United States v. James Dinkins ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4668
JAMES DINKINS, a/k/a Miami,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4669
MELVIN GILBERT,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4755
DARRON GOODS, a/k/a Moo Man,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge.
(1:06-cr-00309-JFM-1; 1:06-cr-00309-JFM-5;
1:06-cr-00309-JFM-9)
2 UNITED STATES v. DINKINS
Argued: March 22, 2012
Decided: August 14, 2012
Before SHEDD, KEENAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Shedd and Judge Floyd joined.
COUNSEL
ARGUED: Gary Proctor, LAW OFFICES OF GARY E.
PROCTOR, LLC, Baltimore, Maryland; Jonathan Paul Van
Hoven, Baltimore, Maryland; C. Justin Brown, LAW
OFFICE OF C. JUSTIN BROWN, Baltimore, Maryland, for
Appellants. Debra Lynn Dwyer, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Joan
Mathias, Law Clerk, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we review the convictions of three defen-
dants who were tried together on charges relating to the mur-
der of certain government witnesses, the murder of a co-
conspirator, and numerous other narcotics and firearms-
related offenses arising from the defendants’ involvement in
a drug-trafficking organization in Baltimore. Among the sev-
eral issues presented, we consider the primary issues of: (1)
the district court’s decision to empanel an "anonymous jury,"
UNITED STATES v. DINKINS 3
in which biographical information about prospective jurors
was withheld from the parties and their counsel; and (2) the
admissibility of hearsay statements of a murdered government
witness under the "forfeiture-by-wrongdoing" exception to the
hearsay rule and the Confrontation Clause. We conclude that
the district court did not abuse its discretion in maintaining
juror anonymity, and that the challenged hearsay statements
were admissible based on the defendants’ conduct leading to
the witness’ death. Upon our review of these primary issues,
and the remaining issues presented, we affirm the district
court’s judgment.
I.
We begin by setting forth the general factual background of
the case, based on the evidence presented at trial. Additional
relevant facts are included in later sections of this opinion as
necessary for our consideration of the issues raised on appeal.
In 2003, the Baltimore City Police Department conducted
an investigation of a local organization commonly known as
"Special," whose members were suspected of distributing
large amounts of narcotics in the Bartlett neighborhood of Balti-
more.1 The investigation revealed that members of Special
regularly distributed heroin, cocaine, cocaine base, and mari-
juana, and committed numerous acts of violence in further-
ance of their narcotics activities. One member of Special
stated that each day he sold tens of thousands of dollars of
heroin and cocaine.
Melvin Gilbert was the "leader" of Special, who received
and controlled the proceeds derived from Special’s narcotics
operation. James Dinkins was a member of Special who
served as an "enforcer," committing murders "for hire." Dar-
1
The word "Special" also is a reference to the street name of the heroin
that was sold by this organization.
4 UNITED STATES v. DINKINS
ron Goods, also a member of Special, sold drugs for the orga-
nization. These three men are the defendants in this case.
Gilbert had several "lieutenants" who helped him conduct
Special’s operations, including Tracy Love, Tamall Parker,
and Randy McLean. Additionally, several other individuals
were members of Special, or otherwise "worked with" the
group, including Michael Bryant, Damien West, John Dowery
(Dowery), Dowery’s son Cecil Dowery, and Cornell Booker.
Based on months of surveillance and investigation, the
police learned that Gilbert planned to arrive in the Bartlett
neighborhood on October 16, 2003, with a large amount of
narcotics. In anticipation of this delivery, the police obtained
search warrants for three houses located on Bartlett Avenue
that were suspected of containing narcotics. Gilbert’s grand-
mother owned one of these houses.
On October 16, 2003, the officers saw Gilbert drive into the
neighborhood and park his car in front of his grandmother’s
house. He was observed carrying a grey bag into one of the
other two houses before he returned outside, met with several
individuals, and pointed them toward the house he had
entered. Past police surveillance had indicated that narcotics
were kept in that house. One of the individuals with whom
Gilbert spoke entered the house, brought out a package, and
engaged in hand-to-hand movements that were indicative of
a drug transaction. At that time, several officers emerged from
covert locations and arrested the various suspects, including
Gilbert and McLean. Dinkins and Goods were not among the
individuals arrested at that time.
The officers proceeded to execute the search warrants for
the three houses. Upon searching the houses, the officers
seized about 800 vials of white powder that tested positive for
cocaine, 700 capsules of powder that tested positive for her-
oin, a quantity of marijuana, several firearms including a
9mm machine pistol and a .357 magnum revolver, boxes of
UNITED STATES v. DINKINS 5
ammunition, and thousands of dollars in United States cur-
rency.
The grey bag that Gilbert was observed carrying into one
of the houses contained 525 capsules of heroin. While no nar-
cotics or guns were found in Gilbert’s grandmother’s house,
on Gilbert’s person, or in his automobile, the authorities
seized over $700 in currency in an envelope found in Gil-
bert’s grandmother’s house.
After his arrest in October 2003, Gilbert remained incarcer-
ated until July 2005. Shortly after he was released, Gilbert
was introduced to Frank Batts, the leader of "24/7," another
large drug organization operating in Baltimore. Over the next
year, Batts purchased "wholesale" quantities of heroin from
Gilbert and other members of Special on about fifteen occa-
sions, in amounts that ranged between one-fifth of a kilogram
and one-half of a kilogram.
On one occasion, Gilbert told Batts that Shannon Jemmi-
son, an individual who lived in the neighborhood where 24/7
operated, was a government informant, or a "snitch." It was
widely believed that Jemmison had cooperated with law
enforcement officers regarding the operations of yet another
large drug organization, led by the "Rice Brothers."
Batts knew that Gilbert did not "like" snitches, and Gilbert
earlier had told him "about a snitch that he was trying to get."
After Gilbert asked whether Batts would "want to get" Jem-
mison, Batts responded affirmatively. Gilbert later introduced
Batts to Dinkins, who agreed to kill Jemmison in exchange
for several thousand dollars. Gilbert consented to bearing the
initial cost of paying Dinkins, subject to Batts’ agreement to
reimburse Gilbert in their next drug transaction.
On September 10, 2005, Batts drove Dinkins to a trailer
where Jemmison was playing cards. At that location, Dinkins
shot Jemmison several times at point-blank range, killing him.
6 UNITED STATES v. DINKINS
After Batts heard the shots, he moved to a designated location
where he met Dinkins and drove him to another neighbor-
hood. That evening, Batts paid Dinkins $4,000, which was
about half his "fee" for killing Jemmison.2
In October 2004, James Wise, a drug dealer not affiliated
with Special, was murdered on a street corner during daylight
hours after he had robbed a member of Special. John Dowery,
a drug dealer who sold drugs as a member of Special, was a
witness to the murder.
Dowery contacted certain law enforcement officers and
provided them information about the Wise murder. Dowery
also began sharing with the officers information concerning
other investigations in the Bartlett neighborhood, including
information about the organizational structure and operations
of Special. Parker and Love, who were both "high-ranking"
members of Special, were arrested after Dowery provided
incriminating information concerning them. After their arrest,
Dowery became widely known as a "snitch."
Before Dowery could testify at the upcoming state murder
trial of Parker and Love, on October 19, 2005, Dinkins told
West, another drug dealer who was a member of Special, that
they had been "nominated to kill" Dowery. That day, Dinkins
and West arrived at Dowery’s house and waited outside for
him to return from work. When Dowery arrived, Dinkins and
West fired more than a dozen shots at Dowery, striking him
multiple times. After Dinkins later learned that Dowery did
not die from his injuries, Dinkins stated to West: "We have
to go to the hospital to finish him off."3
2
At the time of trial in the present case, Batts had pleaded guilty to pos-
session with intent to distribute between one and three kilograms of her-
oin, but he had not yet been sentenced for that offense.
3
At that time, however, Dinkins and West did not further pursue this
plan.
UNITED STATES v. DINKINS 7
Dowery eventually recovered from his gunshot wounds. He
spoke with detectives after the shooting, and identified
Dinkins from a photo array as the individual who had shot him.4
Michael Bryant, a member of Special, had given Dinkins
the name of an individual who agreed to provide new firearms
in exchange for the guns used to shoot Dowery. On Novem-
ber 10, 2005, Dinkins, West, and Bryant met to complete this
transaction. After problems arose that prevented them from
completing this transaction, Dinkins shot Bryant, killing him.
Love offered an additional explanation at trial for Dinkins’
decision to kill Bryant, a co-conspirator and fellow member
of Special. According to Love, Bryant was upset that Dinkins
had attempted to kill Dowery, because Bryant thought this
attempt would cause more "trouble" for Love and Parker at
their upcoming trial. Love testified that Dinkins murdered
Bryant because of Bryant’s "fussing" about the attempt on
Dowery’s life. Love stated that Dinkins "lure[d] [Bryant] out
of the house and they drove to [ ] a dark area," where Dinkins
"pistol-whipped" Bryant in the head, and then shot Bryant
twice. Dinkins was arrested on December 9, 2005, and has
remained incarcerated since that date.
In January 2006, Dowery testified in the state trial of Par-
ker and Love.5 After the attempt on Dowery’s life in October
2005, measures were taken to protect him as a witness, and
he was relocated for his safety outside the Bartlett neighbor-
hood. However, even with these measures in place, Dowery
received a message from Gilbert through Dowery’s son Cecil,
also a member of Special, in which Gilbert threatened: "I
know where you are at. I know where you walk your girl to
4
West ultimately pleaded guilty for his role in the attempted murder of
Dowery in October 2005.
5
Parker and Love also were charged in the indictment in the present fed-
eral case. They each entered guilty pleas to one count related to the murder
of Wise, and to one count of conspiring to distribute narcotics.
8 UNITED STATES v. DINKINS
the bus stop. I can get you out there. Don’t come around
here." Recognizing that Dowery’s safety had been compro-
mised, Baltimore City Police Department Detective Michael
Baier began arranging for Dowery and his family to be
moved.
Despite Gilbert’s warning and against the advice of Detec-
tive Baier, Dowery decided to return home to Bartlett for
Thanksgiving Day, 2006. As explained later in this opinion,
Gilbert and Goods shot Dowery several times on Thanksgiv-
ing Day, and Dowery died from those wounds.
