United States v. John Legrand

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN FITZGERALD LEGRAND,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:10-cr-00052-CCB-1)
Argued: May 15, 2012 Decided: June 8, 2012
Before GREGORY, DUNCAN and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Gregory and Judge Diaz concurred.
ARGUED: Ray M. Shepard, SMITH, GILDEA & SCHMIDT, LLC, Towson,
Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Harry M. Gruber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
1
DUNCAN, Circuit Judge:
A jury convicted John Legrand on all eleven counts for
which he was indicted arising from three armed robberies in
Maryland and Pennsylvania. These counts included conspiracy,
robbery, possession of a firearm in furtherance of a crime of
violence, being a felon in possession of a firearm, witness
tampering, obstruction of justice, and witness retaliation, in
violation of 18 U.S.C. §§ 1951, 924(c), 922(g), 1512(c), 1513,
and 1512(b), respectively. On appeal, Legrand argues that
multiple constitutional violations tainted his convictions, and
thus asks that we vacate them and order a new trial. For the
reasons that follow, we reject Legrand’s challenges and affirm.
I.
We set forth the facts relevant to the issues on
appeal in roughly chronological order. We begin by describing
the events and investigation that led to Legrand’s arrest and
indictment. We then proceed to describe relevant pretrial
proceedings. Finally, we detail the relevant evidence
introduced against Legrand at trial.
A.
The three armed robberies at the heart of this case
took place over ten days in January 2008. On January 12, two
2
assailants robbed a gas station on Belair Road in Baltimore,
Maryland. On January 21, a single assailant robbed a Pizza Hut
in Dover, Pennsylvania. On January 23, a single assailant
robbed a Burger King on Pulaski Highway, outside of Baltimore.
After Officer Joseph Ruth responded promptly to the
robbery of the Burger King, a witness described the assailant
and directed Ruth to the street where the person had last been
seen. Upon reaching the street, Ruth observed a man matching
the description enter the front passenger seat of a Jeep
Liberty. Ruth approached the Jeep Liberty and turned on his
cruiser’s emergency lights. At this point, the driver took off,
and a high-speed chase ensued. Ruth was eventually able to stop
the vehicle and arrest the driver, but was unable to apprehend
the passenger, who fled on foot.
Police identified the driver as Errol Fulford,
Legrand’s nephew. Police also identified the owner of the Jeep
Liberty as Martha Talley, Legrand’s mother. Talley informed
officers that she had lent her vehicle to Legrand. Upon
processing the vehicle, police discovered fingerprints on a
bottle inside the car and on its front passenger-side door.
Police matched these fingerprints to Legrand.
Upon further investigation, police discovered that
Legrand was a convicted felon who recently completed parole.
Legrand’s former parole officer, Phil Rossetti, informed
3
investigators that Legrand was using a cell phone with the
number 443-***-1700 (the “1700 cell phone”) and living at 7700
Fredkert Avenue, Apt. B, Baltimore, Maryland. Investigators
obtained the records for this phone, which showed that someone
had used it in the area of the Pulaski Highway Burger King at
the time of the January 23 robbery.
Based on this information, police arrested Legrand for
the robbery of the Burger King as he arrived, with his minor
daughter, at the office of his former parole officer. During
his booking, police asked Legrand for his phone number; in
response, Legrand provided the number for the 1700 cell phone.
Legrand did not, however, have possession of the cell phone at
the time.
Following Legrand’s arrest, police escorted his
daughter to the 7700 Fredkert Avenue residence at her request,
so she could retrieve her belongings before police released her
to her mother. Officers entered the residence with her. While
she collected her belongings, one of the officers called the
1700 cell phone, which rang inside the apartment.
Officers then applied for a warrant to search the
apartment at 7700 Fredkert Avenue. In the affidavit supporting
the application, officers included, along with other evidence,
the fact that the 1700 cell phone had rung inside the apartment.
