UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE RICARDO BRISCOE, a/k/a Poo, Defendant - Appellant.
No. 23-4013
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 30, 2024
PUBLISHED
Argued: March 22, 2024 Decided: April 30, 2024
Before WILKINSON and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Thacker wrote the opinion in which Judge Wilkinson and Judge Floyd joined.
ARGUED: Marc
THACKER, Circuit Judge:
Andre Ricardo Briscoe (“Appellant“) was involved in the purchase and sale of narcotics in the Baltimore area. He learned from a contact, Kiara Haynes, that Jennifer Jeffrey had received a large supply of heroin. Appellant and Haynes decided to rob Jeffrey. Appellant went to Jeffrey‘s house, robbed her of at least 80 grams of narcotics, shot and killed her, and shot and killed her seven year old son, K.B., whom Appellant feared might testify against him.
Appellant was arrested on a criminal complaint and initially charged by information with possession with intent to distribute narcotics, conspiracy to distribute narcotics, and possessing a firearm as a convicted felon. A later superseding indictment added three new counts: two counts of murder with a firearm during the commission of a drug trafficking crime and one count of killing a witness to prevent communication with law enforcement. After a twelve day jury trial, Appellant was convicted on all charges.
Appellant now appeals his judgment of conviction on five bases. First, he argues that three of his charges were barred by the statute of limitations. Second, he argues that his Fourth Amendment rights were violated when police used a cell site simulator to determine his location, searched the apartment in which he was found, and searched his person. Third, he argues that the Government committed a Brady1 violation by failing to investigate whether a broken security camera found in the kitchen of the murder victims had recorded any footage from the time of the murder. Fourth, he argues that the Government used perjured testimony at trial. And fifth, he argues that the district court should have granted his Rule 29 motion for a judgment of acquittal based upon the insufficiency of the evidence.
As detailed below, each of these five contentions lacks merit. Therefore, we affirm.
I.
A.
Appellant participated in a narcotics distribution conspiracy in the Baltimore area between March 2015 and October 2015. His co-conspirators were Haynes, Jeffrey, and Tony Harris. Their ultimate source for narcotics, which they believed to be heroin, was Curtis Williams, Jeffrey‘s housemate. Jeffrey and Williams supplied drugs to Harris, who, in turn, supplied drugs to Appellant. Appellant‘s cousin, Wane Briscoe, testified at trial that Appellant asked
B.
In May 2015, Williams was arrested and detained for possession with intent to distribute cocaine. In a recorded jail call, he directed Jeffrey to retrieve 80 grams of narcotics and sell them to Appellant in order to raise money for Williams’ bail. When Appellant learned that Jeffrey had acquired these drugs, he decided to rob Jeffrey and kill her. Haynes was also in on the plan. Haynes helped Appellant obtain a .45 caliber firearm on May 26, 2015, in a transaction brokered by Haynes‘s nephew.2 That night, Appellant visited Jeffrey at her home, where she showed him the 80 grams of narcotics.
Shortly before noon the next day, Appellant returned to Jeffrey‘s house and robbed her of at least 80 grams of narcotics. He then murdered her, shooting her multiple times, and then went upstairs to murder her seven year old son, K.B., whom he also shot multiple times in the head and neck. He later told several witnesses about the robbery and the murders. And he told them he had killed K.B. because he feared the boy would testify against him.
C.
On May 28, Jeffrey‘s brother discovered the bodies of Jeffrey and K.B. Baltimore City Police homicide detectives responded to the scene and opened an investigation into the murders. They found a flip phone that belonged to Jeffrey and discovered that the last dialed call, placed one day before the murders, was to a number ending in -2413. That number belonged to Appellant.
