United States v. Trevon Beasley ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREVON BEASLEY, a/k/a Tre,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:17-cr-00223-GLR-3)
Submitted: June 29, 2020 Decided: August 19, 2020
Before HARRIS and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marc G. Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt, Maryland, for
Appellant. Robert Hur, United States Attorney, David Metcalf, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury returned a verdict finding Trevon Beasley guilty of conspiracy to participate
in a racketeering activity, conspiracy to distribute controlled substances, conspiracy to use
and carry a firearm in relation to drug trafficking, possession of a controlled dangerous
substance, and six counts of distribution of a controlled dangerous substance. The district
court sentenced Beasley to concurrent terms of life imprisonment on the racketeering
conspiracy and the drug trafficking conspiracy counts, and 240-month terms on each of the
remaining counts all to run concurrently with each other. Beasley appeals.
Baltimore City Police officers on patrol in a marked police car observed two men
seated in a parked Honda Acura. As the police car neared the Acura, both men ducked
down and hid from view. This action aroused the suspicion of the officers, who stopped
their vehicle and walked up to the Acura. As the officers neared the vehicle, they detected
the odor of marijuana. One officer knocked on the window and asked to speak with the
occupants. The officers observed Beasley crouched in the backseat and Avery Hawkins
lying on his stomach in the front seat. The officers opened the passenger door and ordered
the men to exit the vehicle. With the car door open, one officer observed the butt of a
handgun on the floor of the front passenger seat. The officers also discovered marijuana
in the vehicle. While conducting a search incident to arrest, officers found in Beasley’s
pants pocket a key fob, which activated the vehicle parked behind the one in which Beasley
had been a passenger prior to his arrest. Officers inquired whether that vehicle contained
any drugs or guns. Beasley responded, “I don’t know, it’s not my vehicle.” The officers
called a narcotics K-9 to the scene and the dog alerted on all four doors of the vehicle. The
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officers then conducted a search of that vehicle and discovered additional drugs. Beasley
contends that the district court erred by denying his motion to suppress this evidence.
A search can violate an individual’s Fourth Amendment rights only when he has a
legitimate expectation of privacy in the location searched. See Byrd v. United States, 138
S. Ct. 1518, 1526 (2018). A person “normally has no legitimate expectation of privacy in
an automobile in which he asserts neither a property interest nor a possessory interest.”
United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002). The person challenging the
search bears the burden of establishing a reasonable expectation of privacy in the searched
area. United States v. Castellanos, 716 F.3d 828, 833 & n.4 (4th Cir. 2013).
Rather than establishing an expectation of privacy, Beasley expressly disavowed
ownership of the vehicle, saying, “I don’t know, it’s not my vehicle.” Because he
disclaimed ownership of the vehicle, the district court appropriately determined that
Beasley lacked any expectation of privacy in the vehicle. See United States v. Washington,
677 F.2d 394, 396 (4th Cir. 1982) (denying motion to suppress evidence recovered from
suitcase when defendant disclaimed any interest in suitcase, stating, “It’s not my bag, I
don’t care what you do”). Accordingly, the district court did not err by denying his motion
to suppress evidence recovered from the vehicle.
Next Beasley contends that the district court erred by denying his motion for a
mistrial or issuance of a curative instruction when, although the parties agreed not to
present evidence of the murder by Beasley’s co-conspirator of a 3-year-old child caught in
the middle of a gang shootout, this child’s first name was mentioned on a recorded phone
conversation, which was played for the jury. The district court declined to issue a curative
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instruction, finding that such action would likely call attention to the reference and “make
more problems.” The court also denied Beasley’s motion for a mistrial, determining that
the mention of the child’s first name, without more, did not raise any inference of prejudice
to Beasley. The court noted that it was a single, isolated mention of a first name, not the
full name, and there was no other identifying information, such as the age or gender of the
person referenced or any circumstances regarding any death. Additionally, the court noted
that Beasley was not a participant in the recorded conversation and that nothing in the
reference implicated Beasley.
“We review a district court’s denial of a motion for a mistrial for abuse of
discretion.” United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009). It is also within
the district court’s broad discretion whether to issue a curative instruction. United States
v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (reviewing for abuse of discretion district
court’s denial of motion for mistrial and its decision regarding curative instruction). Our
review of the record convinces us that Beasley cannot show prejudice by a single, isolated
reference to the child’s first name, which did not implicate Beasley in her death. We
therefore conclude that the district court was within its discretion to decline to issue a
curative instruction and in denying a mistrial.
Beasley also argues that the district court plainly erred by not sua sponte declaring
a mistrial after a juror advised the court of an incident that occurred outside the courthouse.
The juror explained that, as she walked toward her car after the end of the court
proceedings, a man walked up very close behind her and said, “I’m gonna get a hit tonight.
Oh yeah, I’m gonna get a hit tonight.” The juror believed that he said it loudly so that she
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would hear him. She advised the court that she felt uncomfortable and afraid. The juror
reported that this incident would not affect her ability to be fair and impartial; she believed
the incident was a security matter and not related to the case. The district court excused
this juror from the jury based on her violation of the court’s instructions to notify the court
of any unusual incidents and not to discuss such matters with fellow jurors. The court also
inquired of each of the other jurors whether they had heard of the incident and, if so,
whether it would affect their ability to be impartial. Each of the jurors stated that the
incident did not affect their ability to be fair and impartial.
