United States v. Ray ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4409
VERNON RAY, a/k/a Donnie Blue,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4422
DARRELL ANTONIO BURRELL, a/k/a
Silly Rabbit,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4800
ANDRE ALBERT ADDISON, a/k/a Oofa,
a/k/a Poobie,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CR-98-210)
Argued: December 4, 2002
Decided: March 19, 2003
2 UNITED STATES v. RAY
Before GREGORY, Circuit Judge, Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed in part, reversed in part, vacated in part, and remanded by
unpublished opinion. Judge Goodwin wrote the opinion, in which
Judge Gregory and Senior Judge Michael joined.
COUNSEL
ARGUED: Jennifer Marie O’Connor, WILMER, CUTLER & PICK-
ERING, Washington, D.C., for Appellant Ray; Michael Daniel Mon-
temarano, Baltimore, Maryland, for Appellant Burrell; Noell Peter
Tin, Charlotte, North Carolina, for Appellant Addison. Jamie M. Ben-
nett, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Paul F. Enzinna, Rebecca H. Ewing, BAKER
BOTTS, L.L.P., Washington, D.C., for Appellant Ray; Rebecca Tin,
Charlotte, North Carolina, for Appellant Addison. Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GOODWIN, District Judge:
Vernon Ray, Darrell Burrell and Andre Addison, along with other
co-defendants, were charged in a ten-count indictment with various
crimes related to a cocaine distribution conspiracy. Following a
month-long trial, Ray, Burrell and Addison were each convicted of
UNITED STATES v. RAY 3
conspiracy to distribute five kilograms or more of cocaine, in viola-
tion of 21 U.S.C. §§ 846 & 841(a)(1), and of killing while engaging
in a narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A).
Addison was additionally convicted of possession with intent to dis-
tribute cocaine, also in violation of § 841(a)(1). Ray, Burrell and
Addison appeal their convictions on a number of grounds, the precise
nature of which are more fully explained below.
For the reasons that follow, we conclude that the government pre-
sented insufficient evidence from which a reasonable jury could con-
clude, beyond a reasonable doubt, that Ray knowingly furthered the
objectives of the cocaine distribution conspiracy. Because both of
Ray’s counts of conviction depend on proof of this intent, we reverse
his conviction on both counts. We also conclude, as the government
concedes, that Burrell was denied his statutory right to two counsel.
We therefore vacate his conviction for killing while engaging in a
drug conspiracy. We also vacate his sentence and remand for resen-
tencing on the cocaine distribution conspiracy count alone. We find
the remaining objections without merit, and affirm Burrell’s convic-
tion on the cocaine distribution conspiracy count and Addison’s con-
viction on all counts.
I.
This case involves a Baltimore, Maryland-based cocaine distribu-
tion conspiracy, a related drug turf war between rival gangs, the
"Chapel Hill Gang" and the "Jefferson Street Boys," and a series of
shootings arising out of that turf war. The evidence presented at trial
showed that the Chapel Hill Gang controlled various streets in the
vicinity of Johns Hopkins University, operating a narcotics-
distribution ring that included the sale of vast amounts of cocaine.
The Chapel Hill Gang’s dominance was not absolute; the rival Jeffer-
son Street Boys had also staked a claim in the area’s drug market. To
eliminate competition and corner drug territory, the gangs mounted an
ongoing war that involved fistfights, drive-by shootings, and murders
ordered by gang superiors. What had begun as a cross-town squabble
over sandlot basketball games had escalated into urban guerilla war-
fare.
The government’s evidence demonstrated that Andre Addison was
the leader of the Chapel Hill Gang. Over a period of years, Addison
4 UNITED STATES v. RAY
purchased large amounts of cocaine, heroin and marijuana in New
York City. He and other gang members transported the drugs to Balti-
more and then sold them, primarily on Ashland Street and Madeira
Street. Kelly McLeod oversaw the gang’s day-to-day operations and
finances as its "lieutenant," while Darrell Burrell strong-armed foes
as its primary "enforcer." Marcel Brown, Tavon Dixon, George Bran-
don, Morgan Kelly, Lloyd Taylor, Keith Cook and Adrian Boone also
worked for the gang at various times, primarily roaming the streets as
drug dealers. Many of these individuals, including McLeod, Brown
and Dixon, cooperated with the government pursuant to plea agree-
ments and offered testimony related to the gang’s organization and
operations. Officer Deron Garrity, who investigated the gang for the
Baltimore City Police Department, also testified at length concerning
the drug operation.
In the summer of 1996, Addison asserted drug distribution domi-
nance over a section of Jefferson Street that traditionally had been
controlled by the Jefferson Street Boys. Addison’s actions fueled a
battle over territory, triggering a string of shootings. Because the spe-
cific facts underlying these various shootings are important to the
issues on appeal, we will present this evidence in some detail.
The testimony showed that the rivalry between the Chapel Hill
Gang and the Jefferson Street Boys long predated the drug territory
dispute. According to Kelly McLeod, it began "when we was youn-
ger," starting with "neighborhood fist fights" over playground prob-
lems and basketball games, not drugs. Similarly, Mayo Bennett
testified that the "bad blood" existed when they were as young as ten
or eleven years old. Drugs and drug-related shootings entered the pic-
ture sometime prior to 1994.
As part of the drug turf war, Silvester Snider, a member of the Jef-
ferson Street Boys, attempted to shoot Addison on more than one
occasion. In retaliation, the Chapel Hill Gang killed Snider, also
known as "Monk," on May 25, 1996. Chapel Hill Gang member Mar-
cel Brown, as well as others, testified that Addison had ordered the
killing and that Burrell had carried it out at his command. Prior to the
Snider murder, Brown overheard Addison and Burrell talking about
Snider: "Andre was saying to Burrell that that punk Monk [Snider]
can’t keep running down here shooting." Once Burrell became aware
UNITED STATES v. RAY 5
of Brown’s presence, "Burrell stopped [Addison] and said, hey, man,
don’t be talking to me about no shit like that around these whores like
that." At other times prior to the killing of Snider, Brown heard Addi-
son say that "they [the Jefferson Street Boys] gonna die, . . . they’re
going to stop coming down here shooting and shit." Brown testified
that Addison "told us to just stay around the block and keep doing
what we doing [i.e., dealing drugs], and he got everything taken care
of. He already got Darryl on top of that." By Darryl, "I’m talking
about Mr. Burrell." Pressed further, Brown clarified that Addison said
"I got Darryl on top of them. He gonna handle that. Them boys ain’t
going keep coming here shooting. You see that bitch Monk and that
bitch Antwan [Greer], them whores know what’s up." At some point
after these conversations, Brown heard from Addison that "Monk shot
at Darryl’s car," and then "Darryl turned around and came back and
shot [Snider]." George Brandon similarly testified that Addison "told
me he said to do it [the Snider killing]," and the person he sent was
"Silly Rabbit," an alias for Burrell.
Weeks later, on June 12, 1996, Addison was again the target of a
Jefferson Street Boys shooting. This time, he was seriously wounded
while helping a neighbor install a basketball hoop. In retaliation, Bur-
rell killed Jefferson Street Boy Antwan Greer later that day. McLeod
testified that following Addison’s shooting, "Burrell hopped on the
bike and proceeded through the projects, knowing that they [Antwan
Greer and others] would get caught at the light on Orleans Street."
McLeod heard gunshots, and later "Addison let me know that Burrell
killed him [Greer]." Testimony from George Brandon also linked
Burrell to the Greer murder.
According to Brown, after Burrell had been incarcerated for the
Snider and Greer killings, Addison stated that "he had already taken
care of the lawyer fees [for Burrell] as far as the murders and stuff"
and that he had "giv[en] to his baby[’s] mother money." Despite the
fact that Burrell was not involved in the drug distribution, McLeod
provided Burrell with money from drug proceeds at least "five to six
times," always at the request of Addison.