A judge issued the warrant and officers searched the apartment,
4
collecting the cell phone with the 1700 number, another cell
phone, and multiple notices of past-due bills.
Months later, as Legrand was awaiting trial in state
court, investigators asked Maria DiAngelo, the assistant manager
on duty at the Burger King the night of January 23, to try to
pick the assailant from a lineup. Legrand was present in this
lineup as person number six. DiAngelo picked person number
four, and signed the following written statement: “I chosen
[sic] number four for the sole reason I remember the whole
night. When I saw his face, I had a gut feeling in his eyes
that told me he was the man. No other one made me feel scared
like number four did. I’m positive it was him.” J.A. 417.
The following day, an officer informed DiAngelo she
had picked the wrong man. DiAngelo responded by disclosing
that, contrary to her signed statement, she had been deciding
between two individuals, number four and number six. The
officer then informed her that had she picked number six, she
would have been right.
Subsequent to DiAngelo’s participation in the lineup,
the State of Maryland dismissed charges against Legrand in favor
of the United States. After further investigation and Fulford’s
confession to government investigators, a federal grand jury
indicted Legrand on eleven counts, for crimes related to the
5
robberies of the Burger King, the gas station on Belair Road,
and the Pizza Hut in Dover, Pennsylvania.
B.
Legrand made three pretrial challenges relevant to
this appeal: a motion to suppress the evidence obtained from his
apartment, a motion to exclude identification evidence in the
form of testimony by DiAngelo, and a challenge to the
government’s use of a peremptory challenge to strike an African
American juror. We will describe each in turn.
1.
Legrand based his motion to suppress the evidence
obtained from his apartment on the ground that the warrant
authorizing the search was infirm. He contends that the
supporting affidavit contained information gathered by police
after they illegally entered his apartment with his daughter and
called the 1700 cell phone. The government responded that the
officers’ entry into the apartment was legal because the
daughter’s presence created exigent circumstances, i.e., the
need to assure the preservation of evidence. Hearing the sound
of the ringing cell phone while in the apartment, the government
argued, was equivalent to observing evidence in plain view. The
government further argued that even if the officers improperly
6
obtained the fact of the presence of the 1700 cell phone in the
apartment, the warrant was still valid because the remainder of
the affidavit contained sufficient evidence to support it.
The district court denied Legrand’s motion to
suppress. In doing so, it eschewed the government’s exigent
circumstances argument in favor of its alternative contention.
The district court held that even after excising the fact of the
presence of the 1700 cell phone in the apartment, the affidavit
submitted by the officers contained sufficient evidence to
support the warrant. In so holding, the district court relied
on our decision in United States v. Moses, 540 F.3d 263 (4th
Cir. 2008), in which we held that a warrant issued for a
residence subsequent to an illegal entry remains valid so long
as sufficient untainted evidence was presented in the warrant
affidavit to establish probable cause. Id. at 271.
2.
In addition to his motion to suppress, Legrand filed a
motion in limine to exclude testimony by DiAngelo identifying
him as the person who robbed the Burger King on January 23.
Legrand based his motion on the government’s proffer that it
intended to elicit testimony from DiAngelo that during the
lineup she was considering two men, number four--whom she
ultimately picked--and number six. The government proffered
7
that it would then elicit testimony from one of the officers
involved in the lineup that Legrand was number six. Legrand
argued that this identification--coming after DiAngelo had (1)
approved a sworn statement that she was “positive” that number
four was the assailant, and (2) discussed the lineup with an
officer who had informed her that she chose incorrectly--was
inherently unreliable and thus a violation of his right to due
process.
Subsequent to the filing of this motion in limine, the
government announced that it no longer planned to elicit
testimony indicating that Legrand was number six in the lineup.
Instead, the government would only elicit testimony to the
effect that DiAngelo was not positive when she chose number
four, apparently in an attempt to dull the effect on the jury of
her sworn statement identifying a person that was not Legrand.