Other testimony presented at trial provided additional con-
text for the violent acts described above. Love testified that he
and Dinkins spoke about several of the incidents related
above during the time that they were incarcerated in the same
jail. Regarding the Jemmison murder, Love testified that
Dinkins admitted in jail that he had killed Jemmison by shoot-
ing him "six times in the face." Dinkins also reportedly told
Love that he was paid $4,000 by Batts to kill Jemmison "for
somebody that was in the Rice [Brothers] case."
Batts’ lengthy trial testimony concerning the Jemmison
murder was substantially similar to Love’s testimony. Batts
testified concerning his coordination with Dinkins and Gilbert
in the plan to murder Jemmison. Batts also confirmed that he
had paid Dinkins $4,000 to have Jemmison killed.
Regarding the attempt on Dowery’s life in 2005, Love testi-
fied that he also talked with Dinkins in jail about that subject.
According to Love, Dinkins admitted that he had "shot [Dow-
ery] and he was sorry that he didn’t kill him."
II.
On the basis of these facts and other evidence in the record,
a grand jury charged Dinkins, Gilbert, and Goods (collec-
tively, the defendants), as well as Love, Parker, and McLean,
UNITED STATES v. DINKINS 9
in a twelve-count indictment. The predominating count of the
indictment was the charge of conspiracy to distribute narcot-
ics, resulting from the defendants’ involvement with Special,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C),
846.
Based on the October 2003 seizure of narcotics and fire-
arms, the indictment charged Gilbert with: distribution of her-
oin and cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), (b)(1)(C); and possession of a firearm in further-
ance of a drug-trafficking crime, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(i). The indictment also charged Dinkins
and Gilbert with several counts relating to the murder of Jem-
mison: murder with intent to prevent the attendance and testi-
mony of a person in an official proceeding, and to prevent the
communication of information regarding a federal offense to
law enforcement, in violation of 18 U.S.C. §§ 2,
1512(a)(1)(A), 1512(a)(1)(C); use of a firearm in furtherance
of a drug-trafficking crime, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(iii); and willfully causing the death of a person
by using a firearm in furtherance of a drug-trafficking crime,
in violation of 18 U.S.C. §§ 2, 924(j).
With respect to the attempted murder of Dowery, the
indictment charged Dinkins with the use of a firearm in fur-
therance of a drug-trafficking crime, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(iii). The indictment also charged Dinkins
with several counts relating to the Bryant murder: use of a
firearm in furtherance of a drug-trafficking crime, in violation
of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii); and willfully causing the
death of a person by using a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. §§ 2, 924(j).
Lastly, regarding the Dowery murder, the indictment
charged Gilbert and Goods with several crimes. Those crimes
included: murder with intent to prevent the attendance and
testimony of a person in an official proceeding, and to prevent
the communication of information regarding a federal offense
10 UNITED STATES v. DINKINS
to law enforcement, in violation of 18 U.S.C. §§ 2,
1512(a)(1)(A), 1512(a)(1)(C); use of a firearm in furtherance
of a drug-trafficking crime, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(iii); and willfully causing the death of a person
by using a firearm in furtherance of a drug-trafficking crime,
in violation of 18 U.S.C. §§ 2, 924(j).
In pre-trial proceedings, the government filed a motion
requesting that the defendants be tried jointly. The district
court granted the motion, finding that a joint trial would be
more efficient than separate trials. The court later denied a
motion filed by Goods seeking severance of the charges
against him.
As the date of jury selection approached, the district court
inquired whether any party requested an anonymous jury. Due
to concerns about juror safety and media attention, the gov-
ernment supported the measure. The defendants objected,
arguing that an anonymous jury would impede effective voir
dire, and would infringe the presumption of innocence
because jurors would think that they required protection from
the defendants.
The district court concluded that certain biographical infor-
mation about the jurors should not be disclosed to the parties
or to their counsel, because the case involved the murder of
government witnesses. As a result, the names of the venire
members and their spouses, the venire members’ employers
and those of their spouses, and the addresses of the venire
members, were not disclosed to the parties or to their counsel.
However, the juror questionnaires provided extensive infor-
mation for counsel’s use during voir dire, including informa-
tion regarding the general location of the venire members’
residences and the type of employment of the venire members
and their spouses.
During voir dire, the defendants made an objection pursu-
ant to Batson v. Kentucky, 476 U.S. 79 (1986), based on the
UNITED STATES v. DINKINS 11
government’s use of a peremptory challenge to strike an
African-American female member of the venire. The defen-
dants asserted that the government had not established a race-
neutral justification for its peremptory challenge and, there-
fore, that the offered explanation was mere pretext. The dis-
trict court concluded that the government offered several race-
neutral reasons to support its decision to strike the venire
member, and overruled the objection. Shortly thereafter, the
jury was empaneled and the trial began.
On several occasions during trial, the government argued
that certain hearsay statements made by Dowery were admis-
sible under the forfeiture-by-wrongdoing exception to the
hearsay rule and the Confrontation Clause. The government
argued that this exception was applicable because Dinkins and
Gilbert, or their co-conspirators, succeeded in rendering Dow-
ery unavailable as a witness.
The Dowery hearsay statements were highly relevant to the
government’s theory of the case. Those statements principally
included: 1) a description of Special’s members and opera-
tions; 2) an identification of Dinkins as one of the men who
shot Dowery in October 2005; and 3) the threatening message
Dowery received from Gilbert after witness-relocation mea-
sures were taken to protect Dowery.
Dinkins and Gilbert objected to the admission of the hear-
say statements. Goods, however, agreed with the government
that the statements regarding Special’s members and opera-
tions should be admitted, because Dowery had not named him
as a member of Special in his written statements to investiga-
tors. The district court ruled that the statements were admissi-
ble.
After a twelve-day trial, the jury returned a verdict of guilty
against Dinkins, Gilbert, and Goods, on all counts but one.6
6
The jury found Gilbert not guilty of willfully causing the death of Jem-
mison by using a firearm in furtherance of a drug-trafficking crime. How-
12 UNITED STATES v. DINKINS
Each of the defendants was sentenced to life imprisonment on
multiple counts. The defendants timely filed notices of appeal.
III.
The defendants argue that the district court abused its dis-
cretion in refusing to order separate trials. The defendants
assert that they suffered prejudice resulting from the joint trial
for three reasons: (1) the jury was presented with evidence of
multiple murders, akin to a "blizzard of violence," even
though each murder was not attributable to every defendant;
(2) a defendant, such as Goods, who was not subject to
receiving the death penalty (non-capital defendant), should
not have had his case joined for trial with defendants Dinkins
and Gilbert who were facing the possible imposition of that
penalty (capital defendants); and (3) Goods presented a
defense that was mutually antagonistic to the defenses pre-
sented by Dinkins and Gilbert. We conclude that the defen-
dants’ arguments are without merit.
A district court’s denial of a motion to sever is reviewed for
abuse of discretion. United States v. Allen, 491 F.3d 178, 189
(4th Cir. 2007). Under Rule 8(b) of the Federal Rules of
Criminal Procedure, an indictment
may charge 2 or more defendants if they are alleged
to have participated in the same act or transaction, or
in the same series of acts or transactions, constituting
an offense or offenses. The defendants may be
charged in one or more counts together or separately.
All defendants need not be charged in each count.
ever, the jury found Gilbert guilty of the Jemmison murder based upon the
theories of liability in two other counts: murder with intent to prevent the
attendance and testimony of a person in an official proceeding, and to pre-
vent the communication of information regarding a federal offense to law
enforcement; and use of a firearm in furtherance of a drug-trafficking
crime.
UNITED STATES v. DINKINS 13
However, if joinder of offenses or defendants "appears to
prejudice" any party, the court may order separate trials. Fed.
R. Crim. P. 14(a).
We adhere to the general principle that when defendants
are indicted together, they should be tried together. United
States v. Singh, 518 F.3d 236, 255 (4th Cir. 2008) (citing
United States v. Strickland, 245 F.3d 368, 384 (4th Cir.
2001)). Joint trials are more efficient, and "generally serve the
interests of justice by avoiding the . . . inequity of inconsistent
verdicts." Richardson v. Marsh, 481 U.S. 200, 210 (1987).
Therefore, when an indictment properly has joined two or
more defendants under the provisions of Rule 8(b), severance
pursuant to Rule 14 is rarely granted. Cf. United States v.
Hornsby, 666 F.3d 296, 309 (4th Cir. 2012) (When offenses
"are properly joined under Rule 8(a), severance of the
offenses is rare.").
Under these circumstances, severance generally is granted
only when "there is a serious risk that a joint trial would com-
promise a specific trial right of one of the defendants, or pre-
vent the jury from making a reliable judgment about guilt or
innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993).
We will not reverse a denial of a motion to sever absent a
showing of clear prejudice. See Hornsby, 666 F.3d at 309; see
also United States v. Casteel, 663 F.3d 1013, 1018 (8th Cir.
2011) (clear prejudice must be shown to reverse denial of
motion to sever codefendants’ trial); United States v. Thomp-
son, 518 F.3d 832, 863 (10th Cir. 2008) (same).
The defendants first argue that they were prejudiced by
joint trials because they were forced to defend themselves
against a body of evidence that included separate murders not
attributable to all defendants. The indictment charged Dinkins
with murdering Michael Bryant, Dinkins and Gilbert with
murdering Shannon Jemmison, and Gilbert and Goods with
murdering John Dowery.
14 UNITED STATES v. DINKINS
We conclude that severance was not required on this basis.
"[J]oinder is highly favored in conspiracy cases, over and
above the general disposition [supporting] joinder for reasons
of efficiency and judicial economy." United States v. Tedder,
801 F.2d 1437, 1450 (4th Cir. 1986). Here, the defendants and
others were charged with participating in a conspiracy to dis-
tribute large quantities of narcotics as members of Special.
Significantly, each defendant in the present case was charged
with a murder in furtherance of that conspiracy, charges
which are supported by the record. Thus, we are not con-
fronted with a case in which defendants were "tried together
in a complex case and they [had] markedly different degrees
of culpability," Zafiro, 506 U.S. at 539 (emphasis added).
Moreover, any risk of prejudice that may have existed was
minimized by measures less drastic than severance, including
limiting instructions given by the district court when certain
evidence was admitted against one or more, but not all, defen-
dants. See United States v. Hayden, 85 F.3d 153, 160 (4th Cir.
1996). Therefore, the defendants have not proved clear preju-
dice on this basis.
