United States v. Gross , 199 F. App'x 219 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4458
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ELMER GROSS, JR., a/k/a Grip, a/k/a Man,
Defendant - Appellant.
No. 03-4459
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES D. WILKES, a/k/a Turkey,
Defendant - Appellant.
No. 03-4543
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD EDDIE,
Defendant - Appellant.
No. 03-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EARL FEASTER,
Defendant - Appellant.
No. 03-4673
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ELMER GROSS, SR., a/k/a Stink,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
02-201-JFM)
Argued: February 3, 2006 Decided: June 28, 2006
2
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded in part by
unpublished opinion. Judge Duncan wrote the opinion, in which
Judge Traxler joined. Judge Gregory wrote a separate opinion
concurring in part and dissenting in part.
ARGUED: Gary Allen Ticknor, Elkridge, Maryland; Robert Henry
Waldman, Annapolis, Maryland, for Appellant. Christine Manuelian,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Neil I.
Jacobs, Rockville, Maryland, for Appellant Ronald Eddie; Frank
Policelli, Utica, New York, for Appellant James Earl Feaster;
Francis Albert Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland, for Appellant James Elmer Gross, Sr. Allen F. Loucks,
United States Attorney, Robert R. Harding, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
3
DUNCAN, Circuit Judge:
James Gross, Sr., James Gross, Jr., James Wilkes, James
Feaster and Ronald Eddie appeal their convictions and sentences for
numerous offenses arising out of a racketeering enterprise and
conspiracy operated in Baltimore, Maryland. For the reasons that
follow, we affirm all of the appellants’ convictions and affirm
Ronald Eddie’s sentence. We vacate the sentences of James Gross
Sr., James Gross, Jr., and James Wilkes, and remand for
resentencing consistent with United States v. Booker, 543 U.S. 220(2005).
I.
At differing times, the wide-ranging conspiracy at issue
involved one or more, but rarely all, of the appellants
simultaneously. We therefore initially present only those facts
descriptive of the operation generally. We provide additional
facts as necessary to discuss the specific issues raised by
individual defendants.
James Gross, Sr. (“Gross Sr.”) and Louis Colvin (“Colvin”)
were incarcerated on federal drug charges from the early to late
1990s. While his father was in prison, James Gross, Jr. (“Gross
Jr.”) became involved in drug trafficking. When Gross Sr. and
Colvin were released, they joined and eventually assumed the
leadership of Gross Jr.’s drug trafficking operation. Testimony
4
would establish that the Gross-Colvin operation, and later, the
operation led by Gross Sr., trafficked in large quantities of
cocaine and heroin obtained from a variety of sources including
contacts located in New York and Delaware. Evidence introduced at
trial reflected that the enterprises made approximately $3,000 to
$3,500 a day selling heroin, and $8,000 to $10,000 a day selling
cocaine.
Using proceeds from the drug trafficking activities, Gross Sr.
and Colvin opened a nightclub called Strawberry’s 5000 in 1999.
Although Strawberry’s 5000 was the hub of their illicit activities,
Gross Sr. and Colvin also opened and ran other front businesses,
including another nightclub called Intellects.
Gross Sr. obtained an insurance policy for Strawberry’s 5000
that provided $300,000 in coverage for the building and $100,000 in
coverage for the business property that it contained. Because
Gross Sr. and Colvin had prior felony convictions, however, they
were unable to obtain a liquor license in their own names. They
recruited James Feaster (“Feaster”) to act as nominal owner of the
club and obtain the liquor license in his name. In documentation
to the Liquor Board, Feaster claimed that he was a 100% stockholder
of and was making ongoing financial contributions to the nightclub.
Gross Sr. and Colvin testified that they had obtained a food permit
for the club in their own names for logistical reasons. Gross Sr.
also testified that he worked for the club as a consultant. In
5
fact, Gross Sr. and Colvin owned Strawberry’s 5000; Feaster was
paid a salary and provided a sport utility vehicle for his
participation in the enterprise.
Throughout 1999, Feaster engaged in a pattern of behavior
reflecting inconsistent positions regarding his involvement with
Strawberry’s 5000. For example, he entered into a number of
financial transactions, including the refinancing of his home and
lease transactions for several new cars. In the documentation for
these transactions Feaster stated that he was employed as a college
campus security officer and worked a second job as a manager at
Strawberry’s 5000. He made no representations in these documents
regarding an ownership interest in the club. However, during this
same period, Feaster incorporated 5000 Entertainment LLC and
applied for the club’s liquor license. In February of 2000, the
Liquor Board issued the liquor license for Strawberry’s 5000 to
Feaster and 5000 Entertainment LLC.
In March of 2000, Strawberry’s 5000 was raided by the Drug
Enforcement Agency (“DEA”) in connection with an investigation into
the drug trafficking activities of Gross Sr. and Colvin. Feaster
represented to the agents that he was the owner and manager,
although he later admitted to the DEA that Gross Sr. and Colvin
were the true owners, and that he was paid a salary and had a car
leased for him in exchange for having the liquor license in his
name.
6
Later in March of 2000, Feaster informed the Liquor Board that
he had purchased Strawberry’s 5000, and made arrangements to have
the insurance policy transferred into the name of 5000
Entertainment LLC. The Liquor Board convened a hearing, at which
Colvin testified that Gross Sr. had told a club employee to testify
that Feaster was the owner of the club. Colvin also testified to
other conversations with Gross Sr. and Feaster about lying to the
Liquor Board regarding the ownership of Strawberry’s 5000. At the
conclusion of the hearing, the Board suspended the club’s liquor
license for thirty days.
As Colvin’s testimony at the Liquor Board hearing suggests,
his relationship with the Grosses had begun to deteriorate. It
deteriorated further in 2001, after Strawberry’s 5000 burned to the
ground. In the weeks prior to the fire, Gross Jr. talked to Colvin
about setting fire to the building to collect the insurance
proceeds. Colvin objected because of the club’s financial success.
Gross Jr. nevertheless approached Sean Chance (“Chance”) and Ronald
Eddie (“Eddie”) about the proposed arson. Colvin and a club
employee moved most of the television sets and much of the stereo
equipment to Intellects, the other night club owned by Gross Sr.
and Colvin. The alarm system was deactivated on January 20, 2001
using Gross Sr.’s alarm code, and was not reactivated prior to the
fire.
7
On January 27, 2001, the day of the fire, Gross Jr., Chance
and Eddie obtained gasoline and crafted lighting devices using
tennis balls. They took the devices to Strawberry’s 5000, where
Chance acted as a lookout and Eddie and Gross Jr. set the fire.
Gross Sr. later informed Colvin that Gross Jr. had followed through
on the plan to burn Strawberry’s 5000.
On the day of the fire, Feaster had gone to the club and
observed that stereo equipment was missing. When he confronted
Colvin about it, Colvin claimed that the equipment was actually
rental property that had been returned. Feaster later admitted to
a Baltimore County Detective that he knew this statement was
false.1 Nevertheless, two days after the fire, Feaster contacted
the insurance company that held the policy on the club in order to
report the fire, and filed a claim for the limits of the policy.
When the insurance checks were received, Feaster was paid $30,000
of the proceeds.
By the summer of 2001, the relationship between Colvin and the
Grosses had disintegrated irreparably. The Grosses had come to
believe that Colvin was cutting them out of his business dealings.
For his part, Colvin discovered that Gross Jr. had been stealing
money from Intellects, which, by then, Colvin operated. This
1
On June 26, 2001, agents of the Bureau of Alcohol, Tobacco
and Firearms raided the Intellects nightclub and recovered pieces
of stereo equipment that had been removed from Strawberry’s 5000
prior to the fire.
8
discovery led to a fight between Gross Jr. and one of Colvin’s
employees. Colvin banned Gross Jr. from Intellects, which resulted
in a lawsuit against Colvin by the Grosses.
A government witness, Martin Young (“Young”) later testified
that, during this period, he witnessed Gross Jr. point a gun at
Colvin’s head while the three of them were in an automobile
together. Gross Jr. was in the back seat while Colvin was in
front. Young saw Gross Jr. point the gun, but Colvin did not.
Nevertheless, Colvin came to believe that the Grosses had put out
a hit on him, and the three had several tense encounters. On one
occasion, Gross Jr. and his confederates surrounded Colvin at
Intellects and threatened him. On another occasion, James Wilkes
(“Wilkes”), at Gross Jr.’s behest, attempted to lure Colvin away
from his security guards.
Matters came to a head between Colvin and the Grosses in
September of 2001, when Wilkes shot Colvin. The bullet broke
Colvin’s wrist and traveled through his upper arm. Wilkes was
witnessed fleeing the scene of the shooting. Wilkes was also later
identified by Colvin and other witnesses, who had also observed him
at Strawberry’s 5000 and Intellects.
At about the time of the final break with Colvin, Gross Jr.
began to experience difficulty obtaining drugs from his regular
sources and turned to a Nigerian supplier. To obtain the necessary
funds for the purchase of drugs, Gross Jr. and Chance planned an
9
armed robbery at a Stop, Shop ‘N Save store in Baltimore. On
September 13, 2001, Chance and another associate recruited by Gross
Jr. robbed the store of approximately $2,350. Gross Jr. remained
in the getaway car during the robbery. Both Gross and Chance were
armed with 9mm firearms.
II.
