Petition for Writ of Certiorari — Shakeen Davis, Jamal Lockley, and Dante D. Bailey, Petitioners v. United States
Supreme Court briefJul 30, 2024
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No. __________
IN THE SUPREME COURT OF THE UNITED STATES
__________
SHAKEEN DAVIS, et al.
Petitioners
v.
UNITED STATES OF AMERICA
Respondent
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
__________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
__________
Stuart A. Berman*
Lerch, Early & Brewer, Chtd.
7600 Wisconsin Avenue, Suite 700
Bethesda, MD 20814
301-657-0729
saberman@lerchearly.com
Counsel for Petitioner Shakeen Davis
Adam B. Schwartz
Allen Overy Shearman Sterling US LLP
401 9th Street, NW, Suite 800
Washington, DC 20004
202-508-8009
adam.schwartz@aoshearman.com
Counsel for Petitioner Dante D. Bailey
Allen H. Orenberg
The Orenberg Law Firm, LLC
200-A Monroe Street, Suite 233
Rockville, MD 20850
301-807-3847
aorenberg@orenberglaw.com
Counsel for Petitioner Jamal Lockley
*Counsel of Record
Appendix
A. United States v. Banks, 104 F.4th 496 (4th Cir. 2024)
B. United States District Court, District of Maryland Written Opinion
(D. Md. May 9, 2022)
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4620
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDY BANKS, a/k/a Dirt,
Defendant – Appellant.
No. 19-4826
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMAL LOCKLEY, a/k/a T-Roy, a/k/a Droid,
Defendant – Appellant.
No. 20-4193
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
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v.
CORLOYD ANDERSON, a/k/a Bo,
Defendant – Appellant.
No. 20-4250
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHAKEEN DAVIS, a/k/a Creams,
Defendant – Appellant.
No. 20-4266
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANTE D. BAILEY, a/k/a Gutta, a/k/a Almighty, a/k/a Wolf,
Defendant – Appellant.
Appeals from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, Senior District Judge. (1:16-cr-00267-CCB-5; 1:16-cr-00267-CCB-8;
1:16-cr-00267-CCB-11; 1:16-cr-00267-CCB-20; 1:16-cr-00267-CCB-1)
Argued: May 7, 2024
Decided: June 12, 2024
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Amended: July 3, 2024
Before AGEE and WYNN, Circuit Judges, and Gina M. GROH, United States District
Judge for the Northern District of West Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded with instructions by published opinion.
Judge Agee wrote the opinion in which Judge Wynn and Judge Groh joined.
ARGUED: Stuart A. Berman, LERCH, EARLY & BREWER, CHARTERED, Bethesda,
Maryland; Lauren Nicole Beebe, ALLEN OVERY SHEARMAN STERLING US LLP,
Washington, D.C.; Gerald Thomas Zerkin, Richmond, Virginia; Carmen D. Hernandez,
LAW OFFICES OF CARMEN D. HERNANDEZ, Highland, Maryland, for Appellants.
Jefferson McClure Gray, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Allen H. Orenberg, THE ORENBERG LAW FIRM,
PC, Potomac, Maryland, for Appellant Jamal Lockley. Adam B. Schwartz, ALLEN
OVERY SHEARMAN STERLING US LLP, Washington, D.C., for Appellant Dante
Bailey. Erek L. Barron, United States Attorney, Brandon K. Moore, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
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AGEE, Circuit Judge:
Five members and associates of a Baltimore-based gang appeal multiple
components of their convictions and sentences. As discussed below, because Shakeen
Davis’ two felon-in-possession convictions were obtained in violation of Rehaif v. United
States, 588 U.S. 225 (2019), we reverse those convictions and remand for entry of a
corrected judgment. As for all the other challenged convictions and sentences, we affirm.
I.
