United States v. Robinson

Filed: January 7, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 00-4851(L)

(CR-98-442)

United States of America,

Plaintiff - Appellee,

versus

Joseph Brooks Robinson, et al.,

Defendants - Appellants.

O R D E R

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:

- 2 -

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

Rehearing granted for limited purpose

of making one revision to opinion, by

order filed 1/7/02

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4851

JOSEPH BROOKS ROBINSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4853

STANLEY LEON OBANION, JR.,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CR-98-442)

Argued: October 29, 2001

Decided: December 17, 2001

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

____________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the

opinion, in

which Judge Williams and Judge Michael joined.

____________________________________________________________

COUNSEL

ARGUED: Fred Warren Bennett, Greenbelt, Maryland; Martin

Greg-

ory 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, Balti-

more, 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.

(collec-

tively, "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 dur-

ing searches of their homes should have been suppressed;

and that the

district court abused its discretion in admitting the

testimony of Crys-

tal Longshore. Additionally, Robinson maintains that he was

deprived

of his statutory right to the assistance of two attorneys.

For the rea-

sons set forth below, we affirm.

I.

On the evening of December 29, 1997, Appellants and two

com-

panions, 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 some-

one. 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, unsuc-

cessfully, to flag down passing motorists. While these

efforts were

ongoing, the group observed a green Acura pull into a

driveway a

2

short distance down the street. Obanion took the firearm

from Robin-

son and ran over to the vehicle, with Robinson and Erby

following.

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 deter-

mine what to do, a tow truck driven by Matthew Dozier

happened

upon them and pulled over. Dozier towed the Acura to a

neighbor-

hood in the District of Columbia, where he unhooked the

vehicle and

began to fill out some paperwork in the cab of the tow

truck. Robin-

son 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. Appel-

lants 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

needed to

steal another car for use the next day in more carjackings

and rob-

beries. As they were driving through a residential

neighborhood in

Maryland, they observed a white Nissan Maxima, which was

driven

3

by Hurley Enoch. Robinson followed Enoch, eventually

trapping him

in a cul-de-sac. Robinson stole Enoch's wallet at gunpoint

and he and

Erby drove off in the Maxima; Obanion followed in the tow

truck.

Shortly thereafter, Obanion abandoned the tow truck and

joined Rob-

inson and Erby in the Maxima.

Appellants drove Erby home, then proceeded to the home

of Crys-

tal Longshore, arriving at about 3:00 a.m. on the morning of

Decem-

ber 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 Max-

ima. 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 jump

suit, a rain-

coat, a neoprene mask, and a pair of gloves, were missing

from the

trunk.

Shortly after this incident, Obanion returned to

Longshore's apart-

ment 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

just finished running from the police.

Three days later, on January 2, 1998, Appellants again

met up with

Erby. Also present were Erby's brother, Leroy Erby (Leroy),

and

4

Kenneth Maxwell. Obanion announced that he wanted to

commit

another carjacking and robbery that evening, and persuaded

the others

to help him by promising them a share of the proceeds of the

robbery.

Using a Datsun belonging to the Erbys' sister and driven by

Leroy,

the group proceeded to a suburban Maryland neighborhood,

where

Appellants and Maxwell exited the vehicle and began

running

through the yards. The three came upon Bruce Chase, who

was

removing packages and purses from his girlfriend's

automobile. Rob-

inson approached Chase and demanded the purses at

gunpoint. Chase

handed the purses to Robinson and began to back away,

turning

briefly to shout at his girlfriend, who had come outside, to

get back

in the house. When Chase turned around again, Obanion was

pointing

the gun at him. Chase's girlfriend then activated the panic

alarm in

the house, which could be heard outside. Upon hearing the

alarm,

Appellants and Maxwell ran back to the Datsun and all five

men

drove off.

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 Dat-

sun 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-

ing and picked them up. As they were driving away, they were

spot-

ted by police, who pursued them to their neighborhood in

Fort

Washington. Obanion, who was driving, crashed the minivan

into a

5

mailbox and all five men fled on foot. They were

subsequently appre-

hended.

Based on these events, Appellants were charged with

conspiracy to

commit carjackings, see 18 U.S.C.A. § 371 (West 2000); using

and

carrying a firearm during and in relation to a crime of

violence (the

carjacking conspiracy), see 18 U.S.C.A. § 924(c)(1) (West 2000);

causing death by use of a firearm during the course of the

§ 924(c)

offense, see 18 U.S.C.A. § 924(j) (West 2000); three counts of

car-

jacking and one count of attempted carjacking, see 18

U.S.C.A.