Following trial, appellants were convicted of numerous charges
related to their racketeering activities. James Gross Sr. was
convicted of racketeering in violation of 18 U.S.C. § 1962(c);
conspiracy to commit racketeering in violation of 18 U.S.C. §
1962(d); conspiracy to distribute and possession with the intent to
distribute narcotics in violation of 21 U.S.C. § 846; malicious
destruction of a building and vehicle by means of fire in violation
of 18 U.S.C. § 844(I); use of fire to commit a felony in violation
of 18 U.S.C. § 844(h)(1); two counts of witness tampering in
violation of 18 U.S.C. § 1512(b)(1); and mail fraud in violation of
18 U.S.C. § 1341. Gross Sr. was sentenced to a total term of 600
months in prison.
James Gross Jr. was convicted of racketeering in violation of
18 U.S.C. § 1962(c); conspiracy to commit racketeering in violation
of 18 U.S.C. § 1962(d); conspiracy to distribute and possession
with the intent to distribute narcotics in violation of 21 U.S.C.
§ 846; three counts of violent crimes in aid of racketeering in
10
violation of 18 U.S.C. § 1959(a)(3) & (5); two counts of malicious
destruction of a building and vehicle by means of fire in violation
of 18 U.S.C. § 844(I); use of fire to commit a felony in violation
of 18 U.S.C. § 844(h)(1); two counts of witness tampering in
violation of 18 U.S.C. § 1512(b)(1); mail fraud in violation of 18
U.S.C. § 1341; and possession of heroin with the intent to
distribute in violation of 21 U.S.C. § 841(a)(1). Gross Jr. was
sentenced to a total of 412 months in prison.
James Feaster was convicted of conspiracy to commit
racketeering in violation of 18 U.S.C. § 1962(d) and mail fraud in
violation of 18 U.S.C. § 1341. Feaster was sentenced to a total of
30 months in prison.
James Wilkes was convicted of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and committing a
violent crime in aid of racketeering in violation of 18 U.S.C. §
1959(a)(3). Wilkes was sentenced to a total of 300 months in
prison.
Ronald Eddie was convicted of racketeering in violation of 18
U.S.C. § 1962(d); conspiracy to commit racketeering in violation of
18 U.S.C. § 1962(d); conspiracy to distribute and possession with
intent to distribute narcotics in violation of 21 U.S.C. § 846; and
malicious destruction of a building and vehicle by means of fire in
violation of 18 U.S.C. § 844(I). Eddie was sentenced to a total of
262 months in prison.
11
The appellants timely filed this appeal challenging various
aspects of their convictions and sentences.
III.
Appellants make numerous claims of error with respect to their
convictions, which we discuss in turn.2
A.
Appellants argue that the district court erred by failing to
conduct an in camera review of certain discovery materials that
were requested from, but not produced by, the government with
respect to government witness Sean Chance. Appellants argue that
the following list of documents should have been reviewed by the
court to determine whether they were discoverable under the Jencks
Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963) or
Giglio v. U.S., 405 U.S. 150 (1972):
(1) notes, summaries and other materials related to the
government’s interviews with witness Sean Chance;
(2) un-redacted grand jury testimony from the Bureau of
Alcohol, Tobacco and Firearms agent Brian Klas; and
2
James Wilkes and James Gross, Sr., appearing pro se, filed
supplemental briefs challenging other aspects of the proceedings
below. Having carefully reviewed their arguments, we find no
reversible error. In addition, we have reviewed Ronald Eddie’s
argument regarding the sufficiency of the allegations in the
indictment and find no reversible error.
12
(3) Agent Klas’ investigative reports.
Appellants’ sought this information in pursuit of ammunition with
which to attack Chance’s credibility on cross-examination. After
reviewing the record, we find no error in the district court’s
decision not to conduct an in camera review of the requested
materials.
1. Jencks Act Claims
The Jencks Act requires the government to produce statements
made by a witness that relate to the subject matter of his or her
direct examination. 18 U.S.C. § 3500(b). Under the Jencks Act, a
“statement” is defined as an oral or written statement “signed or
otherwise adopted or approved” by the witness, a recording or
transcription that is a “substantially verbatim recital of an oral
statement made by [the] witness and recorded contemporaneously with
the making of such statement,” or testimony made before a grand
jury. 18 U.S.C. § 3500(e)(1)-(3). The Act does not cover an
investigator’s notes of an interview with a witness unless the
witness reviews and approves such notes. United States v.
Roseboro, 87 F.3d 642, 645 (4th Cir. 1996). We review the denial
of a request for materials under the Jencks Act for clear error.
Id.Where the government contests disclosure of material, “the
Jencks Act vests trial judges with the affirmative duty of
administering the Act by deciding whether government documents
13
relating to witness testimony are to be safeguarded or produced.”
Id. In order to justify an in camera review of contested material,
the defendant must
first make a sufficiently specific request and provide
some indication that the witness gave a pretrial
statement . . . generally related to the witness' direct
testimony. The defendant’s showing need not be great,
but it must be more than a mere automatic demand for
government witness' statements. An inadequate foundation
may be grounds alone on which the court can properly deny
further inquiry.
Id. (emphasis added).
The district court’s decision not to conduct an in camera
review of the unredacted grand jury transcripts of Agent Klas and
Agent Klas’ investigative reports in relation to Sean Chance’s
testimony was not error because the appellants failed to make a
“sufficiently specific request” for such materials. Appellants
have not identified any specific request in the record identifying
the information sought and providing some indication that it
related to Chance’s direct testimony. A general request for “all
materials covered by the Jencks Act” fails to lay a sufficient
foundation to invoke the district court’s duty under the Act; the
initial responsibility to identify lies with the defendant, not
with the court.
The dissent argues that the district court’s decision not to
conduct an in camera review of the unredacted grand jury
transcripts in relation to Agent Klas’ testimony was error. This
is not the case, however, because appellants failed to make a
14
timely request therefor.3 The law in this circuit is that “[t]o
invoke a court's duty under the [Jencks] Act, a defendant must,
after the direct testimony of a government witness, first make a
sufficiently specific request and provide some indication that the
witness gave a pretrial statement to a government agent generally
related to the witness' direct testimony.” Roseboro, 87 F.3d at
645 (emphasis added). Indeed, the text of the Jencks Act limits
its own operation, including the mandate for in camera review under
subsection (c), to the period of time after a witness has testified
on direct examination. 18 U.S.C. §§ 3500(a) (“no statement or
report . . . which was made by a Government witness . . . shall be
the subject of subpoena, discovery, or inspection until said
witness has testified on direct examination in the trial of the
case.”), (c). Although the government can voluntarily agree to
disclose Jencks Act material prior to the time when the act would
require it do so, the act itself contains no requirement and, in
fact, provides no legal basis either to compel production or order
in camera inspection of contested materials prior to a witness’s
direct examination.
Appellants made their only specific request for the redacted
portions of the grand jury transcripts on January 16, 2003, several
3
In addressing this issue, we give appellants the benefit of
the doubt with respect to whether they have waived it. Although
one could construe appellants’ brief to raise this issue, it is
neither clearly presented nor fully argued therein.
15
weeks before Agent Klas’ direct examination on February 6, 2003.
J.A. 538-39. The district court denied this request on January 21,
2003. J.A. 555. There is nothing in the record to suggest that
appellants renewed this request or made a new Jencks Act request
for the unredacted transcripts after Agent Klas’ testimony. Had
appellants made a such request after Agent Klas testified and laid
the requisite foundation for an in camera inspection at that time,
we might reach a different conclusion today. However, the record
before us does not demonstrate that appellants made a timely
request that was sufficient to invoke the district court’s duties
under the Jencks Act.
Further, the district court’s decision not to conduct an in
camera review of notes, summaries and other materials related to
the government’s interviews with witness Sean Chance was not error
because the appellants failed to identify any representations made
by Chance that would constitute a “statement” for purposes of the
Jencks Act. Appellants point to nothing in the record to indicate
that Chance signed, adopted or approved any statements that he made
to the government. Nor do appellants point to evidence that the
government made any recording or transcription of a statement by
Chance. Because the appellants failed to lay a sufficient
foundation for the investigative materials related to Chance to
invoke the district court’s duty under the act, the district
16
court’s decision not review the Chance materials in camera did not
prejudice them.
2. Brady and Giglio Claims
In Brady, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87. “[E]vidence is
‘material’ under Brady, and the failure to disclose it justifies
setting aside a conviction, only where there exists a ‘reasonable
probability’ that had the evidence been disclosed the result at
trial would have been different.” Wood v. Bartholomew, 516 U.S. 1,
5 (1995) (citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)).
In Giglio, the Supreme Court held that, in cases where the
“reliability of a given witness may well be determinative of guilt
or innocence, nondisclosure of evidence affecting credibility” of
that witness is grounds for reversal. Giglio, 405 U.S. at 154(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)) (internal
quotations omitted). However, reversal is warranted only if the
non-disclosure or suppression “‘could . . . in any reasonable
likelihood have affected the judgment of the jury.’” Id. (quoting
Napue, 360 U.S. at 271). The appellants have failed to establish
either Brady or Giglio error because they have not identified any
evidence related to their request for materials concerning Chance
17
that – if produced – would warrant reversal under either standard.
Chance was, at best, a peripheral player in the Gross/Colvin
Enterprise whose testimony will not bear the weight appellants
attempt to assign it.
B.
Gross Jr. argues that the district court erred in denying his
post-trial motion for judgment of acquittal on the charge of using
fire to commit a felony in violation of 18 U.S.C. § 844(h)(1)
because the government failed to indict him for or convict him of
the predicate offense of mail fraud in violation of 18 U.S.C. §
1341. We review the denial of a motion for judgment of acquittal
de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005).