Recounted in the light most favorable to the Government, the evidence adduced at
trial showed the following: Over a decade ago, Dante Bailey founded Murdaland Mafia
Piru (MMP) as a branch of the Bloods gang operating throughout Baltimore City and
County, Maryland. The so-called “5200 boys” operated alongside MMP members, earning
their moniker from the 5200 block of Windsor Mill Road, which was considered MMP’s
headquarters. MMP had a hierarchical structure and adopted many features of the Italian
mafia. Bailey was its “Don” or “Godfather.” Subordinates operated MMP’s extensive drugtrafficking operation involving the distribution of heroin, cocaine, cocaine base, fentanyl,
marijuana, and other controlled substances. MMP required non-gang members who wanted
to distribute drugs in its territory to pay “taxes.”
In addition to MMP’s drug-trafficking endeavors, it also undertook various
enforcement measures—often violent ones—to ensure its operations ran smoothly and to
maintain control of its territory. Bailey (and MMP generally) took any sign of disrespect
seriously, leading to punishment of MMP members and non-members alike. In furtherance
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of its operations, MMP members and affiliates were responsible for the attempted murders
and murders of multiple individuals.
Federal, state, and local authorities investigated MMP’s illicit activities for many
years, eventually amassing extensive evidence against a network of street-level dealers all
the way to Bailey himself. This evidence took many forms, from recorded controlled buys
and surveillance footage to wiretap conversations, cellphone data, and the statements of
cooperating witnesses.
The investigation into MMP led to indictments charging over two-dozen defendants
with a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, a narcotics
conspiracy, and related offenses. All but six individuals pleaded guilty. At issue before us
is the appeal from the joint, six-week trial against five defendants: Dante Bailey, Shakeen
Davis, Corloyd Anderson, Jamal Lockley, and Randy Banks.1
Bailey was convicted of conspiracy under RICO, in violation of 18 U.S.C.
§ 1962(d); conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846;
murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), (2); and possession
with intent to distribute controlled substances, in violation of 21 U.S.C. § 841 and 18
U.S.C. § 2. For these four convictions, Bailey was sentenced to concurrent terms of life
imprisonment. Bailey was also convicted of possession of a firearm and ammunition as a
A sixth defendant, Sydni Frazier, was initially part of this trial, but was severed
after his attorney could not proceed in the joint trial. He was subsequently convicted in a
separate trial and his appeal is pending in this Court, Case No. 22-4368, but it is not part
of this appeal.
1
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convicted felon, in violation of 18 U.S.C. § 922(g), for which he received a 20-year
sentence, to run concurrent to the life sentences.
Davis was convicted of both conspiracies, for which he was sentenced to a term of
300 months’ imprisonment for each count, to run concurrent to each other. In addition, he
was convicted of two counts of possession of a firearm and ammunition as a convicted
felon, in violation of 18 U.S.C. § 922(g), for which he was sentenced to 120 months’
imprisonment, to run concurrent to the sentence for the conspiracies. Davis was also
convicted of one count of distribution and possession with intent to distribute controlled
substances, in violation of 21 U.S.C. § 841, for which he received a 240-month sentence,
to run concurrent with the previously mentioned sentences. Lastly, Davis was convicted of
one count of possession of a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c), for which he received a 60-month term of imprisonment, to run
consecutive to his other sentences.
Anderson was convicted of both conspiracies, for which he received a sentence of
264 months’ imprisonment on each count, to run concurrent to each other. He was also
convicted of one count of possession of a firearm and ammunition as a convicted felon, in
violation of 18 U.S.C. § 922(g). But in light of the Supreme Court’s later-issued decision
in Rehaif, the Government stipulated to the dismissal of that conviction.
Lockley was convicted of both conspiracies, for which he was sentenced to a 360month term of imprisonment on each count, to be served concurrent to each other. In
addition, he was convicted of one count of distribution and possession with intent to
distribute controlled substances, in violation of 21 U.S.C. § 841, for which he was
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sentenced to 120 months’ imprisonment, to run concurrent to the sentences for the
conspiracy convictions.