The investigators obtained a tracking order3 from the Circuit Court for Baltimore City to identify, among other things, cell site location information connected to Appellant‘s phone. Using this information, on June 5, 2015, they pinged Appellant‘s phone using a cell site simulator,4 which led them to an apartment building. Investigators then obtained a warrant to search apartment 101 because the cell site data was directing them to that unit. After unsuccessfully searching apartment 101, the officers continued to receive cell site data indicating that Appellant‘s phone was nearby. Thus, the officers went to the second floor where they attempted, but failed, to enter apartment 201. They then knocked on the door of apartment 202, the unit where Appellant was ultimately located. The occupant who opened the door of apartment 202 allowed them to enter.
Once inside apartment 202, the officers secured Appellant and his cell phone and conducted a protective sweep of the apartment.
D.
Federal investigators opened an investigation into Jeffrey and K.B.‘s murders. Though Appellant was not initially charged with the murders, as a result of the investigation, Appellant was arrested on May 22, 2020, for drug charges and possessing a firearm as a convicted felon. The Government filed a criminal information on May 26, 2020, charging Appellant with conspiracy to distribute narcotics, possession with intent to distribute narcotics, and possession of a firearm by a convicted felon. Appellant did not waive indictment, but the Government could not indict Appellant at that time because the District of Maryland had suspended grand jury proceedings in light of the COVID-19 pandemic.
Appellant was ultimately indicted on July 1, 2020, when grand jury proceedings resumed. The indictment was nearly identical to the information apart from alleging a different end date to the facts underlying the conspiracy charge. Appellant moved to dismiss the indictment as barred by the statute of limitations. The district court denied that motion, concluding that the indictment related back to the earlier filed information.
On September 23, 2020, the Government filed a superseding indictment which added three new charges: two counts of causing murder with the use of a firearm during and in relation to a drug trafficking crime and crime of violence (for the deaths of Jeffrey and K.B.), and one count of killing a witness to prevent communication with law enforcement. The Government filed a second superseding indictment on June 23, 2021, to add Haynes as a co-defendant, and filed a third superseding indictment (the operative indictment) on December 8, 2021, which added two counts of murder and one count of killing a witness to prevent communication with law enforcement.
The operative indictment alleged six counts: (1) conspiracy to distribute and possession with the intent to distribute controlled substances, in violation of
E.
On June 8, 2022, after a twelve day trial, a jury found Appellant guilty on all counts. In special findings,5 the jury found
Appellant timely appealed.
II.
There are five issues in this appeal. First, Appellant argues that the charges against him should have been dismissed because his indictment was filed after the statute of limitations had run. Second, Appellant argues his Fourth Amendment rights were violated when police used a cell site simulator to determine his location, searched the apartment in which he was found, and searched his person. Third, Appellant argues the Government committed a Brady violation by failing to comprehensively investigate whether a broken video camera in the kitchen of the murder victims had recorded any footage from the time of the murder. Fourth, Appellant argues the Government used perjured testimony of three witnesses in securing a guilty verdict. Fifth, Appellant argues the district court erred when it denied his Rule 29 motion for a judgment of acquittal based upon the insufficiency of the evidence.
We address each issue in turn.
A.
Statute of Limitations
Appellant contends his indictment should have been dismissed because it was filed after the statute of limitations had run. Appellant moved to dismiss his indictment below, but the district court denied his motion, holding that the indictment related back to a timely instituted information, which satisfied the statute of limitations. We review de novo the question of whether the district court properly denied Appellant‘s motion to dismiss. United States v. Ojedokun, 16 F.4th 1091, 1108 (4th Cir. 2021).
Pursuant to
The statute of limitations is five years. It is undisputed that this window is established by
“[S]tatutes of limitations normally begin to run when the crime is complete.” Toussie v. United States, 397 U.S. 112, 115 (1970). The information filed against Appellant on May 26, 2020 alleged conspiracy to distribute controlled substances beginning on April 20, 2015, possession with intent to distribute on May 27, 2015, and felon in possession of a firearm. And on July 1, 2020, a grand jury returned an indictment against Appellant, effectively realleging the charges contained in the information.