Under § 844(h)(1), an individual “who uses fire or an
explosive to commit any felony which may be prosecuted in a court
of the United States . . . shall, in addition to the punishment
provided for such felony, be sentenced to imprisonment for 10
years.” 18 U.S.C. § 844(h)(1). Gross Jr. argues that this statute
does not create a stand-alone cause of action, but, rather,
requires the government to indict and obtain a conviction for
whatever predicate felony involved the use of fire or explosive.
Gross Jr. contends that because he was neither indicted for nor
convicted of mail fraud, the government failed to prove an
18
essential element of the § 844(h)(1) charge. We find Gross Jr.’s
argument unpersuasive.
We have not confronted this issue before in the context of a
§ 844(h)(1) charge, but have addressed a similar argument in the
context of a charge brought under 18 U.S.C. § 924(c)(1). See
United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). Under
§ 924(c)(1), “any person who, during and in relation to any crime
of violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or carries
a firearm . . . shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime,” be subject to
additional penalties. 18 U.S.C. § 924(c)(1). We have recognized
that “18 U.S.C. § 844(h)(1) is almost identical to § 924(c)(1), it
differs only in the fact that the defendant must use fire or
explosive with the underlying crime.” United States v. Barnette,
211 F.3d 803, 813 (4th Cir. 2000).
In Crump, we held that a conviction for violation of §
924(c)(1) “does not depend on [the defendant] being convicted--
either previously or contemporaneously--of the predicate offense,
as long as all of the elements of that offense are proved and found
beyond a reasonable doubt.” Crump, 120 F.3d at 466. Based on the
similarities between § 844(h)(1) and § 924(c)(1), and our treatment
of § 924(c)(1) in Crump, we conclude that the government did not
need to indict Gross Jr. for or convict him of the predicate
19
offense in order to obtain a conviction for violation of §
844(h)(1). See United States v. Nguyen, 28 F.3d 477, 481 (5th Cir.
1994) (upholding § 844(h)(1) conviction based on strength of
evidence of predicate offense where defendant was contemporaneously
acquitted of predicate offense). The government did, however, need
to prove each element of the predicate offense to the jury beyond
a reasonable doubt in order to convict Gross Jr. under § 844(h)(1).
Although Gross Jr. did not challenge the sufficiency of the
evidence on this count, our independent review of the record
demonstrates that there was sufficient evidence to support the
jury’s verdict in this regard. Accordingly, we find no error in
the district court’s denial of Gross Jr.’s motion for judgment of
acquittal on count 10.
C.
Appellant Feaster argues that the district court erred in
denying his motion for severance based on the possible spillover
effect of the evidence admitted against his co-defendants. Feaster
argues that he was a minor player in the racketeering enterprise
who was not involved in the heinous acts of the co-defendants, and
that the evidence admitted against them prejudiced him.
We review a district court’s denial of a motion for severance
for abuse of discretion. United States v. Ford, 88 F.3d 1350, 1361
(4th Cir. 1996). A “party moving for severance must establish that
20
prejudice would result from a joint trial.” United States v.
Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992).
We find Feaster’s argument unpersuasive. “[D]efendants who
have been charged in the same conspiracy indictment should
ordinarily be tried together.” Id. Because Feaster was involved
in the same overall conspiracy as his co-defendants, it was proper
for all of the co-conspirators to be tried together. The mere fact
that evidence against one defendant may be stronger than other
defendants does not warrant severance. Id. Each of the charges
against Feaster arose out of the same racketeering enterprise as
those of his co-defendants. While Feaster was not alleged to have
engaged in some of the more egregious acts perpetrated by his co-
defendants, that fact alone does not justify severing his trial.
Further, Feaster is unable to meet his burden of showing that he
was predjudiced by the joinder. The propriety of the district
court’s denial of the severance motion is confirmed by the fact
that the jury convicted Feaster on one count of conspiracy to
commit racketeering and one count of mail fraud, but acquitted him
of racketeering and two counts of money laundering, thus
demonstrating its ability to segregate the facts involving Feaster
from those involving his co-defendants.
21
D.
We next address the claims raised by the Appellants regarding
the district court’s denial of their various motions for judgment
of acquittal based on insufficiency of the evidence. We review a
district court’s denial of a motion for judgment of acquittal de
novo. Alerre, 430 F.3d at 693. A “jury's verdict must be upheld
on appeal if there is substantial evidence in the record to support
it.” United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999).
In determining whether there is substantial evidence in the record,
“we view the evidence in the light most favorable to the government
and inquire whether there is evidence that a ‘reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant's guilt beyond a reasonable doubt.’” Id.(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc)). We now turn to an analysis of each claim.
1. Count 2 against James Feaster (Conspiracy to Commit
Racketeering)
Feaster argues that there was insufficient evidence to support
his conviction for conspiracy to commit racketeering under 18
U.S.C. § 1962(d). Feaster contends that the government did not
present sufficient evidence to demonstrate that he agreed to engage
in a pattern of racketeering activity. We find no merit to this
argument.
To prove a conspiracy charge under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), the government must
22
establish that a defendant “‘objectively manifested, through words
or actions, an agreement to participate in the conduct of the
affairs of the enterprise through the commission of two or more
predicate crimes.’” United States v. Starrett, 55 F.3d 1525, 1543
(11th Cir. 1995) (quoting United States v. Russo, 796 F.2d 1443,
1455 (11th Cir. 1986)). A defendant need only agree to participate
in the overall enterprise; he need not evince an intent to
participate in each individual predicate act. Id.In considering the unique evidentiary nature of conspiracy
charges, we have recognized that:
[b]y its very nature, a conspiracy is clandestine and
covert, thereby frequently resulting in little direct
evidence of such an agreement. Hence, a conspiracy
generally is proved by circumstantial evidence and the
context in which the circumstantial evidence is adduced.
Indeed, a conspiracy may be proved wholly by
circumstantial evidence.
Burgos, 94 F.3d at 857-58 (internal citations omitted). Here, the
government presented sufficient circumstantial evidence,
particularly when viewed in the light most favorable to it, from
which the jury could infer Feaster’s entrance into the conspiracy.
Specifically, the government put on evidence that (1) Feaster
became involved in Strawberry’s 5000 to facilitate circumventing
the Liquor Board’s rules on felons obtaining liquor licenses; (2)
Feaster was directly involved in the corporate machinations
surrounding Strawberry’s 5000; (3) Feaster was paid a salary by the
Gross-Colvin Organization and helped operate the nightclub, which
23
was a front for the organization’s illicit activities; (4) Feaster
was present both before and directly after the fire at the
nightclub, and knew that Colvin was lying to him regarding the
removal of stereo equipment from the club prior to the fire; (5)
Feaster filed an insurance claim after the fire; and (6) Feaster
received money from the insurance proceeds for the fire. This
evidence is sufficient to support the jury’s verdict against
Feaster on Count 2.
2. Count 12 against James Feaster (Mail Fraud)
Feaster next argues that there was insufficient evidence to
convict him of mail fraud because the government failed to prove
that he had a specific intent to defraud the insurance company when
he mailed the insurance claim form for the fire at Strawberry’s
5000. This argument is similarly unavailing. In order to prove a
claim for mail fraud, the government must establish a “specific
intent to defraud, which ‘may be inferred from the totality of the
circumstances and need not be proven by direct evidence.’” United
States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001) (quoting United
States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993)). At trial, the
government presented evidence that (1) Strawberry’s 5000 was burned
in order to recover insurance proceeds; (2) Feaster was aware that
stereo equipment had been removed from the nightclub prior to the
fire; (3) Feaster confronted Colvin about the missing equipment on
the day of the fire and believed that Feaster lied to him about its
24
removal; (4) Feaster filed an insurance claim by mail two days
after the fire; (5) Colvin later told Feaster that Gross Jr.
deliberately set the fire; and (6) Feaster partly shared in the
insurance proceeds. This evidence is sufficient particularly when
viewed in a light most favorable to the government for the jury to
infer that Feaster had a specific intent to defraud the insurance
company when he mailed the claim form for the fire.
3. Count 17 against James Wilkes (Violent Crimes in Aid of
Racketeering - the assault on Louis Colvin)
Although Wilkes concedes that there was sufficient evidence
for the jury to conclude that he assaulted Colvin, he argues that
the evidence was not sufficient to establish that he committed this
assault in connection with the racketeering enterprise. We are
unpersuaded by this argument.
In order to establish that Wilkes committed a violent crime in
aid of a racketeering enterprise, the government had to prove,
inter alia, that Wilkes committed a violent crime “for the purpose
of gaining entrance to or maintaining or increasing position in an
enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a).
Particularly when viewed in the light most favorable to the
government, there was sufficient evidence presented at trial to
meet this burden.
The government presented evidence of the deterioration in the
relationship between Colvin and the Grosses. The evidence
reflected that, as a consequence, Gross Jr. took steps to harm
25
Colvin, and sought Wilkes’ assistance in doing so. Wilkes was
already involved with Gross Jr. in the drug trafficking activities
of the enterprise. Sean Chance testified that Gross Jr. stored
guns, drugs and drug paraphernalia in Wilkes’ apartment. Chance
further testified that the day before Wilkes was arrested for
possession of a firearm, the two men rode around with Gross Jr.
trying to find Colvin because Gross Jr. wanted to torture and kill
him. The gun in Wilkes’ possession on that day was subsequently
recovered from his apartment along with two of Gross Jr.’s scales.
On another occasion, Wilkes attempted to lure Colvin away from his
bodyguards. Finally, on September 24, 2001, Wilkes shot Colvin.
There is ample evidence from which the jury could infer that Wilkes
committed that assault for the purpose of maintaining his position
in the enterprise.
