United States v. Reginald Dargan, Jr.

                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4171


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

REGINALD DUANE DARGAN, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:11-cr-00578-CCB-3)


Argued:   October 30, 2013                  Decided:   December 24, 2013


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson         wrote   the
opinion, in which Judge Agee and Judge Keenan joined.


ARGUED: Brian L. Stekloff, PAUL, WEISS, RIFKIND, WHARTON &
GARRISON, LLP, Washington, D.C., for Appellant.     Benjamin M.
Block, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.    ON BRIEF: Rod J. Rosenstein, United
States Attorney, Sean Welsh, Legal Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WILKINSON, Circuit Judge:

       Appellant Reginald Dargan, Jr., was convicted by a jury of

three counts arising from the armed robbery of a jewelry store.

He    now   appeals   his    conviction,       contending         that    the    district

court erred in denying his motion to suppress evidence seized

pursuant to a warrant during a search of his residence. He also

argues that testimony about out-of-court statements made by a

co-conspirator was erroneously admitted in violation of both the

Federal Rules of Evidence and the Confrontation Clause. For the

following     reasons,      we   reject   Dargan’s         claims       and   affirm   his

conviction.



                                          I.

       Shortly after noon on March 30, 2011, three men robbed a

jewelry store located in a mall in Columbia, Maryland. Two of

the    participants      were    armed    with       firearms,      while       the   third

carried a knife. After waiting for a customer to leave, one of

the men detained a sales clerk at gunpoint. Another held a knife

to    the   clerk’s   leg    and   forced      him    to   dump     a    case    of   Rolex

watches into a bag. Meanwhile, the remaining culprit restrained

a second employee at the back of the store. Once the watch case

was emptied, the three men hastily exited the mall. They escaped

with over thirty men’s Rolex watches, with a retail value of

approximately $275,000.

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       The following day, the police issued a news release asking

the public to submit information relevant to the investigation.

The release contained images of the suspects captured by mall

security      cameras.       Based        on    tips    received,          the        authorities

arrested three individuals: Deontaye Harvey, Aaron Pratt, and

Gary    Braxton.       Officials         soon    doubted        Braxton’s            involvement,

however, and he was released. The investigation also implicated

a   fourth    individual,         nicknamed          “Little    Reggie,”         who        was    not

apprehended at that time.

       Two    months        later,       appellant        Dargan       was       arrested           in

connection with the robbery. Police suspected that Dargan was in

fact    Little       Reggie,       the     knife-wielding         participant               in     the

Columbia      heist.       Investigators         subsequently       obtained            a    search

warrant      for    Dargan’s      residence.          Attachment       A    to       the    warrant

enumerated         items    subject       to    seizure,       including,            among       other

things, “[i]ndicia of occupancy.” J.A. 70. During the search,

officers seized a purchase receipt for a Louis Vuitton belt. The

receipt      was    found    in    a   bag      located    on    top       of    a    dresser       in

Dargan’s bedroom. It indicated that the belt cost $461.10 and

that the buyer, who identified himself as “Regg Raxx,” purchased

the belt with cash the day after the robbery.

       On    October       26,    2011,    a    federal    grand       jury          returned      an

indictment against Dargan, Harvey, and Pratt. As relevant here,

the indictment charged Dargan with conspiracy to interfere with,

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as    well   as    actual    interference            with,       interstate    commerce       by

robbery in violation of 18 U.S.C. § 1951. It also charged him

with using and carrying a firearm during and in relation to a

crime of violence in violation of 18 U.S.C. § 924(c).

       Prior      to   trial,       Dargan       moved      to   suppress     the    purchase

receipt for the Louis Vuitton belt seized during the search of

his residence. The district court found that the receipt did not

fall under the terms of Attachment A to the search warrant, but

that the seizure was nevertheless justified under the plain-view

exception to the warrant requirement.

       The     government       also      filed       a   pretrial      motion      to    admit

testimony regarding out-of-court statements made by Dargan’s co-

defendant,        Harvey,      to    a    cellmate,         Zachary     Shanaberger.       The

conversation       took     place        after    Braxton        had   been   released      and

Dargan arrested. Specifically, the government intended to elicit

testimony      regarding       Harvey’s      alleged         confession       to    robbing    a

jewelry store in the Columbia Mall with two co-conspirators and

his    disclosure       that     they      were       all    imprisoned       in    the   same

facility at the time of the conversation. In his statements to

Shanaberger, Harvey did not identify the third participant --

whom the prosecution contended was Dargan -- by name.