Given that the latest date of alleged conduct in connection with the drug and firearm charges was May 27, 2015, Appellant contends the statute of limitations ran five years later on May 27, 2020, and that the original indictment filed on July 1 was, therefore, untimely. While the Government acknowledges that the indictment was filed after the statute of limitations had run, it emphasizes that the information was filed before the statute of limitations had run. The Government argues the indictment related back to the information, thereby making the indictment timely. Accordingly, we must determine whether (1) filing the information tolled the statute of limitations and (2) whether the indictment related back to the information.
The second issue is not disputed. Appellant does not contest that the indictment substantially realleges what was contained in the information. Regarding successive indictments, we have held a later “indictment relates back to the date of the original indictment ‘so long as a strong chain of continuity links the earlier and later charges.‘” Ojedokun, 16 F.4th at 1109 (quoting United States v. Snowden, 770 F.2d 393, 398 (4th Cir. 1985)). And, although we have not yet addressed the issue with respect to indictments following an information, other circuits have held that, when an indictment simply realleges what is contained in an information, it is “timely since it relate[s] back to the earlier [i]nformation.” United States v. Avery, 747 F. App‘x 482, 484 (9th Cir. 2018); see also United States v. Saussy, 802 F.2d 849, 852 (6th Cir. 1986) (“We can discern no principled reason why, if an indictment relates back to an earlier filed indictment, a subsequently filed indictment should not relate back to an earlier filed information.“).
The governing statute provides that a defendant is timely charged when an information is “instituted” within five years.
We read the word “institute” according to its plain meaning, which, if it is unambiguous, controls our interpretation of the statute. Espinal-Andrades v. Holder, 777 F.3d 163, 166-67 (4th Cir. 2015). The plain meaning of the word “institute” is “[t]o set in operation, set on foot, initiate, ‘start’ (a search inquiry, comparison, etc.).” Institute, Oxford English Dictionary, https://perma.cc/2RLY-UQNR (last visited Apr. 12, 2024). “Institute” also means “to originate and get established : set up : cause to
Reading
The other circuits that have addressed this issue agree that filing an information is the same as instituting one. United States v. Burdix-Dana, 149 F.3d 741, 743 (7th Cir. 1998) (“[T]he filing of the information is sufficient to ‘institute’ it within the meaning of
Thus, we hold the Government properly tolled the statute of limitations by filing an information within the five year period. The subsequent indictment, filed on July 1, 2020, related back to that filing, and Appellant was, therefore, timely charged and prosecuted. Accordingly, we reject Appellant‘s argument that the district court erred in failing to dismiss the charges against him as untimely.
B.
Fourth Amendment
Appellant contends his Fourth Amendment rights were violated in several ways during the investigation following the murders. First, Appellant contends his rights were violated when investigators used a cell site simulator to obtain his location. Second, Appellant contends that police had no right to search the apartment where they found him because the warrant they relied upon did not advise the judge that a cell site simulator had been used. And third, Appellant contends that police lacked authority to search his person when they entered the apartment, and that he had standing to challenge their search as an overnight guest. The Government contests each of these arguments.
Below, Appellant moved to suppress the evidence and subsequent searches procured through use of cell site data, including
We review the district court‘s factual findings for clear error and its legal determinations de novo. United States v. Abdallah, 911 F.3d 201, 209 (4th Cir. 2018).
Because the motion to suppress was denied, we review the facts in the light most favorable to the Government. Id.
1.