Next, Goods separately argues that, as a non-capital defen-
dant, he should have been afforded a trial separate from that
of the capital defendants, Dinkins and Gilbert, because a non-
capital defendant runs a risk of prejudice from being tried
jointly with capital defendants. Goods suggests that this risk
of prejudice stems from the exclusion of sympathetic jurors
from a "death-qualified" jury.
The Supreme Court, however, has rejected this same argu-
ment, holding that a non-capital defendant "could not demon-
strate that being tried by a death-qualified jury violated either
his right to a jury selected from a fair cross section of the
community or his right to an impartial jury." See United
States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010) (discussing
Buchanan v. Kentucky, 483 U.S. 402, 415-20 (1987)).
Because Goods has not distinguished the present case from
UNITED STATES v. DINKINS 15
the holding in Buchanan, his argument is foreclosed by that
decision.
The defendants argue, nevertheless, that they suffered clear
prejudice because Goods’ position was antagonistic to that of
Dinkins and Gilbert, in that Goods joined the government in
seeking admission of the Dowery hearsay statements. Goods
sought the admission of this evidence to show that Dowery
had the opportunity to identify Goods as a member of Special,
and did not do so, which allegedly tended to show that he was
not involved in the conspiracy or other charged criminal con-
duct.
Although Dinkins and Gilbert opposed the introduction of
the Dowery statements, mutually antagonistic defenses are not
necessarily prejudicial. Zafiro, 506 U.S. at 538. Hostility
among defendants, and even a defendant’s desire to exculpate
himself by inculpating others, do not of themselves qualify as
sufficient grounds to require separate trials. United States v.
Najjar, 300 F.3d 466, 474 (4th Cir. 2002) (citing United
States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986)).
Instead, "[t]here must be such a stark contrast presented by
the defenses that the jury is presented with the proposition
that to believe the core of one defense it must disbelieve the
core of the other, or that the jury will unjustifiably infer that
this conflict alone demonstrates that both are guilty." Najjar,
300 F.3d at 474 (internal quotation marks and citations omit-
ted). The defendants here have not shown clear prejudice,
because the jury was not presented with a "stark contrast"
such that believing Goods’ defense would result in disbelief
of the defense offered by Dinkins and Gilbert. Accordingly,
we conclude that the district court did not abuse its discretion
in denying the severance motion.
IV.
The defendants next argue that the district court committed
reversible error in deciding to empanel an anonymous jury.
16 UNITED STATES v. DINKINS
The defendants assert that the district court’s action was a
"drastic" measure, one warranted only when the record shows
that a defendant retains the capacity to harm or influence
jurors and likely will undertake this course of action. Accord-
ing to the defendants, there was no evidence before the dis-
trict court to support such a finding.
The issue whether a defendant in a criminal case may be
tried by an anonymous jury has been raised only in recent
decades, and initially was considered by a federal court of
appeals in United States v. Barnes, 604 F.2d 121 (2d Cir.
1979). In the decades following Barnes, federal courts have
increasingly used anonymous juries on a limited basis in cer-
tain types of criminal cases.7
The issue of the circumstances under which a district court
may empanel an anonymous jury presents a matter of first
impression in this Circuit.8 In examining this issue, we will
begin by considering the applicable standard of appellate
review. We next will consider precedent from our sister cir-
cuits and discuss the requirements for empaneling an anony-
mous jury. In making this assessment, we also will consider
the distinction between the decision to empanel an anony-
mous jury in capital cases and a like decision made in non-
capital cases. After reviewing the present record involving
both classes of offenses, we will consider whether the district
court’s decision was supported by the record and whether the
district court took sufficient precautions to safeguard the
defendants’ constitutional rights.
7
See Adam Liptak, Nameless Juries Are on the Rise In Crime Cases,
N.Y. Times, Nov. 18, 2002, at A1 (noting that about 30 judicial decisions
discussed anonymous juries in the decade after Barnes, while about 180
additional judicial decisions discussed the practice in the next dozen
years).
8
In one unpublished case, we briefly addressed a court’s decision to
empanel an anonymous jury, in the context of our review of a Batson chal-
lenge. See United States v. Williamston, No. 91-5163, 1993 WL 527977
(4th Cir. Dec. 21, 1993) (unpublished).
UNITED STATES v. DINKINS 17
A.
The district court reached its conclusion that an anonymous
jury was necessary after reviewing the proposed juror ques-
tionnaire. During this review, the district court inquired
whether either party was requesting an anonymous jury.9 The
government argued in favor of having an anonymous jury
seated, while the defendants objected to the measure.
After hearing argument on the matter, the district court
stated that the only issue ripe for decision was whether the
juror questionnaire would be sent to the venire members in a
form that protected their anonymity. The district court
addressed that issue, stating:
[T]he bottom line on this, whatever it takes, certainly
I am prepared to bite the bullet on this. This is a case
involving the murder of a witness. I understand. I’ve
read the memorandum that the witness is in jail, and
the question is organization. . . . But be that as it
may, I’m not going to fool around. We have citizens
being brought in here who have legitimate concerns.
As far as I’m concerned, the odds are that I’m going
to ultimately rule that the jury should be anonymous.
Based on these concerns, and what the court described as the
"incredibly intrusive" nature of the questions, the district
court determined that the juror questionnaire would be sent in
a form that protected juror anonymity.
The jury questionnaire that ultimately was approved did not
9
The district court’s inquiry apparently was prompted by a question
from the jury commissioner, who asked whether the personal information
of the venire members should be withheld from counsel in the present
case, because such information had been withheld in an unrelated capital
murder trial, United States v. Byers, 603 F. Supp. 2d 826 (D. Md. 2009),
that was simultaneously proceeding in federal district court in Maryland.
18 UNITED STATES v. DINKINS
provide counsel with the names of the venire members or the
names of their employers. In lieu of providing the full
addresses of the venire members, the questionnaire included
the neighborhood, county, and "zip code" in which they
resided. The questionnaire also did not provide the names of
the spouses of the venire members, or identify their spouses’
employers.
Counsel for Gilbert asked that the district court instruct the
jurors ultimately chosen that any anonymous status was
intended to protect them from unwanted media attention. The
district court and the government agreed that such an instruc-
tion would be appropriate if an anonymous jury were empan-
eled.
About two months after that pre-trial hearing, on the day
voir dire began, the district court addressed the issue whether
the jury would remain anonymous. The district court decided
that it would continue to limit the information provided to the
parties "because of a finding that to give more information
may jeopardize the life or safety of those persons."10
To date, counsel for the government and for the defendants
do not know the names of the jurors, or their addresses. Also,
counsel do not know the names of the jurors’ spouses, or the
employers of either the jurors or their spouses.
10
Counsel for Dinkins stated at this time that while he thought the
record was "abundantly clear," he wanted to preserve his objection to the
district court’s decision to withhold the names and addresses of the venire
members. The district court responded, "Absolutely. Absolutely you have
an exception." The record therefore refutes the government’s contention,
repeated at oral argument, that after the initial pre-trial conference, "[n]o
further objection was raised by the defendants to the anonymity of the
jury."
UNITED STATES v. DINKINS 19
B.
In deciding the appropriate standard of review, we begin by
observing that every federal appeals court to have considered
this issue has held that a district court’s decision to empanel
an anonymous jury is reviewed under a deferential abuse-of-
discretion standard. United States v. DeLuca, 137 F.3d 24, 31
(1st Cir. 1998); United States v. Stewart, 590 F.3d 93, 124 (2d
Cir. 2009); United States v. Thornton, 1 F.3d 149, 154 (3d
Cir. 1993); United States v. Brown, 303 F.3d 582, 601 (5th
Cir. 2002); United States v. Lawson, 535 F.3d 434, 439 (6th
Cir. 2008); United States v. Benabe, 654 F.3d 753, 760 (7th
Cir. 2011); United States v. Darden, 70 F.3d 1507, 1532 (8th
Cir. 1995); United States v. Shryock, 342 F.3d 948, 970 (9th
Cir. 2003); United States v. Ross, 33 F.3d 1507, 1519 (11th
Cir. 1994); United States v. Moore, 651 F.3d 30, 48 (D.C. Cir.
2011). We conclude that use of this standard is appropriate,
because the decision to empanel an anonymous jury requires
a fact-based assessment of the likely course of trial proceed-
ings, the environment surrounding the trial, and the question
whether publicity or security concerns could jeopardize the
jury’s ability to discharge its duty. See United States v. Chil-
dress, 53 F.3d 693, 702 (D.C. Cir. 1995). Thus, we join our
sister circuits in holding that a district court’s decision
whether to empanel an anonymous jury is reviewable for
abuse of discretion.
C.
We turn now to address the standards governing a district
court’s decision whether to empanel an anonymous jury in
capital and non-capital cases. We also discuss the type of
information that a court may rely upon in reaching this deci-
sion.
The term "anonymous jury" does not have one fixed mean-
ing. A jury generally is considered to be "anonymous" when
a trial court has withheld certain biographical information
20 UNITED STATES v. DINKINS
about the jurors either from the public, or the parties, or both.
See United States v. Branch, 91 F.3d 699, 723 (5th Cir. 1996).
A lesser degree of anonymity may entail disclosing to the par-
ties the names of the venire members, but identifying them
only by number in open court. Greater degrees of anonymity
may involve withholding from the parties the names,
addresses, employers, and certain other biographical informa-
tion about the venire members or their spouses. See United
States v. Honken, 378 F. Supp. 2d 880, 919-21 (N.D. Iowa
2004). A district court’s decision to empanel an anonymous
jury should reflect the court’s consideration of the various
types of information that warrant being withheld.
A federal district court may empanel an anonymous jury in
any non-capital case in which "the interests of justice so
require." 28 U.S.C. § 1863(b)(7); see also United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1033 n.24 (11th Cir. 2005)
(citing Section 1863(b)(7) as statutory authority for decision
to empanel an anonymous jury, in a non-capital case); United
States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998)
(same). Although not defined in Section 1863(b)(7), the "in-
terests of justice" standard "contemplates a peculiarly context-
specific inquiry," Martel v. Clair, 132 S. Ct. 1276, 1287
(2012). By contrast, in capital cases, the district court may
only empanel an anonymous jury after determining, "by a pre-
ponderance of the evidence that providing the list [of the
members of the venire and their places of abode] may jeopar-
dize the life or safety of any person." 18 U.S.C. § 3432 (Sec-
tion 3432).