§ 2119 (West 2000); and four counts of using and carrying a

firearm

during a crime of violence (the substantive carjacking

offenses), see

18 U.S.C.A. § 924(c)(1). Following a jury trial, Appellants

were con-

victed of all charges. Both were sentenced to life

imprisonment.

II.

Appellants' primary contention on appeal is that venue on

the

§ 924(j) count was improper in the District of Maryland.

Appellants

maintain that because the carjacking and murder of Matthew

Dozier

took place solely in the District of Columbia, venue was

proper only

in that jurisdiction. We hold that the logic of United States

v.

Rodriguez-Moreno, 526 U.S. 275 (1999), compels the

conclusion that

venue on the § 924(j) count was proper in the District of

Maryland.

Article III of the Constitution provides, as is relevant

here, that

"[t]he Trial of all Crimes . . . shall be held in the State

where the said

Crimes shall have been committed." U.S. Const. art. III, § 2,

cl. 3.

The Sixth Amendment reinforces this command, stating that

"[i]n all

criminal prosecutions, the accused shall enjoy the right to

a speedy

and public trial, by an impartial jury of the State and

district wherein

the crime shall have been committed." U.S. Const. amend. VI;

see

Fed. R. Crim. P. 18 ("Except as otherwise permitted by

statute or by

these rules, the prosecution shall be had in a district in

which the

offense was committed."). When multiple counts are alleged

in an

indictment, venue must be proper on each count. See United

States v.

Bowens, 224 F.3d 302, 308 (4th Cir. 2000), cert. denied, 121

S. Ct.

1408 (2001). Venue on a count is proper only in a district in

which

an essential conduct element of the offense took place. See

id. at 309.

The burden is on the Government to prove venue by a

preponderance

6

of the evidence. See United States v. Barsanti, 943 F.2d 428,

434 (4th

Cir. 1991).

In order to understand Appellants' venue challenge and

our resolu-

tion 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 vio-

lence, namely, the conspiracy to commit carjackings "as set

forth in

Count One of this Indictment." Supp. J.A. 5. Count Three, the

§ 924(j) count, charged Appellants with causing the death of

a person

through the use of a firearm "in the course of the violation

of 18

U.S.C. § 924(c) as set forth in Count Two of this Indictment."

Id. at

6.

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).

Sec-

tion 924(j) applies to "[a] person who, in the course of a

violation of

[§ 924(c)], causes the death of a person through the use of

a firearm."

18 U.S.C.A. § 924(j). Thus, the conduct elements of a § 924(j)

viola-

tion are (1) the use of a firearm to cause the death of a

person and (2)

the commission of a § 924(c) violation. The conduct elements

of the

§ 924(c) violation, in turn, are (a) the use of a firearm and (b)

the

commission of a crime of violence. See Rodriguez-Moreno, 526

U.S.

at 280.

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 § 924(c)(1). The

defendant kid-

naped the victim in Texas and subsequently took him to New

Jersey,

New York, and Maryland. See id. at 276-77. While in

Maryland, the

defendant obtained a gun and threatened the victim with it.

See id. at

277. The defendant was subsequently convicted in the

District of New

Jersey of kidnaping and violating § 924(c)(1). See id. The

Supreme

Court rejected the defendant's argument that venue on the

latter count

7

was improper in New Jersey because the use of the firearm

occurred

only in Maryland. The Court reasoned that in § 924(c)(1),

"Congress

proscribed both the use of the firearm and the commission

of acts that

constitute a violent crime" and that when the underlying

crime of vio-

lence is a continuing offense that may be prosecuted in more

than one

jurisdiction, the related § 924(c)(1) charge is also a

continuing

offense. Id. at 281. Thus, the Court concluded that venue on

the

§ 924(c)(1) offense was proper in any jurisdiction in which

the under-

lying crime of violence may be prosecuted. See id. at 281-82.

The logic of Rodriguez-Moreno compels us to conclude

that venue

on the § 924(j) count was proper in the District of Maryland.

The rele-

vant conduct elements of the crime alleged in Count Three

of the

indictment were that Appellants caused the death of

Matthew Dozier

through the use of a firearm during the course of violating

§ 924(c)(1), i.e., while using or carrying a firearm during a

conspiracy

to commit carjackings. Under the logic of Rodriguez-Moreno,

because conspiracy to commit carjackings is a continuing

offense, see

United States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990), so

too is

the § 924(c)(1) violation alleged in Count Two of the

indictment.