4. Counts 1 and 2 against James Gross Jr. (Racketeering and
Conspiracy to Commit Racketeering)
Gross Jr. argues that there was insufficient evidence to
support his conviction for racketeering and conspiracy to commit
racketeering. He contends that the government failed to
demonstrate his participation in three of the predicate RICO acts
underlying his convictions: the Stop, Shop and Save robbery
(racketeering act 3); the assault on Peter Williams (racketeering
act 13) and the assault on Louis Colvin (racketeering act 14). In
order to prove a charge of racketeering under 18 U.S.C. § 1962(c)
or conspiracy to commit racketeering under 18 U.S.C. § 1962(d), the
26
government must establish, inter alia, that the defendant either
engaged in or conspired to engage in at least two racketeering
acts. See 18 U.S.C. § 1961(5) (defining “pattern of racketeering
activity” required under 18 U.S.C. § 1962(c) as requiring “at least
two acts of racketeering activity”); United States v. Tillett, 763
F.2d 628, 632 (4th Cir. 1985) (requiring proof of conspiracy to
engage in two predicate RICO acts for conviction under 18 U.S.C. §
1962(d)).
Gross Jr. was found guilty of ten predicate RICO acts by the
jury. Even accepting his argument regarding the insufficiency of
the evidence to support his conviction on the three predicate acts
he challenges on appeal, Gross Jr. does not challenge the seven
other predicate acts proved by the government. We therefore find
Gross Jr.’s argument unpersuasive on this ground alone.
Gross Jr. next argues that there was insufficient evidence to
support the enterprise element of the RICO charges against him.4
In order to prove a RICO charge, the government must prove that the
organization was a RICO enterprise with the basic elements of
“continuity, unity, shared purpose and identifiable structure.”
4
Gross Jr. also argues that the pattern element of the RICO
statute is unconstitutionally vague as applied to the facts of this
case because it did not provide him sufficient notice that the
activities alleged in the indictment constituted a pattern of
racketeering activity that exposed him to a RICO prosecution. We
have previously rejected such as-applied challenges, United States
v. Bennett, 984 F.2d 597, 606-07 (4th Cir. 1993), and do so here on
the facts of this case.
27
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (quoting
United States v. Griffin, 660 F.2d 996, 1000 (4th Cir. 1981)).
Gross Jr. argues that the government failed to provide sufficient
evidence to establish these components. We find no merit to his
arguments. The evidence establishes that there was continuity in
the organization in that it was headed by Gross Sr. and Colvin --
and later by Gross Sr. alone -- with Gross Jr. and various other
individuals as active members over a period of at least four years.
There was unity in the organization in that its activities were
coordinated and operated through the various businesses created by
Gross Sr., Colvin and the other members. There was a shared
purpose of making money by illicit means, including drug dealing
and fraud. There was an identifiable structure in that the
organization was headed by Gross Sr. and Colvin -- and later by
Gross Sr. alone -- with Gross Jr. and various other individuals as
the street level operatives. Based on these facts, we find that
the government presented sufficient evidence to support the
enterprise element of the racketeering charges against Gross Jr.
Although Gross Jr. also purports to challenge his conviction
for conspiracy to commit racketeering based on the sufficiency of
the evidence, he failed to lodge any specific argument against the
conspiracy charge independent of his general arguments against his
substantive racketeering conviction. Regardless, we find that
there was sufficient evidence to support his conviction for
28
conspiracy to commit racketeering. “To establish a RICO conspiracy
violation . . ., the government must prove that the defendant[]
‘objectively manifested, through words or actions, an agreement to
participate in the conduct of the affairs of the enterprise through
the commission of two or more predicate crimes.’” Starrett, 55
F.3d at 1543 (quoting Russo, 796 F.2d at 1455). The government
presented extensive evidence of Gross Jr.’s participation in the
illicit activities of the Gross-Colvin Organization and, after the
falling out with Colvin, the Gross Enterprise. This evidence was
sufficient to support Gross Jr.’s RICO conspiracy conviction.
5. Count 17 against James Gross Jr. (violent crime in aid of
racketeering, aiding and abetting - the assault on Louis
Colvin)
Gross Jr. next argues that there was insufficient evidence to
convict him of aiding and abetting a violent crime in aid of
racketeering (“VICAR”) for the assault on Louis Colvin because the
government failed to prove that he took any action with the
specific intent to facilitate the assault. This argument is
unavailing.
Proof of specific intent to facilitate a crime is a necessary
element of a charge of aiding and abetting. See Burgos, 94 F.3d at
895 (Michael, J. dissenting in part and concurring in part). There
is sufficient evidence here particularly when viewed in the light
most favorable to the government from which the jury could infer
that Gross Jr. had the specific intent to facilitate the assault on
29
Colvin in aid of the racketeering enterprise. The government
presented evidence that (1) Colvin was an integral member of his
father’s racketeering enterprise; (2) Colvin had a significant and
contentious falling out with Gross Sr. and Gross Jr. over the
racketeering enterprise; (3) Gross Jr. sought out Colvin several
weeks before the assault in order to kidnap and torture him; (4)
Gross Jr. pointed a gun at Colvin’s head on another occasion; and
(5) Gross Jr. threatened Colvin on another occasion. This evidence
is sufficient to support Gross Jr.’s conviction for aiding and
abetting a violent crime in aid of racketeering.
6. Count 4 against James Gross Jr. (violent crimes in aid of
racketeering - the assault on Peter Williams)
Gross Jr. argues that there was insufficient evidence to
convict him of a violent crime in aid of racketeering for the
assault on Peter Williams. In August 2000, a fight broke out in
Strawberry’s 5000 that involved Peter Williams (“Williams”), an
individual unrelated to the Gross-Colvin Organization’s
racketeering activities, and Colvin. Gross Sr. became involved in
the melee and was struck over the head with a metal stanchion by
Williams. Gross Sr.’s injury required hospitalization. While at
the hospital with his father, Gross Jr. talked with Colvin and
Chance about exacting revenge against the man who had assaulted his
father. Chance testified that Gross Jr. indicated that he wanted
to handle revenge on Williams “[b]ecause it was personal. It was
his father.” J.A. 301.
30
In November 2000, Williams was shot while driving his car. A
passenger in Williams’ car testified to seeing a silver Lexus, the
type of car driven by Gross Jr., following them just prior to the
shooting. Chance testified that during the week prior to the
shooting, he had driven around Baltimore with Gross Jr. and Michael
Randolph (“Randolph”), another individual involved in the
racketeering enterprise, looking for Williams to exact revenge for
the assault on Gross Sr. Chance further testified that Gross Jr.
and Randolph came to his house after the shooting and stated that
they had gotten “the guy.” Gross Jr. and Randolph then described
to Chance how the shooting occurred.
Gross Jr. subsequently directed Chance and Randolph to destroy
the silver Lexus he had been driving when the Williams shooting
occurred. When Chance and Randolph complied, Gross Jr. called the
police to report the fire and later filed an insurance claim for
the Lexus.
In order to prove the VICAR claim for the assault on Williams,
the government must show, inter alia, that Gross Jr. engaged in a
violent act “for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering
activity.” 18 U.S.C. § 1959(a). The government need not show that
“maintaining or increasing position in the RICO enterprise was the
defendant's sole or principal motive.” United States v.
Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). Rather, this element
31
is satisfied “if the jury could properly infer that the defendant
committed his violent crime because he knew it was expected of him
by reason of his membership in the enterprise or that he committed
it in furtherance of that membership.” Id. Gross Jr. argues that
the government cannot satisfy this element because he undertook the
assault on Peter Williams for personal reasons, rather than reasons
related to the racketeering conspiracy. We find this argument
unpersuasive.
Based on the facts surrounding the shooting of Williams, the
government presented sufficient evidence, particularly when viewed
in a light most favorable to it, to establish that Gross Jr.’s
assault on Williams was motivated at least in part by a desire to
maintain or increase his position within the racketeering
enterprise. The shooting was in retaliation for an assault on one
of the leaders of the enterprise that occurred at the hub of the
its illicit activity. Further, it is significant that Gross Jr.
enlisted members of the enterprise to assist him in locating and
assaulting Williams, and then in covering their tracks by
destroying evidence. The evidence reflects that one of Gross Jr.’s
primary roles in the enterprise was to serve as an enforcer. His
failure to avenge a physical assault on his father would assuredly
have undermined his credibility in this regard. This evidence
supports the jury’s verdict because it establishes a sufficient
connection between the racketeering enterprise and the assault to
32
support the inference that Gross Jr. undertook the assault on
Williams at least in part to aid the racketeering enterprise.
E.
Gross Sr. argues that the district court erred by denying his
motion to dismiss the indictment against him based on a plea
agreement that he entered into with the United States and the State
of Maryland in July 2000.
On February 8, 1999, Gross Sr. sold heroin to a confidential
informant and was subsequently arrested. In addition to violating
state drug laws, Gross Sr.’s sale of heroin also violated the terms
of his federal supervised release for drug violations in the early
1990s. Following his arrest, Gross Sr. entered into a plea
agreement with both state and federal officials. Under its terms,
the government agreed not to prosecute Gross Sr. for any conduct
other than the supervised release violations of which it was aware
that occurred prior to the date of the agreement. J.A. 72 (Plea
Agreement ¶ 11). In addition, Gross Sr. agreed that he would “not
commit any offense in violation of federal, state or local law
between the date of this agreement and his sentencing in this
case.” J.A. 70 (Plea Agreement ¶ 1(e)). In January 2001, Gross
Sr. was arrested for raping a twelve year old girl at Strawberry’s
5000 and pleaded guilty. As a result, the government nullified the
plea agreement and later charged Gross Sr. with the various
33
racketeering-related charges in this case. Gross Sr. sought to
have all charges against him dismissed based on the plea agreement
by arguing that, under it, the government agreed not to prosecute
him for any conduct prior to the date of the agreement, and the
rape constitutes such conduct. The district court denied his
motion, and Gross Sr. now appeals that denial. We find Gross Sr.’s
arguments unpersuasive.