Lastly, Banks was convicted of the narcotics conspiracy, for which he was
sentenced to a total term of 216 months’ imprisonment. The jury returned a verdict of not
guilty on the RICO conspiracy charge.
After trial, but before the Defendants’ sentencing hearings, it came to light that one
of the law enforcement officers who had been part of the investigation had—many years
prior and in an unrelated incident—obtained proceeds from the sale of controlled
substances seized at the scene of a crime. That (now-former) officer later pleaded guilty to
an offense arising from the investigation into that misconduct. And because this former
officer had been the affiant on several wiretap applications and search warrants during the
MMP investigation, the Defendants moved for a new trial, arguing that the officer’s
misconduct tainted evidence that had been obtained and introduced against them. The
district court denied the motion, concluding that the former officer’s misconduct did not
implicate the trial evidence or otherwise undermine confidence in the verdict.
The Defendants noted timely appeals, and we consolidated their cases for briefing
and oral argument. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II.
On appeal, the Defendants raise fifteen discrete issues challenging their convictions
and sentences, and even more arguments in support of those issues. We note at the outset
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that we have considered all these arguments, even if we do not directly address them in the
discussion that follows.
A. Challenges to the Trial and Convictions
1.
Motion for New Trial
The Defendants argue that the district court erred in denying their motion for a new
trial based on former Baltimore City Police Officer Ivo Louvado’s role in the MMP
investigation. We review the denial of a motion for a new trial for abuse of discretion.
United States v. Robinson, 627 F.3d 941, 948 (4th Cir. 2010).
a.
Background Facts
The record shows that in 2009, while Louvado was a police officer, he and other
corrupt police officers “stole and resold three kilograms of cocaine,” splitting the proceeds
of the sales between them. United States v. Bailey, No. CCB-16-267, 2022 WL 1451653,
*1 (D. Md. May 9, 2022). Direct evidence of Louvado’s crime came to light in April 2019,
during the middle of the MMP trial and as a result of a separate investigation into corruption
within the Baltimore City Police Department. Following a confidential investigation,
Louvado was charged in March 2020 with one count of lying to investigators about the
drug theft. He pleaded guilty to that offense in November 2020. Id. at *4.
Louvado became involved in the MMP investigation while he was on a detail with
the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Before addressing his
specific role, we note its context within the broader investigation that led to this trial: State
and local authorities had been investigating MMP for a long time before the ATF joined
the investigation, and the ATF’s investigation predated Louvado’s own involvement. This
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extensive “pre-Louvado” investigation spanned numerous law enforcement entities and
involved traffic stops, searches, seizures, wiretaps, and intercepted jail calls that already
implicated numerous MMP members, including Bailey, Davis, and Lockley, in the charged
conduct. Id. at *2.
As for Louvado’s role in the investigation, the Government identified—and the
Defendants do not dispute—that after Louvado joined the MMP investigation, he acted
“outside the presence of other officers” on just two occasions. Id. On the first occasion, he
was the sole law enforcement officer to check a confidential informant before a controlled
buy that was itself recorded. But this particular controlled purchase was not introduced into
evidence at trial. Id. On the second occasion, “Louvado surveilled Lockley as Lockley
exited his home, got into a car, and drove away.” Id. But this entire surveillance was
captured on video recording, and it was not a material part of the evidence against Lockley.
In addition to those two occurrences, Louvado was the direct or cross-referenced
law-enforcement signatory for several search warrants and wiretap authorizations during
the MMP investigation. See id. at *2–3. For example, he applied for warrants to search
Frazier’s and Davis’ cell phones and Davis’ Instagram account. He applied for warrants to
search several MMP-associated locations, including Lockley’s home, Anderson’s home
and business, and Davis’ home. And he was the sole affiant to obtain authorization to
wiretap the phones of two other co-conspirators. On each of these occasions, however, the
probable cause underlying the applications and affidavits was based on information that
did not originate from or otherwise involve Louvado. Instead, the probable cause to obtain
the requested authorizations originated from independent evidence, including recorded
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controlled buys, publicly available social media posts, and arrests for other specific
offenses.