Additional shootings transpired in September of 1997, and it is
here that Vernon Ray first appears in the story. Before detailing this
next round of shootings, we pause to provide some background about
6 UNITED STATES v. RAY
Ray. Ray grew up in Baltimore, and he and Addison were childhood
friends. Ray’s brother, Paul Ray, was a member of the Chapel Hill
Gang at least as early as 1994 or 1995. Several of the government’s
witnesses who were members of the Chapel Hill Gang listed the indi-
viduals engaged in the drug conspiracy, including descriptions of each
person’s role. Not one of these witnesses, each of whom had exten-
sive knowledge of the Chapel Hill Gang’s cocaine distribution opera-
tion, identified Ray as a participant in the drug conspiracy. Gang
"lieutenant" Kelly McLeod testified that while Ray’s brother Paul was
an active participant in the operation, Ray "wasn’t really into the drug
business with us." When describing the Chapel Hill Gang’s drug
organization hierarchy, McLeod made no mention of Ray. According
to McLeod, "Vernon Ray wouldn’t be with us every day. He really
wasn’t with us."
Tavon Dixon also testified to the drug operations of the Chapel Hill
Gang, explicitly naming those individuals involved in the conspiracy.
Like McLeod, Dixon made no mention of Ray being involved with
the drug operations. Indeed, despite Ray’s intimate personal connec-
tions with these gang members, the government’s witnesses indicated
that he had never been a member of the Chapel Hill Gang. According
to McLeod, in 1994 or 1995 Ray was not "working with [the Chapel
Hill Gang] . . . drug organization." Rather, "he was . . . freelancing
with the Jefferson Street Boys," and "was neutral" as between the
rival gangs.
Although Ray was not a member of either gang, the Jefferson
Street Boys "thought he was trading on them," i.e., working with the
rival Chapel Hill Gang, so members of the Jefferson Street Boys shot
Ray sometime in 1994 or 1995. Following Ray’s shooting, two of his
friends — McLeod and Addison — attempted to retaliate. The
attempt failed when McLeod’s gun jammed, prompting a retreat by
McLeod and Addison in the face of return fire. McLeod testified that
he and Addison took action against the Jefferson Street Boys because
"[b]eing as though Mr. Ray had got shot, and Mr. Ray is a close
friend of mine, [we acted out of] retaliation." The government then
asked McLeod to further "explain why it was that you were retaliating
for the shooting of Mr. Ray who was with the Jefferson Street Boys."
(Emphasis added.) McLeod responded that "[Vernon Ray’s] brother
Paul Ray was with us, [and] . . . I went to school with Mr. Vernon
UNITED STATES v. RAY 7
Ray . . . and like I said before, I took him as a real close friend of
mine. And where we came from, we still all stuck together. One, he
was hurt, so our chain of thought was to hurt one of them who hurt
him." After Ray’s shooting, McLeod testified that Ray "was no longer
up on Jefferson Street. He had come down with us, but he wasn’t
really into the drug business with us. He was still freelancing at this
time."1
Ray’s involvement with the drug conspiracy, according to the gov-
ernment, began (and ended) on September 7, 1997. This brings us
back to our ongoing description of the turf war shootings. On Septem-
ber 7, a member of the Jefferson Street Boys came to the Ashland and
Madeira Street vicinity and shot Morgan Kelly, a friend of Ray’s and
a member of the Chapel Hill Gang. In response, McLeod and others
decided to "[g]o return fire as usual." McLeod described their plan:
[McLeod, his brother], Chad Brown, Lloyd Taylor, Keith
Cook, [and] Vernon Ray . . . came out with a plan to go up
to Jefferson Street and shoot whoever was out there. . . . The
plan was to drive a car down the one way of Collington . . .
and that was to flush them out, and then my brother [and]
Vernon Ray and Keith Cook would be on . . . McElderry
and Collington. So we would flush him out and make him
run toward them.
McLeod, Brown and Taylor drove in one car and McLeod’s brother,
Ray and Cook were in another. All of the participants had guns,
1
McLeod’s testimony paints the picture that Ray had always remained
an independent "freelancer" and had never joined either gang, even after
members of the Jefferson Street Boys had shot him due to their assump-
tion that he was working with the Chapel Hill Gang. The government
witnesses did not elaborate on the precise nature of Ray’s "freelancing."
Indeed, the jury was left to speculate, without any clarification from the
government or its witnesses, as to the meaning of "freelancing." The only
evidence of Ray’s involvement with drug dealing was testimony from
Marcel Brown implicating Ray in a marijuana dealing operation on
Eager and Chester Streets. This operation was not linked to the Chapel
Hill Gang cocaine conspiracy. It is possible that this marijuana distribu-
tion was the "freelancing" referred to by McLeod.
8 UNITED STATES v. RAY
which they had "checked . . . before [they] left" to "make sure they
had ammunition." They carried out the plan, essentially as described
above, although shots were fired by both sides. Ray, among others,
was shot in the shoulder. Bernard Miller, a member of the Jefferson
Street Boys, was shot and killed.
Ray, Burrell and Addison were indicted along with Marcel Brown,
Morgan Kelly, Kelly McLeod and Adrian Boone. Brown, Kelly and
McLeod plead guilty and testified at trial.2 The jury convicted Ray,
Burrell and Addison of conspiracy to distribute more than five kilo-
grams of cocaine in violation of 21 U.S.C. §§ 846 & 841(a)(1), and
of killing while engaging in a drug conspiracy, in violation of 21
U.S.C. § 848(e)(1)(A). The jury also convicted Addison of distribu-
tion of cocaine, in violation of 21 U.S.C. § 841(a)(1). Addison and
Burrell were given life sentences, and Ray was sentenced to 262
months of imprisonment.
II.
The defendants raise numerous challenges to their convictions.
Specifically, the defendants (either singly or in groups) raise claims
based on the sufficiency of the evidence; the statutory right to two
counsel for death-eligible offenses; violations of Brady v. Maryland,
373 U.S. 83 (1963); the knowing use of false testimony against them;
errors in the jury instructions related to the elements of conspiracy;
errors in the indictment, jury instructions, and closing argument
related to the necessary connection between the killings and the drug
conspiracy; flaws in the search warrant; errors in the court’s refusal
to sever, to provide limiting jury instructions, or to provide a multiple
conspiracy instruction; and errors in the court’s admission of evidence
related to the Snider killing, refusal to instruct on self-defense related
to that killing, and improper comments by the prosecution in closing
argument. We will address these contentions in turn. We begin with
the claims related to the sufficiency of the evidence.
2
The remaining defendant, Boone, was a fugitive of justice at the time
of trial. The district court’s docket sheet indicates that Boone eventually
was arrested in Texas and initially appeared before the court on October
30, 2001.
UNITED STATES v. RAY 9
A.
Both Ray and Burrell challenge the sufficiency of the evidence to
sustain their convictions. According to the evidence presented by the
government, neither Ray nor Burrell actually dealt drugs or super-
vised the drug distribution operation for the gang. Rather, the govern-
ment contends that both served as "enforcers" for the gang — that is,
performed acts of violence and intimidation in furtherance of the drug
conspiracy’s ongoing attempt to secure and expand its distribution
territory. Although both defendants were convicted of conspiracy to
distribute cocaine as well as killing while engaging in a drug conspir-
acy, their alleged participation in the drug conspiracy stems solely
from their participation in the killings.3 Accordingly, in both cases the
two counts stand or fall together.
In reviewing a conviction for sufficiency of the evidence, the court,
"constru[ing] the evidence in the light most favorable to the govern-
ment," asks "whether any rational trier of facts could have found the
essential elements of the crime beyond a reasonable doubt." United
States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991) (internal quota-
tions and citation omitted). "To prove a drug conspiracy, the Govern-
ment must prove the following: (1) an agreement with another person
to violate the [drug] law, (2) knowledge of the essential objectives of
the conspiracy, (3) knowing and voluntary involvement, and (4) inter-
dependence among the alleged conspirators." United States v. Stew-
art, 256 F.3d 231, 250 (4th Cir. 2001) (internal quotations and
citation omitted). This court has explained that "the Government must
prove the existence of a conspiracy beyond a reasonable doubt, but
upon establishing the conspiracy, only a slight connection need be
made linking a defendant to the conspiracy to support a conspiracy
conviction, although this connection also must be proved beyond a
reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). A defendant’s "slight connection" to the conspiracy
may be proven by direct or circumstantial evidence, but "the Govern-
3
Ray was indicted for the shooting of Bernard Miller. Burrell was
indicted for the shooting of Silvester Snider and Antwan Greer. The
Snider shooting was only alleged as an overt act in the conspiracy, not
as an independent violation of § 848(e) (killing while engaged in the con-
spiracy).