The government assured the district court that DiAngelo would
not be asked to “identify[] the defendant in any way.” J.A.
369. In response, Legrand’s attorney did not press his motion
in limine, instead stating, “we will wait and hear that
testimony and we will cross-examine her as we see appropriate on
that topic.” Id. The district court responded, “All right.
Fine. Then I will not make any ruling on this matter unless and
until I need to.” Id.8
DiAngelo ultimately testified as the government
proffered she would, describing her thought process in choosing
person number four, and explaining that she was unsure of
choosing between person number four and person number six. The
government did not attempt to identify Legrand as person number
six. Legrand did not object to DiAngelo’s testimony at trial.
3.
After the district court disposed of the pretrial
motions, jury selection began. The district court called sixty
jurors for potential service in the trial. Five of these jurors
were African American. The government struck one of the African
American jurors for cause, leaving four. The government then
used a peremptory challenge to strike one of the four remaining
African American jurors, Juror 339. On the form potential
jurors were asked to complete, Juror 339 had listed no
occupation, and failed to answer any of the questions presented.
In response to the government’s striking of Juror 339, the
following exchange occurred:
[Legrand’s counsel]: So I’m just making the Batson
challenge for the record, your Honor. There were four
African Americans on the panel. The government has
struck 339, who is African American. I took a look at
my notes. I don’t think I have any information about
him. I don’t think we have an occupation or anything
relating to him. So it’s 25 percent of the African
Americans on the panel. I just want to preserve that.
9
THE COURT: So they struck one out of four?
MR. VITRANO: Four, correct.
. . .
THE COURT: [To the government.] Do you want to put any
reason on the record for striking Number 339?
[The government]: Your Honor, my understanding
of Batson is that the burden is on the defense to show
that there is a pattern of strikes for a particular
specified class, not a percentage. 1 In other words, if
there was one person on the panel of a particular race
that was struck, that is not a pattern. But here, we
have one out of four. So the government’s position is
that the defense has not even come close to meeting
any kind of burden. So really, the inquiry should go
no further.
THE COURT: Okay. I always ask because sometimes the
government wants to go ahead anyway. But I think
you’re right. I don’t think a prima facie case is
made by the fact that out of the four African
Americans remaining on the panel that would be
considered for the 12, one of those, and as was
pointed out, we have no information about, not even an
occupation, was struck by the government. Whereas,
the government did not exercise its strikes against
three other African Americans that they could have. So
I deny the motion.
J.A. 358-59.
The three remaining African American jurors ultimately
served on the jury.
1
It is undisputed that the government misstated the law.
10
C.
We now turn to the testimony of Fulford, Legrand’s
nephew and accomplice. Fulford, then serving a sentence in
state prison for his role in the Burger King robbery, testified
that he had assisted Legrand in each of the three robberies. He
provided extensive testimony--with his direct testimony
occupying over 100 pages of trial transcript--in this regard.
For example, Fulford testified that on the evening of January
23, 2008--the night of the Burger King robbery--Legrand visited
him at his house and asked for help in “doing a robbery that
night, because he [Legrand] needed his bills paid.” J.A. 800.
Fulford agreed to help Legrand in this robbery because “he had
been there for me when my rent was slow. . . . . So he needed
help, I’m there. I didn’t have no problems with it.” J.A. 801.
Fulford drove the Jeep Liberty belonging to Legrand’s mother
that night while Legrand was in the passenger seat. He
described how Legrand had initially suggested robbing a clothing
store but changed his mind upon arrival at the store, when he
observed multiple police cars in the vicinity. Fulford
testified that Legrand ultimately settled on robbing the Burger
King on Pulaski Highway and that he waited in the Jeep Liberty
while Legrand committed the robbery. Fulford testified that
Legrand returned from the Burger King, tossed his gun into the
vehicle, and proceeded to pick up cash from the ground outside
11
the vehicle that he had dropped. Fulford then described the
police chase that ultimately ended in his arrest and Legrand’s
escape.