First, Appellant contends that the police lacked authority to use a cell site simulator to obtain his location because they never obtained a search warrant to do so. The Government responds that the police obtained the functional equivalent of a warrant: “a tracking order,” procured pursuant to Maryland law, that “authorized police to track [Appellant‘s] location in real time.” Response Br. at 27; see also J.A. 109-114 (reproducing the Application for Order to Obtain Electronic Device Location Pursuant to
A search warrant may not issue without probable cause. United States v. Blakeney, 949 F.3d 851, 859 (4th Cir. 2020) (citing
The investigators in this case obtained a tracking order which authorized them to use a cell site simulator. Maryland law provides a procedural mechanism for executing a search by means of cell site simulator. See generally
Appellant does not even address the tracking order application or the judge‘s order. Nonetheless, our review of the tracking order indicates that, like a search warrant, it set forth the requirement of
It then set forth the phone number that was the subject of the search, Appellant‘s identity, and the facts supporting probable cause. These facts included a description of the crime scene at Jeffrey‘s home; the fact that Appellant‘s cell phone number was the last number dialed on the phone belonging to Jeffrey; that Appellant was the last person to see Jeffrey (according to her family); and that Appellant was the last person to speak with the Jeffrey via cell phone. Further, the affiant officer noted that Appellant discontinued a prior pattern of calls to the victim around the time of the murder. A judge for the Circuit Court of Maryland for Baltimore City granted the officer‘s application and authorized the tracking order.
Accordingly, we reject Appellant‘s argument that the Government lacked probable cause to use a cell site simulator to obtain his location information.
2.
Next, Appellant contends the police lacked authority to search the apartment where they found him because the warrant they obtained omitted the fact that police used a cell site simulator to discover Appellant‘s location. The Government points out that police did not rely on the warrant to search the apartment because they obtained consent to enter and because their subsequent actions which led to finding Appellant in the apartment were taken as part of a protective sweep.
While the Fourth Amendment generally prohibits warrantless searches, “valid consent to seize and search items provides an exception to the usual warrant requirement.” United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Consent is “valid” if it is “knowing and voluntary” and “given by one with authority to consent.” Id. (citations omitted). Consent may be “inferred from actions as well as words.” United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003). “And because the question is one of fact, review on appeal is conducted under the clear error standard.” United States v. Azua-Rinconda, 914 F.3d 319, 324 (4th Cir. 2019) (citing United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc)).
Following a hearing on Appellant‘s motion to suppress, the district court held that investigators obtained consent to search the apartment and detained Appellant pursuant to a lawful protective sweep. J.A. 625 (“[T]his Court concludes that officers lawfully entered Apartment 202 with consent.“). The court determined that when officers arrived at apartment 202 where Appellant was located, they knocked on the door, and “the man who opened the door appeared to answer the officer calmly and step back so as to allow officers into the residence.” Id.; see also id. at 388-89 (investigating officer testifying the occupant “[k]ind of stepped back and -- as if to wave him or allow the Baltimore Police
Appellant presents no reason to doubt the district court‘s determination that officers had consent to enter apartment 202. Thus, we reject Appellant‘s argument that the search of apartment 202 was unlawful on the basis that officers did not specifically state in the search warrant application that they had relied on information obtained via a cell site simulator. The officers did not rely on the search warrant because they had consent to enter the apartment. See Azua-Rinconda, 914 F.3d at 325 (holding the district court did not clearly err “in finding that consent to enter was given voluntarily” when occupant “opened the door . . . and with a degree of graciousness invited the officers into the trailer“).
3.
Last, Appellant argues that police lacked authority to search his person once they entered the apartment and that, as an overnight guest, he had standing to challenge their search. Appellant emphasizes that the district court “erroneously focused on the issue that he was not a true overnight guest . . ., ignoring the fact that the appellant‘s argument was that the standing issue did not relate to the apartment search but related to the search and seizure of the appellant‘s person and possessions.” Response Br. at 14. The Government counters that police had authority to search Appellant‘s person during their protective sweep of the apartment.
A warrantless protective sweep “can be justified when law officers have an interest ‘in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.‘” United States v. Everett, 91 F.4th 698, 709 (4th Cir. 2024) (quoting Maryland v. Buie, 494 U.S. 325, 333 (1990)). This exception to the warrant requirement requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.