And, because the continuing § 924(c)(1) violation underlies

the

§ 924(j) charge and is a necessary conduct element of that

charge,

venue on the § 924(j) count was proper in any jurisdiction

where the

§ 924(c)(1) count could have been prosecuted. Since venue on

the

§ 924(c)(1) count was undisputedly proper in the District of

Mary-

land, the district court did not err in denying Appellants'

motion to

dismiss the § 924(j) count for improper venue.

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 Spe-

cial Agent Michael McCoy of the FBI.1 McCoy's affidavit

stated that

he was involved in a joint federal-state investigation of "a

racketeer-

ing enterprise responsible for the distribution of narcotics

and the

commission of numerous violent crimes to include murders,

assaults

____________________________________________________________

1

McCoy submitted the same affidavit in support of both

search war-

rants.

8

with intent to murder, armed carjackings, and armed

robberies." J.A.

41. The affidavit set forth allegations regarding the

carjackings and

murder of Matthew Dozier, as well as numerous other

violent crimes

committed by members of the self-titled "Fort Washington

Crew," id.

at 43, which was alleged to consist of Appellants, the

Erbys, Max-

well, and others. In conclusion, McCoy attested that the

crimes

described in the affidavit "are racketeering acts [as] defined

in Title

18 U.S.C. Section 1961" and that "the combination of these

acts com-

mitted by this group constitutes participating in the affairs

of an enter-

prise, the activity of which affects interstate commerce

through a

pattern of racketeering." Id. at 46. Attachment A to the

affidavit iden-

tified particular items to be seized during the search,

including items

of clothing worn during the carjackings and items taken

from Corpo-

ral Landers' patrol car and from the victims of the

carjackings.

Attachment A also identified as items to be seized"[b]ooks,

ledgers,

journals, notations, letters, photographs, graffiti, news

articles, tele-

phone books and other items of evidentiary value." Id. at 48.

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

search-

ing 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 fac-

tual 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 Fourth Amendment provides in pertinent part

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." U.S.

Const.

amend. IV. "This fundamental right is preserved by a

requirement that

searches be conducted pursuant to a warrant issued by an

independent

9

judicial officer." California v. Carney, 471 U.S. 386, 390

(1985).

Although we review de novo the denial of the motion to

suppress by

the district court, the determination of probable cause by

the issuing

magistrate is entitled to great deference from this court.

See United

States v. Wilhelm, 80 F.3d 116, 118-19 (4th Cir. 1996).

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 rea-

sonable conclusions from confusing and

contradictory infor-

mation, 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

"hypertechni-

cal" 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 affida-

vit. 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

been found

in the carjacked Maxima and in Landers' patrol car.

Additionally, the

affidavit stated that the Erbys and Maxwell had provided

investigat-

10

ing officers with information regarding the involvement of

themselves

and Appellants in the carjackings and various other crimes

alleged to

be involved in the racketeering enterprise.

In the same vein, Appellants maintain that the affidavit

does not

provide any facts to support a conclusion that evidence of

racketeer-

ing or any other crime would be found in the Robinson or

Obanion

homes. We reject this contention as well. The affidavit and

Attach-

ment 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 docu-

ments 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

____________________________________________________________

2

Appellants also argue that the affidavit did not set

forth probable

cause to believe that Appellants had engaged, or were

engaged, in the

crime of racketeering. Having reviewed the affidavit, we

conclude that

it did set forth probable cause to believe that Appellants

were guilty of

racketeering.

In light of our conclusion that the search warrants were

based upon

probable cause, we do not address the Government's

alternative conten-

tion that the searches were sustainable under the "good

faith" exception

to the warrant requirement. See United States v. Leon, 468

U.S. 897, 913

(1984).

11

justifying blanket suppression of all items seized, including

those that

were within the scope of the warrant.

In order to be valid under the Fourth Amendment, a

search warrant

must, inter alia, "particularly describ [e] the place to be

searched, and

the persons or things to be seized." U.S. Const. amend. IV. The

pur-

pose of this particularity requirement is to avoid "a

general, explor-

atory rummaging in a person's belongings." Andresen v.

Maryland,

427 U.S. 463, 480 (1976) (internal quotation marks omitted).

See gen-

erally Stanford v. Texas, 379 U.S. 476, 481-85 (1965)

(describing his-

tory and purpose of particularity requirement). A

sufficiently

particular warrant describes the items to be seized in such

a manner

that it leaves nothing to the discretion of the officer

executing the

warrant. See Marron v. United States, 275 U.S. 192, 196

(1927).

