of a telephone; (2) the
court violated Bruton v. United States, 391 U.S. 123 (1968), when
it admitted, over Countess’s objection, Thomas’s post-arrest
statement to a federal agent because the statement incriminated
Countess; (3) the court erred in denying Thomas’s motion to dismiss
the indictment for lack of jurisdiction because, inter alia, there
was no verified complaint and because Thomas did not consent to or
understand the jurisdiction of the court; (4) the court erred in
removing Thomas from the courtroom during trial for alleged
disruptive behavior; and (5) Countess’s Sixth Amendment rights were
violated because, inter alia, the court refused to remove his
appointed counsel when Countess made clear that he would not accept
any counsel who swore allegiance to the U.S. Constitution.
We first consider Appellants’ argument that the district
court erred in instructing the jury that Appellants’ use of a Jeep
Cherokee motor vehicle could qualify as use of a “facility in
interstate . . . commerce” under § 1958 when the Jeep never crossed
state lines and the Government only presented evidence that
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Appellants had used telephones as part of their murder-for-hire
scheme, not the Jeep. As an initial matter, and as a majority of
our sister circuits have held, the phrase “facility in interstate
. . . commerce” encompasses motor vehicles that are used either in
an intrastate or interstate fashion. See, e.g., United States v.
Marek, 238 F.3d 310, 313 (5th Cir. 2001) (en banc) (holding that Ҥ
1958's use of a ‘facility in interstate commerce’ is synonymous
with the use of an ‘interstate commerce facility’ and satisfies the
jurisdictional element of the federal murder-for-hire statute,
irrespective of whether the particular transaction in question is
itself inter state or wholly intra state” (emphasis in original)).
And, in 2004, Congress amended § 1958, striking the phrase
“facility in interstate . . . commerce” and replacing it with
“facility of interstate . . . commerce,” to make pellucidly clear
that the majority view is the correct interpretation of the
statute. See Intelligence Reform and Terrorism Prevention Act of
2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004); see also United
States v. Perez, 414 F.3d 302, 305 n.5 (2d Cir. 2005) (stating that
the December 2004 amendment “clarif[ied] rather than expand[ed] the
scope” of § 1958).
With respect to Appellants’ contention that the Government
presented no evidence that they used the Jeep as part of their
murderous plot, this contention is simply belied by the record.
Indeed, the Government mentioned in its opening argument that the
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“facility in interstate . . . commerce” element of § 1958 could be
satisfied by the use of either vehicles or telephones, and the
Government went on to detail the significant role that the Jeep
Cherokee played in the murder-for-hire scheme. Thus, the district
court did not err in instructing the jury that the “facility in
interstate . . . commerce” element of § 1958 could be satisfied by
Appellants’ use of the Jeep as part of their murder scheme.
With respect to Countess’s claim that the district court erred
under Bruton in admitting Thomas’s post-arrest statement, “I do
know something about the murder, and I will only speak about
myself,” (Appellants’ Br. at 21; Appellee’s Br. at 26), this
contention is wholly without merit. Even if Thomas’s redacted
statement implied the participation of at least one other person in
the crime, it did not point in any way to Countess, and, on top of
this fact, the district court gave a limiting instruction that the
jury could only consider the statement as it related to Thomas’s
guilt. As such, no Bruton violation occurred. See, e.g., United
States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999) (recognizing
that “statements that . . . do not even refer to the existence of
the defendant are admissible and do not require severance”).
Finally, we have considered Appellants’ other arguments and
reviewed the briefs in this case, and we find no reversible error
in Appellants’ convictions.
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II.
For the aforesaid reasons, we affirm Appellants’ convictions
and sentences. 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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