       The     government           argued        that      Harvey’s      comments         were

admissible        under     Federal       Rule       of   Evidence      804(b)(3),        which

provides an exception to the general prohibition against hearsay

                                                 4
for statements against interest. Dargan not only contested this

assertion, but further contended that the introduction of the

statements    at   trial    would    violate     his   Confrontation       Clause

rights. Ruling from the bench, the district court rejected each

of Dargan’s objections and granted the government’s motion.

     At    Dargan’s   trial,   the     prosecution     both    introduced     the

Louis Vuitton receipt and called Shanaberger as a witness. It

also provided independent evidence directly linking Dargan to

the Columbia robbery. For instance, the government called two

witnesses    who   each   identified    Dargan    as   one    of    the   culprits

depicted in the footage taken by mall surveillance cameras. One

of the witnesses was Dargan’s own godmother, who had known him

for over thirteen years.

     The     prosecution    also    introduced     several         text   messages

recovered from Dargan’s phone pursuant to a search warrant. The

messages were exchanged between Dargan and Harvey during the

direct lead-up to the robbery. The conversation ceased during

the actual commission of the crime. Shortly before 11:15 that

morning, Harvey texted Dargan to “Get dressed . . . . We on. Da

way.” J.A. 620. At 11:16, he further instructed Dargan to “Bring

da knife out.” Id. Finally, at 11:43, Dargan texted Harvey to

inform him that “We out front.” Id.

     On November 8, 2012, the jury found Dargan guilty of each

of the three counts listed above. The district court sentenced

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him to 135 months of incarceration, in addition to a period of

supervised release and restitution. This appeal followed.



                                         II.

     Dargan first contends that the seizure of the Louis Vuitton

belt receipt violated the Fourth Amendment because the receipt

did not fall under any of the items enumerated in Attachment A,

which   delineated       the    warrant’s          scope.    The     Fourth          Amendment

provides that “[t]he right of the people to be secure in their

persons,    houses,      papers,       and        effects,    against       unreasonable

searches and seizures, shall not be violated, and no Warrants

shall   issue,     but   upon     probable         cause,    supported          by    Oath   or

affirmation,       and    particularly            describing        the    place        to   be

searched,    and     the       persons   or         things     to     be    seized.”          In

interpreting     the     Fourth    Amendment,         the    thought       of    unfettered

police discretion is unthinkable, and any practice of minute

judicial management is impractical, and the question thus must

always be where the balance lies.



                                             A.

     The    last     clause       of   the        Fourth     Amendment          contains      a

“particularity       requirement,”           which     “is     fulfilled             when    the

warrant identifies the items to be seized by their relation to

designated crimes and when the description of the items leaves

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nothing to the discretion of the officer executing the warrant.”

United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).

The   Framers     included          this    provision        in    order       to    end     the

practice,      “abhorred       by    the     colonists,”          of    issuing       “general

warrants.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

The requirement is designed to preclude broadly-phrased warrants

from authorizing officers to conduct “exploratory rummaging in a

person’s belongings.” Andresen v. Maryland, 427 U.S. 463, 480

(1976) (internal quotation marks omitted). Thus, when executing

a warrant, officers are limited by its terms. Williams, 592 F.3d

at 519.

      Nevertheless,        a    warrant         is    not    intended         to    impose     a

“constitutional strait jacket” on investigating officers. United

States    v.    Dornhofer,       859       F.2d      1195,   1198       (4th       Cir.    1988)

(internal      quotation       marks    omitted).       Courts         must    refrain      from

interpreting      warrant       terms      in   a    “hypertechnical”           manner,      and

should instead employ a “commonsense and realistic” approach.

Williams, 592 F.3d at 519 (internal quotation marks omitted);

see also Illinois v. Gates, 462 U.S. 213, 231 (1983) (using

similar language with respect to judicial review of affidavits).

This rule of construction strikes a middle ground by ensuring

that warrants serve their central purpose -- precluding officers

from conducting fishing expeditions into the private affairs of

others -- while simultaneously preserving the flexibility of law

                                                7
enforcement         to    adapt    to        the       unforeseen        circumstances       that

necessarily arise in an investigation predicated on incomplete

information.

      Interpreting warrants in a commonsense manner serves the

further, significant purpose of encouraging officers to obtain

judicial approval prior to conducting a search. United States v.