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 war-

rant 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 fla-

grant 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

screw-

driver 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 consti-

tuted 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

12

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 war-

rant. 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 inves-

tigation. 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 Fourth Amendment belies any

intent to

disregard the terms of the warrant. We therefore affirm

the denial of

blanket suppression.

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 indi-

vidual contradict or deny the other's portion of the

account. The dis-

trict 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

Federal

Rule of Evidence 801(d)(2)(B), and thus were not excludable

hearsay.3

Rule 801(d)(2)(B) provides that "[a] statement is not

hearsay" if the

statement is offered against a party and if the party against

whom the

statement is offered "has manifested an adoption [of] or

belief in" the

truth of the statement.

____________________________________________________________

3

To the extent the statements were introduced against

the Appellant

who made them, they were admissible pursuant to Federal

Rule of Evi-

dence 801(d)(2)(A) (providing that a party's own statement is

not hear-

say when introduced against that party).

13

When a statement is offered as an adoptive

admission, the

primary inquiry is whether the statement was such

that,

under the circumstances, an innocent defendant

would nor-

mally be induced to respond, and whether there are

suffi-

cient foundational facts from which the jury could

infer that

the defendant heard, understood, and acquiesced in

the state-

ment.

United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996). A

party

may manifest adoption of a statement in any number of ways,

includ-

ing [through] words, conduct, or silence. See Marshall v.

Young, 833

F.2d 709, 716 n.3 (7th Cir. 1987). We review the admission of

evi-

dence by the district court for abuse of discretion. See

United States

v. D'Anjou, 16 F.3d 604, 610 (4th Cir. 1994).

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 jum-

bled together in such a way as to prevent her or each

Appellant

from hearing and understanding what was being said. We

there-

fore 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, con-

tained ample facts from which a jury could conclude that

each Appel-

lant adopted the statements of the other.

V.

Finally, Robinson maintains that he is entitled to

reversal of his

§ 924(j) conviction under United States v. Boone, 245 F.3d

352 (4th

Cir. 2001). In Boone, a panel of this court held that a

defendant

charged with a death-eligible crime is entitled, under 18

U.S.C.A.

§ 3005 (West 2000), to representation by two attorneys

regardless of

whether the Government actually seeks the death penalty.

See Boone,

245 F.3d at 358. In light of that holding, Boone's conviction

was

vacated. See id. at 364.

14

Because Robinson did not object to the asserted violation

of

§ 3005, our review is for plain error.4 See Fed. R. Crim. P.

52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993). In order

to dem-

onstrate plain error, Robinson must show that an error

occurred, that

the error was plain, and that the error affected his

substantial rights.

See Olano, 507 U.S. at 732; United States v. Jackson, 124 F.3d

607,

614 (4th Cir. 1997). Even if Robinson can satisfy these

requirements,

correction of the error remains within our discretion,

which we

"should not exercise . . . unless the error `seriously

affect[s] the fair-

ness, integrity or public reputation of judicial

proceedings.'" Olano,

507 U.S. at 732 (second alteration in original) (quoting

United States

v. Young, 470 U.S. 1, 15 (1985)).

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 dur-

ing 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 Gov-

ernment withdrew its notice of intent to seek the death

penalty. More-

over, because a violation of § 3005 is not reviewable for

harmlessness, see Boone, 245 F.3d at 361 n.8, the error

necessarily

affected Robinson's substantial rights, see United States v.

David, 83

F.3d 638, 647 (4th Cir. 1996).

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-

____________________________________________________________

4

Robinson asserts that plain error review does not apply

because a vio-

lation of § 3005 is a structural defect. We disagree. Even if

a violation

of § 3005 is a structural defect, cf. Boone, 245 F.3d at 361

n.8 (noting

that a violation of § 3005 is not amenable to harmless-error

analysis), it

is well settled in this circuit that plain error review

applies to forfeited

structural errors. See, e.g., United States v. David, 83 F.3d

638, 647-48

(4th Cir. 1996) (applying plain error analysis to forfeited

structural

error).

15

tional protection to capital defendants—did not affect the

fairness,

integrity, or public reputation of judicial proceedings.5

VI.

For the reasons set forth above, we conclude that none

of Appel-

lants' challenges to their convictions have merit.

Accordingly, we

affirm.

AFFIRMED

____________________________________________________________

5

To the extent that § 3005 benefits even non-capital

defendants during

the period when the Government is deciding whether to seek

the death

penalty, see Boone, 245 F.3d at 360, Robinson received that

benefit.

16