We review the district court’s decision as to whether to grant a mistrial for an abuse
of discretion. United States v. Zelaya, 908 F.3d 920, 929 (4th Cir. 2018), cert. denied, 139
S. Ct. 855 (2019); see Arizona v. Washington, 434 U.S. 497, 513–14 (1978) (noting the
“great deference” owed to a trial judge’s decision to declare a mistrial based on possible
juror bias). Because Beasley did not move for a mistrial in the district court, our review is
for plain error. See United States v. Olano, 507 U.S. 725, 731–32 (1993).
In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court held that a
rebuttable presumption of prejudice arose from a third party’s unauthorized
communication with a juror during the trial. Id. at 228–29. However, the Remmer
presumption is not to be “casually” invoked. United States v. Baptiste, 596 F.3d 214, 221
(4th Cir. 2010) (internal quotation marks omitted). Rather, to trigger the presumption,
Beasley must show “both that an unauthorized contact was made and that it was of such a
character as to reasonably draw into question the integrity of the verdict.” Id. (internal
quotation marks omitted).
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Here, the “contact” was a juror hearing a man state that he was “gonna get a hit
tonight” as she left the courthouse. The juror considered the statement to be a security
issue for the courthouse that was not related to the trial. The trial judge made appropriate
inquiries of each of the jurors as to their knowledge of the incident and whether it would
affect their ability to be fair and impartial. Each of the jurors attested to their ability to be
impartial. We conclude that the district court did not commit error—plain or otherwise—
by declining to declare a mistrial. See United States v. Smith, 919 F.3d 825, 834–35 (4th
Cir. 2019) (upholding district court’s denial of a mistrial based on concerns of juror safety
after receiving assurances from remaining jurors that they could be fair and impartial);
United States v. Jones, 716 F.3d 851, 857 (4th Cir. 2013) (ruling that court may rely on a
juror’s assurance of impartiality if the court finds the juror credible).
Beasley next challenges his sentence, arguing that the district court erred by finding
that he was a leader or organizer of criminal activity involving five or more people and
consequently applying a four-level sentencing enhancement. U.S. Sentencing Guidelines
Manual § 3B1.1(a) (2018). Whether a defendant held a leadership role is a factual
determination that we review for clear error. United States v. Steffen, 741 F.3d 411, 415
(4th Cir. 2013). Two witnesses testified that Beasley and Terrell Plummer were the leaders
of the Old York Money Gang. Based on this evidence, we discern no clear error by the
district court in determining that Beasley exercised a leadership role and therefore
imposing the four-level enhancement. See id.Moreover, we conclude that any error in applying this enhancement is harmless
because it did not affect Beasley’s Guidelines range. See USSG, ch. 5, pt. A cmt. n.2;
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United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (applying harmless
error to Guidelines determination when it is clear from the record that “the district court
would have reached the same result even if it had decided the [G]uidelines issue the other
way” and “the sentence would be reasonable even if the [G]uidelines issue had been
decided in the defendant’s favor” (internal quotation marks omitted)).
Beasley’s final challenge is to the district court’s application of the murder cross-
reference in determining his sentence for the racketeering conspiracy charge. Beasley
argues that the jury should have been required to specify which acts were reasonably
foreseeable to Beasley. He also contends that the evidence was insufficient to support the
district court’s finding at sentencing that he committed the murder of Tyrone Servance.
Section 2E1.1 of the Sentencing Guidelines provides that the offense level for
conduct related to racketeering activity is 19 or the offense level applicable to the
underlying racketeering activity. The district court found that the underlying activity was
first degree murder and applied the offense level of 43 provided in USSG § 2A1.1 (first
degree murder).
This court reviews the factual findings underlying a district court’s application of a
Guidelines cross reference for clear error and its legal conclusions de novo. United States
v. Ashford, 718 F.3d 377, 380, 383 (4th Cir. 2013). Sustaining the first degree murder cross
reference requires the court to find by a preponderance of the evidence both that the
defendant acted with malice and that the killing was premeditated. United States v.
Williams, 342 F.3d 350, 356 (4th Cir. 2003); see United States v. Cox, 744 F.3d 305, 308
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(4th Cir. 2014) (providing that sentencing judge may find facts supporting Guidelines
application by preponderance of evidence).
The murder cross-reference is appropriately applied in a RICO case based on the
“reasonably foreseeable” conduct of coconspirator. Zelaya, 908 F.3d at 930. Here, on the
special verdict form, the jury specifically found that first degree murder was reasonably
foreseeable to Beasley in furtherance of the racketeering enterprise. This finding was
sufficient to support the application of the cross reference to the first degree murder
Guideline. See United States v. Sharpe, 193 F.3d 852, 872–73 (5th Cir. 1999) (upholding
murder cross-reference against challenge that jury did not make specific findings regarding
underlying racketeering activities).
Moreover, the district court made factual findings that Beasley murdered Servance.
The court based these findings on the testimony of cooperating witnesses who testified that
Beasley committed the contract killing of Servance. The court also relied upon cell site
and GPS data, recorded jail phone calls, and evidence from the city’s watch camera, which
corroborated this testimony. We conclude that the district court’s factual finding that
Beasley committed the first degree murder of Servance is supported by the record and is
not clearly erroneous. See Ashford, 718 F.3d at 383. Accordingly, the district court
appropriately applied the cross reference to the first degree murder Guideline.
We affirm Beasley’s convictions and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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