Phillips, 588 F.3d 218, 223 (4th Cir. 2009). This court, along

with many others, has stated a strong preference for officers to

obtain    a     warrant       prior          to        intruding        on   constitutionally

protected domains. United States v. Srivastava, 540 F.3d 277,

288   (4th     Cir.      2008).    A    warrant          cabins    executive      discretion,

gives    the        imprimatur         of     lawful        authority        to   potentially

intrusive      police      conduct,          and   helps     to     ensure     that    valuable

evidence is not later excluded as a result of an illicit search.

See Gates, 462 U.S. at 236. A “grudging or negative attitude by

reviewing      courts      towards       warrants”         is     inconsistent        with   this

approach. Id. (internal quotation marks omitted).

      An overly stringent rule of construction would encourage

warrantless         searches       by        reducing       the     benefits      a     warrant

provides. Officers are motivated to secure judicial approval in

part because of the safe harbor it represents. The sense of

confidence      a    warrant      affords,         however,        is    diminished     to   the

extent   that       its    terms       are    subject       to     an    excessively     narrow

interpretation. Faced with such an interpretation, “police might

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well resort to warrantless searches, with the hope of relying on

consent or some other exception to the Warrant Clause that might

develop at the time of the search.” See id. Courts can help to

head off this eventuality by consistently adopting a commonsense

reading of a warrant’s scope.



                                            B.

     Here, Attachment A to the warrant, which enumerated the

items   subject    to     seizure,        relevantly          included    “[i]ndicia      of

occupancy, residency, of the premises . . . including but not

limited     to,    utility         and    telephone           bills,     [and]    canceled

envelopes.” J.A. 70. The officers conducting the search could

plausibly have thought that the occupant of the premises was

also the purchaser identified on the belt receipt discovered in

the bedroom. The receipt, which listed the buyer as “Regg Raxx,”

therefore constituted at least some indication of occupancy and

fell within the terms of Attachment A.

     This conclusion is corroborated by the warrant’s inclusive

language:    Attachment        A    states       that    “[i]ndicia       of     occupancy”

“includ[es]”      but     is   “not       limited       to”    certain     listed       items

(“utility and telephone bills, [and] canceled envelopes”). Id.

This “broad and inclusive language” cautions against a miserly

construction.      Phillips,        588    F.3d     at   225.     The    fact     that    the

warrant     does        not    explicitly           mention       receipts         is     not

                                             9
determinative:      “law     enforcement     officers       may   seize   an    item

pursuant to a warrant even if the warrant does not expressly

mention and painstakingly describe it.” Id. Indeed, “[a] warrant

need not -- and in most cases, cannot -- scrupulously list and

delineate each and every item to be seized.” Id.

       Here, the officers were lawfully in the residence pursuant

to   the   search   warrant.      Furthermore,       they    were   justified     in

opening the bag on top of the dresser in Dargan’s bedroom to

determine whether its contents matched any of the items they

were   authorized    by     the   warrant    to    seize.    Attachment    A,    for

example, lists “[a]ny and all diaries, journals, or notes.” J.A.

70. These documents -- as well as a host of other physically

diminutive objects described in the attachment -- could easily

have   been   placed       in   the   retail      bag.   Contrary    to   Dargan’s

contention, the officers were not required to assume that the

retail bag contained only retail items. See Williams, 592 F.3d

at 522. People put all kinds of things in bags for reasons of

convenience, carry, or concealment.

       The facts of this case underscore the fallacy of Dargan’s

contention that only items listed by name may be seized during

the execution of a search warrant. That would require officers

possessed of incomplete knowledge to identify ex ante every item

of evidence that will be relevant and the precise form that it

will take -- a plainly unrealistic expectation. The officers in

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the instant case may not have foreseen that indicia of occupancy

located at the residence would take the form of a sales receipt

but, once faced with precisely that scenario, they were entitled

to   seize     the   receipt    under     a    commonsense     reading     of    the

warrant’s terms. In no way could the search and seizure of the

receipt   be    characterized      as    an    “exploratory    rummaging.”       The

central      value    animating    the     particularity       requirement       was

therefore preserved. See United States v. Robinson, 275 F.3d

371, 381 (4th Cir. 2001).



                                        III.

     Dargan     next    objects    to    the     admission    of   Shanaberger’s

testimony regarding out-of-court statements made by co-defendant

Harvey to Shanaberger while the two were incarcerated together

following     the    robbery.   Specifically,        Dargan   seeks   to   exclude

testimony with respect to two statements: Harvey’s confession to

robbing   the    Columbia   Mall    with       two   co-conspirators,      and   his

comment that all three co-conspirators were incarcerated in the

same facility at the time of his conversation with Shanaberger.