10 UNITED STATES v. RAY
ment nevertheless must establish proof of each element of a conspir-
acy beyond a reasonable doubt." Id. at 858. With these principals in
mind, we first consider the evidence related to Ray’s conviction and
then the evidence related to Burrell’s conviction.
1.
As should be clear from the statement of facts, the government
presented ample evidence of proof of the first element of conspiracy
— "an agreement with another person to violate the law," Stewart,
256 F.3d at 250, as among the active members of the Chapel Hill
Gang. In order to establish Ray’s participation in that drug conspir-
acy, the government relies on evidence that, it claims, proves (1) that
Ray knew of the Chapel Hill Gang drug distribution conspiracy, and
(2) that he knowingly participated in the Bernard Miller shooting.
Based on these two facts, the government argues, a reasonable jury
could have concluded, beyond a reasonable doubt, that Ray know-
ingly joined the drug conspiracy when he participated in the Miller
shooting. Throughout all of the events described above leading up to
the Miller shooting — from the early days of the neighborhood
rivalry, to the introduction of drug dealing by members of the rival
gangs, to Ray’s own shooting by the Jefferson Street Boys — the
government concedes that there is no suggestion that Ray was ever a
member of the Chapel Hill Gang drug distribution conspiracy. Even
after Ray’s shooting in 1994 or 1995, nothing in the evidence sug-
gests that he became a member of the drug conspiracy — in fact, the
evidence affirmatively shows the opposite — that he was "freelanc-
ing" at this time. Not until September 7, 1997, does the government
contend that Ray suddenly took action in an effort to join the drug
distribution conspiracy and to further its objectives. On the govern-
ment’s theory of the case, Ray’s only connection to the drug conspir-
acy was his participation in the Miller shooting on September 7, 1997.
Of course, "a defendant properly may be convicted of conspiracy
. . . ‘even though he had not participated before and even though he
played only a minor part.’" Burgos, 94 F.3d at 858 (quoting United
States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989)). While a defen-
dant may be convicted of a conspiracy even if he performed only one
act as part of that conspiracy, the government must prove that "‘he
join[ed] the conspiracy with an understanding of the unlawful nature
UNITED STATES v. RAY 11
thereof and willfully join[ed] in the plan on one occasion.’" Id. We
first consider whether the government presented evidence from which
a reasonable jury could conclude that Ray knew of the existence of
the drug conspiracy.
McLeod’s testimony about Ray’s "freelancing" is the only testi-
mony presented at the month-long trial that even arguably suggests
that Ray knew about the existence of the ongoing drug-related turf
war between the two gangs. McLeod’s testimony makes it clear that
Ray was aware of the neighborhood rivalry — indeed, Ray was shot
by members of the Jefferson Street Boys because they thought he was
associating with the Chapel Hill Gang. But as McLeod explained, the
neighborhood rivalry long predated the drug territory dispute. It began
"when we was younger," as a neighborhood rivalry that started with
"neighborhood fist fights."
Accordingly, the government relies heavily on inferences drawn
from the term "freelancing" to establish that Ray knew about the
ongoing drug distribution conspiracy. Specifically, the government
argues that the jury could reasonably infer that the term "freelancing"
meant that Ray was dealing drugs, albeit independently, in the same
territory as the Jefferson Street Boys and the Chapel Hill Gang. The
government did not ask any of its witnesses to clarify the meaning of
"freelancing," which perhaps would have buttressed their position that
Ray himself was dealing drugs in this area. McLeod’s testimony is
equivocal at best. He stated that Ray "wasn’t really into the drug busi-
ness with us. He was still freelancing at this time." One could read
this statement to imply that "freelancing" means something other than
drug dealing, as the statement that Ray was "still freelancing" imme-
diately followed the statement that "he wasn’t really into the drug
business." Alternately, one could read this statement with emphasis
on "with us" — that is, that Ray wasn’t into the drug business with
us, but was freelancing, meaning dealing drugs independently of the
Chapel Hill Gang. Because we review a conviction for sufficiency of
the evidence by drawing all reasonable inferences in favor of the gov-
ernment, we conclude that McLeod’s testimony was sufficient for a
reasonable jury to find, beyond a reasonable doubt, that Ray was him-
self dealing drugs in the area and therefore knew of the ongoing drug-
related turf war between the rival gangs.4 This satisfies the second ele-
4
The government argues that the jury could also infer Ray’s knowl-
edge of the drug conspiracy based on (1) the fact that his brother was a
12 UNITED STATES v. RAY
ment from Stewart — that a defendant must have "knowledge of the
essential objectives of the conspiracy." Stewart, 256 F.3d at 250.
This brings us to the third element of conspiracy, "knowing and
voluntary involvement." Id. Here, the government contends that Ray’s
"knowing and voluntary involvement" in the conspiracy consists of
his participation in the Miller shooting. For Ray’s participation in that
shooting to constitute knowing involvement in the conspiracy, the
government must prove that Ray knowingly acted "in furtherance of
the objective of the conspiracy." United States v. Brown, 943 F.2d
1246, 1250 (10th Cir. 1991). See also United States v. Gee, 226 F.3d
885, 893 (7th Cir. 2000) ("The government must prove that a defen-
dant knowingly and intentionally joined the charged conspiracy,
knowing the conspiracy’s aims and intending to achieve them."
(emphasis added)).
The government concedes that it presented no direct evidence of
Ray’s intentions when he participated in the Miller shooting. Of
course, "a conspiracy generally is proved by circumstantial evidence
and the context in which the circumstantial evidence is adduced."
Burgos, 94 F.3d at 857. Here, the government argues that given Ray’s
knowledge of the drug conspiracy and his participation in the Miller
shooting, the jury could infer, beyond a reasonable doubt, that Ray
member of the Chapel Hill Gang, and (2) the general knowledge in the
community about the ongoing drug turf war. As for the former point, "it
is well-settled that a conspiracy cannot be proven solely by family rela-
tionship or other types of close association." United States v. White, 569
F.2d 263, 268 (5th Cir. 1978). See also United States v. Dozie, 27 F.3d
95, 98 (4th Cir. 1994) (refusing to infer knowledge or intent to further
conspiracy based on husband-wife relationship). We are also uncomfort-
able with the suggestion that one of the important elements of a conspir-
acy offense — knowledge of the conspiracy — can be established merely
by the defendant’s residence in a bad neighborhood. Without specifically
establishing how a defendant’s residence in a neighborhood translates
into his knowledge of criminal activity, this strikes us as an impermissi-
ble attempt to infer guilt by association. See United States v. Robel, 389
U.S. 258, 265 (1967). We decline to evaluate this evidence in this case,
as we conclude above that Ray’s knowledge of the conspiracy could be
inferred from McLeod’s testimony.
UNITED STATES v. RAY 13
participated in the shooting in order to further the drug conspiracy.
This court has explained that "[c]ircumstantial evidence sufficient to
support a conspiracy conviction need not exclude every reasonable
hypothesis of innocence, provided the summation of the evidence per-
mits a conclusion of guilt beyond a reasonable doubt." Id. at 858.
Many courts have recognized the difficulty in determining, on the
particular facts of a given case, when a jury’s verdict "crosses the line
from permissible inference to improper speculation." United States v.
Teffera, 985 F.2d 1082, 1088 (D.C. Cir. 1993). See also Goldhirsh
Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997) ("The line
between permissible inference and impermissible speculation is not
always easy to discern. . . . At some point, the link between the facts
and the conclusion becomes so tenuous that we call it ‘speculation.’
When that point is reached is, frankly, a matter of judgment.").
