United States of America, Plaintiff - Appellee, versus Joseph Brooks Robinson, et al., Defendants - Appellants.
Nos. 00-4851(L) (CR-98-442)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 7, 2002
Upon consideration of appellants’ petition for rehearing,
IT IS ORDERED that the petition for rehearing is granted for the limited purpose of making one revision to the opinion.
The court amends its opinion filed December 17, 2001, as follows: On page 14, first full paragraph, lines 4-8 -- the sentence beginning “In the first place” is deleted, and is replaced with the following sentence:
In the first place, while Longshore testified that both Appellants participated in telling the story of the murder, she did not state that their voices were jumbled together in such a way as to prevent her or each Appellant from hearing and understanding what was being said.
Entered at the direction of Judge Wilkins, with the concurrence of Judge Williams and Judge Michael.
For the Court
/s/ Patricia S. Connor
Clerk
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH BROOKS ROBINSON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STANLEY LEON OBANION, JR., Defendant-Appellant.
No. 00-4851, No. 00-4853 (CR-98-442)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: October 29, 2001. Decided: December 17, 2001.
Rehearing granted for limited purpose of making one revision to opinion, by order filed 1/7/02
PUBLISHED
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the opinion, in which Judge Williams and Judge Michael joined.
ARGUED: Fred Warren Bennett, Greenbelt, Maryland; Martin Gregory Bahl, FEDERAL PUBLIC DEFENDER‘S OFFICE, Baltimore, Maryland, for Appellants. Jan Paul Miller, Assistant United States Attorney, UNITED STATES ATTORNEY‘S OFFICE, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Denise C. Barrett, Assistant Federal Public Defender, Baltimore, Maryland, for Appellants. Stephen M. Schenning, United States Attorney, UNITED STATES ATTORNEY‘S OFFICE, Greenbelt, Maryland, for Appellee.
OPINION
WILKINS, Circuit Judge:
Joseph Brooks Robinson and Stanley Leon Obanion, Jr. (collectively, “Appellants“) appeal their convictions on various charges stemming from a series of violent carjackings committed between December 29, 1997 and January 2, 1998. Appellants maintain that venue on one of the counts was improper; that evidence obtained during searches of their homes should have been suppressed; and that the district court abused its discretion in admitting the testimony of Crystal Longshore. Additionally, Robinson maintains that he was deprived of his statutory right to the assistance of two attorneys. For the reasons set forth below, we affirm.
I.
On the evening of December 29, 1997, Appellants and two companions, Larry Erby and Brian Brown, were walking through their neighborhood in Fort Washington, Maryland, when Robinson stated that “he needed a car for the night” and that he planned to rob someone. J.A. 475. After Obanion and Erby indicated assent to this plan (Brown did not wish to participate), Robinson, who was armed with a semi-automatic pistol, stepped into the street and attempted, unsuccessfully, to flag down passing motorists. While these efforts were ongoing, the group observed a green Acura pull into a driveway a
As the driver, Louis Perkins, exited, Obanion pointed the gun at his head and demanded his keys and his wallet. While Perkins complied, Robinson and Erby got into the automobile; once he had Perkins’ keys and wallet, Obanion entered the driver‘s seat and drove away.
Obanion drove the group to southeast Washington, D.C., where they came upon a man walking on the side of the road. Obanion pulled over and Robinson exited, holding the gun. He demanded money from the man, and when the man said he had none, Robinson shot him. After Robinson returned to the vehicle and Obanion drove away, Robinson said that he had shot the man “because he felt like it” and because he needed to kill someone in order to “earn his stripes,” a tattoo to which one becomes entitled upon killing someone. J.A. 489.