Gross Sr. first argues that the state rape charge did not
constitute a breach of the plea agreement because it was not
material to the subject matter of the agreement. This argument
lacks merit because, under the agreement, Gross Sr. agreed not to
commit “any crime,” not just those that were material to the
subject matter of the agreement.
Gross Sr. next argues that Paragraphs 10 and 15 are ambiguous
with respect to the government’s remedies in the event he breached
the plea agreement. We find no merit to this argument. Paragraph
10 of the agreement, in relevant part, provides that “if the terms
of this agreement are not met by your client, he agrees to serve a
term of imprisonment for two years for [his supervised release]
violations.” J.A. 71-72 (Plea Agreement ¶ 10). Paragraph 15
provides, in relevant part, that “if [Gross Sr.] should commit any
crime . . ., then the State or [U.S. Attorneys Office] will be free
. . . to charge him with other offenses, if any, that he has
committed.” J.A. 73 (Plea Agreement ¶ 15)(emphasis added). We
34
find no ambiguity or conflict between these two provisions because
each sets out a separate consequence for a breach of the agreement
by Gross Sr. Paragraph 10 specifies the consequence in relation to
Gross Sr.’s supervised release violations (two years imprisonment),
and Paragraph 15 specifies the general consequence for breach
(complete release of the governments’ obligations). Accordingly,
we find no error in the district court’s denial of Gross Sr.’s
motion to dismiss.
F.
Wilkes argues that the district court erred by denying his
motion to suppress a gun seized during a warrantless search of
Yvonne Shorts’ apartment where he resided at the time and
statements that he made during the course of and directly after
that seizure. Wilkes claims that the search violated the Fourth
Amendment because the Baltimore City Police officers entered
Shorts’ apartment without a warrant prior to receiving consent to
enter. Wilkes seeks to have all evidence -- both physical evidence
and statements made by him during the search -- obtained through
the search suppressed based on the illegality of the search. We
find no merit to Wilkes’ arguments.
In reviewing a district court’s ruling on a motion to
suppress, we review findings of fact for clear error and the legal
35
determination of whether such facts satisfy the Fourth Amendment de
novo. United States v. Gwinn, 219 F.3d 326, 332 (4th Cir. 2000).
Following his arrest, Sean Chance provided information to the
Baltimore City Police that James Wilkes was in possession of a
firearm at 921 North Carrollton Street in Baltimore. On the basis
of that information, Baltimore City Police conducted a warrantless
search of that location on September 7, 2001. At the time of the
search, Wilkes resided at the apartment, but it was leased by
Yvonne Shorts, Wilkes’ girlfriend. When the officers arrived at
921 North Carrollton Street, they found bags and boxes lying on the
front stoop of the building and going up the stairs, suggestive of
a tenant or tenants moving out.
The stairwell leading to Shorts’ apartment terminated directly
at the door to the apartment such that there was no vestibule,
hallway or foyer between the end of the stairs and the beginning of
the doorway. The stairwell was so narrow that the officers had to
proceed single file, avoiding the bags and boxes on the stairs as
they ascended. The stairs simply ended at the door to the
apartment, with no landing.
When the officers reached the threshold of the apartment, the
door to the apartment was wide open. Because of the layout, even
with the door standing open, the officers stood single-file on the
narrow stairs and their view of the activities within the apartment
was limited and they were necessarily vulnerable to aggression.
36
The officers knocked on the open door and identified themselves.
Again, because of the way in which the entrance was configured, the
officers had to cross the threshold of the apartment in order to
knock on the door and identify themselves.
After the officers knocked on the door, Yvonne Shorts and
James Wilkes appeared from another door in the apartment, and both
acknowledged that it was Shorts’ apartment. Officer James Knorlein
then asked Shorts if he could speak with her in private. She
consented and led Officer Knorlein to the kitchen, while several
other officers remained with Wilkes in the living room. Shorts
heard the officers ask Wilkes to take a seat on the couch.
Once in the kitchen with Officer Knorlein, Shorts stated that
she had seen both guns and drugs in the apartment before. She also
told Officer Knorlein that she saw Wilkes throw a handgun into a
clothes hamper in the bedroom when they heard the officers
approaching her apartment. Shorts was visibly upset and stated
that she was scared of Wilkes. Shorts then suggested as a ruse
that Officer Knorlein obtain her cigarettes from the bedroom, to
provide him with a reason to enter the room and observe the gun
without revealing her complicity to Wilkes.
At Shorts’ suggestion, Officer Knorlein then entered the
bedroom ostensibly to retrieve the cigarettes. While doing so, he
observed a .45 caliber semi-automatic handgun sitting on top of the
clothes hamper. Officer Knorlein re-entered the living room and
37
alerted the officers watching Wilkes that he had found a handgun.
Wilkes was placed under arrest, handcuffed and told to sit back
down on the couch.
Officer Knorlein then went back to the kitchen with Shorts and
asked her whether she would sign a consent to search form. She
agreed to do so and signed the consent form. The officers searched
the residence and found ammunition and two scales that later tested
positive for cocaine and heroin residue. At the conclusion of the
search, Wilkes was transported to a police station for processing.
After the officers entered Shorts’ apartment, they asked
Wilkes whether his nickname was “Turkey.” They asked Wilkes no
other questions. However, Wilkes talked throughout the encounter
and made a number of incriminating statements. The district court
specifically found the officers’ testimony about these events to be
credible.
Wilkes argues that the officers’ search of Shorts’ apartment
was unconstitutional because they crossed the threshold of the
apartment without a warrant and, therefore, all of the fruits of
that search should have been suppressed. We do not find this
argument persuasive.
The Fourth Amendment precludes a warrantless entry or search
of a home except where exigent circumstances are present. Payton
v. New York, 445 U.S. 573, 590 (1980). “The existence of exigent
circumstances must be determined as of the moment of the
38
warrantless entry of the officers onto the premises of appellee.”
United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991). “Courts
should consider ‘[t]he appearance of the scene of the search in the
circumstances presented as it would appear to reasonable and
prudent men standing in the shoes of the officers.’” Id. (quoting
United States v. Wysocki, 457 F.2d 1155, 1160 (5th Cir. 1972)).
The circumstances here justified the officers’ breach of the
apartment’s threshold in order to announce their presence.
When the officers approached Shorts’ apartment, the door was
wide open. Based on the physical layout of the approach to the
threshold of and the actual entrance to the apartment, the officers
had no choice but to cross the threshold in order to knock on the
open door and announce their presence. The evidence indicates that
the officers did not move significantly beyond the entryway until
Shorts provided consent. Accordingly, we find that the exigencies
created by the physical layout of the building in which Shorts’
apartment was located were sufficient to justify the minimal breach
of the threshold of her apartment. In any event, even if exigent
circumstances did not exist and the officers’ initial entry into
Shorts’ apartment was unlawful, we agree with the dissent that the
consent that Shorts later provided purged the taint of any unlawful
entry. We find no Fourth Amendment error in the officers’ search
of her apartment based on the valid consent she provided. See
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
39
Wilkes also argues that the district court erred by failing to
suppress statements that he made during the time the officers were
present in Shorts’ apartment, both before and after he was placed
under arrest. Wilkes essentially argues that any statements
obtained from him were fruits of an illegal search of Shorts’
apartment and should have been suppressed under the Fourth
Amendment. Wilkes does not assert that the statements should have
been suppressed under the Fifth Amendment. Because we find no
Fourth Amendment violation in either the officers’ entry into
Shorts’ apartment or subsequent search thereof, any statements that
Wilkes voluntarily made while the officers were present in the
apartment were not the fruits of an illegal search. We therefore
find no error in the district court’s denial of Wilkes’ motion to
suppress any such statements.
IV.
Having determined that appellants’ convictions must be upheld,
we turn to a consideration of their sentences. Appellants argue
that their sentences should be vacated and their cases remanded for
re-sentencing based on United States v. Booker, 543 U.S. 220(2005). In Booker, the Supreme Court held that an application of
the Sentencing Guidelines in which the district court enhanced the
defendant’s sentence based on facts it found during the sentencing
proceeding violated the Sixth Amendment. Id. at 244. In the wake
40
of the decision we have come to recognize two types of Booker
error: constitutional and statutory. Rodriguez, 433 F.3d 411, 414
(4th Cir. 2006). Constitutional Booker error arises where a
district court enhances a defendant’s sentence “beyond the maximum
authorized by facts found by a jury beyond a reasonable doubt or
admitted by the defendant.” Id. Statutory Booker error arises
where a district court treats the Guidelines as mandatory rather
than advisory. Id. Here the appellants assert that their
sentences are infected with constitutional Booker error, while the
government asserts that only statutory Booker error exists.
Therefore, we must consider whether the appellants’ sentences must
be vacated and remanded under either standard.
Because the appellants raise this issue for the first time on
appeal, we review for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). “A defendant seeking
to overturn a ruling under the plain-error test bears the burden of
showing (1) that an error occurred, (2) that it was plain, and (3)
that the error affected his substantial rights.” Rodriguez, 433
F.3d at 415. In Hughes, we held that the imposition of a sentence
that violated the Sixth Amendment under Booker constituted plain
error. See United States v. Hughes, 401 F.3d 540, 555-56 (4th Cir.