We now turn to evaluate the reasonableness of the government’s
proposed inference in light of the particular facts and circumstances
of this case. We note that this claim does not involve, as do many suf-
ficiency of the evidence challenges, questions of witness credibility
or of resolving conflicting evidence. Such matters "‘are within the
sole province of the [fact finder] and are not susceptible to judicial
review.’" Burgos, 94 F.3d at 863 (quoting United States v. Lowe, 65
F.3d 1137, 1142 (4th Cir. 1995)). In this case, Ray presented no testi-
mony or evidence at all, so there are no conflicting evidentiary ques-
tions to be resolved. We also note that, as is evident from the
statement of facts, there was clearly evidence sufficient to establish
Ray’s guilt of a state homicide offense in the shooting of Bernard Miller.5
But that is not the issue in this case. Rather, the question is whether
the evidence presented by the government is sufficient to permit a
reasonable jury to infer, beyond a reasonable doubt, that Ray partici-
pated in the Miller shooting with the intent to further the drug con-
spiracy.
5
We do not speculate as to what specific homicide offense Ray might
be guilty of. The evidence suggested that Ray did fire shots, as he had
gunpowder residue on this hands, but that he probably did not fire the
shot that killed Bernard Miller. We simply note that the evidence likely
establishes Ray’s guilt of some type of state homicide offense.
14 UNITED STATES v. RAY
In Burgos, this court explained that "[c]ircumstantial evidence
tending to prove a conspiracy may consist of a defendant’s ‘relation-
ship with other members of the conspiracy, the length of this associa-
tion, [the defendant’s] attitude [and] conduct, and the nature of the
conspiracy.’" Burgos, 94 F.3d at 858 (quoting United States v. Col-
lazo, 732 F.2d 1200, 1205 (4th Cir. 1984)). Usually, the closer and
longer the relationship between the defendant and the conspiracy
members, the more reasonable the inference that the defendant was
a member of the conspiracy. But here, the government’s witnesses
made clear that Ray had not become a member of the drug conspiracy
in spite of his close connection with members of the conspiracy over
the years. This makes it less reasonable to infer that Ray’s participa-
tion in this shooting was in furtherance of the drug conspiracy.
Additionally, the testimony indicates that while much of the vio-
lence in the neighborhood was drug-related, some of it was simply an
artifact of a long-running neighborhood rivalry that predated, and was
unrelated to, any drug dealing. McLeod’s and Addison’s attempt to
retaliate for Ray’s shooting is one example of violent actions that
appear unrelated to the drug conspiracy. The government’s own ques-
tioning, as well as McLeod’s response, indicate that their actions were
not related to the drug conspiracy. When asked why he and Addison,
members of the Chapel Hill Gang, would retaliate for the shooting of
Ray, then associated with the Jefferson Street Boys, McLeod
explained that their motivation was personal: "I went to school with
Mr. Vernon Ray . . . and like I said before, I took him as a real close
friend of mine. And where we came from, we still all stuck together.
One, he was hurt, so our chain of thought was to hurt one of them
who hurt him." It is clear from these circumstances that McLeod’s
and Addison’s attempt to retaliate for Ray’s shooting was not drug-
related — indeed, their retaliation did not make sense when consid-
ered solely in the context of the drug war. Instead, as McLeod clearly
explained, they attempted to retaliate for Ray’s shooting because he
was a childhood friend, and in their neighborhood, friends stuck
together.
Ray’s involvement in the Miller shooting appears to be similar in
nature: Ray joined his friends in retaliation for the shooting of their
long-time personal friend, Morgan Kelly. As with the actions follow-
ing his own shooting years earlier, Ray’s participation in the Miller
UNITED STATES v. RAY 15
shooting can more plausibly be described as an act of personal
revenge than as an act to further the drug conspiracy — a conspiracy
that according to the government’s witnesses he had never joined.
The government argued at trial that Ray participated in the Miller
shooting in order to join the Chapel Hill Gang drug conspiracy and
thereby receive protection from that gang against the Jefferson Street
Boys, who had shot him years earlier. But had Ray intended to join
the Chapel Hill Gang’s drug conspiracy to obtain protection, he pre-
sumably would have done so soon after his shooting. According to
McLeod’s testimony, after Ray’s shooting Ray left the Jefferson
Street Boys’ territory and spent time in the Chapel Hill Gang’s turf.
Nonetheless, Ray kept his distance from, and did not join, the Chapel
Hill Gang’s drug distribution conspiracy.
"Circumstantial evidence sufficient to support a conspiracy convic-
tion need not exclude every reasonable hypothesis of innocence."
Burgos, 94 F.3d at 858 (emphasis added). The evidence must, how-
ever, "permit[ ] a conclusion of guilt beyond a reasonable doubt." Id.(emphasis added). Thus, the fact that the evidence would permit a
jury to find that Ray might have participated in the shooting with the
intent to further the drug conspiracy, or even that he probably did so,
is not adequate to sustain his conviction. The evidence must permit
a conclusion beyond a reasonable doubt. As the D.C. Circuit stated
in Teffera, "[w]hile we recognize that the government’s proof need
not be so certain as to exclude all inferences of innocence, in a case
where the government’s overall evidence of guilt is so thin, the alter-
nate hypotheses consistent with innocence become sufficiently strong
that they must be deemed to instill a reasonable doubt in our hypo-
thetical reasonable juror." Teffera, 985 F.2d at 1088.6 See also United
States v. Atehortva, 17 F.3d 546, 552 (2d Cir. 1994) (reversing con-
spiracy conviction based in part on the fact that "[t]his is not a case
in which there is no other plausible explanation for the appellant’s
actions.").
6
Of course, Ray’s conduct can in no way be described as "innocent."
There is ample evidence of Ray’s guilt of a state law homicide offense.
See supra note 5. In this case the question is whether there are alternative
hypotheses for Ray’s participation in the murder that would indicate that
he did not act with the intent to further the drug conspiracy, and if so,
whether those alternative hypotheses are sufficiently strong as to instill
a reasonable doubt in the mind of a reasonable juror.
16 UNITED STATES v. RAY
As explained above, there are plausible alternative hypotheses for
Ray’s participation in the murder — namely, personal revenge for the
shooting of his friend, much like the personal revenge that motivated
McLeod’s and Addison’s response to his own shooting years earlier.
Ray might also have acted, at least in part, in response to his own
shooting at the hands of the Jefferson Street Boys years earlier. The
testimony elicited by the government from its own witnesses provided
strong evidence that over the life of this conspiracy, Ray was never
a member of the drug distribution scheme. This despite the fact that
he had the time and opportunity, by proximity and association, to join
the conspiracy in the pursuit of money or any of the other purposes
for which one might engage in such criminality. Not once did the
government ask its witnesses whether Ray had ever been hired or
served as an enforcer for the gang. Not once did it ask whether he had
ever been paid (or promised) a dime for his services. Not once did it
ask whether Ray had said anything about why he was joining them
in their September 7, 1997 attack on the Jefferson Street Boys.
Nevertheless, the government asks us to conclude that a reasonable
jury could find, beyond a reasonable doubt, that Ray, who resisted
joining the conspiracy for many years, suddenly decided that he
wanted to ensure the success of that drug distribution operation. They
ask us to conclude this even in the face of evidence of alternative
plausible motivations for his act, namely avenging the shooting of a
long-time friend and/or his own shooting. In light of the specific facts
and circumstances of this case, the defense theory of Ray’s participa-
tion in the Miller shooting is far more plausible than the government’s
theory. This is a case where "the alternate hypotheses [regarding
Ray’s intent are] . . . sufficiently strong that they must be deemed to
instill a reasonable doubt in our hypothetical reasonable juror." Teff-
era, 985 F.2d at 1088. The government’s proposed evidentiary leap
"crosses the line from permissible inference to improper speculation."
Id. We conclude, given the alternative plausible explanations for
Ray’s participation in the murder, that the government failed to pre-
sent evidence from which a reasonable jury could conclude, beyond
a reasonable doubt, that Ray participated in the shooting in order to
further the drug conspiracy.