We conclude that the officers lawfully detained Appellant in the course of a lawful protective sweep of the apartment. Following the motion to suppress hearing, the court below determined that “officers . . . saw several individual[s] running towards the back room“; officers “conducted a protective sweep of the apartment to locate all individuals and ensure that there was no threat to law enforcement“; and “[i]n the course of their protective sweep, officers located [Appellant] on a couch in a common room [and] confirmed his identity.” J.A. at 625-26.
Appellant does not contend that any part of this sweep was unlawful. Rather, he argues that the district court erroneously determined that Appellant did not have standing to challenge the search of the apartment because he was not an overnight guest. But the standing issue is beside the point. Even assuming standing, the officers’ seizure of Appellant was justified by their need to conduct a protective sweep of the apartment.
Accordingly, we reject Appellant‘s argument that the search and seizure of his person was unconstitutional.
C.
Brady Evidence
Appellant contends that the Government committed a Brady violation
A crime scene technician determined that the camera was not operational and a detective assigned to the case corroborated the technician‘s report. Nonetheless, Appellant argues on appeal that the Government should have determined whether Comcast, the service provider associated with the security camera, retained any video footage. The Government responds that Brady does not impose upon it an affirmative obligation to seek out exculpatory evidence; that the ostensible footage was never in the Government‘s possession such that Brady does not apply; and that, in any case, there was no reason beyond mere speculation to think there might be footage on a broken camera.
Appellant‘s Brady argument fails in two respects. First, he cannot demonstrate that the footage on the camera would have been favorable to his case. Appellant can only speculate as to what the footage would have shown, and “rank speculation as to the nature of the allegedly suppressed materials . . . cannot establish a Brady violation.” Young, 916 F.3d at 383; United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010) (“Because Caro can only speculate as to what the requested information might reveal, he cannot satisfy Brady‘s requirement of showing that the requested evidence would be [favorable].“). And second, Appellant cannot demonstrate that the Government suppressed favorable evidence -- it never had possession of the recording to begin with because the camera was broken. United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that a defendant must show “that the prosecution had the materials and failed to disclose them“). Thus, Appellant fails to satisfy the test of Brady, not to mention the higher “bad faith” showing required to demonstrate a violation under Youngblood, which arguably applies here because the evidence was only “potentially useful” to Appellant. Youngblood, 488 U.S. at 55,
Thus, we reject Appellant‘s argument that the Government committed a Brady violation by failing to follow up on whether any footage was contained on the broken camera.8
D.
Alleged Use of Perjured Testimony
Appellant contends that the Government used perjured testimony in order
In general, the Government‘s knowing use of false testimony to acquire a conviction violates due process. United States v. Barko, 728 F.3d 327, 335 (4th Cir. 2013) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). “A new trial is required when the government‘s knowing use of false testimony could affect the judgment of the jury.” Id. (citing Giglio v. United States, 450 U.S. 150, 154 (1972)). To obtain relief upon a claim that the Government used false testimony, Appellant must establish that the Government knowingly used false testimony, creating a false impression of material fact. Id. And Appellant bears “the heavy burden of showing that [witnesses] testified falsely.” United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).
In attempt to support his argument, Appellant points to the testimony of three witnesses:
- Kiara Haynes testified that she conspired with Appellant to acquire a gun, rob the victim of the drugs in her possession, and then murder the victim. Appellant emphasizes that Haynes “lied to the government on numerous occasions prior to her testimony at trial.” Opening Br. at 23 (citing J.A. 1628). Specifically, Appellant points to Haynes‘s testimony that she lied before the grand jury.
- Alfred Harris, III, Appellant‘s uncle, testified that Appellant confessed to killing both victims, including Jeffrey‘s young son, K.B., who Appellant was worried might be a witness against him. Appellant argues Harris‘s testimony was unreliable because Harris had a long history of heroin use and an extensive criminal record. Appellant also points out that when Harris was first interviewed by police, he insisted he knew nothing about the murders. It was not until later that he agreed to cooperate with the Government, including by wearing a wire during conversations with Appellant.