Fulford’s testimony about the Burger King robbery was
supported by ample additional evidence. The testimony of
Officer Ruth, who arrested Fulford, corroborated Fulford’s
testimony about the chase following the robbery. The physical
evidence collected from the Jeep Liberty--particularly Legrand’s
fingerprints on the front passenger-side door--corroborated
Fulford’s testimony that Legrand had been in the passenger seat.
Legrand’s participation in the Burger King robbery was further
supported by cell phone data showing that the 1700 cell phone, a
phone linked to Legrand through the testimony of multiple
witnesses, was (1) used in the vicinity of the Burger King at
the time of the robbery, and (2) used to make calls to various
police stations and detention centers shortly after Fulford’s
arrest. Finally, there was the damning testimony of other
members of Legrand’s family, who described Legrand’s confession
to his participation in the robbery with Fulford.
Fulford also described the robbery of the gas station
on Belair Road on January 12, 2008. Legrand suggested the
robbery during a visit that evening. Fulford described how he
and Legrand entered the gas station, asked the attendant for a
pack of cigarettes, and then pulled a gun and demanded money
12
when the attendant turned back around. Fulford testified that
he held the gun while Legrand reached into the cash register to
grab the money. Fulford’s testimony as to the robbery of the
Belair Road gas station was supported by video surveillance from
the gas station clearly showing Fulford and Legrand committing
the robbery in the manner described by Fulford.
Finally, Fulford testified about the robbery of the
Pizza Hut in Dover, Pennsylvania, on January 21. Legrand had
suggested to Fulford robbing “an easy spot up there in
Pennsylvania.” J.A. 860. Legrand had been casing this area for
quite a while and told Fulford that he was confident that it was
a prime spot for a robbery. Fulford explained that when he and
Legrand arrived in Dover they drove past the Pizza Hut, and
Legrand decided it would be the target of the robbery. Fulford
waited in the Jeep Liberty while Legrand robbed the site.
Fulford’s testimony was supported by the testimony of a Pizza
Hut employee who positively identified Legrand as the
perpetrator, and cell tower data that (1) linked the 1700 cell
phone to the Dover area at the time of the robbery, and (2)
showed that the phone had received a call from a Dover pay phone
shortly after the robbery, a call Fulford testified to making.
The jury convicted Legrand on all eleven counts.
Legrand timely appealed.
13
II.
On appeal, Legrand repeats the issues he raised in the
district court. He asserts police violated the Fourth Amendment
by searching his apartment pursuant to an invalid warrant, that
the government violated the Fifth Amendment by introducing
DiAngelo’s testimony regarding the lineup, and that the
government violated the Sixth Amendment by striking Juror 339
based on the juror’s race. We first address Legrand’s
evidentiary challenges together before proceeding to the claim
related to jury selection.
A.
“[T]here can be no such thing as an error-free,
perfect trial . . . .” United States v. Hasting, 461 U.S. 499,
508 (1983). Pursuant to this concession to reality, appellate
courts will not reverse a conviction due to an error at trial if
it is “clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.” Neder
v. United States, 527 U.S. 1, 18 (1999). In appeals from
criminal convictions, harmless error analysis serves the purpose
of assuring that “unfair convictions are reversed while fair
convictions are affirmed.” Sherman v. Smith, 89 F.3d 1134, 1138
(4th Cir. 1996) (en banc).
14
The Supreme Court has “recognized that most
constitutional errors can be harmless.” Neder, 527 U.S. at 8.
In consequence, we have held that a district court’s denial of
both a motion to suppress alleging Fourth Amendment violations
and a motion to exclude an in-court identification are subject
to harmless error analysis. See United States v. Ford, 986 F.2d
57, 60 n.2 (4th Cir. 1993) (motion to suppress); Satcher v.