In so holding, we are not placing insurmountable evidentiary bur-
dens on the government. We are aware that "[b]y its very nature, a
UNITED STATES v. RAY 17
conspiracy is clandestine and covert, thereby frequently resulting in
little direct evidence of such an agreement," such that "a conspiracy
generally is proved by circumstantial evidence and the context in
which the circumstantial evidence is adduced." Burgos, 94 F.3d at
857. If the circumstantial evidence permitted the inference, beyond a
reasonable doubt, that Ray participated in the Miller shooting in order
to further the drug conspiracy, we would not hesitate to affirm his
conviction despite the lack of more direct evidence of his intent. Fur-
thermore, the course of the testimony at trial makes it clear that the
government had many opportunities that it failed to pursue that could
have shed more light on Ray’s intent when participating in the mur-
der. A number of gang members, including McLeod, who participated
in the Miller shooting, testified at length at trial. The government eas-
ily could have pressed these witnesses for further details regarding
Ray’s participation in the Miller shooting, in particular regarding his
participation, if any, in discussions during the planning of that shoot-
ing. Instead, as the government conceded at Ray’s sentencing, the evi-
dence demonstrated that Ray "wasn’t involved in earlier excursions
to try to retaliate on the Jefferson boys that occurred on that day, and
he was not involved in the planning of [the Miller shooting]."
As the Seventh Circuit has explained, "[a] person who is indifferent
to the goals of an ongoing conspiracy does not become a party to this
conspiracy merely because that person knows that his or her actions
might somehow be furthering that conspiracy." United States v. Col-
lins, 966 F.2d 1214, 1219-20 (7th Cir. 1992). Similarly, the First Cir-
cuit has stated that "even with knowledge that a conspiracy exists, one
who allegedly ‘joins’ only by furnishing some peripheral service can
hardly be deemed to have ‘agreed’ to conspire through his conduct
unless he has the aim to forward or assist the conspiracy." United
States v. Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002) (citation omit-
ted). That is to say, a defendant’s knowledge of an ongoing conspir-
acy combined with actions which, at least in part, further that
conspiracy, do not always establish the defendant’s guilt of the con-
spiracy. There may well be cases in which these two factors —
knowledge of an ongoing conspiracy and actions which further that
conspiracy — are sufficient standing alone to support a reasonable
inference that the defendant sought to further the conspiracy. But the
facts of this case imply the contrary — namely, that Ray’s participa-
tion in the shooting was personal in nature, not in furtherance of the
18 UNITED STATES v. RAY
drug conspiracy. Accordingly, we reverse Ray’s conviction on both
counts, as the government presented insufficient evidence from which
a reasonable jury could infer, beyond a reasonable doubt, that Ray
ever acted with the intent to further the drug distribution conspiracy.7
2.
We now turn to consider whether the evidence presented was suffi-
cient to support Burrell’s conviction. We are not entirely clear of the
precise nature of Burrell’s argument in this regard, as he simply incor-
porates Ray’s argument in the joint brief for the appellants. Ray’s
argument was based very heavily on the specific facts of his case and
on the details surrounding his participation in the Miller murder. Bur-
rell was not involved in the Miller murder, but was convicted based
on evidence tying him to the killings of Silvester Snider and Antwan
Greer. Accordingly, it is difficult to know how Burrell intends to
adopt Ray’s argument.
Under Rule 28(a)(9)(A) of the Federal Rules of Appellate Proce-
dure, an appellant’s brief "must contain . . . the argument, [including]
appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies." By
incorporating Ray’s argument, Burrell can perhaps be said to have
cited certain legal authorities — those related generally to sufficiency
of the evidence — on which he would rely. But unsurprisingly, as the
two alleged murders are entirely separate incidents, Ray’s argument
contains no discussion of the factual basis of Burrell’s claim. Burrell
thus has utterly failed to supply the factual reasons for his claim or
any citations to those parts of the record on which his claim relies.
Appellate courts generally decline to review an "asserted but unana-
lyzed . . . claim," because "appellate courts do not sit as self-directed
boards of legal inquiry and research, but [rather] . . . as arbiters of
legal questions presented and argued by the parties before them."
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, Cir-
cuit Judge). See also Nat’l Metalcrafters, Div. of Keystone Consol.
Indus. v. McNeil, 784 F.2d 817, 825 (7th Cir. 1986) ("[T]he appellant
7
Ray raises a number of additional challenges to his conviction.
Because we reverse his conviction, we need not address any of these
additional claims.
UNITED STATES v. RAY 19
ha[s] raised [a ground for reversal] but . . . presented [it] in so per-
functory and underdeveloped a manner in his brief that we shall not
consider it." (quotations and citations omitted)). Given Burrell’s fail-
ure to articulate the basis for his claim, we would be fully justified
in refusing to review it altogether. Nevertheless, out of an abundance
of caution and because Burrell’s ineffective assistance claim is not
difficult to reject on the merits, we will address it.8
As should be clear from our recitation of the facts, there was ample
testimony from which the jury could conclude that Addison had
instructed Burrell to protect Addison’s drug distribution operation by
killing Greer and Snider, who had been shooting at Chapel Hill Gang
members in the area and disrupting his drug operation. Addison reas-
sured his drug dealers that they need not worry about these shootings,
as he had Burrell "on top of it." There is testimony that Burrell then
shot Snider and Greer, and after the shootings was provided money
from the drug distribution proceeds. Thus, there is more than suffi-
cient evidence for a jury to conclude, beyond a reasonable doubt, that
Burrell committed the Snider and Greer shootings, and that he did so
at the request of Addison with the intent to further Addison’s drug
distribution operation and to benefit himself by receiving proceeds of
that drug operation. Accordingly, Burrell’s argument that the govern-
ment presented insufficient evidence to support his conviction is with-
out merit.
B.
Both Addison and Burrell were indicted on death-eligible offenses,
namely violations of 21 U.S.C. § 848. Under the provisions of 18
U.S.C. § 3005, each was entitled to two attorneys upon request. In
February of 1999, the Department of Justice determined that it would
not seek the death penalty against either defendant. Addison requested
that he be permitted to retain two lawyers, and this request was
approved. Burrell also requested two attorneys, but this request was
8
We emphasize that our review of Burrell’s inadequately presented
claim is entirely a matter of our discretion. Litigants who present unana-
lyzed claims run the great risk that this court will refuse to review them
at all.
20 UNITED STATES v. RAY
9
denied. Accordingly, Burrell was only represented by one lawyer at
trial.
The government concedes that Burrell requested two attorneys and
that, in light of this court’s decision in United States v. Boone, 245
F.3d 352 (4th Cir. 2001), his conviction for the death-eligible offense,
killing while engaging in a drug conspiracy, must be vacated. The
only issue debated between the parties is the impact of this on Bur-
rell’s other count of conviction, namely conspiracy to distribute
cocaine. The government argues that we should simply vacate Bur-
rell’s sentence (as Burrell received a single sentence based on both
counts taken together) and remand for resentencing on the drug con-
spiracy count alone. Burrell, in contrast, argues that the denial of two
counsel infects his entire trial and that both counts of conviction must
be vacated and remanded for retrial. The parties have not cited, and
we have not found, any caselaw directly addressing this particular
scenario, so this issue is one of first impression.
The defense contends that affirming Burrell’s conviction on the
non-death-eligible count would in effect constitute an ex post facto
severance. We think that this overstates matters. It is frequently the
case that an error at trial infects only one of multiple counts of con-
viction, and courts routinely affirm the unaffected counts without con-
cern that doing so creates an impermissible ex post facto severance of
the counts or any other legal problem. See, e.g., United States v. Sil-
vers, 90 F.3d 95, 98-99 (4th Cir. 1996); United States v. Meriwether,
486 F.2d 498, 504 (5th Cir. 1973). In this case, the statutory purpose
of § 3005, which is to provide two counsel to defendants facing a
death-eligible count, is adequately served by vacating Burrell’s con-
viction on the death-eligible count. It is true that a defendant receiving
two attorneys under § 3005 is entitled to have those attorneys work
on all of the charges for which he has been indicted. But we are not
persuaded that this incidental benefit should be treated as an entitle-
ment warranting reversal on all counts. Accordingly, we reject Bur-
rell’s argument that both of his counts of conviction must be vacated.10
9
It is not clear (nor relevant) why Addison’s request for two attorneys
was granted while Burrell’s was denied.
10
The government claims in its brief that Burrell’s ultimate sentence
will not be affected by our vacatur of his killing while engaging in a con-
UNITED STATES v. RAY 21
C.