- Wane Briscoe testified that he gave Appellant a car ride on the day after the murders and that Appellant made incriminating statements to him. Appellant argues that Briscoe was unreliable because he had previously lied to police, telling them he did not sell drugs (even though he did) and that he knew nothing about the murders, “leaving open the question was he lying previously or was he lying now.” Opening Br. at 25-26.
Appellant argues that these witnesses were not credible because they changed their stories or otherwise indicated they were unreliable. Regarding Haynes specifically, Appellant argues she had “credibility issues.” Opening Br. at 24. Regarding Harris, Appellant argues he had “credibility problems.” Id. at 25. And regarding Briscoe, Appellant argues he was “another unreliable witness” who changed his story. Id.
These credibility issues and contradictions are not equivalent to false testimony. Griley, 814 F.2d at 971 (“Mere inconsistencies in testimony by government
Accordingly, we reject Appellant‘s argument that the Government knowingly relied upon false testimony to secure his conviction.
E.
Rule 29: Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to convict him on two bases: (1) the Government charged Appellant with heroin related charges, but it never proved that the substance in question was, in fact, heroin; and (2) the Government never proved that the robbery and murder affected interstate commerce. The Government responds that (1) there was witness testimony that Appellant sold heroin, and, in any case, proving the specific substance at issue was not a required element of the drug offenses; and (2) no nexus to interstate commerce was necessary because Appellant was charged with multiple predicate offenses that did not all require such a nexus, and, in any case, it did prove a nexus.
“We review de novo a district court‘s denial of a motion for judgment of acquittal.” United States v. Davis, 75 F.4th 428, 437 (4th Cir. 2023). The verdict must be upheld if it is supported by substantial evidence, and we review the evidence in the light most favorable to the Government. United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008).
1.
Drug Charges
Appellant challenges the sufficiency of the evidence on Count One, conspiracy to distribute heroin, and Count Two, possession with intent to distribute heroin. Appellant argues that these counts should have failed due to the lack of evidence that the substance in question was, in fact, heroin. Appellant points out that no drugs were seized in this case and that witness testimony suggested that the substance in question was actually liquid Percocet, or oxycodone rather than heroin.
The Government responds that it did not need to prove the actual chemical composition of the substance at issue because the Government introduced lay testimony sufficient to prove that Appellant possessed, distributed, and conspired to distribute heroin. Specifically, Alfred Harris, Appellant‘s uncle, testified that he sometimes bought heroin from Appellant. As a longtime heroin user, Harris testified that he was familiar both with the appearance and effects of heroin. Further, one of Appellant‘s cousins, Briscoe, testified that Appellant asked him to help sell heroin. Appellant‘s supplier, Williams, testified that Appellant was attempting to buy heroin, but that the supplier was producing liquid hydrocodone and other substances, which Appellant believed were heroin.
The Government also argues that the specific substance Appellant was trafficking is not decisive because the charging statute for Count Two requires only “specific intent to distribute a controlled substance or to possess with intent to distribute a controlled substance.” United States v. Ali, 735 F.3d 176, 186 (4th Cir. 2013). “[I]t does not require . . . specific knowledge of the controlled substance.” Id. The Government argues that the same is true of the Count One, the conspiracy count because that count borrows the mens rea of the charge for possession with intent to distribute.