We draw upon persuasive precedent from our sister cir-
cuits, which already have developed principles guiding the
empanelment of anonymous juries, in our resolution of this
context-specific inquiry. The decision to empanel an anony-
mous jury and to withhold from the parties biographical infor-
mation about the venire members is, in any case, "an unusual
measure," Shryock, 342 F.3d at 971, which must be plainly
warranted by the particular situation presented. See United
UNITED STATES v. DINKINS 21
States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991). An anony-
mous jury is warranted only when there is strong reason to
conclude that the jury needs protection from interference or
harm, or that the integrity of the jury’s function will be com-
promised if the jury does not remain anonymous. See
Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at 31).
Even when such exceptional circumstances are present, the
decision to empanel an anonymous jury nevertheless may
affect a defendant’s constitutional right to a presumption of
innocence by raising in the minds of the jurors a suggestion
that "the defendant is a dangerous person from whom the
jurors must be protected." Ross, 33 F.3d at 1519; see also
Lawson, 535 F.3d at 441 (there may be instances when
empaneling an anonymous jury may "jeopardize constitu-
tional rights - such as the right to a presumption of inno-
cence"). Further, a court’s action withholding certain
biographical information from the parties may affect a defen-
dant’s constitutional right to trial by an impartial jury, by hin-
dering the defendant’s ability to conduct an informed voir dire
examination and to challenge effectively the seating of indi-
vidual jurors. Benabe, 654 F.3d at 760 (citing United States
v. Mansoori, 304 F.3d 635, 650 (7th Cir. 2002)). Accordingly,
we hold that a district court may empanel an anonymous jury
only in rare circumstances when two conditions are met: (1)
there is strong reason to conclude that the jury needs protec-
tion from interference or harm, or that the integrity of the
jury’s function will be compromised absent anonymity; and
(2) reasonable safeguards have been adopted to minimize the
risk that the rights of the accused will be infringed. See
Ochoa-Vasquez, 428 F.3d at 1034 (citing Ross, 33 F.3d at
1520); Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at
31); see also Mansoori, 304 F.3d at 650 (a court deciding
whether to empanel an anonymous jury must balance the
defendant’s rights against the jurors’ interest in their security
and the public interest in an impartial jury).
Courts have identified five factors, occasionally referred to
as "the Ross factors," which we find helpful in determining
22 UNITED STATES v. DINKINS
whether there are strong reasons supporting the empaneling of
an anonymous jury. Ross, 33 F.3d at 1520. Those factors are:
(1) the defendant’s involvement in organized crime,
(2) the defendant’s participation in a group with the
capacity to harm jurors, (3) the defendant’s past
attempts to interfere with the judicial process, (4) the
potential that, if convicted, the defendant will suffer
a lengthy incarceration and substantial monetary
penalties, and (5) extensive publicity that could
enhance the possibility that jurors’ names would
become public and expose them to intimidation or
harassment.
Id.; see also Moore, 651 F.3d at 48 (same); Ochoa-Vasquez,
428 F.3d at 1034 (same); Shryock, 342 F.3d at 971 (same);
DeLuca, 137 F.3d at 31-32 (same). However, this list of fac-
tors is not exhaustive, nor does the presence of any one factor
or set of factors automatically compel a court to empanel an
anonymous jury. While we view the Ross factors as instruc-
tive in our analysis because they are drawn from significant
judicial experience addressing the propriety of decisions
whether to order anonymous juries, we emphasize that a dis-
trict court must always engage in a context-specific inquiry
based upon the facts of the particular case before the court.
See Martel, 132 S. Ct. at 1287.
An anonymous jury only may be ordered in capital cases in
a narrower set of circumstances permitted by statute. Under
Section 3432,
[a] person charged with treason or other capital
offense shall at least three entire days before com-
mencement of trial . . . be furnished with a copy of
the indictment and a list of the veniremen, and of the
witnesses to be produced on the trial for proving the
indictment, stating the place of abode of each venire-
man and witness, except that such list of the venire-
UNITED STATES v. DINKINS 23
men and witnesses need not be furnished if the court
finds by a preponderance of the evidence that pro-
viding the list may jeopardize the life or safety of any
person.
(Emphasis added).
In conducting our review, we observe that the Ross factors
are relevant to cases involving capital, as well as non-capital,
offenses to the extent that those factors shed light on the issue
whether an anonymous jury is required to protect "the life or
safety of any person."11 18 U.S.C. § 3432. In a capital case,
however, such as the trial involving Dinkins and Gilbert, the
record must support a finding "by a preponderance of the evi-
dence that providing the list [of the venire members and their
places of abode] may [have] jeopardize[d] the life or safety of
any person." Id. (emphasis added). Thus, the plain language
of Section 3432 requires that a district court base its decision
to empanel an anonymous jury on evidence that was in the
record at the time of the district court’s ruling.
A district court may not rely solely on the indictment to
support its decision to empanel an anonymous jury under Sec-
tion 3432, because an indictment is not evidence. See United
States v. Udeozor, 515 F.3d 260, 272 (4th Cir. 2008) (citing
Taylor v. Kentucky, 436 U.S. 478 (1978)). Although an indict-
ment may inform a district court’s understanding of the case,
the language of Section 3432 requires that a decision to
empanel an anonymous jury be supported by a preponderance
of the evidence. Thus, a decision to empanel an anonymous
11
The parties do not contest the proposition that a district court’s deci-
sion to empanel an anonymous jury in a capital case may be justified with
reference to the non-exhaustive factors identified in Ross, provided that
the requirements of Section 3432 are met. With regard to defendants
charged only with non-capital offenses, we do not apply the standard
stated in Section 3432 because, by its plain terms, that section applies only
to capital cases.
24 UNITED STATES v. DINKINS
jury in a capital case without evidence meeting this standard
constitutes an abuse of discretion.12
By contrast, in non-capital cases, the district court’s deci-
sion need not have been based on evidence already in the
record at the time the decision was made, and may be upheld
on appeal in light of the evidence ultimately presented at trial.
See Shryock, 342 F.3d at 971-72 (considering "all relevant
evidence introduced at trial"); United States v. Krout, 66 F.3d
1420, 1427-28 (5th Cir. 1995) (stating, in non-capital case,
that "the use of anonymous juries will be upheld where evi-
dence at trial supports the conclusion that anonymity was
warranted"). However, a district court’s decision to empanel
an anonymous jury in a non-capital case, when made, must
rest on something more than speculation or inferences of
potential risk. See Krout, 66 F.3d at 1427.
Neither Section 3432 nor any other statute requires that a
district court conduct an evidentiary hearing before deciding
to empanel an anonymous jury, provided that the court’s deci-
sion is supported by compelling evidence of record. See
United States v. Eufrasio, 935 F.2d 553, 574 (3d Cir. 1991)
("[a] trial court has discretion to permit an anonymous jury
without holding an evidentiary hearing on juror safety"). Nev-
ertheless, it is advisable for a district court deciding to
empanel an anonymous jury to support its conclusion with
express findings based on evidence of record, because a
court’s failure to state a basis for its decision sufficient to per-
mit appellate review may constitute an abuse of discretion.
See United States v. Morales, 655 F.3d 608, 621 (7th Cir.
2011).
12
We note that courts have held that even when a district court has com-
mitted an abuse of discretion in empaneling an anonymous jury, the error
was subject to harmless error review. See e.g., Mansoori, 304 F.3d at 649-
52; United States v. Sanchez, 74 F.3d 562, 565 (5th Cir. 1996). In those
cases, the appeals courts in their harmless error review considered all evi-
dence in the record, including evidence later introduced at trial. Id.
UNITED STATES v. DINKINS 25
D.
We turn now to address the defendants’ arguments regard-
ing the district court’s decision to empanel an anonymous
jury. According to the defendants, the evidence failed to show
that they had the present or future capacity, either personally
or through their associates, to harm jurors, and that such
action was likely. The defendants assert that the murders in
this case all occurred years before the trial, and that all mem-
bers of the alleged conspiracy had been incarcerated for a
long time when the district court rendered its decision. The
defendants additionally contend that the district court’s deci-
sion deprived them of their right to a presumption of inno-
cence and to an impartial jury.
i.
With regard to defendants Dinkins and Gilbert, who were
charged with capital offenses, we consider whether the district
court abused its discretion in finding that disclosure of the
names and addresses of the venire members could have jeop-
ardized their life or safety.13 As discussed above, the district
court’s decision concerning the trial of these defendants must
be supported by evidence that was in the record at the time of
the court’s ruling. See 18 U.S.C. § 3432. We conclude that the
district court’s finding was supported by sufficient evidence
of record.
We begin by addressing the first three Ross factors, and
consider whether the record showed that Dinkins and Gilbert
participated in organized criminal activity, involving persons
who had the capacity to harm jurors and had interfered with
the judicial process in the past. See Ross, 33 F.3d at 1520. The
13
We consider the arguments of Dinkins and Gilbert separately from
those of Goods, based on the different standard of review mandated by 18
U.S.C. § 3432 specific to capital cases rather than that standard provided
by 28 U.S.C. § 1863(b)(7).
26 UNITED STATES v. DINKINS
indictment alleged that Gilbert directed the operations of
"Special," a drug-trafficking organization in Baltimore, and
that Dinkins and Goods were members of Special. The record
contained evidentiary proffers from counsel at the April 2008
hearing regarding certain hearsay statements of John Dowery,
the government informant allegedly shot by Dinkins in 2005
and killed by Gilbert and Goods in 2006. At that hearing,
counsel for Goods proffered that the Dowery hearsay state-
ments contained "extensive information" about "the Dinkins-
Gilbert drug organization in that [Baltimore] neighborhood."14
Thus, at the time the district court ruled on the anonymous
jury issue, the record supported a conclusion that the defen-
dants, by virtue of their association with Special, belonged to
a group involved in organized criminal activity. Id.
At the time of the district court’s decision, the record also
showed that the defendants, as members of Special, belonged
to an organization that had the capacity to harm jurors. See id.