The defendants also raise a claim under Brady v. Maryland, 373
U.S. 83 (1963), that the government failed to turn over material excul-
patory evidence prior to trial. In particular, the defendants argue that
the government failed to disclose, until the trial was underway, a
number of statements by various witnesses. The defendants also argue
that the prosecution has never disclosed certain other pieces of infor-
mation. To establish a due process violation based on the prosecu-
tion’s failure to disclose information, a defendant must show that: "(1)
the evidence at issue must be favorable to the defendant, whether
directly exculpatory or of impeachment value; (2) it must have been
suppressed by the state, whether willfully or inadvertently; and (3) it
must be material." Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555
(4th Cir. 1999). Evidence is deemed material if "there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." United States v.
Bagley, 473 U.S. 667, 682 (1985). The materiality of "suppressed evi-
dence [must be] considered collectively, not item by item." Kyles v.
Whitley, 514 U.S. 419, 436 (1995).
We first consider two pretrial statements by eyewitnesses to the
Greer shooting who testified at trial. The first is a statement by
Sharon Gordon, then a student at Johns Hopkins, who was sitting in
her car at a red light several cars behind Greer when he was shot.
Although she witnessed the shooting, she did not get a good look at
the shooter and her description of him at trial was very vague. She
never identified Burrell (or anybody else) as the shooter, either to the
police or at trial. The defendants object to the prosecution’s failure to
disclose, prior to trial, Gordon’s pretrial statement. However, Gordon
did not identify Burrell at trial, and the defendants do not suggest that
spiracy count. It states that upon re-sentencing on the drug conspiracy
count, the district court presumably will find that Burrell committed a
murder in furtherance of the conspiracy, a sentencing factor which will
result in him receiving the same sentence — life — that he is currently
facing for both counts combined. We draw no conclusions regarding the
accuracy of the government’s presumptions about Burrell’s resentencing.
We also note that our decision is entirely unaffected by whatever sen-
tence Burrell may ultimately face.
22 UNITED STATES v. RAY
she identified some other person in this pretrial statement. We con-
clude that the defendants have not identified anything in Gordon’s
pretrial statement rendering that statement exculpatory. Moreover,
Gordon’s pretrial statement was disclosed to defense counsel, albeit
at trial rather than beforehand.
The second witness statement is by Darren Frazier, a security guard
at Johns Hopkins who also witnessed the Greer shooting. The defen-
dants complain that the government did not disclose until midway
through the trial some notes taken by an investigator during an inter-
view with Frazier. According to these notes, Frazier identified the
shooter as a black male aged 33-34 who was 6’3" and weighed 225
pounds. Burrell, in contrast, is around 5’10" and has an average build.
Like Gordon, Frazier did not make an in-court identification of Bur-
rell as the shooter. If Frazier had changed his story at trial — either
by omitting these details, which tend to exculpate Burrell, or by modi-
fying them so as to match Burrell’s description — then his prior
inconsistent description would certainly have been Brady material
that the government was obliged to disclose. However, at trial Frazier
testified on direct examination by the prosecutor that the shooter was
a black male, "approximately six two, six three in height, he weighed
about maybe 220, 230 pounds." Thus, his testimony at trial exactly
matched his pretrial statement. The defendants have not explained
how their earlier knowledge of this information, which was intro-
duced at trial, could possibly have aided their case.
Third, the defendants point out that the government failed to turn
over, until voir dire, a statement by Rashida Teombe. Teombe’s state-
ment included the comment that "Hymie [Tony Allen] is right hand
man of Poopy [Addison], [so Hymie] may have shot Antwan." The
defendants argue that they could have investigated this alternate pos-
sibility if the government had provided this statement earlier in the
proceedings. We do not find this persuasive. The government cor-
rectly observes that this statement is sheer speculation — Teombe
was not a member of the drug conspiracy herself, and her statement
provides no details suggesting some concrete factual basis for this
conjecture. Nor has the defense suggested that any subsequent investi-
gation into this supposed "alternate theory" has yielded any relevant
information.
UNITED STATES v. RAY 23
Fourth, the prosecution provided only redacted copies of state-
ments by a number of other witnesses.11 The defense has never been
provided unredacted copies of these statements, but asserts that the
unredacted areas might contain exculpatory information. Essentially,
this argument amounts to saying that Brady requires the prosecution
to hand over everything in its possession, either to the court or to
defense counsel, for an independent determination of whether it is
exculpatory and material. This runs directly contrary to the holding
in Brady, which "clearly place[s] responsibility on the prosecutor,
rather than the trial judge [or defense counsel], to determine" what
material is exculpatory and must be produced under Brady. United
States v. Garrett, 238 F.3d 293, 303 n.4 (5th Cir. 2000).
Fifth, the defendants point to the prosecution’s failure to provide
the statement of Billy Ray Kirk until the second week of trial. The
government had listed Kirk as a witness, but in the end did not call
him. According to the defendants, Kirk’s statement indicates that the
Snider killing was in self-defense — that Snider shot at Burrell first.
Defense counsel’s theory of the Snider killing was that it was simply
an act of self-defense and was unrelated to the conspiracy. The prose-
cution, on the other hand, presented the Snider murder as another
overt act in furtherance of the conspiracy. Defense counsel did pre-
sent other evidence that the murder was in self-defense. Several bullet
holes had been fired into the car that Burrell was driving at the time,
and other witnesses testified that Snider shot first. Accordingly, the
Kirk statement is cumulative of other evidence at trial. Moreover,
proving that Burrell returned fire after being shot at first by Snider
does not, as defense counsel seems to assume, prove unequivocally
that the Snider killing was not in furtherance of the drug conspiracy.
Evidence that Burrell was returning fire might weaken the inference
that he shot Snider to further the conspiracy, but countervailing evi-
dence — such as testimony that Addison had ordered Burrell to kill
Snider — still permitted a reasonable jury to find that Burrell was
intent on shooting Snider as part of the ongoing drug war, regardless
of who had initiated the shooting.
11
Specifically, these witnesses are Bruce Snider, Charles Adock, Mary
Washington, Sharon Calloway, George Jones and an unknown witness.
24 UNITED STATES v. RAY
Finally, the defendants argue that the government should have
turned over the identity of a confidential informant who provided
information for search warrants for properties used by Addison and
other gang members. In response, the government cites "the well set-
tled principle that the government is permitted to withhold the identity
of a confidential informant when the informant was used only for the
limited purpose of obtaining a search warrant." United States v. Gray,
47 F.3d 1359, 1365 (4th Cir. 1995) (quotations omitted). Because the
confidential informant was used solely to obtain a search warrant and
not at trial, the government had no duty to disclose his identity.
Considering all of these allegations together, we conclude that the
delay in the disclosure of the evidence by the prosecution was not
material to the outcome of the case. As noted above, only one state-
ment — that of Rashida Teombe — might have required some inves-
tigation by the defendants. That statement was unfounded speculation,
and the defendants have not presented any relevant evidence revealed
by this statement. The remaining statements are descriptions that do
not precisely identify Burrell and testimony that is cumulative of
other evidence presented. Defense counsel had ample opportunity to
introduce these statements at trial, and the defendants have not dem-
onstrated how earlier access to these materials would have meaning-
fully improved their defense. As to the non-disclosed materials, the
defendants have not shown that the prosecution had any duty to turn
over these materials. In sum, the defendants have fallen far short of
establishing that if this material had been disclosed earlier in the pro-
ceedings, "there is a reasonable probability that . . . the result of the
proceeding would have been different." Bagley, 473 U.S. at 682.
D.
Both Addison and Burrell argue that their convictions must be
overturned because the government knowingly offered false testi-
mony against them. We reject this contention, because both alleged
instances of false testimony simply involve inconsistencies in the tes-
timony of government witnesses. As we have stated before, "[m]ere
inconsistencies in testimony by government witnesses do not establish
the government’s knowing use of false testimony." United States v.
Griley, 814 F.2d 967, 971 (4th Cir. 1987) (citation omitted).