Pruett, 126 F.3d 561, 566 (4th Cir. 1997) (motion to exclude in-
court identification). 2
2
We do not conduct a harmless error analysis for Legrand’s
challenge to the process of jury selection in this case.
Constitutional errors not susceptible to harmless error analysis
are those that affect the framework within which the trial
proceeds, rather than simply being an error in the trial process
itself. These “structural” errors require automatic reversal.
United States v. Poole, 640 F.3d 114, 118 (4th Cir. 2011).
Although this court has not yet considered the issue, most
circuit courts have held that the use of peremptory challenges
in jury selection in a racially discriminatory manner, as
Legrand alleges here, is a structural error. See, e.g., Winston
v. Boatwright, 649 F.3d 618, 627-28 (7th Cir. 2011); Forrest v.
Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005); Tankleff v.
Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); Ford v. Norris, 67
F.3d 162, 170-71 (8th Cir. 1995); United States v. Thompson, 827
F.2d 1254, 1261 (9th Cir. 1987). Indeed, in its decision
barring the use of peremptory challenges in jury selection in a
racially discriminatory manner, the Supreme Court ordered that
the conviction be reversed if the defendant, on remand,
demonstrated such an error, “without pausing to determine
whether the improper exclusion of jurors made any difference to
the trial’s outcome.” Davis v. Sec’y for Dept. of Corrections,
341 F.3d 1310, 1316 (11th Cir. 2003) (citing Batson v. Kentucky,
476 U.S. 79, 100 (1986)). Accordingly, although not
conclusively deciding whether such an error is structural, we
will eschew harmless error analysis of this alleged error.
15
Errors in the admission of evidence are harmless when,
after excising the challenged evidence, there remains “an
abundance of other evidence” supporting the verdict. United
States v. Johnson, 400 F.3d 187, 197 (4th Cir.
2005); accord United States v. Mobley, 40 F.3d 688, 694 (4th
Cir. 1990) (reviewing non-challenged evidence introduced at
trial to determine whether erroneous admission of certain
evidence was harmless). 3 Without taking a position as to whether
the district court improperly admitted evidence of the search
and DiAngelo’s identification testimony, we find that any error
would have nevertheless been harmless.
The challenged evidence--the presence of the 1700 cell
phone in Legrand’s apartment, the past-due bills, and DiAngelo’s
testimony--went only to Legrand’s participation in the robberies
(and not, for example, to his alleged obstruction and witness
intimidation). As detailed above, the government introduced
significant other evidence demonstrating his participation in
3
In rare cases, the erroneous admission of evidence--most
often involving a defendant’s confession--will be determined to
have had such a corrosive effect on the jury that it cannot be
rendered harmless by other evidence. See Arizona v. Fulminante,
499 U.S. 279, 296 (1991) (“In the case of a coerced confession .
. . the risk that the confession is unreliable, coupled with the
profound impact that the confession has upon the jury, requires
a reviewing court to exercise extreme caution before determining
that the admission of the confession at trial was harmless.”).
Such circumstances are not present in this case.
16
the robberies. Indeed, even the specific purpose served by some
of the challenged evidence was duplicated by other evidence.
The presence of the 1700 cell phone in Legrand’s apartment and
the past-due bills, for example, demonstrated Legrand’s
connection to the cell phone used in the vicinity of the Pizza
Hut and Burger King robberies and Legrand’s financial motive for
the robberies, respectively. But Legrand himself proved his
connection to the cell phone by listing its number as his own
when he was arrested, and his financial motive was presented
separately to the jury through the testimony of Fulford.
Meanwhile, the challenged identification evidence tying Legrand
to the Burger King robbery simply replicates Fulford’s testimony
that he was Legrand’s accomplice in the robbery, Legrand’s
family members’ testimony that Legrand confessed to the robbery,
the physical evidence linking Legrand to the Jeep Liberty, and
the cell tower data linking Legrand’s cell phone to the area of
the Burger King. Thus, “it is clear beyond a reasonable doubt
that the jury would have returned a verdict of guilty” as to all
counts against Legrand, even absent the challenged
evidence. Johnson, 400 F.3d at 198 (quotation marks omitted).