A material aspect of this consideration was the fact that the
other members of the group, who were not in jail, remained
capable of interfering with the judicial process even though
the defendants were incarcerated. See Morales, 655 F.3d at
622 (decision to empanel anonymous jury was supported by
the fact that several gang members remained unindicted, and
at least one indicted person was still a fugitive). Moreover, the
record before the district court overwhelmingly supported a
finding that the defendants previously had engaged in
attempts to interfere with the judicial process. Ross, 33 F.3d
at 1520. In fact, the district court based its decision to
empanel an anonymous jury on this consideration alone.
14
In the next section, we address Dinkins’ and Gilbert’s contention that
admission of the Dowery hearsay statements into evidence violated the
Federal Rules of Evidence, and their rights under the Confrontation
Clause. In view of our conclusion that this evidence was admissible, we
need not consider the separate issue whether evidence must be admissible
under the Federal Rules of Evidence before it may be considered as sup-
porting a court’s decision to empanel an anonymous jury.
UNITED STATES v. DINKINS 27
The indictment alleged that Gilbert "operated" Special, and
that Dinkins and others were its "enforcers," who "committed
acts of violence to protect the reputation and dominant posi-
tion of the organization." The indictment charged Dinkins and
Gilbert with murdering Shannon Jemmison "in order to pre-
vent Jemmison from cooperating or continuing to cooperate
with law enforcement authorities" in the prosecution of
another narcotics trafficking organization in Baltimore.
Regarding the unsuccessful first attempt on Dowery’s life, the
indictment alleged that Dinkins shot Dowery multiple times
in October 2005. The indictment also charged Gilbert and
Goods with killing Dowery in November 2006, whom they
knew to be "cooperating with law enforcement authorities in
the federal investigation and prosecution of members of the
conspiracy."
Consistent with the indictment’s allegations that Dinkins
shot Dowery in 2005, and that Gilbert and Goods killed Dow-
ery because he was a government informant, the record before
the district court contained evidence supporting those allega-
tions. In their motion to strike the government’s notice of
intent to seek the death penalty and requesting an evidentiary
hearing, counsel for Dinkins and Gilbert summarized evi-
dence of an expected government witness, Frank Batts, who
had testified before the grand jury in this case, and also had
testified in other cases. In their motion, counsel for Dinkins
and Gilbert cited Batts’ testimony that:
(1) he frequently bought heroin from Mr. Gilbert; (2)
that Mr. Batts allegedly was asked by Mr. Gilbert to
aid in arranging the murder of Shannon Jemmison,
and that Mr. Gilbert selected Mr. Dinkins to carry
out the murder; (3) that Mr. Batts drove Mr. Dinkins
to and from the murder scene, and made payment to
him; (4) that he testified before the grand jury in this
matter; and (5) that Mr. Batts supplied the gun for
the Jemmison homicide.
28 UNITED STATES v. DINKINS
At the April 2008 hearing, counsel for Goods also made a
proffer concerning certain hearsay statements made by Dow-
ery in testimony given at a trial in a state court involving other
members of Special, Tamall Parker and Tracy Love, who
were being tried on first-degree murder charges.15 The gov-
ernment proffered that Dowery’s testimony from the state trial
would show that Love had contacted Dowery by telephone
from jail, and had threatened him in an apparent attempt to
prevent his testimony. And, counsel for Goods also proffered
that in later hearsay statements, Dowery discussed the attempt
on his life in 2006, and "he name[d] Mr. Dinkins and one
other individual as the shooters." Accordingly, the nature of
the present prosecution, in which the defendants were charged
with murdering government informants and witnesses, as well
as evidence of similar uncharged conduct, weighed heavily in
favor of the district court’s decision to empanel an anony-
mous jury. See e.g., United States v. Thai, 29 F.3d 785, 801
(2d Cir. 1994) (upholding use of anonymous jury when the
record supported a charge that several defendants conspired to
threaten, and later to kill, a witness in order to subvert a pros-
ecution of fellow gang members).
We also examine the fourth Ross factor, and consider
whether the defendants all faced the possibility of severe pun-
ishments if convicted. Ross, 33 F.3d at 1520. Dinkins and Gil-
bert each faced a potential death sentence or a term of life
imprisonment. These potential punishments lend support to a
conclusion that Dinkins and Gilbert had an incentive to resort
to "extreme measures in any effort to influence the outcome
of their trial." DeLuca, 137 F.3d at 32 (citing Ross, 33 F.3d
1520).
Because the record does not indicate whether the trial
resulted in extensive publicity, we do not address the fifth
15
As previously explained, Parker and Love also were charged as co-
conspirators in the indictment in this case. They each entered guilty pleas
in October 2008.
UNITED STATES v. DINKINS 29
Ross factor in considering whether an anonymous jury was war-
ranted.16 Accordingly, with regard to defendants Dinkins and
Gilbert, we conclude that when the district court rendered its
decision to empanel an anonymous jury, the record estab-
lished by a preponderance of the evidence that the lives or
safety of the venire members may have been jeopardized if
their names, addresses, and places of employment, or such
information pertaining to their spouses, had been provided to
the parties. See 18 U.S.C. § 3432.
ii.
With regard to defendant Goods, we consider whether the
district court abused its discretion in finding that there was
strong reason to conclude that the jury needed protection from
interference or harm. See Shryock, 342 F.3d at 971 (citing
DeLuca, 137 F.3d at 31). As we have stated, Section 3432
does not apply to Goods, because he was not charged with a
capital offense. Instead, the broader "interests of justice" stan-
dard provided by Section 1863(b)(7) ultimately governs our
review of the district court’s decision.
Evidence that supports a finding under the more restrictive
Section 3432 standard, that disclosure of identifying informa-
tion about the venire members may jeopardize their lives or
safety, necessarily will also support a finding under the
broader standard in Section 1863(b)(7) that the "interests of
justice" support anonymity of the venire. Although we have
already found that the district court’s decision to empanel an
anonymous jury for capital defendants Dinkins and Gilbert
satisfied Section 3432, we separately consider the issue with
respect to the non-capital defendant Goods, because much of
the evidence discussed above did not address Goods’ role in
Special or its criminal activities. And, in this inquiry under
16
Further, even if the fifth Ross factor weighed against the district
court’s decision to empanel an anonymous jury, we conclude that the fac-
tors, on balance, support the court’s decision.
30 UNITED STATES v. DINKINS
Section 1863(b)(7), we are permitted to consider all the evi-
dence in the record in determining whether the district court
abused its discretion in ordering that Goods be tried by an
anonymous jury. See Shryock, 342 F.3d at 971-72; Krout, 66
F.3d at 1427-28.
We conclude that evidence in the record well supported the
district court’s finding. With regard to the first three Ross fac-
tors, the record supported a finding that Goods participated in
organized criminal activity involving persons who had the
capacity to harm jurors and had interfered with the judicial
process in the past. See Ross, 33 F.3d at 1520. Goods, like
Dinkins and Gilbert, was alleged to be a member of Special.
Detective Michael Baier testified at trial that on multiple
occasions, he witnessed Goods and associates of Gilbert par-
ticipating in suspected narcotics transactions. Further, Randy
McLean, a member of Special, testified about the "close-knit"
nature of narcotics dealers in that neighborhood, and stated
that Goods sold narcotics on the same streets as McLean and
Gilbert.
As discussed above, the record also showed that Special
was an organization that continued to have the capacity to
harm jurors. Id. Notably, Detective Baier testified that Dow-
ery had identified several additional persons who were
involved in narcotics trafficking for Special and were not co-
defendants in this case. At least one of Gilbert’s former asso-
ciates evidently was not in custody, because Baier testified
that this associate was observed attending the trial in the pres-
ent case.
The evidence concerning past attempts to interfere with the
judicial process weighs heavily in favor of the district court’s
decision. See id. The evidence at trial revealed that the defen-
dants and their associates all knew that Dowery was a govern-
ment informant, and that members of Special habitually
targeted "snitches." The present indictment charged Goods, a
member of Special, with murdering Dowery. The evidence at
UNITED STATES v. DINKINS 31
trial supported the district court’s conclusion regarding this
effort by Gilbert and Goods, and earlier efforts by Goods’
associates, to interfere with the judicial process.
The fourth Ross factor also supports a finding that juror
anonymity was warranted. Even though Goods was not sub-
ject to the death penalty, Goods faced the possibility of life
imprisonment. Finally, as explained above, because the record
contains no indication that there was extensive publicity in
this case, we do not address the fifth Ross factor. Therefore,
based on the record before us with respect to defendant
Goods, we conclude that the record supported the district
court’s conclusion that an anonymous jury was warranted in
this case because the jury needed protection from potential
interference or harm that could be caused by Goods’ fellow
gang members.
iii.
This determination, however, does not conclude our
inquiry. In our review of a district court’s decision to empanel
an anonymous jury, we also must consider whether the district
court took reasonable precautions to minimize the risk that the
defendants’ rights could be infringed. Shryock, 342 F.3d at
971 (citing DeLuca, 137 F.3d at 31). The defendants do not
identify any particular prejudice that resulted from the
employment of an anonymous jury in their case but, instead,
allege generally that their right to a presumption of innocence
and right to a fair and impartial jury were infringed.
In order to protect a defendant tried by an anonymous jury
from having the jury conclude that the defendant is a danger-
ous person from whom the jurors must be protected, Ross, 33
F.3d at 1519, courts customarily provide the jury a non-
prejudicial reason for their anonymity. See e.g., Shryock, 342
F.3d at 972 (juror anonymity was intended "to protect their
privacy from curiosity-seekers"); Darden, 70 F.3d at 1532
(juror anonymity was intended to avoid juror harassment by
32 UNITED STATES v. DINKINS
the media). The decision regarding the precautions that are
reasonably necessary to safeguard the rights of a defendant is
necessarily a fact-specific inquiry.
In the present case, as stated above, defense counsel
requested at the pre-trial hearing a jury instruction stating that
the reason for juror anonymity was to protect the jurors from
unwanted media publicity. Although the district court indi-
cated that it was willing to instruct the jury on this point, an
instruction of this nature was not given at the trial. However,
the record also reveals that defense counsel failed to request
such an instruction at any point during the trial. Therefore, on
appeal, in the absence of compelling evidence, we will not
consider the defendants’ complaint that their presumption of
innocence was adversely affected in this regard. See Man-
soori, 304 F.3d at 652 (when the district court was willing to
give a curative instruction on juror anonymity, but the defen-
dants did not remind the court to do so, the defendants could
not contest that omission on appeal).
We are unable to discern in the present case any adverse
effect on the presumption of the defendants’ innocence result-
ing from the measures taken by the district court to preserve
the anonymity of the jury. The venire members and those later
selected as jurors never were informed that any of their bio-
graphical information was being withheld from the parties.
And, significantly, nothing in the juror questionnaire or the
instructions given by the district court reasonably suggested
that the district court had taken measures to protect the jurors
from potential harm caused by the defendants or their asso-
ciates. Therefore, we conclude that the district court’s com-
munications to the venire members, and ultimately to the
jurors, properly followed "the generally accepted practice for
minimizing prejudice, which is to downplay (not accentuate)
the significance of the juror anonymity procedure." Ochoa-
Vasquez, 428 F.3d at 1037. Additionally, we observe that any
remote possibility of harm was mitigated further because the
UNITED STATES v. DINKINS 33
district court properly instructed the jury on the presumption
of innocence.
We next consider whether the district court took reasonable
measures to ensure that the defendants’ right to trial by an
impartial jury was not infringed by the decision to empanel an
anonymous jury. As explained above, the withholding of bio-
graphical information from counsel may hinder the parties’
ability to conduct a thorough voir dire examination and to
exercise their peremptory challenges. Benabe, 654 F.3d at
760; Mansoori, 304 F.3d at 650.
Our review of the record reveals that the district court took
appropriate measures to safeguard the defendants’ right to
trial by an impartial jury. Counsel for all parties collabora-
tively drafted the extensive juror questionnaire that was sent
to prospective jurors. While the names and addresses of the
venire members, and of their spouses, were withheld from
counsel, any possibility of prejudice stemming from this
omission was lessened significantly because counsel were
provided the zip codes, the county, and the neighborhoods in
which the prospective jurors resided. The juror questionnaire
also included many questions concerning the employment of
the venire members and of their spouses. Individual voir dire
of the prospective jurors was conducted over the course of
four days, and the defendants have not identified any specific
aspect of this jury selection process that allegedly was inade-
quate or resulted in prejudice to them. Therefore, based on the
above considerations, we conclude that the defendants’ right
to an impartial jury was not infringed by the district court’s
decision retaining juror anonymity.
In conclusion, we hold that evidence in the record sup-
ported the district court’s findings that an anonymous jury
was necessary, and that the district court took reasonable pre-
cautions to safeguard the defendants’ rights. See 18 U.S.C.
§ 3432; 28 U.S.C. § 1863(b)(7). Accordingly, we further hold
34 UNITED STATES v. DINKINS
that the district court did not abuse its discretion in deciding
to empanel an anonymous jury.
V.
We next consider the defendants’ contention that the dis-
trict court erred in rejecting their Batson challenge. The
defendants challenge the striking of prospective juror Number
6, who is an African-American female. The defendants argue
that the government’s purportedly race-neutral reasons for
striking prospective juror Number 6 were based on her
responses that were nearly identical to those of Caucasian
venire members who ultimately were permitted to serve on
the jury. Therefore, the defendants argue, the government’s
proffered race-neutral reasons were pretextual. We disagree
with the defendants’ argument.
We accord great deference to the district court’s determina-
tion whether a peremptory challenge was exercised for a
racially-discriminatory reason. Jones v. Plaster, 57 F.3d 417,
421 (4th Cir. 1995). The outcome of a typical Batson chal-
lenge turns largely on an evaluation of credibility and whether
counsel’s race-neutral explanation for a particular challenge is
believed. Hernandez v. New York, 500 U.S. 352, 365 (1991)
(plurality opinion). The district court is especially well suited
to make this assessment because the court "has observed with
its own eyes the very act in dispute." Jones, 57 F.3d at 421.
Thus, we review the district court’s determination for clear
error. United States v. Farrior, 535 F.3d 210, 220 (4th Cir.
2008).
The burden-shifting framework for proving a Batson viola-
tion is firmly established. First, the defendant must make a
prima facie showing that the government exercised a peremp-
tory challenge on the basis of race. Second, once the defen-
dant has made such a prima facie showing, the burden shifts
to the government to provide a non-discriminatory reason for
its use of the peremptory challenge. Third, the defendant next
UNITED STATES v. DINKINS 35
must establish that the government’s proffered reasons were
pretextual, and that the government engaged in intentional
discrimination. See United States v. Barnette, 644 F.3d 192,
203-04 (4th Cir. 2011) (citing Johnson v. California, 545 U.S.
162, 168 (2005) (other citations omitted)); Farrior, 535 F.3d
at 220-21 (same).
Here, we proceed directly to the second step of the Batson
analysis.17 The second step only requires that the government
provide a race-neutral reason for the exercise of its peremp-
tory challenge. The government need not provide "an expla-
nation that is persuasive, or even plausible," so long as
discriminatory intent is not inherent in the explanation. Pur-
kett v. Elem, 514 U.S. 765, 768 (1995).
We consider four race-neutral reasons proffered by the gov-
ernment in support of its decision to strike prospective juror
Number 6.18 The government argues that it exercised its
peremptory challenge because: (1) prospective juror Number
6’s husband had been charged with assault; (2) she had two
friends who had been murdered; (3) her mother and father
used drugs during her "whole childhood"; and (4) she had
four children who were each between five and ten years of
age.
We conclude that the above reasons are facially race-
17
We assume, without deciding, that the defendants met their burden of
establishing a prima facie case of discrimination at step one, because the
government articulated the reasons for its peremptory challenge. See
United States v. McMillon, 14 F.3d 948, 952 (4th Cir. 1994) ("we will not
examine whether the defendant has met his burden in establishing a prima
facie case where the prosecutor articulates reasons for its strikes").
18
We do not address whether prospective juror Number 6’s views on the
death penalty supported the government’s peremptory challenge, because
the government did not advance that justification on appeal. United States
v. Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011) (holding that the govern-
ment abandoned arguments raised below by not presenting them in the
government’s appellate brief).
36 UNITED STATES v. DINKINS
neutral and support the government’s exercise of this peremp-
tory challenge. See e.g., United States v. Bynum, 3 F.3d 769,
772 (4th Cir. 1993) (relative’s drug use deemed race-neutral
explanation for peremptory strike); United States v. Hart, 544
F.3d 911, 915 (8th Cir. 2008) (prosecution of close family
member deemed race-neutral explanation); Greene v. Upton,
644 F.3d 1145, 1156 (11th Cir. 2011) (childcare consider-
ations deemed race-neutral explanation). Therefore, the gov-
ernment satisfied its burden at the second step of the Batson
inquiry.
At the third step of this inquiry, the defendants must show
that the government’s proffered race-neutral reasons were
"merely pretextual," and that the government exercised the
particular peremptory challenge on the basis of race. McMil-
lon, 14 F.3d at 953. If the purportedly race-neutral reason
offered by the government for striking an African-American
member of the venire applies equally to other members of the
venire who are otherwise similarly-situated, but who are not
African-American, that is evidence tending to prove purpose-
ful discrimination. Miller-El v. Dretke, 545 U.S. 231, 241
(2005). The ultimate burden always rests with the party chal-
lenging the peremptory strike to prove purposeful discrimina-
tion, Farrior, 535 F.3d at 221 (citing Howard v. Moore, 131
F.3d 399, 407 (4th Cir. 1997) (en banc)), by comparative juror
analysis or by other proof. See Golphin v. Branker, 519 F.3d
168, 179-80 (4th Cir. 2008).
In this case, the defendants compare the voir dire and ques-
tionnaire responses of prospective juror Number 6 with those
of other venire members not challenged by the government,
as evidence that the government’s reasons for striking pro-
spective juror Number 6 were pretextual. The defendants
repeatedly compare prospective juror Number 6 with prospec-
tive juror Number 190, a Caucasian female ultimately seated
on the jury. While we agree that prospective jurors Number
6 and Number 190 present the closest comparison for Batson
purposes, we conclude that the defendants have not estab-
UNITED STATES v. DINKINS 37
lished that the government engaged in purposeful discrimina-
tion.
The government proffered that it struck prospective juror
Number 6 in part because she had four young children, all
between the ages of five and ten. During voir dire, prospective
juror Number 6 had expressed concern that she would have
trouble arranging for childcare, although she stated that "[i]t
would somehow be workable." The government argued that
it was entitled to consider the fact that serving on the jury
could pose a measure of hardship for prospective juror Num-
ber 6, and that childcare considerations could be a significant
distraction to her during the trial. In contrast, prospective
juror Number 190 had one son in his twenties, and the defen-
dants have not identified another similarly-situated venire
member who expressed concerns about arranging care for
young children.
Additionally, the government advanced another reason to
the district court to explain why prospective juror Number
190 was not similarly situated to prospective juror Number 6.
Prospective juror number 190 had been married for 25 years
to a deputy sheriff, and the government concluded on this
basis that prospective juror Number 190 was "going to be
much more favorable" to the government.
The government was entitled to consider this employment
in determining who might be a favorable juror, irrespective
whether other factors distinguished one venire member from
another. Cf. Smulls v. Roper, 535 F.3d 853, 867 (8th Cir.
2008) (venire member’s occupation deemed race-neutral).
Further, we observe that although this consideration could
not, of itself, resolve conclusively whether the government
struck prospective juror Number 6 for race-neutral reasons,
that additional factor nonetheless is relevant as a race-neutral
comparative factor distinguishing the two prospective jurors.
See Golphin, 519 F.3d at 179-80. Based on this record, we
conclude that the defendants did not meet their burden at step
38 UNITED STATES v. DINKINS
three of the Batson inquiry to prove that the government
engaged in purposeful discrimination, or that the race-neutral
reasons offered by the government for striking prospective
juror Number 6 were pretextual. Accordingly, we hold that
the defendants have failed to show clear error in the district
court’s denial of their Batson challenge.
VI.
Dinkins and Gilbert next argue that the district court erred
by admitting Dowery’s hearsay statements into evidence, in
violation of Rule 804(b)(6) of the Federal Rules of Evidence
and the Confrontation Clause. Dinkins and Gilbert also con-
tend that under the holding of Giles v. California, 554 U.S.
353 (2008), the forfeiture-by-wrongdoing exception to the
hearsay rule was inapplicable because there was no proof that
Dowery was murdered to prevent him from testifying.
In response, the government asserts that the evidence was
admissible under Rule 804(b)(6). Additionally, the govern-
ment relies on the common law hearsay exception of
forfeiture-by-wrongdoing, the historical antecedent of Rule
804(b)(6), contending that admission of the challenged evi-
dence did not violate the Confrontation Clause or run contrary
to the holding in Giles, because the defendants all engaged in,
or acquiesced in, intentional wrongdoing that accomplished
the goal of rendering Dowery unavailable as a witness.
A.
The Dowery hearsay statements were highly relevant to the
government’s theory of the case. As stated above, at issue
here are three discrete sets of statements made by Dowery to
police officers before he was killed in 2006. Most of these
statements were made to Detective Baier, who investigated
the murder of James Wise, a drug dealer who had stolen nar-
cotics and firearms in 2004 from members of Special before
he was killed.
UNITED STATES v. DINKINS 39
The first challenged hearsay statements were Dowery’s
statements to Detective Baier concerning narcotics Dowery
purchased from Special group members operating in Bartlett.
Dowery had told Baier that Gilbert "ran the group," and that
Love, Parker, and McLean were Gilbert’s "lieutenants." Dow-
ery also had identified several others who worked with Gil-
bert, including Dowery’s son, Cecil Dowery. In the second
challenged hearsay statement, Dowery had identified Dinkins
from a photo array as one of the men who had shot him.
Dowery also had informed Detective Baier that he had
received a message from Gilbert, through Dowery’s son
Cecil. The message, which was the third challenged hearsay
statement presented at trial, was: "I know where you are at.
I know where you walk your girl to the bus stop. I can get you
out there. Don’t come around here."
The government argued at trial that the above hearsay state-
ments were admissible against the defendants based on Rule
804(b)(6) and the hearsay exception of forfeiture by wrongdo-
ing. The district court admitted the statements through the tes-
timony of Baltimore City Police Department Detective Gary
Niedermeier and Detective Baier.
B.
We review the district court’s evidentiary rulings for abuse
of discretion, and the court’s legal conclusions regarding con-
stitutional claims de novo. United States v. Abu Ali, 528 F.3d
210, 253 (4th Cir. 2008). The Confrontation Clause of the
Sixth Amendment provides that "[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him." U.S. Const. amend. VI. The
Confrontation Clause requires that an accused be given the
opportunity to confront any witness who gives testimony
against him, unless a well-established common law exception
would permit the admission of the evidence. See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). The common law
40 UNITED STATES v. DINKINS
doctrine of forfeiture by wrongdoing is such an exception,
which allows testimonial statements to be admitted when the
defendant’s own misconduct caused the declarant to be
unavailable at trial. Davis v. Washington, 547 U.S. 813, 833
(2006).
In Reynolds v. United States, 98 U.S. 145 (1878), the
Supreme Court first addressed this exception, explaining that
while the Confrontation Clause provides a defendant the right
to be confronted with the witnesses against him, "if a witness
is absent by [the defendant’s] own wrongful procurement, he
cannot complain if competent evidence is admitted to supply
the place of that which he has kept away." Id. at 158. In
Davis, over a century later, the Supreme Court again empha-
sized that "one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation."
Davis, 547 U.S. at 833.
Rule 804(b)(6) of the Federal Rules of Evidence adopted
this well-established common law exception to the hearsay
rule. Davis, 547 U.S. at 833. Rule 804(b)(6) provides, in rele-
vant part:
The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness
. . . (6) Statement Offered Against a Party That
Wrongfully Caused the Declarant’s Unavailability.
A statement offered against a party that wrongfully
caused — or acquiesced in wrongfully causing —
the declarant’s unavailability as a witness, and did so
intending that result.
Before applying the forfeiture-by-wrongdoing exception, a
trial court must find, by a preponderance of the evidence, that
"(1) the defendant engaged or acquiesced in wrongdoing (2)
that was intended to render the declarant unavailable as a wit-
ness and (3) that did, in fact, render the declarant unavailable
as a witness." United States v. Gray, 405 F.3d 227, 241 (4th
UNITED STATES v. DINKINS 41
Cir. 2005). And, in Giles, the Supreme Court clarified that the
forfeiture-by-wrongdoing exception applies "only when the
defendant engaged in conduct designed to prevent the witness
from testifying." 554 U.S. at 359 (emphasis in original).
The purpose of the forfeiture-by-wrongdoing exception is
to prevent "abhorrent behavior which strikes at the heart of
the system of justice itself." Fed. R. Evid. 804(b)(6) advisory
committee note (citation and internal quotation marks omit-
ted). To effectuate this purpose, federal courts have broadly
construed the elements of the forfeiture-by-wrongdoing
exception. Gray, 405 F.3d at 241-42.
The Giles decision did not materially alter application of
the forfeiture-by-wrongdoing exception by requiring the gov-
ernment to prove that the defendant’s actions were undertaken
for the purpose of preventing the witness from testifying. See
id. 554 U.S. at 367-68. Instead, the plain language of Rule
804(b)(6) imposes this evidentiary requirement. Moreover, we
have upheld the admission of evidence under a theory of for-
feiture by wrongdoing only when the government has shown
by a preponderance of the evidence that the defendant’s
wrongdoing "was intended to render the declarant unavailable
as a witness." Gray, 405 F.3d at 241. Therefore, we continue
to apply our precedent on the doctrine of forfeiture by wrong-
doing, as reaffirmed by the Supreme Court’s decision in
Giles.
C.
We turn to address Dinkins’ contention that the forfeiture-
by-wrongdoing exception did not apply to Dowery’s state-
ments regarding Dinkins’ acts, because Dinkins did not par-
ticipate in any wrongdoing that caused Dowery’s death.
Dinkins argues that by the time that Dowery was killed in
November 2006, Dinkins had been in jail for about a year,
and no evidence was presented to show that he participated in
the murder.
42 UNITED STATES v. DINKINS
The government, however, argues that the statements were
admissible under principles of conspiratorial liability articu-
lated in Pinkerton v. United States, 328 U.S. 640 (1946). The
government contends that the fact Dinkins was incarcerated
when his co-conspirators in Special successfully eliminated
Dowery as a witness, a task Dinkins initiated when he origi-
nally shot Dowery in 2005, did not entitle Dinkins to escape
responsibility for Dinkins’ acts of attempting to prevent Dow-
ery from testifying.
We have not yet considered the question whether hearsay
statements may be admitted under the forfeiture-by-
wrongdoing exception pursuant to a conspiracy theory of lia-
bility, when a defendant’s co-conspirators engaged in the
wrongdoing that ultimately rendered the declarant unavailable
as a witness. We now conclude that traditional principles of
conspiracy liability are applicable within the forfeiture-by-
wrongdoing analysis.
The principles of conspiratorial liability articulated in Pin-
kerton provide that a person is "liable for substantive offenses
committed by a co-conspirator when their commission is rea-
sonably foreseeable and in furtherance of the conspiracy."
United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010).
Thus, Pinkerton liability encompasses a person who, while
not directly committing an offense, has "participat[ed] in a
conspiracy that leads a confederate to engage in that conduct."
Ashley, 606 F.3d at 143. The principle underlying the Pinker-
ton doctrine is that "conspirators are each other’s agents; and
a principal is bound by the acts of his agents within the scope
of the agency." United States v. Aramony, 88 F.3d 1369, 1379
(4th Cir. 1996) (quoting United States v. Manzella, 791 F.2d
1263, 1267 (7th Cir. 1986)).
The language of Rule 804(b)(6) supports the application of
Pinkerton principles of conspiratorial liability in the
forfeiture-by-wrongdoing context, by requiring that the defen-
dant either have "wrongfully caused — or acquiesced in
UNITED STATES v. DINKINS 43
wrongfully causing — the declarant’s unavailability." Fed. R.
Evid. 804(b)(6) (emphasis added). The term "acquiesce,"
within the meaning of Rule 804(b)(6), encompasses wrongdo-
ing that, while not directly caused by a defendant co-
conspirator, is nevertheless attributable to that defendant
because he accepted or tacitly approved the wrongdoing. See
United States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002)
(in the context of Rule 804(b)(6), defining "acquiesce" as "to
accept or comply tacitly or passively," and noting that "acqui-
escence itself is an act" that can result in application of the
forfeiture-by-wrongdoing exception).
Our conclusion is supported by decisions of our sister cir-
cuits applying principles of conspiratorial liability in this con-
text. We relied on the Tenth Circuit’s decision in United
States v. Cherry in our decision in Gray. We cited the holding
in Cherry that a "declarant’s statements may be admitted
against a person who participated in a conspiracy to silence
the declarant even if that person did not himself engage in
witness intimidation or other wrongdoing." Gray, 405 F.3d at
242 (citing Cherry, 217 F.3d 811, 820 (10th Cir. 2000)).
In Cherry, the court reasoned that the balancing of a defen-
dant’s rights under the Confrontation Clause against the inter-
est of courts in preventing witness tampering warranted
application of Pinkerton principles in the forfeiture-by-
wrongdoing context. The court explained:
Failure to consider Pinkerton conspiratorial respon-
sibility affords too much weight to Confrontation
Clause values in balancing those values against the
importance of preventing witness tampering. By rec-
ognizing the applicability of agency concepts and
permitting admission of the testimony of an unavail-
able witness against a co-conspirator involved in, but
not necessarily responsible for, procuring that wit-
ness’s unavailability, a Pinkerton theory strikes a
44 UNITED STATES v. DINKINS
better balance between the conflicting principles at
stake.
217 F.3d at 820 (internal citations omitted).
We are persuaded by this reasoning that application of prin-
ciples of conspiratorial liability in the forfeiture-by-
wrongdoing context strikes the appropriate balance between
the competing interests involved. See Thompson, 286 F.3d at
963-64 (adopting the Cherry analysis). Mere participation in
a conspiracy will not trigger the admission of testimonial
statements under a forfeiture-by-wrongdoing theory. Instead,
a defendant in such circumstances would only waive his Con-
frontation Clause rights when (1) the defendant participated
directly in planning or procuring the declarant’s unavailability
through wrongdoing; or (2) the wrongful procurement was in
furtherance, within the scope, and reasonably foreseeable as
a necessary or natural consequence of an ongoing conspiracy.
Cherry, 217 F.3d at 820. While we think that proper applica-
tion of Pinkerton liability standards in the forfeiture-by-
wrongdoing context generally will be coextensive with the
scope of forfeiture by wrongdoing as articulated in Giles, a
court’s decision under the second prong in Cherry must be
supported by evidence that the defendant "engaged in conduct
designed to prevent the witness from testifying." Giles, 554
U.S. at 359 (emphasis in original).