UNITED STATES v. RAY 25
The first allegedly false statement involves testimony by Brandon
relating to the Greer and Snider murders. As set out in the statement
of facts, Brandon testified that Addison had told him that he (Addi-
son) had ordered the Greer and Snider murders. On direct, Brandon
testified that Addison had told him of the Greer and Snider killing
prior to Brandon’s incarceration in April of 1996. On cross-
examination, defense counsel brought out that the murders in question
happened in May and June of 1996. This, of course, is inconsistent
with Brandon’s testimony that Addison told him about the murders
prior to April of that year.12 When confronted with this inconsistency,
Brandon explained that he was still in contact with Addison after he
got out of jail and that Addison must have told him about the murders
then. Clearly this testimony is somewhat inconsistent — Brandon
revised his timetable to make sense of his testimony. The record illus-
trates that defense counsel effectively brought out this inconsistency
on cross-examination and made hay of it in closing argument. This is
a far cry from establishing that Brandon’s testimony was in fact false
or that the government knew that the testimony was false.
As for the second allegedly false statement, McLeod testified that
Addison approached him at the Chapel Hill Gang’s Spendthrift Circle
apartment on the day after Greer’s murder and asked for money so
that Burrell could "lay low." Defense counsel confronted McLeod
with the facts that (1) Addison was hospitalized in critical condition
on the day that Greer was killed, and (2) the lease on the apartment
in question had run out in May of 1996 (the Greer killing was in
June). McLeod then changed his story and testified that Addison must
have approached him about the earlier Snider murder. Again, the gov-
ernment made much of this inconsistency on cross-examination and
in closing argument. But this inconsistency does not prove that the
government knew that McLeod’s testimony was false. See, e.g.,
United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (witness
statements that an officer was carrying a wooden rather than metal
baton was not knowingly false even though the government had a
report signed by the witness indicating that the officer was carrying
metal baton). Because the defendants have failed to establish that the
12
The testimony was that Addison claimed responsibility for past mur-
ders, not future murders.
26 UNITED STATES v. RAY
testimony presented by the government was false, let alone that the
government knew it was false, this claim is without merit.
E.
Burrell next argues that the district court committed plain error by
failing to properly instruct the jury on all elements of conspiracy. He
concedes that he failed to object to the court’s instruction on this
ground at trial, and thus we review the court’s instructions for plain
error. Under the plain error standard set out in United States v. Olano,
507 U.S. 725, 732-36 (1993), the defendant must demonstrate "(1)
there is an error (2) that is plain and (3) that affects substantial rights."
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002). "‘If all three
[of these] conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial pro-
ceedings.’" Id. (quoting Johnson v. United States, 520 U.S. 461, 467
(1997) (quotations omitted)).
Burrell emphasizes the difference between the district court’s
instructions, which made reference to two elements of conspiracy,
and the standard from United States v. Stewart, 256 F.3d 231 (4th Cir.
2001), which lists four elements of conspiracy. This court in Stewart
stated that: "To prove a drug conspiracy, the Government must prove
the following: (1) an agreement with another person to violate the
law, (2) knowledge of the essential objectives of the conspiracy, (3)
knowing and voluntary involvement, and (4) interdependence among
the alleged conspirators." Id. at 250 (quotations and citation omitted).
The district court began its instructions by explaining that to establish
a conspiracy, the government must prove "two elements beyond a rea-
sonable doubt. First, that the alleged conspiracy existed. Second, that
the charged defendant knowingly and intentionally became a member
of the conspiracy."
On their face, these instructions do not precisely mimic the four
elements articulated in Stewart.13 Still, there are at least two funda-
13
It is worth noting that this case was tried in the spring of 2000, while
Stewart, the first case in which this court used this particular four-
element standard for conspiracy, was decided in 2001. It would therefore
have been quite an act of prescience on the part of the district court to
have precisely anticipated the formulation used in Stewart.
UNITED STATES v. RAY 27
mental flaws in Burrell’s argument. First, while Stewart is certainly
one correct statement of the elements of conspiracy, it is by no means
the only formulation that captures those essential elements. Other
cases have articulated a three-prong test for conspiracy. For example,
in Burgos, this court explained that "[t]o prove conspiracy to possess
cocaine base with intent to distribute, the Government must establish
that: (1) an agreement to possess cocaine with intent to distribute
existed between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily became
a part of this conspiracy." Burgos, 94 F.3d at 857 (citation omitted).
Stewart is not inconsistent with Burgos because the former articulates
the elements of conspiracy using four prongs while the latter does so
with three prongs.14 They are simply two equally correct formulations
of the same basic elements of conspiracy. Accordingly, the discrep-
ancy between the reference to the "two elements" of conspiracy in the
jury instructions and the four elements listed in Stewart does not
mean that the instructions were inadequate.
Second, and more importantly, the jury instructions given here
explain the meaning of these "two elements" in a manner that ade-
quately covers all of the requirements set forth in Stewart. The district
court defined conspiracy as "a combination, or a mutual agreement by
two or more persons, to disobey or disregard the law." The court then
explained that if the jury concluded that a conspiracy existed, "you
should next determine whether or not the defendant whom you are
considering willfully became a member of the conspiracy." In decid-
ing this,
[Y]ou should consider whether . . . the defendant knowingly
and willfully joined the conspiracy. Did he participate in it
with knowledge of its unlawful purpose with specific inten-
tion of furthering its business or objective as an associate or
as a worker? In that regard, it has been said that in order for
a defendant to be deemed a participant in a conspiracy, that
he must have had a stake in the venture or its outcome. . . .
[I]n sum, a defendant with an understanding of the unlawful
character of the conspiracy must have intentionally engaged
14
In fact, both opinions were authored by the same judge, Judge Wil-
liams.
28 UNITED STATES v. RAY
or advised or assisted in for the purpose of furthering the
illegal undertaking, and he thereby becomes a knowing and
willing participant in the unlawful agreement; that is to say,
a conspirator.
(Emphasis added.) These detailed instructions make clear that the sec-
ond "element" — that the defendant knowingly and intentionally
became a member of the conspiracy — requires a finding that the
defendant knowingly assisted the conspiracy with the intent to further
its illegal goals. All in all, we conclude that the district court ade-
quately instructed the jury on all of the essential elements of conspir-
acy. We find no error in the instructions, let alone plain error.
F.
The defendants next argue that both the indictment and the jury
instructions were flawed, as neither clarified that a "substantial con-
nection" must be established between the conspiracy and the alleged
murders. The defendants also argue that the prosecution exacerbated
this error by making improper comments in closing argument. We
first consider the indictment. Counts Two and Three of the indictment
charge killings "while engaging in" a drug conspiracy, in violation of
21 U.S.C. § 848(e). The phrase "while engaging in" is taken directly
from the statute. Nonetheless, as the defendants correctly point out,
this phrase on its own fails to adequately convey the elements of a
§ 848(e) offense. The phrase "while engaging in" could be read to
require no more than a temporal connection between a killing and
participation in a drug conspiracy. Thus, this court, like others, has
made clear that under § 848(e), "a substantive connection [between
the killing and the underlying offense] must be implied as an essential
element of § 848(e)." United States v. Tipton, 90 F.3d 861, 887 n.13
(4th Cir. 1996) (citing United States v. Chandler, 996 F.2d 1073,
1097 (11th Cir. 1993)). In this case, Counts Two and Three simply
allege that the defendants, "while engaging in . . . conspiracy to dis-
tribute . . . cocaine, . . . intentionally killed" Antwan Greer (Count
Two) and Bernard Miller (Count Three).
In response, the government points out that both Counts Two and
Three incorporate by reference all allegations from Count One. In
Count One, the drug conspiracy count, the government specifically
UNITED STATES v. RAY 29
alleges that (1) the defendants "acted as enforcers who would retaliate
against persons who threatened the group’s territory or who injured
or threatened members of the group[;]" (2) "in connection with his
role as an enforcer, Darrell Antonio Burrell . . . murdered Silvester
Snider[;]" (3) Burrell "murdered Antwan Greer on June 12, 1996, in
retaliation for the shooting of Andre Addison[;]" and (4) "in connec-
tion with their roles as enforcers, [Ray and another man] participated
in the murder of Bernard Miller . . . in retaliation for an attack by
members of the Jefferson Street Boys." The government argues that
this language more than adequately alleges, by way of particular facts,
a substantial connection between the killings in Counts Two and
Three and the drug conspiracy. We agree. The government need not
use magic words to convey the required connection between the drug
conspiracy and the killings. As in Chandler, "any reasonable reading
of the indictment makes it clear that the government was charging
[the defendants] with a murder in connection with, and not just con-
temporaneous to, the ongoing" conspiracy. Chandler, 996 F.2d at
1097. We conclude that the indictment adequately alleged a substan-
tial connection between the killings and the drug conspiracy.