B.
We now turn to Legrand’s Sixth Amendment challenge.
Legrand argues that the government used a peremptory strike to
17
remove Juror 339 based only on his race, thus violating the
Sixth Amendment. See Batson v. Kentucky, 476 U.S. 79 (1986).
In Batson, the Court established a burden-shifting
framework for the evaluation of a claim of racial discrimination
in the use of peremptory challenges. Initially, the burden is
on the party challenging the peremptory strike to make a prima
facie showing of racial discrimination. We have described the
requirements of a prima facie case thusly:
To establish a prima facie case under Batson, a
defendant must show that he is a member of a
cognizable racial group, and that the prosecutor has
exercised peremptory challenges to remove from the
venire members of the defendant’s race. . . . 4 Then,
the defendant must show that these facts and any other
relevant circumstances raise an inference that the
prosecutor used peremptory challenges to exclude the
veniremen from the petit jury on account of their
race. Relevant circumstances may include, but are not
limited to, a pattern of peremptorily striking black
jurors and the government’s questions during voir dire
and in exercising its challenges.
United States v. Grandison, 885 F.2d 143, 145-46 (4th Cir. 1989)
(quotation marks, citations, and alterations omitted). Only
after a party has made out a prima facie case is the striking
party required “to come forward with a neutral explanation for
challenging black veniremen.” Id. at 146.
4
These two factors are not in dispute.
18
In reviewing a district court’s conclusion as to
whether a party has made a prima facie case, we do not second-
guess lightly:
The trial judge plays a pivotal role in determining a
prima facie case. He or she has the opportunity to
observe voir dire and the prosecution’s exercise of
its peremptory challenges. The trial judge also has
the experience to identify a prima facie case of
purposeful discrimination. . . . [A] trial judge’s
finding of intentional discrimination is a finding of
fact . . . . Such findings are entitled to great
deference, and will not be disturbed by this court
unless clearly erroneous.
Id. (quotation marks, citations, and alterations omitted).
Here, the district court concluded that Legrand had failed to
make out a prima facie case because the only circumstance he put
forth in support of his claim of discrimination was that the
government had struck one of four African American jurors.
Further, the district court noted that weighing against the
claim of discrimination were the facts that (1) Juror 339 had
refused to provide requested information, and (2) the government
did not strike any of the remaining African American jurors
despite its ability to do so. These were appropriate
considerations by the district court, and we cannot conclude
that its findings were clearly erroneous. See, e.g., id. at 147(noting favorably that “the government could have used a
remaining strike against [the remaining African American jurors]
but three times declined to do so”); United States v. Malindez,
19
962 F.2d 332, 333 n.2 (4th Cir. 1992) (“The fact that 50 percent
(four out of eight) of the Government’s peremptory challenges
were exercised against African American veniremen, standing
alone, is insufficient to establish a prima facie case of
purposeful discrimination . . . .”).
Legrand asserts that the district court clearly erred
in relying on an incorrect legal standard, i.e., that to
establish a prima facie case, Legrand was required to show a
discriminatory pattern of strikes. It was, however, the
government, not the district court, that articulated this
admittedly erroneous standard. 5 The record reflects that the
district court merely considered the lack of a pattern of
discriminatory strikes, among other factors, in concluding that
Legrand had failed to make out a prima facie case.
Accordingly, we reject Legrand’s Sixth Amendment
challenge to his convictions.
5
Legrand also complains of the government’s failure to
proffer a legitimate reason for the peremptory strike when
questioned by the district court. Although it might have been
helpful for the government to proffer one, Legrand may not use
the lack of such an explanation in trying to make a prima facie
case in the first instance. See Grandison, 885 F.2d at 146.
20
III.
For the foregoing reasons, Legrand’s convictions are
AFFIRMED.
21