United States v. Winston Oliver, II

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINSTON SYLVESTER OLIVER, II,
Defendant - Appellant.
No. 12-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN HAROLD BROWN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cr-00063-JRS-2; 3:11-cr-00063-JRS-1)
Argued: February 1, 2013 Decided: March 8, 2013
Before WILKINSON and FLOYD, Circuit Judges, and Joseph R.
GOODWIN, United States District Judge for the Southern District
of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher J. Collins, Richmond, Virginia; Mark Bodner,
Fairfax, Virginia, for Appellants. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, Alexandria, Virginia, Roderick C.
Young, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Winston Sylvester Oliver, II and Warren Harold Brown were
tried jointly and convicted in the Eastern District of Virginia
for one count of conspiracy to commit robbery under 18 U.S.C. §
1951(a) (2006), one count of attempt to commit robbery under 18
U.S.C. §§ 2, 1951(a), and two counts of using or carrying a
firearm in furtherance of a crime of violence, 18 U.S.C. §
924(c). On appeal, Oliver argues that the district court abused
its discretion in denying his motion to sever his trial from
Brown’s, Brown argues that the district court erred in denying
his motion to suppress, and both appellants argue that the
district court erred in denying their joint motion to dismiss
one of the two § 924(c) charges. We have jurisdiction pursuant
to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. As explained below,
we reject the appellants’ challenges and affirm.
I.
First, Oliver argues that the district court abused its
discretion in denying his motion to sever his trial from
Brown’s.
A.
We review a district court’s ruling on a motion to sever
for abuse of discretion, and its factual findings for clear
error. United States v. Hornsby, 666 F.3d 296, 308 (4th Cir.
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2012); United States v. Shores, 33 F.3d 438, 442 (4th Cir.
1994). It is well-settled in this circuit that “[g]enerally,
individuals indicted together should be tried together.” United
States v. Khan, 461 F.3d 477, 490-91 (4th Cir. 2006) (quoting
United States v. Strickland, 245 F.3d 368, 384 (4th Cir. 2001)).
A defendant must “show that he was prejudiced by the denial of a
severance motion in order to establish that the district court
abused its broad discretion in that regard.” United States v.
Lighty, 616 F.3d 321, 348 (4th Cir. 2010).
“[S]everance is required to preserve [a] defendant’s Sixth
Amendment right to confront his accusers” when a non-testifying
codefendant’s statement “clearly implicates” the defendant.
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).
However, only statements that facially incriminate the defendant
violate the Confrontation Clause and require severance;
statements that incriminate the defendant only when linked with
other evidence introduced at trial do not violate the
Confrontation Clause and therefore do not require severance.
Richardson v. Marsh, 481 U.S. 200, 208-11 (1987); see also
Akinkoye, 185 F.3d at 198; Lighty, 616 F.3d at 376-77. We have
upheld statements that replaced a defendant’s name with the
terms “client” or “driver” because the use of those terms did
not facially incriminate the defendant, even if the statement
implicated the defendant when combined with other evidence
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introduced at trial. See United States v. Vogt, 910 F.2d 1184,
1191-92 (4th Cir. 1990); United States v. Glisson, 460 F. App’x
259, 263 (4th Cir. 2012). We have also upheld statements that
were “[w]ritten in the third person and in grammatically correct
phrases” and which “referred generally and without facial
incrimination to some number of individuals who could, or could
not, be the other defendants.” United States v. Min, 704 F.3d
314, 321 & n.5 (4th Cir. 2013).
B.
In this case, Brown’s statement was redacted by replacing
Oliver’s name with the term “the driver.” For instance, part of
the statement read:
The driver planned the armed robbery and had directed
Brown regarding what to do. When asked for further
clarification, Brown stated the driver planned the
entire armed robbery . . . Brown stated that the
driver provided the handgun used to commit the armed
robbery. Brown stated the last time he had seen this
handgun, he had left it on the back seat of the
driver’s vehicle. Brown stated that the driver did
not tell him, Brown, who the handgun belonged to and
Brown did not ask any questions about the gun.
J.A. 384. First, it is clear that the statement was written in
the third person and in grammatically correct phrases; the
replacement of Oliver’s name with “the driver” did not result in
any obvious indication of deletion. See Min, 704 F.3d at 321.
Moreover, both of Oliver’s arguments are based on the fact that
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the prosecution admitted other evidence identifying Oliver as
the driver. The redacted statement, standing alone, did not
facially incriminate Oliver. Under the standards set forth by
the Supreme Court and our prior decisions, Brown’s statement as
redacted did not violate the Confrontation Clause. Accordingly,
we conclude that the district court did not abuse its discretion
in denying Oliver’s motion to sever.
II.