We agree with the Government on both points. The circumstantial evidence was sufficient for the jury to find that Appellant possessed, distributed, and conspired to distribute heroin. See United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (“[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction.“); United States v. Scott, 725 F.3d 43, 45 (4th Cir. 1984) (“[T]he character of cocaine . . . may be established circumstantially by lay testimony . . . .“); United States v. Uwaeme, 975 F.2d 1016, 1019-20 (4th Cir. 1992) (same). Two witnesses testified that Appellant was selling heroin, including a longtime user who recognized the appearance and effect of the drug. See Dolan, 544 F.2d at 1221 (“Such circumstantial proof may include evidence of the physical appearance of the substance [and] evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug . . . .“); Scott, 725 F.2d at 46 (“The substance had the appearance of illicit cocaine; when sampled and tested by an experienced user of cocaine, it had the effect of cocaine ....“). There was also testimony that Appellant was buying what he at least intended was heroin from his supplier. See Scott, 725 F.2d at 46 (affirming the Government‘s use of testimony that “all persons dealing with the substance treated and dealt with it as cocaine“). All of this testimony combined was sufficient for a jury to find that Appellant possessed, distributed, and conspired to distribute heroin. See Reid, 523 F.3d at 317 (“[W]e will uphold the verdict if, viewing the evidence in the light most favorable to the government, it is supported by substantial evidence.“).
Further, regardless of the specific chemical composition of the drug at issue, the evidence was sufficient for the jury to convict. See Uwaeme, 975 F.2d at 1020 (“[W]e will uphold a conviction as long as the evidence that the substance was illegal is adequate.“) (citing Scott, 725 F.2d at 45). The act prohibited by the statute under which Appellant was charged,
Therefore, we reject Appellant‘s argument that the evidence was insufficient to convict him on Counts One and Two.
2.
Robbery and Murder
Appellant also challenges the sufficiency of the evidence on Counts Four and Five, use and carry of a firearm during and in relation to a drug trafficking crime and a crime of violence, causing the two murders. He contends that the evidence was insufficient to convict on these counts because the Government did not prove a nexus to interstate commerce.
The Government argues that Appellant misunderstands the charging statute -- that he is presupposing that the “murder” element of § 924(j)(1) means felony murder with Hobbs Act robbery as a predicate offense. And since Hobbs Act robbery requires a nexus to interstate commerce, Appellant therefore asserts the Government was required to prove that nexus.
The elements required for the Government to prove Counts Four and Five, are (1) a predicate § 924(c) drug-trafficking offense or crime of violence; (2) use of a firearm during and in relation to the predicate offense; and (3) that in the course of using the firearm, Appellant caused the murder of another person. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). “Murder,” in turn, means “the unlawful killing of a human being with malice aforethought.”
The first element -- a predicate offense -- was supported by substantial evidence. Because one of the predicate § 924(c) offenses was Hobbs Act robbery, the district court instructed the jury as to the elements of that offense, including the nexus to interstate commerce element. But the Government did not need to prove Hobbs Act robbery, because that was only one of three possible predicate offenses. The other two offenses were the conspiracy and drug trafficking crimes alleged in Counts One and Two, which, as discussed above, were supported by substantial evidence. Because the Government proved these counts, the predicate element was satisfied, and there was sufficient evidence for the jury to convict on the two § 924(j)(1) counts. See United States v. Said, 26 F.4th 653, 659 (4th Cir. 2022) (“[A] § 924(c) conviction may stand even if the jury based its verdict on an invalid predicate, so long as the jury also relied on a valid predicate.“).
The second element -- causing murder with a firearm -- was also supported by substantial evidence. Alfred Harris, Briscoe, and Tonya Harris each testified that Appellant confessed to killing Jeffrey and K.B. Haynes testified that she and Appellant planned to rob Jeffrey of the narcotics and kill her with the .45 caliber gun, and that Appellant admitted to having killed both Jeffrey and K.B. The victims were discovered with gunshot
As a result, we reject Appellant‘s argument that the evidence was insufficient to convict him of the murder charges and we affirm the district court‘s denial of Appellant‘s motion for judgment of acquittal.
III.
In sum, we reject each of Appellant‘s contentions on appeal. The judgment of conviction is
AFFIRMED.