2005) (holding that district court plainly erred “by imposing a
sentence exceeding the maximum authorized by the jury findings
alone” under Booker).
41
We now turn to an examination of each appellant’s challenge to
his sentence.
1. James Gross Jr.
Gross Jr. argues that his sentence violates the Sixth
Amendment under Booker because it was improperly increased based on
numerous facts -- including the quantity of drugs involved in
counts 3 and 13 -- that were neither found by the jury nor admitted
by him. Gross Jr. was convicted and sentenced on thirteen separate
counts in the superseding indictment. He was sentenced to 292
months on counts 1, 2, 3 & 13; 120 months on counts 4, 11 & 14; 240
months on counts 5, 6, 9 & 17 and 60 months on count 7. The terms
of imprisonment for these counts were to run concurrently. In
addition, Gross Jr. was sentenced to 120 months on count 10 to run
consecutively to all other counts. For purposes of our Booker
analysis, we need look no further than Gross Jr.’s sentence on
counts 1, 2, 3 and 13, which each produced the longest term of
imprisonment, to determine the need to vacate and remand his
sentence.
Gross Jr.’s sentences for counts 1 and 2, the racketeering and
conspiracy to commit racketeering charges, were calculated by using
“the offense level applicable to the underlying racketeering
activity.” U.S.S.G. § 2E1.1(a)(2). The presentence report, which
the district court largely adopted, calculated the offense level
for the underlying racketeering activity under § 3D1.2(d), which
42
states that “[a]ll counts involving substantially the same harm
shall be grouped together into a single Group.” U.S.S.G. §
3D1.2(d). When sentencing under this grouping provision, the
offense level for the grouped charges is determined by using the
highest offense level of the grouped charges and then adding a
grouping adjustment. U.S.S.G. §§ 3D1.3(b), 3D1.4.
For purposes of Gross Jr.’s sentence, the district court
grouped counts 3, 4, 5, 6, 7, 9, 11, 13, 14 and 17. Counts 3 and
13, Gross Jr.’s drug violations, produced the highest base offense
level of 38.5 This offense level was achieved by attributing more
than three but less than ten kilograms of heroin to Gross Jr.,
which yielded a starting offense level of 34 under § 2D1.1(c)(3),
and then adjusting upward 4 levels based on specific offense
characteristics under § 2D1.1(b)(1) and role in the offense under
§ 3B1.1(b).6 A two level grouping adjustment under § 3D1.4 was
then added to reach the final offense level of 40, which was then
combined with a criminal history score of I to reach Gross Jr.’s
sentence of 292 months for counts 1, 2, 3 and 13.
Gross Jr.’s sentence on these counts violates the Sixth
Amendment under Booker because the quantity of drugs -– three to
5
The next highest offense level of the grouped offenses was 33
for counts 4, 5 and 17, which dealt with the charges of violent
crimes in aid of racketeering.
6
Because we find Sixth Amendment error based on the quantity
of drugs used to sentence Gross Jr., we need not address the
propriety of the other adjustments applied by the district court.
43
ten kilograms of heroin -– that provided the basis for the starting
offense level of 34 was not found by the jury beyond a reasonable
doubt or admitted by Gross Jr. The superseding indictment did not
specify any drug quantity in count 13 and only alleged one kilogram
or more of heroin and five kilograms or more of cocaine in count 3.
When the jury returned its verdict, its findings mirrored the drug
quantities identified in the indictment. Therefore, the maximum
quantity of drugs that Gross Jr. should have been sentenced for
based on the jury’s verdict was one kilogram of heroin and five
kilograms of cocaine. Such quantities yield a starting offense
level of 32 for counts 3 and 13. U.S.S.G. § 2D1.1(c)(4).
Sentencing Gross Jr. on the basis of three to ten kilograms of
heroin, rather than one or more, resulted in a two level increase
in his base offense level, which increased his maximum sentence
beyond that which was authorized by the facts found by the jury.
Gross Jr.’s sentence violates the Sixth Amendment under Booker
because the quantity of drugs that provided the basis for his
longest term of imprisonment was neither found by the jury nor
admitted by Gross Jr. Therefore, we must vacate Gross Jr.’s
sentence and remand to the district court for resentencing.
Because we find constitutional Booker error present, we need not
address the issue of statutory Booker error.
44
2. James Gross Sr.
For the same reasons outlined in relation to Gross Jr., we
find that Gross Sr.’s sentence likewise must be vacated and
remanded to the district court. Gross Sr. was convicted and
sentenced on eight separate counts in the superseding indictment.
He was sentenced to 480 months on counts 1, 2 and 3; 240 months on
count 9; 120 months on counts 11 and 14; and 60 months on count 12.
Each of these sentences was to run concurrently. Gross Sr. was
also sentenced to 120 months on count 10 to run consecutively to
the other counts. For purposes of our Booker analysis, we need
look no further than Gross Sr.’s sentence on counts 1, 2 and 3,
which each produced the longest term of imprisonment, to determine
the need to vacate and remand his sentence.
Gross Sr.’s sentence violates the Sixth Amendment under Booker
for the same reasons detailed with respect to Gross Jr.. Gross
Sr.’s sentences on counts 1 and 2, the racketeering and conspiracy
to commit racketeering charges, were calculated by using “the
offense level applicable to the underlying racketeering activity.”
U.S.S.G. § 2E1.1(a)(2). The counts relating to Gross Sr.’s
underlying racketeering activities were grouped under § 3D1.2(d)
and count 3, the drug distribution charge, produced the highest
base offense level of 40.7 This offense level was achieved by
7
The next highest offense level of the grouped offenses was 28
for counts 9 and 12, which dealt with arson and mail fraud.
45
attributing three to ten kilograms of heroin to Gross Sr., which
yielded a starting level of 34 under § 2D1.1(c)(3), and then adding
adjusting upward 6 levels based on specific offense characteristics
under § 2D1.1(b)(1) and role in the offense under § 3B1.1(b).8
Gross Sr.’s offense level of 40 combined with a criminal history
score of VI provided the basis for his 480 month sentence on counts
1, 2, and 3.
Gross Sr.’s sentence on these counts violates the Sixth
Amendment because the quantity of drugs that provided the basis for
his longest term of imprisonment was neither found by the jury nor
admitted by Gross Sr. Therefore, we must vacate Gross Sr.’s
sentence and remand to the district court for resentencing.
Because we find constitutional Booker error present, we need not
address the issue of statutory Booker error.
3. James Wilkes
Appellant Wilkes argues that his sentence should be vacated
and remanded on constitutional grounds because it was increased
based on facts that were neither admitted by him nor found by a
jury beyond a reasonable doubt. We agree.
Wilkes was sentenced to 300 months on count 16 for being a
felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and to 240 months on count 17 for aiding and abetting a
8
Because we find Sixth Amendment error based on the quantity
of drugs used to sentence Gross Sr. we need not address the
propriety of the other adjustments applied by the district court.
46
violent crime in aid of racketeering in violation of 18 U.S.C. §
1959(a)(3).9 For the felon in possession charge, the district
court sentenced Wilkes as an armed career criminal under 18 U.S.C.
§ 924(e)(1) and U.S.S.G. § 4B1.4 based on his present violation of
18 U.S.C. § 922(g)(1) and his prior convictions for a violent
felony and multiple drug offenses.10 When calculating this
sentence, the district court held that Wilkes qualified for an
offense level of 34 under § 4B1.4(b)(3)(A) because he “used or
possessed the firearm or ammunition in connection with either a
crime of violence . . . or a controlled substance offense.”11
U.S.S.G. § 4B1.4(b)(3)(A). The court made this finding based on
facts that were neither admitted by Wilkes nor found by the jury
9
These two charges involved different underlying facts.
Wilkes violated § 922(g)(1) by possessing the firearm discovered at
Yvonne Shorts’ apartment. He violated § 1959(a)(3) for
participating in the assault on Louis Colvin that took place after
the search of Shorts’ apartment and involved a different firearm.
The government did not charge Wilkes for any firearms violations
for the gun he used to shoot Colvin.
10
Wilkes was convicted of assault in 1987, drug distribution
in 1989 and possession with intent to distribute cocaine in 1993.
The facts necessary to categorize these offenses as either violent
felonies or serious drug offenses for purposes of 18 U.S.C. §
924(e)(1) are inherent in the convictions. See United States v.
Thompson, 421 F.3d 278, 283-84 (4th Cir. 2005) (holding that facts
inherent in prior convictions need not be submitted to a jury to
pass constitutional muster under Booker).
11
Without the armed career criminal enhancement, Wilkes’
maximum base offense level was 24 under U.S.S.G. § 2K21.(a)(2) for
his violation of 18 U.S.C. § 922(g)(1).
47
beyond a reasonable doubt.12 This finding increased Wilkes’ base
offense level as an armed career criminal from 33 to 3413 and
violated the Sixth Amendment because it resulted from improper
judicial fact finding.
Accordingly, we vacate Wilkes’ sentence and remand to the
district court for re-sentencing. Because we find constitutional
Booker error present in Wilkes’ sentence, we need not address the
issue of statutory Booker error.
4. Ronald Eddie
Appellant Eddie argues that he was improperly sentenced based
on a finding that he was a career offender under U.S.S.G. §
4B1.1(a). Eddie was sentenced to 262 months on counts 1, 2, and 3
and 240 months on count 9. All of these sentences were to run
concurrently. The district court based the 262 month sentences for
counts 1, 2 and 3 on a finding that Eddie was a career offender
within the meaning of U.S.S.G. § 4B1.1. Eddie argues that the
district court violated the Sixth Amendment under Booker by
12
Although Wilkes was also convicted of a violent crime
involving the use of a firearm (the assault on Louis Colvin), that
conviction has no bearing on the armed career criminal analysis
because (1) Wilkes was never charged or convicted for possession of
the firearm he used to assault Colvin; (2) that conviction involved
different underlying facts than the § 922(g)(1) charge; and (3)
violations of 18 U.S.C. § 1959(a) do not give rise to enhanced
penalties under the Armed Career Criminal Act, see 18 U.S.C. §
924(e); U.S.S.G. § 4B1.4(b).