We now turn to the defendants’ analogous argument directed at the
jury instructions. In this regard, any contention that the instructions
failed to require the jury to find a "substantial connection" can easily
be rebutted by simply quoting from the instructions. The judge
instructed, in pertinent part, that:
The government must prove that such killing occurred while
the defendant engaged in the conspiracy charged in count
one. The term "while engaging in" means more than coinci-
dence in time with the conspiracy. . . . [It] requires not only
that the crime occur during the time period covered by the
conspiracy, but also that each individual defendant’s partici-
pation be related to the conspiracy. You may find that the
killing was related to the conspiracy if you find that there
was a substantive connection between the individual defen-
dant’s role in the killing and his participation in the conspir-
acy.
This instruction adequately conveys the necessary nexus between the
killing and the conspiracy and eliminates any danger that "a defendant
30 UNITED STATES v. RAY
could be found guilty simply on the basis of a temporal coincidence
of a murder with a [conspiracy]." Tipton, 90 F.3d at 887. The defen-
dants’ contention in this regard is without merit.
Finally, we address certain comments by the prosecutor in closing
argument. These comments, the defendants contend, led the jury to
believe that the connection between the killings and the drug conspir-
acy was unimportant. In closing, the prosecutor highlighted the
defense argument "that somehow this is not a federal case." The pros-
ecutor then stated:
I don’t know what that means, this is not a federal case. . . .
All I know is that this is a case that involves interstate com-
merce of kilos of cocaine, that there are killings, that there
are guns, that there are drugs, and that there are murders. . . .
You tell the mothers of Antwan Greer and Bernard Miller
that this is not a federal case. If this is not a federal case,
ladies and gentlemen, I don’t know what is. I don’t know
what is.
By these statements, the prosecution appears to be suggesting that any
case that involves guns, drugs, and killings is necessarily a federal
case, i.e., a violation of federal law. This is quite obviously incorrect.
As should be clear from our discussion of Ray’s conviction in part
II.A.1, the question of whether Ray is guilty of a federal crime or only
a state crime, which the prosecution here paints as an irrelevant tech-
nicality, is the central issue for Ray.
In addition, the prosecutor’s comment regarding the murder vic-
tims’ mothers is particularly inappropriate. It suggests that determin-
ing whether certain conduct gives rise to "a federal case" depends on
the severity of the crime or the suffering of the victim’s families. It
also implies that a state murder conviction would somehow inade-
quately capture the seriousness of the defendants’ conduct. Nothing
could be further from the truth. It is a "truism that our federal system
entrusts the States with primary responsibility in the criminal area,"
Giles v. Maryland, 386 U.S. 66, 81 (1967), and any suggestion that
the States are inadequate to the task is unfounded and irresponsible.
The government concedes, as it should, that this argument was inap-
propriate.
UNITED STATES v. RAY 31
Nonetheless, while the remarks were improper, "[t]he issue . . . is
whether those remarks materially affected the verdict." United States
v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997). Materiality depends on
"first, whether the comments misled the jury and prejudiced the
appellant; second, were they isolated or extensive; third, absent the
remarks, what was the weight of the evidence against the accused;
and fourth, were the prosecutor’s remarks deliberate." Id. (citations
omitted). In this case, the prosecutor’s remarks were isolated in the
course of a month-long trial. The evidence connecting Addison’s and
Burrell’s participation in the Greer and Snider killings to the drug
conspiracy was quite strong. Given the district court’s clear jury
instructions, it is unlikely that these isolated comments misled the
jury. We conclude that the improper remarks did not materially affect
the jury’s verdict against Burrell or Addison. We reject all of the
defendants’ contentions related to the "substantial connection"
between the killings and the drug conspiracy.
G.
The defendants next object to the admission of evidence resulting
from a search warrant. The copies of the warrant and affidavit intro-
duced to the district court at the suppression hearing were not signed
by a magistrate or by the affiant, respectively. The brief submitted by
defense counsel on appeal does not make clear whether the defen-
dants claim that the search warrants were never actually signed, or
whether they merely claim that the failure to introduce signed copies
of the search warrants at the suppression hearing was reversible error.
Addison requested permission from this court to file a supplemental
pro se brief on this issue, which we granted. In his pro se brief, Addi-
son contends that the warrants in question had never been signed by
any magistrate. The government responded to the initial defendants’
brief but did not respond to Addison’s pro se brief. The government
stated that "[t]he fact that the search warrant and affidavit were
unsigned is not relevant" to the Fourth Amendment probable cause
inquiry. In its brief, the government never expressly stated that the
original warrant and affidavit had actually been signed, nor did they
proffer copies of the original, signed warrant and affidavit.15
15
This is perhaps because the defendants’ brief did not clearly allege
that the originals had never been signed. But Addison’s pro se brief,
32 UNITED STATES v. RAY
When pressed at oral argument, the government represented that
the original warrant and affidavit had in fact been signed. After a spe-
cific request by the court, the government provided copies of the orig-
inal signed warrant and affidavit. Addison has not responded or
attempted to draw into question the authenticity of those documents,
and we reject his contention that the search warrant and affidavit were
never in fact presented to a magistrate or signed.
Given the fact that the search warrant and affidavit had in fact been
signed, we also reject the defendants’ lesser contention that the evi-
dence must be suppressed because unsigned copies of the warrant and
affidavit were introduced at the suppression hearing. In United States
v. Lipford, 203 F.3d 259 (4th Cir. 2000), this court held that the fact
that a police officer had provided a defendant with an unsigned copy
of a search warrant, when the original had in fact been signed, did not
require suppression of the evidence obtained in that search. Id. at 269-
70. We explained that "this was, at most, a technical violation of Fed-
eral Rule of Criminal Procedure 41(d), and not a violation of the
Fourth Amendment. Absent a demonstration of prejudice or bad faith
— neither of which is present here — suppression of evidence is not
the proper remedy . . . ." Id. at 270. The same rule applies here.
Because a magistrate actually issued the search warrant, the fact that
an unsigned copy was introduced at the suppression hearing is, as in
Lipford, a technicality that does not call for suppression of the evi-
dence.
H.
The defendants also argue that the district court erred by refusing
to sever the trials, by refusing to instruct the jury on the limited
admissibility of a co-conspirator’s statements, and by refusing to pro-
vide a requested multiple conspiracy instruction. We have reviewed
these claims and conclude that the district court did not abuse its dis-
cretion in any of these matters. See United States v. Akinkoye, 185
which we permitted him to file, does make this more serious allegation.
We are troubled by the government’s failure to make any response to this
serious allegation, particularly given the simplicity of Addison’s claim
and the ease of presenting the proof required to rebut it — namely, cop-
ies of the original signed documents.
UNITED STATES v. RAY 33
F.3d 192, 197 (4th Cir. 1999) (refusal to sever); United States v.
Mancuso, 42 F.3d 836, 843 (4th Cir. 1994) (refusal to provide instruc-
tions). Additionally, the defendants raise various challenges related to
the Snider killing. Specifically, the defendants argue that the district
court committed error in admitting evidence of this unindicted killing,
in refusing to instruct on self-defense, and in permitting improper
closing argument related to this killing. We have reviewed these con-
tentions and conclude that they lack merit.
III.
In sum, we conclude that the vast majority of the defendants’
claims on appeal lack merit. We do conclude, however, that the gov-
ernment failed to present sufficient evidence from which a jury could
find, beyond a reasonable doubt, that Ray participated in the Miller
shooting in order to further the drug conspiracy. We therefore reverse
his conviction on both counts. We also conclude that Burrell was
denied his statutory right to two attorneys for his death-eligible
offense and that his conviction for killing while engaging in a drug
conspiracy must therefore be vacated. This error does not affect his
conviction for conspiracy to distribute cocaine, however, and we
affirm that conviction. We vacate his sentence and remand for resen-
tencing on that count alone. We affirm Addison’s conviction in all
respects.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED