United States v. Dawson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5146
NATHANIEL DAWSON, SR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5152
NATHANIEL DAWSON, JR., a/k/a Jack
Steele,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5187
SEAN KIRKLAND, a/k/a Shawn Kemp,
a/k/a Seth Webb,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5342
BEVERLY LUCINDA BROWN,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-94-10-WN)
Argued: January 31, 1997
Decided: April 21, 1998
Before RUSSELL* and WILKINS, Circuit Judges, and HERLONG,
United States District Judge for the District of South Carolina,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Wesley Marc Serra, BROWN, BERNE & SERRA, New
York, New York, for Appellant Dawson, Jr.; Flynn M. Owens, HOW-
ARD CARDIN, P.A., Baltimore, Maryland, for Appellant Dawson,
Sr.; Michael J. Moran, Baltimore, Maryland, for Appellant Kirkland;
Joseph Murtha, IRWIN, GREEN & DEXTER, L.L.P., Baltimore,
Maryland, for Appellant Brown. Christine Manuelian, Assistant
United States Attorney, Katharine Jacobs Armentrout, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore,
Maryland, for Appellant Dawson, Sr.; David B. Irwin, IRWIN,
KERR, GREEN, MCDONALD & DEXTER, Baltimore, Maryland,
for Appellant Brown. Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. See 28 U.S.C.A. § 46(d) (West 1993).
2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Nathaniel Dawson, Jr. (Dawson), Nathaniel Dawson, Sr. (Dawson,
Sr.), Sean Kirkland,1 and Beverly Brown (collectively, "Appellants")
appeal their convictions on various charges arising from their partici-
pation in a narcotics distribution conspiracy in Baltimore, Maryland.
Additionally, Brown appeals the sentence imposed on her by the dis-
trict court. Finding no error, we affirm.
I.
Beginning in 1991, Dawson was the leader of an organization that
distributed cocaine in a neighborhood in Baltimore. Kirkland served
as Dawson's chief lieutenant. Brown, Dawson's girlfriend, assisted
Dawson in delivering cocaine and firearms to various stash houses
near locations where the drugs were sold. Although Kirkland was pri-
marily responsible for overseeing the sellers, Dawson occasionally
visited the operation accompanied by his bodyguards, who were
armed with firearms provided by Dawson. At the end of each day,
Dawson and Kirkland would collect the proceeds and tally the profits
at a house Kirkland shared with his girlfriend, Mary Personeus.
On November 4, 1993, Dawson and two bodyguards, Eric Drayton
and Kendrick McCray, were observing the sellers when an automo-
bile drove down the street toward them. At Dawson's direction,
McCray approached the vehicle and spoke to the occupants, who
ignored him and stopped in front of Dawson and Drayton. Words
_________________________________________________________________
1 Kirkland was identified in the indictment as "Seth Webb," an individ-
ual with an alias of "Shawn Kirkland." The judgment of conviction and
the Government's brief, however, identify Kirkland as "Sean Kirkland,"
an individual with an alias of "Seth Webb." We will refer to this individ-
ual as "Kirkland" throughout this opinion.
3
were exchanged and Dawson drew his firearm, prompting Drayton
and McCray to do likewise. Drayton and McCray then began firing
their weapons, intending to kill the occupants of the vehicle. During
the shootout, a stray bullet struck and killed Tauris Johnson, a ten-
year-old boy who had been playing football nearby.
The following day, Dawson, Drayton, McCray, and others fled to
New York. After obtaining an arrest warrant for Dawson in connec-
tion with the murder of Tauris Johnson, Baltimore law enforcement
officers requested assistance from a task force in New York com-
posed of federal and state agents. In response to this request, New
York City Police Detective Austin Fields, after learning that Dawson
was on active parole in New York, obtained an address and phone
number for him. Fields telephoned Dawson and, posing as Dawson's
new parole officer, informed Dawson that he would be by to see him
that afternoon. Fields arrived at Dawson's apartment and gained
admission to the premises. After verifying Dawson's identity, Fields
arrested him, placed him in handcuffs, and seated him near the front
door. Hearing a radio playing in a back room and aware that Dawson
was believed to have traveled to New York with others suspected of
criminal activity, accompanying officers conducted a protective
sweep to determine if any other persons were present. During the
sweep, Detective Billy Ralat observed in plain view in one of the bed-
rooms a triple-beam scale, a lock box, and an empty box of the type
used to store firearms. In stooping to look under the bed, Detective
Ralat further observed that the mattress was askew on the box spring.
Recalling training videos in which suspects had cut holes in box
springs and had hidden inside to avoid apprehension, Detective Ralat
lifted the mattress and discovered several firearms. These weapons
were later seized pursuant to a search warrant; two of them were
determined to be weapons employed in the Tauris Johnson shooting.
Dawson was returned to Baltimore in mid-December, indicted on
state charges, and incarcerated pending trial. Shortly thereafter, Daw-
son contacted former bodyguard Gregory Lyons and asked him to
"take care of the witnesses" against Dawson. J.A. 701-02 (internal
quotation marks omitted). After Lyons declined the request, Dawson,
Sr. contacted Kirkland. Dawson, Sr. showed Kirkland the indictment
and stated that he was going to kill all of the witnesses against Daw-
son. A few days later, Kirkland identified witness Latisha Murphy to
4
Dawson, Sr., who approached Murphy and shot her twice in the head,
killing her.
Subsequently, Appellants were tried and convicted of conspiracy to
possess with the intent to distribute and to distribute cocaine. See 21
U.S.C.A. § 846 (West Supp. 1997). Dawson and Kirkland were con-
victed of the intentional killing of another while engaging in an
offense punishable under 21 U.S.C.A. § 841(b)(1)(A) (West Supp.
1997) for the killing of Tauris Johnson. See 21 U.S.C.A.
§ 848(e)(1)(A) (West Supp. 1997). Dawson, Kirkland, and Dawson,
Sr. were convicted of three counts in connection with the murder of
Latisha Murphy: killing to prevent the attendance or testimony of a
person in an official proceeding, see 18 U.S.C.A. § 1512(a)(1)(A)
(West Supp. 1997); killing to prevent the communication of a person
with law enforcement officials, see 18 U.S.C.A. § 1512(a)(1)(C)
(West Supp. 1997); and conspiracy to kill a person in violation of 18
U.S.C.A. § 1512(a)(1)(A), (C), see 18 U.S.C.A. § 371 (West 1966).
We address seriatim Appellants' challenges to their convictions and
Brown's appeal of the sentence imposed by the district court.
II.
Appellants first maintain that the district court erred in denying a
motion to suppress evidence found in Dawson's New York apartment.
According to Appellants, the district court incorrectly concluded that
law enforcement officers were justified in conducting a protective
sweep of the apartment after arresting Dawson and placing him in
handcuffs. Appellants argue alternatively that even if a protective
sweep of the apartment in general was warranted, the justification for
the sweep did not extend to the lifting of the mattress in the bedroom.
We conclude that both of these contentions are without merit.
The Supreme Court has defined a protective sweep as"a quick and
limited search of premises, incident to an arrest and conducted to pro-
tect the safety of police officers or others. It is narrowly confined to
a cursory visual inspection of those places in which a person might
be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). "[A]s a pre-
cautionary matter and without probable cause or reasonable suspi-
cion," arresting officers may "look in closets and other spaces
immediately adjoining the place of arrest from which an attack could
5
be immediately launched." Id. at 334. Any further protective sweep,
however, requires "articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably pru-
dent officer in believing that the area to be swept harbors an individ-
ual posing a danger to those on the arrest scene." Id. Whether a
protective sweep was justified is a mixed question of law and fact;
accordingly, we review the factual findings of the district court for
clear error and its ultimate legal conclusion de novo. See United
States v. Han, 74 F.3d 537, 540 & n.1 (4th Cir. 1996).