Dargan contends not only that the statements are inadmissible

under Federal Rule of Evidence 804(b)(3), but also that their

introduction violated his constitutional right to confrontation.

We address both contentions below.



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                                            A.

     As a general matter, the Federal Rules of Evidence ban the

introduction of hearsay testimony at trial. Rule 804, however,

carves out an exception to this broad prohibition for specific

categories       of     hearsay        considered       especially         reliable.      See

Williamson v. United States, 512 U.S. 594, 598-99 (1994). As

relevant here, 804(b)(3) provides that a statement made by an

unavailable       declarant       is    admissible        if    it    is    one    that    “a

reasonable person in the declarant’s position would have made

only if the person believed it to be true because, when made, it

. . . had so great a tendency to . . . expose the declarant to

civil     or    criminal       liability.”        The     statement        must    also    be

“supported by corroborating circumstances that clearly indicate

its trustworthiness, if it is offered in a criminal case as one

that tends to expose the declarant to criminal liability.” Id.

The district court’s decision to admit Shanaberger’s testimony

under   this     rule    is    reviewed     for    abuse       of    discretion.        United

States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995).

     It    is    undisputed       that    Harvey,       having       invoked      his    Fifth

Amendment       right    not    to     testify,     was    unavailable         within     the

meaning of 804(b)(3). See id. Dargan contends, however, that the

government failed to carry its burden with respect to the two

remaining elements: inculpation and corroboration.



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       The first of these requirements has been held to restrict

admission        to        “those     declarations         or   remarks         within     the

confession that are individually self-inculpatory.” Williamson,

512 U.S. at 599. Whether this standard is satisfied can only be

determined by viewing the statement in light of the surrounding

circumstances. Id. at 603.

       Here,        both    the     context        and   content    of    the    challenged

statements          indicate        their      self-inculpatory          quality.    First,

Harvey       made     the    statements        to    a   cellmate     rather     than,     for

instance, a police investigator. He thus had no obvious motive

to “shift blame or curry favor.” United States v. Jordan, 509

F.3d     191,       203     (4th     Cir.      2007)     (internal       quotation       marks

omitted). Second, the statements are intrinsically inculpatory

to     the      extent        they        demonstrate       Harvey’s        knowledge      of

“significant details about the crime,” Williamson, 512 U.S. at

603,   and      “implicate          him   in   a     conspiracy,”     United     States    v.

Udeozor, 515 F.3d 260, 267 (4th Cir. 2008). Harvey’s admission

that he committed the robbery with the assistance of two co-

conspirators not only revealed his knowledge of the number of

participants, but also potentially subjected him to conspiracy

liability.       His       statement       that     each   of   the      participants      was

currently incarcerated at the same facility further evidenced

his specific knowledge of the identities of the other robbers.



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The   statements        were    therefore        sufficiently      inculpatory     to

satisfy this element of the rule.

      Rule   804(b)(3)         also    requires      that     statements      against

interest be supported by corroborating circumstances. Our court

has   enumerated    several       factors        relevant    to   this   particular

inquiry, including:

      (1) whether the declarant had at the time of making
      the statement pled guilty or was still exposed to
      prosecution   for  making   the  statement,  (2)   the
      declarant’s motive in making the statement and whether
      there was a reason for the declarant to lie, (3)
      whether the declarant repeated the statement and did
      so consistently, (4) the party or parties to whom the
      statement was made, (5) the relationship of the
      declarant with the accused, and (6) the nature and
      strength of independent evidence relevant to the
      conduct in question.

United   States    v.    Kivanc,      714   F.3d    782,    792   (4th   Cir.    2013)

(quoting Bumpass, 60 F.3d at 1102 (citations omitted)).

      Considered     together,        these       factors    indicate     that    the

corroborating      circumstances        requirement         was   satisfied      here.

Harvey had not pled guilty at the time of his statement, and

thus remained exposed to the full range of penal consequences

attached to his illicit conduct. See id. at 793. Furthermore, as

noted, the statements were made to a fellow prisoner; Harvey

thus had no motive to manipulate his narrative to please the

authorities. See Jordan, 509 F.3d at 203. Finally, the gist of

the statements was confirmed by a wealth of independent evidence

introduced by the government at trial, including the series of

                                            14
text messages between Dargan and Harvey discussing Dargan’s use

of   a    knife    during    the    planned       robbery.    The   district     court

therefore did not abuse its discretion under the Federal Rules

in admitting Shanaberger’s testimony.