13
If Wilkes had not qualified for an offense level of 34 under
§ 4B1.4(b)(3)(A), the greatest offense level he would have
qualified for under § 4B1.4(b) was 33 under subsection (b)(3)(B).
48
sentencing him as a career offender. We find no merit to this
argument.
Under § 4B1.1(a), a defendant is a “career offender” if, inter
alia, he “has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” U.S.S.G. §
4B1.1(a)(3). Here, Eddie has three prior convictions that facially
qualify as either crimes of violence or controlled substance
offenses. Specifically, Eddie was convicted of attempted murder in
November 1996 for which he was sentenced to 10 years in prison with
5 years suspended and 3 years of probation; manufacturing and
distributing a controlled substance in July 2001 for which he was
sentenced to 2 years in prison; and manufacturing and distributing
a controlled substance and possession of a controlled substance in
September 2001 for which he was sentenced to 5 years in prison.
The use of prior convictions and facts inherent therein are
excepted from the constitutional limitations enunciated in Booker.
United States v. Thompson, 421 F.3d 278, 281-82 (4th Cir. 2005).
Eddie, however, contends that the 2001 drug felonies could not
be used for purposes of the § 4B1.1 enhancement because both
involved conduct that formed the basis of the current racketeering
charges against him and, therefore, did not constitute prior felony
convictions that could be used for the career offender analysis.
We find this argument unpersuasive.
49
In defining what constitutes a “prior felony conviction” for
purposes of § 4B1.1, § 4B1.2(c) relies in part on the treatment of
prior convictions under § 4A1.1 for purposes of the criminal
history score computation. Under § 4B1.2(c), “prior felony
convictions” can only be used in the career offender analysis if
the prior sentences “are counted separately under the provisions of
§ 4A1.1(a), (b), or (c).” U.S.S.G. § 4B1.2(c). Section 4A1.1
computes a defendant’s criminal history score based in part on his
or her “prior sentences.” Under Application Note 1 to § 4A1.2,
“prior sentence” for purposes of § 4A1.1 “means a sentence imposed
prior to sentencing on the instant offense, other than a sentence
for conduct that is part of the instant offense.” U.S.S.G. §
4A1.2, Application Note 1 (emphasis added). Therefore, as a
general rule, where a defendant has prior convictions that were
based on conduct that later forms the basis of a federal
conviction, such prior convictions cannot be used for a career
offender enhancement because of the relatedness of the underlying
conduct. See United States v. Garecht, 183 F.3d 671, 676-78 (7th
Cir. 1999).
RICO claims, however, present an exception to this general
rule. Section 2E1.1 of the sentencing guidelines provides the
offense level calculation for violations of 18 U.S.C. § 1962, which
Eddie was convicted of violating. Application Note 4 of § 2E1.1
establishes that prior convictions that form “part of a ‘pattern of
50
racketeering activity’” can be “treat[ed] as a prior sentence under
§ 4A1.2(a)(1) and not as part of the instant offense.” U.S.S.G. §
2E1.1, Application Note 4. See United States v. Marrone, 48 F.3d
735, 738-39 (3d. Cir. 1995) (holding that RICO predicate acts can
be used to compute criminal history score). Therefore, prior
convictions are treated differently in RICO cases and can be used
to increase a defendant’s sentence even though they involve the
same conduct underlying the RICO charge. Because RICO predicate
acts can constitute “prior sentences” for purposes of § 4A1.1, we
conclude that such predicate acts can also constitute “prior felony
convictions” for purposes of the career offender analysis. See
U.S.S.G. § 4B1.2(c).
Even if Eddie’s 2001 felony drug convictions involved
predicate conduct to the current RICO charges, the district court
did not err in considering such convictions for purposes of
determining whether Eddie was a career offender. Because the facts
necessary to the determination that Eddie was a career offender
inhere in his prior convictions and the sentencing guidelines do
not limit the use of RICO predicate acts in the career offender
analysis, we find no constitutional Booker error present in Eddie’s
sentence. We now turn to the issue of statutory Booker error.
Although the government concedes that statutory Booker error
was present in this case, we are not bound by such concession. See
Rodriguez, 433 F.3d at 414 n.6. “[A] court commits statutory error
51
if it treats the Guidelines as mandatory, rather than as advisory.”
Id. at 414. Because this was raised for the first time on appeal,
we review for plain error. Id. at 414-15. Under this standard,
the defendant bears the burden of establishing, inter alia, “
whether ‘after pondering all that happened without stripping the
erroneous action from the whole, . . . the judgment was . . .
substantially swayed by the error.’” United States v. White, 405
F.3d 208, 223 (4th Cir. 2005) (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)) (omissions in original).
We conclude that Eddie has not satisfied his burden of
demonstrating that the district court’s sentence was “substantially
swayed” by the mandatory nature of the guidelines. Although Eddie
was sentenced at the bottom of the applicable guideline range, “the
record as a whole provides no nonspeculative basis for concluding
that the treatment of the guidelines as mandatory ‘affect[ed] the
district court's selection of the sentence imposed.’” Id. at 223
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). At
sentencing, the district court made no statements from which we can
infer that it would have entered a different sentence but for the
mandatory nature of the sentencing guidelines. Accordingly, we
find no statutory Booker error present in Eddie’s sentence.
Because Eddie has not demonstrated either statutory or
constitutional Booker error, we affirm his sentence.
52
V.
In light of the foregoing, we affirm all appellants’
convictions and appellant Ronald Eddie’s sentence. We vacate the
sentences of James Gross, Sr., James Gross, Jr., and James Wilkes,
and remand those cases to the district court for re-sentencing.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED IN PART
53
GREGORY, Circuit Judge, concurring in part and dissenting in part:
Although I agree with the majority’s resolution of most of the
issues presented in this appeal, I must depart from its analysis in
two respects. First, I would remand this case to the district
court under the Jencks Act for in camera consideration of Brian
Klas’s unredacted grand jury testimony. Second, with respect to
the district court’s denial of James Wilkes’s motion to suppress,
I cannot agree with the majority that exigent circumstances
justified the officers’ warrantless entry of Yvonne Shorts’s
apartment. However, because I believe that Shorts’s subsequent
actions “purged the taint” of the initial violation, I agree that
the district court committed no error in denying the motion to
suppress.
I.
The Jencks Act, 18 U.S.C. § 3500, requires the government to
disclose “any statement” made by one of its witnesses that “relates
to the subject matter” of that witness’s testimony. Id. § 3500(b).
Under the Jencks Act, a “statement” is defined as: (1) “a written
statement made by said witness and signed or otherwise adopted or
approved by him;” (2) a recording or transcription that is “a
substantially verbatim recital of an oral statement made by said
witness and recorded contemporaneously with the making of such oral
statement;” and (3) “a statement, however taken or recorded, or a
54
transcription thereof, if any, made by said witness to a grand
jury.” Id. § 3500(e). To lay a proper foundation for the required
disclosure of Jencks Act materials, a defendant must “make a
sufficiently specific request and provide some indication that the
witness gave a pretrial statement . . . generally related to the
witness’ direct testimony.” United States v. Roseboro, 87 F.3d
642, 645 (4th Cir. 1996).
I agree with the majority that the appellants failed to lay
the requisite foundation for the prior statements of government
witness Sean Chance, in that the appellants could not show that any
of the requested materials contained Chance’s “statements,” as
defined by the Jencks Act. Chance, however, was not the only
government witness for whom the appellants sought Jencks Act
discovery; they also requested the prior statements of witness
Brian Klas, including his unredacted grand jury testimony. I
believe that, with respect to witness Klas, it was improper for the
district court to deny discovery without in camera review of Klas’s
unredacted grand jury testimony because it contained Klas’s
statements related to Klas’s trial testimony.
Unlike their request for the Chance-related materials, the
appellants laid the requisite foundation for their request of
Klas’s grand jury testimony. In both a written motion and in
arguments to the district court at trial, the appellants
specifically identified Klas’s unredacted grand jury testimony as
55
one of the objects of their discovery request. See J.A. 538-39
(noting the dates of Klas’s grand jury testimony and the missing
pages in the transcript); J.A. 552-55 (discussing the requested
discovery materials as they related to Klas’s trial testimony).
Moreover, grand jury testimony is, by definition, a “statement”
under the Jencks Act. 18 U.S.C. § 3500(e)(3). Finally, the
government itself acknowledged that some portions of Klas’s grand
jury testimony related to the subject of his trial testimony. See,
e.g., J.A. 555 (government counsel stating that “[Agent Klas is]
being called with respect to the John Brooks witness tampering
issue, which they have all the grand jury testimony on”).1
With this foundation before the district court, the
government’s sole argument against further disclosure or in camera
review by the district court was that the undisclosed portions did
not relate to the subject matter of Klas’s testimony. The district
court accepted this representation and refused to take further
action. J.A. 555. However, the Jencks Act does not permit
district courts to take the government at its word. To the
contrary, the Jencks Act requires the district court to examine the
disputed materials in precisely this circumstance:
1
The government disclosed these portions of Klas’s grand jury
testimony as “Jencks/Giglio materials” prior to trial. J.A. 179-
80. This was in accord with the discovery agreement the government
entered into to provide all Jencks materials no later than two
weeks prior to trial.