In the present case, the evidence showed that the murder of
Dowery in November 2006 was in furtherance, within the
scope, and reasonably foreseeable as a natural consequence of
an ongoing conspiracy of which Dinkins was a member. The
allegation that Dinkins, Gilbert, and Goods were members of
Special, a narcotics trafficking organization in Baltimore, was
well supported by the record.
Dowery was a government informant who had testified
against Parker and Love, who were also members of Special,
at their trial on charges of murdering Wise. Because Dowery
UNITED STATES v. DINKINS 45
had substantial knowledge about the operations of Special,
which he was willing to provide to law enforcement officers,
he posed a continuing liability to members of Special. Also,
the evidence showed that it was common knowledge that
Dowery was a government informant, and that Dinkins and
other members of Special "targeted" government informants.
Included in this evidence was the fact that Dinkins killed Jem-
mison because he was cooperating in a government investiga-
tion.
After Dowery provided various information to law enforce-
ment officers, Dinkins and co-conspirator Damien West
attempted to murder Dowery in October 2005, and succeeded
in shooting him several times. When Dinkins learned that
Dowery had not died as a result of his wounds, Dinkins stated
that he and West had "to go to the hospital to finish him off."
These actions substantiate the ongoing nature of Special’s
scheme to murder Dowery.
Although Dinkins was incarcerated shortly after the murder
attempt, threats of violence against Dowery continued to be
made by members of Special. Gilbert, the leader of Special,
was able to communicate a threat to Dowery even after he and
his family were relocated for their safety. Finally, evidence
showed that Gilbert and Goods shot Dowery, in what can only
be considered a targeted killing, immediately upon Dowery’s
return to the Bartlett area in November 2006.
Dowery’s murder certainly was reasonably foreseeable to
Dinkins, in view of the fact that he and co-conspirator West
nearly had succeeded in murdering Dowery the year before,
and had manifested the intent to "finish the job." And, in view
of other evidence in the record establishing a pattern of intim-
idation and violence with respect to government informants
by members of Special, we consider that Dowery’s ultimate
murder was a natural consequence of the ongoing conspiracy.
See Cherry, 217 F.3d at 820. Lastly, the record is clear that
Dinkins’ acts of wrongdoing, as well as those of his co-
46 UNITED STATES v. DINKINS
conspirators, were intended to prevent, and in fact did pre-
vent, Dowery from testifying. See Giles, 554 U.S. at 359.
Therefore, we conclude that the district court properly admit-
ted the Dowery hearsay statements against Dinkins under the
forfeiture-by-wrongdoing exception to the Confrontation
Clause pursuant to Pinkerton principles of conspiratorial lia-
bility. See Fed. R. Evid. 804(b)(6); Cherry, 217 F.3d at 820-
821.
D.
We also reject Gilbert’s challenge to the admission of cer-
tain Dowery hearsay statements against Gilbert, namely,
Dowery’s discussion of the structure and operations of Spe-
cial, and the threat conveyed by Gilbert to Dowery through
Dowery’s son Cecil.19 On appeal, Gilbert contends that the
circumstances of Dowery’s death "support[ ] the reasonable
possibility that his demise was due to a desire by many others
in this crime-ridden neighborhood to harm persons known" to
be government informants. However, as we already have
observed, the record is clear that Gilbert and his co-
conspirators engaged in acts of wrongdoing by shooting Dow-
ery on two occasions to prevent Dowery from testifying,
because he was a "snitch." The record also is clear that Gilbert
and Goods shot and killed Dowery on Thanksgiving Day in
2006, finally succeeding in the prolonged effort to render him
unavailable as a witness. Therefore, the record is more than
adequate to uphold the district court’s admission of Dowery
hearsay statements against Gilbert under the forfeiture-by-
wrongdoing exception to the Confrontation Clause. See Fed.
R. Evid. 804(b)(6); Gray, 405 F.3d at 241.
19
Goods does not separately challenge the introduction of Dowery hear-
say statements in the defendants’ briefs to this Court, and, in fact, Goods
argued in favor of the admission of such evidence before the district court.
Therefore, Goods has waived any challenge to the admission of the Dow-
ery hearsay statements. Even if Goods did preserve this argument for
appeal, it would fail for the same reasons we reject Gilbert’s challenge to
the Dowery hearsay statements.
UNITED STATES v. DINKINS 47
VII.
Finally, Goods argues that the district court erred in deny-
ing his Rule 29 motion for judgment of acquittal on his counts
of conviction.20 Goods contends that the weight of the evi-
dence introduced at trial showed that Gilbert, the first shooter,
instantly killed Dowery when Gilbert fired three shots at
Dowery’s head. Goods argues that even if the government had
proved that he was the second shooter, the government did
not prove that he murdered Dowery because the evidence
failed to establish that Dowery was alive when Goods fired
the shots. We disagree, because Goods’ argument is not sup-
ported by the present record.
We review de novo the denial of a Rule 29 motion for judg-
ment of acquittal. United States v. Penniegraft, 641 F.3d 566,
571 (4th Cir. 2011). When we review the sufficiency of the
evidence after a conviction, we consider the evidence and all
reasonable inferences drawn from the evidence in the light
most favorable to the government. United States v. Lomax,
293 F.3d 701, 705 (4th Cir. 2002). We will sustain the jury
verdict if "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Penniegraft, 641 F.3d at 571-72 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in Jackson). In our
review of a Rule 29 motion, we remain cognizant that it is the
jury’s province to weigh the credibility of the witnesses, and
to resolve any conflicts in the evidence. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
20
As previously stated, Goods was convicted of several counts related
to the murder of Dowery: murder with intent to prevent the attendance and
testimony of a person in an official proceeding, and to prevent the commu-
nication of information regarding a federal offense to law enforcement;
use of a firearm in furtherance of a drug-trafficking crime; and willfully
causing the death of a person by using a firearm in furtherance of a drug-
trafficking crime.
48 UNITED STATES v. DINKINS
At trial, Anthony Parker testified that he was working as a
bartender at Kozy Korner on November 23, 2006, which was
Thanksgiving Day. Parker testified that at about 9:00 p.m.,
only he, his daughter Tonielle Parker, and Dowery, who was
Tonielle’s boyfriend, were inside the bar. Dowery and Ton-
ielle sat on barstools one seat apart from each other.
Parker testified that a man wearing a hood pulled tightly
around his face entered the bar, shot Dowery in the head three
times, and departed. Parker testified that when he attempted
to close the door behind the shooter seconds later, another
person entered the bar and shot Dowery in the head three
more times. The second shooter also wore a hood that was
pulled tightly around his face. Parker testified that when he
saw Dowery, "it looked like he was dead," but Parker did not
state whether he reached this conclusion before or after the
second person shot Dowery.
Randy McLean, a member of Special, testified that on
Thanksgiving Day in 2006, he was at his grandmother’s house
across the street from Kozy Korner. McLean stated that he
spent a significant portion of Thanksgiving Day with Gilbert
and Goods, and that he ate dinner with Gilbert. As a result,
McLean stated that he "knew" the clothes worn by Gilbert and
Goods that day.
McLean testified that on Thanksgiving evening, from his
grandmother’s house, he saw Goods standing outside Kozy
Korner wearing a familiar "hoodie." McLean soon observed
Gilbert, who also was wearing a familiar hoodie, run into the
bar. McLean heard gunshots, saw Gilbert run out of Kozy
Korner and, immediately thereafter, observed Goods enter the
bar. McLean heard more shots being fired inside the bar, after
which he saw Goods run out of the bar.
The government also introduced expert testimony from Dr.
Donna M. Vincenti, a medical examiner employed by the
UNITED STATES v. DINKINS 49
Maryland Office of the Chief Medical Examiner.21 Dr. Vin-
centi testified that Dowery had been shot six times, and that
he died as a result of "[m]ultiple gunshot wounds." According
to Dr. Vincenti, two of the gunshot wounds, one to Dowery’s
head and the other to his neck and spinal cord, had a possibil-
ity of being "rapidly fatal." Dr. Vincenti testified that the
other four gunshot wounds, which struck or grazed Dowery’s
skull, back, and neck, were not likely to have been "rapidly
fatal." Dr. Vincenti was careful to clarify, however, that
"when I say not rapidly fatal, that doesn’t mean that a wound
in and of itself wouldn’t be fatal, [it] just probably wouldn’t
be within second[s] or minutes."
Based on this record, we conclude that the government
presented substantial evidence that Gilbert and Goods shot
Dowery a total of six times, and that Dowery died as a result
of those wounds. A rational trier of fact could have found that
the shots fired by Goods, in connection with the shots previ-
ously fired by Gilbert, jointly caused Dowery’s death. Evi-
dence was presented that Gilbert and Goods shot Dowery in
rapid succession, within "seconds" of each other. While Dr.
Vincenti testified that one of Dowery’s head wounds likely
was "rapidly fatal," Parker testified that he had witnessed both
Gilbert and Goods fire shots at Dowery’s head. Significantly,
the evidence presented did not show that any individual
wound that likely caused Dowery’s immediate death was
traceable to either Gilbert or Goods. In sum, Goods’ argument
is not supported by the record, because a rational finder of
fact would be entitled to base a verdict on substantial evi-
dence that Dowery died as a result of multiple gunshot
wounds inflicted by Gilbert and Goods.
21
Dr. Vincenti did not perform the post-mortem examination of Dow-
ery, which was conducted by Dr. Tasha Greenberg. However, Dr. Vincenti
reviewed the post mortem examination materials, and was accepted by the
district court without objection as being qualified to offer expert testimony
on this issue.
50 UNITED STATES v. DINKINS
VIII.
In conclusion, we hold that the district court did not abuse
its discretion by empaneling an anonymous jury. The district
court’s finding that anonymity was necessary to protect the
venire members and the jurors was supported amply by the
record. The district court also took reasonable measures to
safeguard the defendants’ rights in light of this protective
measure. Also, the challenged hearsay statements of John
Dowery properly were admitted under the forfeiture-by-
wrongdoing exception to the hearsay rule and the Confronta-
tion Clause. After due consideration, we reject the defendants’
other asserted grounds for appeal. Accordingly, we affirm the
district court’s judgment.
AFFIRMED