As Appellants and Erby headed back toward Maryland, two of the tires on the stolen Acura blew out. As the men were trying to determine what to do, a tow truck driven by Matthew Dozier happened upon them and pulled over. Dozier towed the Acura to a neighborhood in the District of Columbia, where he unhooked the vehicle and began to fill out some paperwork in the cab of the tow truck. Robinson and Obanion, who were standing at the back of the Acura with Erby, began to argue about who should kill Dozier. Obanion won the argument by reminding Robinson that Robinson had already killed someone that night and that it was Obanion‘s turn to earn his stripes. Obanion shot Dozier four times as Dozier begged for his life. Appellants and Erby then got into the tow truck and began to drive away. As they pulled away from the curb, Robinson observed that Dozier was still moving. Obanion jumped out of the truck, ran back to Dozier, and shot him once more. Obanion returned to the truck, excited and singing. Dozier later died of the gunshot wounds inflicted by Obanion.
The group again headed toward Maryland, with Robinson driving the tow truck. On the way, Robinson stated that the group
Appellants drove Erby home, then proceeded to the home of Crystal Longshore, arriving at about 3:00 a.m. on the morning of December 30. Longshore and her boyfriend—whom Appellants had come to see—were asleep on the couch in the living room. From her position on the couch, Longshore listened as Robinson and Obanion described the murder of Dozier. She then watched as they acted out the scene, with Obanion playing the part of the doomed victim. Appellants also showed Longshore Dozier‘s wallet and driver‘s license. Later that morning, Longshore observed Appellants leave in a white Nissan Maxima.
At approximately 8:45 that evening, Corporal Copeland of the Prince George‘s County Police Department spotted the stolen Maxima. When Copeland turned on his emergency lights, the driver of the Maxima accelerated suddenly. Copeland chased the vehicle until it crashed into a parked automobile; as Copeland exited his patrol car, he observed the driver of the Maxima running away from the scene. Copeland called for assistance, and Corporal Landers responded to the scene with a police dog. Landers swept the area, leaving his patrol car running so that the vehicle would be warm when he and the dog returned to it. Upon returning to his starting point, Landers realized that his patrol car was gone. The vehicle was found approximately 40 minutes later, but several items, including a police jumpsuit, a raincoat, a neoprene mask, and a pair of gloves, were missing from the trunk.
Shortly after this incident, Obanion returned to Longshore‘s apartment carrying a police duffel bag. Obanion emptied the contents of the bag onto the living room floor, revealing the items stolen from the police vehicle. Robinson arrived at the apartment approximately 20 minutes later, out of breath. Robinson told those present that he had
Three days later, on January 2, 1998, Appellants again met up with Erby. Also present were Erby‘s brother, Leroy Erby (Leroy), and
Chase got into his own vehicle and pursued the Datsun. The pursuit eventually led to another neighborhood, where Chase briefly lost sight of the Datsun. While they were out of sight, Obanion exited the Datsun with the gun. When Chase drove into the neighborhood, Obanion shot at Chase‘s vehicle, striking Chase in the leg. Chase was able to drive away and get medical treatment.
Leroy drove the Datsun to another part of the same neighborhood, where Appellants exited. Appellants ran through the neighborhood and came upon Gloria Ryan, who was backing her minivan out of her garage. In the van were Ryan‘s two children, aged six and five, and an infant whom Ryan was babysitting. Ryan heard a thump behind her and stopped, believing that she had hit someone or something. She turned to find Robinson standing next to the driver‘s side door, pointing a gun at her head. Robinson demanded that she get out of the minivan and hand over the keys. After telling her children to get out of the vehicle, Ryan exited as well. Obanion removed the car seat holding the infant and threw it on the lawn.
Appellants then drove to where the Erbys and Maxwell were wait-
Based on these events, Appellants were charged with conspiracy to commit carjackings, see
II.
Appellants’ primary contention on appeal is that venue on the
In order to understand Appellants’ venue challenge and our resolution of that challenge, it is necessary to examine the first three counts of the indictment against Appellants. Count One of the indictment charged Appellants with conspiracy to commit carjackings; this count identified all of the carjackings and the murder of Dozier as overt acts in furtherance of the conspiracy. Count Two charged Appellants with using and carrying a firearm during and in relation to a crime of violence, namely, the conspiracy to commit carjackings “as set forth in Count One of this Indictment.” Supp. J.A. 5. Count Three, the
In determining where a crime was committed for purposes of venue, “a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.” Rodriguez-Moreno, 526 U.S. at 279; see United States v. Anderson, 328 U.S. 699, 703 (1946). Section 924(j) applies to “[a] person who, in the course of a violation of [
In Rodriguez-Moreno, the Court addressed the question of the proper venue for a charge of using or carrying a firearm during a crime of violence, kidnaping, under
The logic of Rodriguez-Moreno compels us to conclude that venue on the
III.