56
If the United States claims that any statement ordered to
be produced under this section contains matter which does
not relate to the subject matter of the testimony of the
witness, the court shall order the United States to
deliver such statement for the inspection of the court in
camera. Upon such delivery the court shall excise the
portions of such statement which do not relate to the
subject matter of the testimony of the witness.
18 U.S.C. § 3500(c) (emphasis added). Thus, it was the duty of the
district court--not the government--to determine which portions of
Klas’s pretrial statement were to be redacted and which portions
were to be disclosed. See United States v. Alvarez, 86 F.3d 901,
906-07 (9th Cir. 1996) (“Under the Jencks Act, the government did
not have a right unilaterally to redact the reports. . . . [I]f the
government believes a portion of a witness statement is irrelevant,
the entire statement must be delivered to the court in camera for
the court to decide whether a portion of the statement should be
redacted.”). Simply put, the district court did not comply with
the plain language of the Jencks Act. See United States v. Lewis,
35 F.3d 148, 151-52 (4th Cir. 1994) (holding that the district
court was required to conduct in camera review of a government
witness’s report, where the government asserted that the redacted
portions of that report did not relate to the subject matter of the
witness’s expected testimony).2
2
In rejecting this challenge, the majority holds that the
appellants’ request for the Klas materials was not timely because
it was not renewed after Klas’s direct testimony. Here, however,
the government agreed to disclose Jencks Act materials prior to
trial, and neither the government nor the district court expressed
concern with the timing of the appellants’ request.
57
Because the district court failed to fulfill its obligation of
in camera review of Klas’s grand jury testimony, remand is
necessary to allow this examination to occur. See United States v.
Truong Dinh Hung, 629 F.2d 908, 920-21 (4th Cir. 1980) (remanding
to the district court to examine whether undisclosed documents
contained Jencks Act statements and, if so, whether nondisclosure
was harmless error). Therefore, I respectfully dissent from Part
III.A.1 of the majority opinion, as I would remand this case to the
district court to examine Klas’s grand jury testimony.
II.
I must also part ways with the majority’s analysis of the
denial of Wilkes’s motion to suppress. Unlike the majority, I
would hold that the officers violated Wilkes’s Fourth Amendment
rights when they entered the apartment at which he was staying
without a warrant. Because I believe that Shorts’s subsequent
consent and other actions purged the taint of this initial
Presented with a similar situation in Lewis, we found that the
duty of in camera review had been invoked prior to the witness’s
testimony. See Lewis, 35 F.3d at 151 (where the government agreed
to disclose Jencks Act materials prior to trial, holding that in
camera review was required once the government objected to the
complete disclosure of a report on the basis that it did not relate
to the subject matter of the witness’s expected testimony).
Although the district court could not have fully resolved the issue
until after Klas’s testimony, see id., as in Lewis, I believe that
the appellants’ request was sufficient to invoke in camera review.
58
violation, however, I ultimately agree that the denial of the
motion to suppress was proper.
A.
“Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the police. This
was done . . . so that an objective mind might weigh the need to
invade [the citizen’s] privacy in order to enforce the law.”
McDonald v. United States, 335 U.S. 451, 455 (1948) (emphasis
added). See also Groh v. Ramirez, 540 U.S. 551, 560 (2004)
(quoting same). As particularly relevant here, the “physical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed.” United States v. United States
District Court, 407 U.S. 297, 313 (1972). Thus, “the Fourth
Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reasonably be
crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590
(1980). Where agents of the government nevertheless cross that
line, the government bears the burden to demonstrate exigent
circumstances that overcome their presumptively unreasonable entry.
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
Here, the majority concludes that the government has overcome
the presumption of unreasonableness because, “the exigencies
created by the physical layout of the building in which Shorts’
59
apartment was located were sufficient to justify the minimal breach
of the threshold of her apartment.” Op. at 39. I cannot agree.
The bare fact of the physical layout of a building, without more,
cannot constitute the sort of “grave emergency,” which excuses a
government agent’s constitutional obligation to secure a warrant
before entering a home. Rather, the sine qua non of the exigent
circumstances exception is that some urgency or impending danger
justifies immediate action without resort to a warrant. See
Georgia v. Randolph, 126 S. Ct. 1515, 1524 n.6 (2006) (recounting
situations where exigent circumstances would justify immediate,
warrantless action by police). Accordingly, the Supreme Court has
recognized that there would be exigent circumstances where:
officers need to act immediately to preserve evidence, id.;
officers are in hot pursuit of a suspect, Warden v. Hayden, 387
U.S. 294, 298-99 (1967); delay to obtain a warrant would endanger
the safety of the officers or others, id.; a building is on fire,
Michigan v. Tyler, 436 U.S. 499, 509 (1978); or a suspect is
fleeing or likely to take flight, Johnson v. United States, 333
U.S. 10, 15 (1948).
Here, such exigencies did not exist. The government has
failed to show any reason why it was immediately necessary for the
officers to enter Shorts’s apartment without a warrant. See
McDonald, 335 U.S. at 456 (the government must show that the
asserted exigencies made warrantless entry “imperative”). The
60
officers expressed no concern that the gun might be moved or
destroyed, that delaying the investigation would threaten the
safety of anyone inside or outside the building, that Wilkes might
flee, or even that Wilkes was aware of the officers’ presence.
Accordingly, I cannot join the majority’s finding that exigent
circumstances justified the entry of Shorts’s apartment.
B.
Although I conclude that the officers’ intrusion violated the
Fourth Amendment, I nevertheless agree with the majority that the
district court was correct to deny Wilkes’s motion to suppress.
Unlawful police action does not automatically render inadmissible
all subsequently discovered evidence. Rather, exclusion depends
upon “whether, granting establishment of the primary illegality,
the evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (internal quotation marks
omitted). In other words, we must examine whether the evidence was
acquired sufficiently independent of the Fourth Amendment violation
that it should not be considered the “fruit of the poisonous tree.”
See id.The question of whether evidence is the tainted fruit of a
Fourth Amendment violation is a fact-specific one. United States
61
v. Najjar, 300 F.3d 466, 477 (4th Cir. 2002). To answer this
question, we must consider several factors, including: “1) the
amount of time between the illegal action and the acquisition of
the evidence; 2) the presence of intervening circumstances; and 3)
the purpose and flagrancy of the official misconduct.” Id. See
also Brown v. Illinois, 422 U.S. 590, 603-04 (1975).
In United States v. Seidman, 156 F.3d 542 (1998), we examined
these factors in a factually similar situation. In that case, the
government agent (an informant who was wearing a wire) entered the
Seidman’s home through an unlocked door without a warrant or
consent. Id. at 547-48. Upon seeing the informant, Seidman did
not object to his presence and soon motioned him into the kitchen.
Id. at 549. About one minute after his entry, the informant began
questioning Seidman about his illegal conduct. Id. The two then
engaged in a forty-five minute conversation in which Seidman made
incriminating statements. Id.In conducting the tainted fruit analysis, the Seidman court
acknowledged that the time between the illegal entry and the
acquisition of the evidence was quite short--beginning only about
one minute after the unlawful entry. Id. On the second factor,
however, the court found that Seidman’s consent to Schoop’s
continued presence and his willingness to engage in conversation
constituted intervening acts of free will that attenuated the
connection between the illegal entry and the evidence. Id. at 549
62
& n.10. With respect to the third factor, the court found that the
taint to be purged was a slight, technical violation that lacked
the degree of coercion present in cases where the evidence had to
be suppressed. Id. at 549, 550. In weighing the factors, the
court therefore determined that the incriminating statements did
not result from “exploitation of the unlawful entry.” Id. at 550.
The factors lead to a similar conclusion here. First,
although the time between the unlawful entry and the acquisition of
the evidence is short, that factor alone is not dispositive. See
id. at 549. Second, as in Seidman, Shorts’s intervening actions
almost immediately attenuated the taint arising from the intrusion.
Shorts’s voluntary consent to the officers’ entry further into her
apartment and her discussion with Officer Knorlein in the kitchen
confirms that her consent and cooperation were independent acts of
free will, not the result of any coercive effect from the officers’
two-foot breach of the threshold of her home. Specifically, she
confided in Officer Knorlein that she was afraid of Wilkes,
divulged that Wilkes had thrown his handgun in the bedroom clothes
hamper, and concocted a ruse about getting her cigarettes so that
Officer Knorlein would have the opportunity to observe the gun.
Third, as in Seidman, examining the purpose and flagrancy of the
misconduct reveals that the taint to be purged here is slight. The
officers entered the open door and stepped only a foot or two
63
beyond the threshold before Shorts consented to their further
entry.
Accordingly, I believe the evidence here was acquired
“sufficiently independent of the unlawful invasion to purge any
taint arising from the initial entry.” Id. at 547. That it was
Shorts, and not Wilkes, who provided the consent does not affect
this conclusion.3 I therefore conclude that the motion to suppress
was correctly denied and concur only in the judgment of Part III.F
of the majority opinion.
III.
For the foregoing reasons, I respectfully dissent from Part
III.A.1 of the majority opinion to the extent that I would remand
for the district court to examine Agent Klas’s grand jury testimony
pursuant to the Jencks Act. In addition, I concur in the judgment
only as to Part III.F. I join the majority opinion in all other
respects.
3
Notably, there is no evidence that Wilkes objected to the
further entry or search of Shorts’s apartment. Cf. Randolph, 126
S. Ct. at 1526 (“[A] warrantless search of a shared dwelling for
evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the
basis of consent given to the police by another resident.”).
64