Second, Brown argues that the district court erred in
denying his motion to suppress his statements to Detective
Ellett and Special Agent Umphlet.
A.
In reviewing a motion to suppress, “[w]e review the
district court’s legal determinations de novo and its factual
determinations for clear error.” United States v. Kelly, 592
F.3d 586, 589 (4th Cir. 2010). When a district court denies a
motion to suppress, “we construe the evidence in the light most
favorable to the government.” Id. We also “particularly defer
to a district court’s credibility determinations, for it is the
role of the district court to observe witnesses and weigh their
credibility during a pre-trial motion to suppress.” United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
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Once an officer has given a suspect Miranda warnings, “[i]f
the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda v. Arizona, 384 U.S. 436,
473-74 (1966). The Supreme Court has made it abundantly clear
that if a suspect has invoked his right to remain silent and has
requested an attorney, he may not be “subject[ed] to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
B.
Viewing the evidence in the light most favorable to the
Government, we conclude that the district court did not err in
denying Brown’s motion to suppress his incriminating statements.
Both Detective Ellett and Special Agent Umphlet followed proper
procedures in obtaining Miranda waivers from Brown. None of the
actions taken by either Detective Ellett or Special Agent
Umphlet prior to obtaining the waivers can reasonably be deemed
functional equivalents of interrogation. See United States v.
Blake, 571 F.3d 331, 340-41 (4th Cir. 2009) (finding that
providing a statement of charges to custodial suspect who had
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previously invoked his right to counsel is not functional
equivalent of interrogation).
Finally, the Supreme Court’s decision in Montejo v.
Louisiana disposes of Brown’s Sixth Amendment argument. 556
U.S. 778, 786-87 (2009) (holding a defendant’s knowing and
intelligent waiver of his Miranda rights also operates as a
knowing and intelligent waiver of his Sixth Amendment right to
counsel). Accordingly, we conclude that the district court did
not err in denying Brown’s motion to suppress his incriminating
statements.
III.
Finally, both Oliver and Brown argue that the district
court erred in denying their joint motion to dismiss one of the
two § 924(c) charges.
A.
We review Double Jeopardy determinations de novo. United
States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005). The
Double Jeopardy Clause protects a defendant against “the
imposition of cumulative punishments for the same offense in a
single criminal trial” and “being subjected to successive
prosecutions for the same offense.” Id. (internal quotation
marks and emphasis omitted). Charging a single offense in
multiple counts exposes a defendant to the risk of multiple
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punishments for the same offense, and is therefore
unconstitutional. Id. at 207.
18 U.S.C. § 924(c) punishes the use or carry of a firearm
during and in relation to a crime of violence. “A defendant who
has ‘used’ or ‘carried’ a firearm on several separate occasions
during the course of a single continuing offense . . . has
committed several section 924(c)(1) offenses.” United States v.
Camps, 32 F.3d 102, 107 (4th Cir. 1994). Additionally,
“convictions for separate crimes of violence can lead to
multiple sentences under § 924(c).” United States v. Khan, 461
F.3d 477, 493 (4th Cir. 2006). Consecutive § 924(c) sentences
violate the Double Jeopardy Clause only if “the underlying
crimes are . . . identical under the [Blockburger v. United
States, 284 U.S. 299 (1932)] analysis.” Id. at 494.
B.
Here, it is clear that the Double Jeopardy Clause does not
bar multiple charges under § 924(c). First, Oliver and Brown
were charged with two separate crimes of violence: conspiracy to
commit robbery and attempt to commit robbery. Conspiracy is a
separate crime from the underlying crime. See United States v.
Ayala, 601 F.3d 256, 267 (4th Cir. 2010) (“[A] conspiracy is
itself a crime of violence when its objectives are violent
crimes.”) (internal quotation marks omitted).
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Second, Brown used the handgun three times in relation to
the attempted robbery and in furtherance of the conspiracy. He
(1) brandished the handgun at Conrad; (2) brandished and fired
the handgun at Miss; and (3) fired the handgun at and shot
Edmond.
Finally, with respect to Oliver, we have held that “[t]he
[Pinkerton v. United States, 328 U.S. 640 (1946)] doctrine makes
a person liable for substantive offenses committed by a co-
conspirator when their commission is reasonably foreseeable and
in furtherance of the conspiracy.” United States v. Ashley, 606
F.3d 135, 142-43 (4th Cir. 2010). Use of the handgun by Brown
was clearly in furtherance of the conspiracy to commit robbery,
and was clearly foreseeable to Oliver in this case.
Accordingly, we conclude that the district court did not
err in denying Oliver and Brown’s joint motion to dismiss one of
the two § 924(c) charges against them.
IV.
For the reasons explained above, we affirm the judgment of
the district court.
AFFIRMED
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