                                            B.

         Dargan also contends that the introduction of Harvey’s out-

of-court      statements         violated     his      constitutional      right      to

confront     opposing      witnesses.       The   Confrontation     Clause     of    the

Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” This provision bars the admission of

“testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had

a    prior     opportunity         for   cross-examination.”            Crawford      v.

Washington, 541 U.S. 36, 53-54 (2004).

         “As Crawford and later Supreme Court cases make clear, a

statement     must    be    ‘testimonial’         to   be   excludable    under      the

Confrontation Clause.” Udeozor, 515 F.3d at 268. The primary

determinant of a statement’s testimonial quality is “whether a

reasonable        person    in     the   declarant’s         position    would      have

expected his statements to be used at trial -- that is, whether

the declarant would have expected or intended to ‘bear witness’

against another in a later proceeding.” Id. (citing Crawford,

                                            15
541     U.S.   at     52).     This       definition      flows    from        the     Court’s

recognition that “the principal evil at which the Confrontation

Clause     was      directed        was      the     civil-law    mode     of        criminal

procedure, and particularly its use of ex parte examinations as

evidence against the accused.” Crawford, 541 U.S. at 50.

      Under this standard, Harvey’s comments to Shanaberger are

plainly nontestimonial. Harvey made the challenged statements to

a cellmate in an informal setting -- a scenario far afield from

the     type     of    declarations           that     represented       the     focus       of

Crawford’s concern. The Supreme Court itself has noted, as a

general matter, that “statements from one prisoner to another”

are “clearly nontestimonial.” Davis v. Washington, 547 U.S. 813,

825     (2006).       Harvey’s          jailhouse      disclosures        to     a     casual

acquaintance were not made with an eye towards trial. He had no

plausible expectation of “bearing witness” against anyone. See

United States v. Jones, 716 F.3d 851, 856 (4th Cir. 2013). The

Confrontation         Clause       is    therefore      inapplicable,          though      such

statements        must,      to         be   admissible,         still     satisfy           the

requirements of the Federal Rules of Evidence, here 804(b)(3).

      Dargan      devotes      a     significant        portion    of     his        brief    to

contending that Shanaberger’s testimony was inadmissible under

the Supreme Court’s holding in Bruton v. United States, 391 U.S.

123 (1968). In that case, Bruton and his co-conspirator were

tried     jointly.      The        latter      declined     to    testify,           but     his

                                               16
confession -- which directly implicated Bruton -- was admitted

against    him       at       trial.     The       district       judge       gave    a    limiting

instruction       that         the    confession         did     not   qualify       as    evidence

against Bruton. Id. at 124-25, 128. On appeal, the Supreme Court

reversed,       noting         the    “substantial         risk”       that    the    jury     would

ignore    the    limiting            instruction         and    thereby       violate      Bruton’s

Confrontation Clause rights. Id. at 126.

     Dargan’s         reliance          on       Bruton     is     misplaced         for    several

reasons. First, Dargan and Harvey were not tried jointly. Harvey

pled guilty and Dargan received an individual trial. The formal

structure       of        a     Bruton           claim     is    therefore           absent.      The

“substantial         risk”       that        a     confession      admitted          against      one

defendant       might         affect    the       jury’s    verdict        regarding       his    co-

defendant is not presented on these facts. See United States v.

Johnson, 581 F.3d 320, 326 (6th Cir. 2009).

     Second, and more significantly, Bruton is simply irrelevant

in the context of nontestimonial statements. Bruton espoused a

prophylactic         rule       designed          to     prevent       a   specific        type    of

Confrontation Clause violation. Statements that do not implicate

the Confrontation Clause, a fortiori, do not implicate Bruton.

See, e.g., United States v. Clark, 717 F.3d 790, 816 (10th Cir.

2013) (“[T]he Bruton rule, like the Confrontation Clause upon

which it is premised, does not apply to nontestimonial hearsay

statements.”) (citation and internal quotation marks omitted).

                                                    17
Our   conclusion   that   Harvey’s    statements   were   nontestimonial

therefore suffices to dispatch Dargan’s Bruton argument as well. *



                                     IV.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                AFFIRMED




      *
       We have reviewed the additional arguments contained in the
supplemental pro se brief and find nothing of merit therein.



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