We have little difficulty in concluding that a protective sweep of
the apartment in general was justified in this case. Prior to entering
Dawson's apartment to effect his arrest, officers were aware that
Dawson had traveled to New York with individuals suspected of
being accomplices in the crime for which Dawson was to be arrested.
Furthermore, there was a pause of some length between the time
Detective Fields knocked on Dawson's door and the time Dawson
responded. Finally, when officers entered the apartment they could
hear a radio playing in a back room. Taken together, these facts are
sufficient to support a reasonable suspicion that others might have
been on the premises with Dawson, thereby justifying a protective
sweep.
We also reject Appellants' challenge to the scope of the sweep.
Relying primarily on United States v. Blue, 78 F.3d 56 (2d Cir. 1996),
Appellants claim that even if a protective sweep of the apartment was
justified, Detective Ralat did not possess a reasonable suspicion that
someone might be hiding under the mattress. The Blue court held that
a search under the mattress on which the defendant had been sitting
when apprehended was not justified as a protective sweep because
searching officers "failed to articulate specific reasons for their suspi-
cion that the bed harbored a dangerous person." Id. at 60.
When the agents entered into Blue's apartment unan-
nounced, [the space underneath the mattress] was com-
pressed by Blue, who was sitting on top of the bed. While
the government suggests there could have been a person
hiding in a cavity in the box spring, the officers lacked
articulable facts at the time of the sweep to support such an
inference. There was no indication in the record of any
6
movement by Blue or any other unidentified individuals
when the agents entered the room. Moreover, there was no
indication that the officer's search was the result of a rise or
bulge in the mattress, nor did the officers suggest anything
unusual about the bed. Furthermore, the arresting officers
had no information concerning Blue or his apartment prior
to their ... entry which would indicate that their safety was
threatened by a hidden confederate, let alone one within the
confines of the mattress and box spring.
Id. at 61. This reasoning plainly does not support the result Appellants
seek in this case. Here, the officers were aware that Dawson was in
New York with at least two confederates; furthermore, the delay in
Dawson's response to the knock on his door and the sound of the
radio in the back of the apartment could support an inference that oth-
ers were in the apartment. Finally, Detective Ralat decided to lift the
mattress only after observing that it was askew on the box spring,
indicating that it might have been moved in haste. Under these cir-
cumstances we hold that the district court correctly determined that
the lifting of the mattress fell within the scope of a proper security
sweep.
III.
Appellants also argue that they were denied their constitutional
right to a fair and impartial jury by prejudicial pretrial publicity con-
cerning the case. In particular, Appellants point to an article published
in a local newspaper on the day of jury selection. The article, titled
"I think they're going to kill us one day," recounted Latisha Murphy's
testimony before the grand jury, noting specifically Murphy's pre-
scient concern that members of the conspiracy would"kill us one day
when it's all over with." J.A. 142 (internal quotation marks omitted).
Appellants do not contend that the jury was actually prejudiced as a
result of exposure to this article; rather, they maintain that its content
was so inflammatory that prejudice should be presumed.
Appellants are correct, of course, that in some cases "adverse pre-
trial publicity can create such a presumption of prejudice in a commu-
nity that ... jurors' claims that they can be impartial should not be
believed." Patton v. Yount, 467 U.S. 1025, 1031 (1984). This pre-
7
sumption, however, should be invoked "[o]nly in extreme circum-
stances." Wells v. Murray, 831 F.2d 468, 472 (4th Cir. 1987). In
establishing a presumption of prejudice, Appellants bear the burden
of showing that "media or other community reaction ... engender[ed]
an atmosphere so hostile and pervasive as to preclude a rational trial
process." Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992)
(en banc); see Wells, 831 F.2d at 472. Appellants cannot satisfy this
burden. While the newspaper article was undoubtedly inflammatory
to some degree, the record does not support a conclusion that the
effect of the article was so pervasive as to preclude the impanelling
of an impartial jury. Of the 100-member venire, only 23 prospective
jurors were familiar with the article, and only nine of those were
affected by it to such a degree that the district court found it necessary
to excuse them for cause. Accordingly, we reject Appellants' conten-
tion that they were entitled to a presumption of prejudice arising from
pretrial publicity.
IV.
Dawson and Dawson, Sr. contend that the district court erred in
admitting into evidence statements made by Kirkland to Personeus
regarding the killings of Tauris Johnson and Latisha Murphy, arguing
that the statements were not admissible under Federal Rule of Evi-
dence 801(d)(2)(E). We disagree.
Rule 801(d)(2)(E) provides that "a statement by a coconspirator of
a party during the course and in furtherance of the conspiracy" is not
hearsay. Such a statement is admissible only if the Government estab-
lishes by a preponderance of the evidence that a conspiracy existed
involving the declarant and the person against whom the statement is
offered and the statement was made during the course and in further-
ance of the conspiracy. See Bourjaily v. United States, 483 U.S. 171,
175 (1987). Here, Dawson and Dawson, Sr. contend that the state-
ments made by Kirkland to Personeus--which described the events
surrounding the murders of Tauris Johnson and Latisha Murphy--
were not made in furtherance of the conspiracy. We review the deci-
sion of the district court to admit coconspirator statements for an
abuse of discretion. See United States v. Blevins, 960 F.2d 1252, 1255
(4th Cir. 1992).
8
"A statement by a coconspirator is made in furtherance of a con-
spiracy if it was intended to promote the conspiracy's objectives,
whether or not it actually has that effect." United States v. Shores, 33
F.3d 438, 443 (4th Cir. 1994) (internal quotation marks omitted). Fur-
thermore, "[a] particular statement may be found to be in furtherance
of the conspiracy even though it is susceptible of alternative interpre-
tations and was not exclusively, or even primarily, made to further the
conspiracy," provided there is a reasonable basis for concluding that
the statement was made to further the conspiracy. Id. at 444 (internal
quotation marks omitted). Although idle chatter or entirely retrospec-
tive statements generally are not considered to be in furtherance of the
conspiracy, narratives of past events are admissible under Rule
801(d)(2)(E) if they serve some present purpose in the conspiracy,
e.g., by promoting cohesiveness among, or providing reassurance to,
the conspirators. See United States v. Thai, 29 F.3d 785, 813 (2d Cir.
1994). Retrospective statements are also in furtherance of the conspir-
acy if they serve to inform a conspirator of the status of the conspir-
acy. See United States v. Edmond, 52 F.3d 1080, 1111 (D.C. Cir.
1995) (per curiam).
In light of these principles, we conclude that the district court did
not abuse its discretion in determining that the statements made by
Kirkland to Personeus were made in furtherance of the conspiracy.
The challenged statements, which related recent events in the life of
the conspiracy, plainly served to update Personeus on the status of the
criminal enterprise of which she was a part.2 Accordingly, we reject
Dawson and Dawson, Sr.'s challenge to the admission of these state-
ments.
V.
Next, Dawson and Kirkland maintain that the evidence is insuffi-
cient to support their convictions for murdering Tauris Johnson in fur-
therance of the conspiracy. More specifically, Dawson and Kirkland
_________________________________________________________________
2 Dawson and Dawson, Sr. do not claim that Personeus was not a mem-
ber of the conspiracy. Cf. Shores, 33 F.3d at 444 (explaining that in order
to be in furtherance of a conspiracy, a statement to a nonconspirator must
be made for the purpose of inducing that person to join the conspiracy
or to assist the conspiracy in accomplishing its objectives).
9
argue that the evidence adduced at trial does not support a finding that
they are responsible, either directly or indirectly, for the killing of
Tauris Johnson. We disagree.
Dawson and Kirkland were convicted of violating 21 U.S.C.A.