During the course of the investigation, law enforcement officers executed search warrants at Robinson‘s and Obanion‘s homes. The applications for the warrants were supported by an affidavit by Special Agent Michael McCoy of the FBI.1 McCoy‘s affidavit stated that he was involved in a joint federal-state investigation of “a racketeering enterprise responsible for the distribution of narcotics and the commission of numerous violent crimes to include murders, assaults
Prior to trial, Appellants moved to suppress the fruits of the searches. As to both searches, Appellants maintained that the search warrants were not supported by probable cause. As to the search of Obanion‘s home in particular, Appellants maintained that the searching officers flagrantly disregarded the terms of the warrant and that the appropriate remedy for this violation was blanket suppression of all items seized. The district court denied the motion to suppress. In considering Appellants’ challenge to the validity of the warrants, we review the legal conclusions of the district court de novo and its factual findings for clear error. See United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 237 (4th Cir. 2001). We review the denial of the request for blanket suppression for abuse of discretion. See United States v. Borromeo, 954 F.2d 245, 246 (4th Cir. 1992).
A.
The
As the Supreme Court has noted, “probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). In evaluating whether probable cause exists, it is the task of the issuing magistrate “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238; see Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995) (“Probable cause means more than bare suspicion but less than absolute certainty that a search will be fruitful.“). The probable cause standard does not
require officials to possess an airtight case before taking action. The pieces of an investigative puzzle will often fail to neatly fit, and officers must be given leeway to draw reasonable conclusions from confusing and contradictory information, free of the apprehension that every mistaken search or seizure will present a triable issue of probable cause.
Taylor v. Farmer, 13 F.3d 117, 121-22 (4th Cir. 1993). Indeed, the Supreme Court in Gates specifically cautioned against “hypertechnical” scrutiny of affidavits lest police officers be encouraged to forgo the warrant application process altogether. Gates, 462 U.S. at 236 (internal quotation marks omitted).
Appellants’ first argument regarding the existence of probable cause is that the affidavit failed to set forth any facts tying them to the carjackings or to the racketeering enterprise alleged in the affidavit. We disagree. Even if the affidavit was not a model of precision, it was nevertheless constitutionally adequate. First, McCoy‘s affidavit informed the magistrate that Obanion‘s fingerprints had
In the same vein, Appellants maintain that the affidavit does not provide any facts to support a conclusion that evidence of racketeering or any other crime would be found in the Robinson or Obanion homes. We reject this contention as well. The affidavit and Attachment A identified specific items of clothing worn by Appellants and specific items taken during the various carjackings and robberies. Additionally, McCoy attested that in his experience many perpetrators of criminal acts do not dispose of the clothing worn during the crime. McCoy‘s personal experience was unquestionably relevant to the existence of probable cause. See United States v. Faison, 195 F.3d 890, 893 (7th Cir. 1999). These facts, taken together, are sufficient to create a fair probability that evidence of the crimes would be located in Robinson‘s and Obanion‘s homes.2
B.