§ 848(e)(1)(A), which applies, inter alia , to "any person engaging in
an offense punishable under [21 U.S.C.A. § 841(b)(1)(A)] ... who
intentionally kills or counsels, commands, induces, procures, or
causes the intentional killing of an individual and such killing
results." Dawson and Kirkland concede that at the time of Tauris
Johnson's death they were engaged in an offense punishable under
§ 841(b)(1)(A) and that the boy was killed as a result of their actions,
but dispute the sufficiency of the evidence supporting a conclusion
that they either intentionally killed Tauris Johnson or counseled, com-
manded, induced, procured, or caused an intentional killing. In con-
sidering this argument, we must determine whether there is
substantial evidence, viewed in the light most favorable to the Gov-
ernment, to support the verdict. See Glasser v. United States, 315 U.S.
60, 80 (1942).
It is undisputed that neither Dawson nor Kirkland fired the fatal
bullet. Rather, the Government sought to convict the two on the basis
that the intentional killing of Tauris Johnson3 was reasonably foresee-
able to them within the scope of their participation in the conspiracy.
See Pinkerton v. United States, 328 U.S. 640, 646-48 (1946). After
reviewing the record, we conclude that there is ample evidence from
which a jury could deduce that the intentional killing of another was
foreseeable to Dawson and Kirkland. As to Dawson, testimony at trial
established that he recruited bodyguards to accompany him when he
observed selling operations and that he provided firearms for their
use. Moreover, it was Dawson who first pulled his weapon on
_________________________________________________________________
3 There is no dispute that Drayton and McCray, one of whom fired the
shot that killed the boy, did not intend to murder an innocent bystander.
The record is clear, however, that Drayton and McCray intended to kill
the occupants of the vehicle, making the killing of Tauris Johnson inten-
tional under a theory of transferred intent. See Maes v. Thomas, 46 F.3d
979, 984 n.4 (10th Cir. 1995) (explaining that doctrine of transferred
intent is applicable when an individual intends to kill one person, but
instead kills a bystander).
10
November 4, prompting Drayton and McCray to do the same and
eventually to fire on the occupants of the automobile. This evidence
certainly is adequate to support a finding that a killing was reasonably
foreseeable to Dawson. The evidence is no less compelling with
respect to Kirkland. As Dawson's right hand in the conspiracy, Kirk-
land had personal knowledge that members of the conspiracy were
armed and that the use of deadly force was a real possibility. Indeed,
Kirkland himself carried a gun and on the day of the Tauris Johnson
murder warned a rival drug dealer not to attempt to invade Dawson's
turf, an act that "would start a war." J.A. 700. We conclude that this
evidence was sufficient to support the convictions for the murder of
Tauris Johnson.
VI.
Finally, Brown maintains that the district court erred in determin-
ing her sentence, arguing primarily that the court improperly applied
a cross reference in the drug conspiracy guideline to the guideline for
first degree murder based on the killing of Tauris Johnson. See U.S.
Sentencing Guidelines Manual § 2D1.1(d)(1) (1994) (directing the
court to apply the guideline for first degree murder"[i]f a victim was
killed under circumstances that would constitute murder under 18
U.S.C. § 1111 had such killing taken place within the territorial or
maritime jurisdiction of the United States"). Brown contends that
because the killing of Tauris Johnson was not reasonably foreseeable
to her within the scope of her participation in the conspiracy, it cannot
be employed as a basis for application of the cross reference. See
U.S.S.G. § 1B1.3(a)(1)(B). After reviewing the record, we conclude
that the district court did not commit clear error in determining that
the killing of Tauris Johnson was reasonably foreseeable to Brown.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).4
_________________________________________________________________
4 In light of our determination that the district court properly applied
the cross reference, we need not address Brown's argument that the dis-
trict court erred in its alternative calculation of the quantity of drugs
attributable to Brown for sentencing purposes. And, we conclude that the
remainder of Brown's challenges to her sentence are without merit.
11
VII.
In sum, we hold that all of Appellants' challenges to their convic-
tions are without merit. And, we conclude that the district court cor-
rectly sentenced Brown. Accordingly, we affirm.
AFFIRMED
12