During the search of Obanion‘s home, law enforcement officers seized a number of items that were arguably not within the scope of the search warrant. For example, the officers seized various documents related to a dispute between Obanion, his mother, and the Prince George‘s County school board; some of Obanion‘s juvenile court records; pages of homework; and a list of names and addresses for a family reunion. Appellants argue that the seizure of these and other items constituted a flagrant disregard of the terms of the warrant
In light of our conclusion that the search warrants were based upon probable cause, we do not address the Government‘s alternative contention that the searches were sustainable under the “good faith” exception
In order to be valid under the
A search is not invalidated in its entirety merely because some seized items were not identified in the warrant. See United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997). Rather, invalidation of an entire search based on a seizure of items not named in the warrant is an “extraordinary remedy” that “should be used only when the violations of the warrant‘s requirements are so extreme that the search is essentially transformed into an impermissible general search.” United States v. Chen, 979 F.2d 714, 717 (9th Cir. 1992). Put another way, searching officers may be said to have flagrantly disregarded the terms of a warrant when they engage in “indiscriminate fishing” for evidence. Id. For example, the Tenth Circuit affirmed a finding of flagrant disregard when law enforcement officers, acting pursuant to a warrant that authorized seizure of marijuana and several specifically identified firearms, seized “anything of value,” including televisions, VCRs, stereos, a lawn mower, cameras, a clock radio, and a screwdriver set. United States v. Foster, 100 F.3d 846, 848 & n.1, 850-51 (10th Cir. 1996); see United States v. Medlin, 842 F.2d 1194, 1198-99 (10th Cir. 1988) (concluding that seizure of 667 items of property not identified in warrant authorizing search for stolen firearms constituted flagrant disregard of the terms of the warrant).
We conclude that the extraordinary remedy of blanket suppression is not warranted here. Simply put, the record does not demonstrate the kind of wholesale seizure that prompted the holdings in Foster and Medlin. In many cases, items that were not identified in the warrant were seized because they were part of a larger item of evidentiary value. For example, a grocery list was seized because it was found inside a date book containing names and addresses; Obanion does not dispute that the date book was an item within the scope of the warrant. Similarly, a page of Spanish homework was seized not for the evidentiary value of the homework, but rather because the back of the page contained notations and telephone numbers relevant to the investigation. Furthermore, we note that the officers suspended the search and obtained a second warrant before seizing an item found above the ceiling tiles in Obanion‘s bedroom. Such scrupulous regard for the protections afforded by the
IV.
Appellants next challenge the admission of Longshore‘s testimony regarding Appellants’ verbal description of the murder of Matthew Dozier. Longshore testified that although she was not looking at Appellants as they described the murder and could not identify which Appellant made any given statement, she could discern two separate voices and knew that Robinson and Obanion were jointly describing the crime. Further, Longshore testified that at no point did either individual contradict or deny the other‘s portion of the account. The district court admitted Longshore‘s testimony, reasoning that to the extent statements by Robinson were admitted against Obanion and vice-versa, the statements were adoptive admissions under
Appellants maintain that because Longshore could not identify which Appellant said what, “the record does not sufficiently show that either [Appellant] heard, understood, or acquiesced in the statements of the other.” Appellants’ Br. at 46. We disagree. In the first place, while Longshore testified that both Appellants participated in telling the story of the murder, she did not state that their voices were jumbled together in such a way as to prevent her or each Appellant from hearing and understanding what was being said. We therefore conclude that the circumstances were such that, had either Appellant disagreed with a statement by the other, he would have made his disagreement known. Moreover, the scenario described by Longshore, in which both Appellants provided parts of the tale, contained ample facts from which a jury could conclude that each Appellant adopted the statements of the other.
V.
Finally, Robinson maintains that he is entitled to reversal of his
Because Robinson did not object to the asserted violation of
Applying Boone — as we must, see Baker v. Corcoran, 220 F.3d 276, 290 n.11 (4th Cir. 2000), cert. denied, 121 S. Ct. 1194 (2001) — we conclude that Robinson has satisfied the first three prongs of plain error analysis. While Robinson was provided with two attorneys during pretrial proceedings, one of those attorneys was relieved of his duties after the Government elected not to seek the death penalty against Robinson. Under Boone, the failure to provide Robinson with two attorneys throughout trial was plain error even though the Government withdrew its notice of intent to seek the death penalty. Moreover, because a violation of
We decline, however, to exercise our discretion to notice the error. Simply put, the error here — the failure to provide a non-capital defendant with the benefit of a provision designed to provide addi-
VI.
For the reasons set forth above, we conclude that none of Appellants’ challenges to their convictions have merit. Accordingly, we affirm.
AFFIRMED