As the investigation into MMP continued, a separate federal investigation began
looking into corruption within the Baltimore Police Department’s Gun Trace Task Force.
Louvado had never been a member of that task force, but in July 2017, a witness in that
investigation admitted to stealing money during a 2009 drug search. He named two other
officers who had also participated in the theft. He did not name Louvado as a participant
in the theft, but he implied that Louvado may have participated by mentioning that Louvado
had purchased a boat shortly after the theft. Id. at *4.
The following month, the task force investigators met with the MMP trial team to
summarize what they knew at that point—that no one had identified Louvado as someone
who had stolen drug money, that Louvado had not yet been questioned, and that they had
no evidence of his participation in the theft (for example, his financial records did not point
to having received large cash deposits around that time). Id.
In March 2018, another witness in the task force investigation relayed his secondhand impression that Louvado had been involved in the 2009 drug theft. But that witness
had not been present and could not otherwise corroborate his suspicion, so investigators
still had no direct evidence that Louvado had committed a crime. Id.
During May 2018 and February 2019 interviews with task force investigators,
Louvado denied knowing about any relevant criminal activity. Id.
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In April 2019, a witness for the task force investigation provided the first concrete
evidence of Louvado’s criminal involvement. Namely, he admitted seeing Louvado steal
drugs in February 2009. Id.
At that time, the MMP trial was in its third week. Investigators reported this
evidence to supervisors, but the U.S. Attorney’s office determined that the MMP trial
attorneys had no Giglio2 obligation to disclose the witness’s statement about Louvado for
three reasons: “(1) Louvado was not a trial witness; (2) the information in [Louvado’s
affidavits and applications] was independently verifiable; and (3) the [task force]
investigation was still underway with potential covert steps to be taken.” Id.
The investigation into Louvado’s criminal conduct culminated in a March 2020
criminal information against him for lying to investigators about the drug theft, and he
pleaded guilty to that offense months later.
b.
Governing Law
The Defendants argued in favor of a new trial because of Louvado’s separate
criminal acts under two separate theories. First, they alleged that they satisfied Federal Rule
of Criminal Procedure 33, which authorizes a district court to “vacate any judgment and
grant a new trial if the interest of justice so requires.” When considering whether to grant
relief under Rule 33, courts look to five factors to determine whether “justice” demands a
new trial: “(a) the evidence must be, in fact, newly discovered, i.e., discovered since the
trial; (b) facts must be alleged from which the court may infer diligence on the part of the
2
Giglio v. United States, 405 U.S. 150 (1972).
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movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it must be such, and of such nature, as that,
on a new trial, the newly discovered evidence would probably produce an acquittal.”
Robinson, 627 F.3d at 948 (cleaned up).
Second, and independently, the Defendants asserted that a Brady and Giglio
violation warranted a new trial. Those cases state that a defendant’s due-process rights are
violated when the prosecution suppresses evidence “favorable to an accused” or for
impeachment purposes. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio, 405 U.S. at
153–54. To secure a new trial under this theory, a defendant must show that (1) the
undisclosed evidence was favorable to him; (2) it was material, i.e., caused him prejudice;
and (3) the prosecution possessed the evidence, yet failed to disclose it. United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001).3
c.
Analysis
The Defendants cannot prevail under either theory to a new trial because they cannot
show at least one element common to both: that evidence relating to Louvado’s criminal
misconduct was material. Though the precise ambit of what materiality entails varies
We have never held that Brady and Giglio apply to evidence bearing on the
warrant-application stage as opposed to evidence admitted at trial. To the contrary, when
previously confronted with a similar argument, we observed that caution should be
exercised before “importing the panoply of Brady protections from trial practice into
warrant application proceedings.” United States v. Colkley, 899 F.2d 297, 302 (4th Cir.
1990). We need not elaborate on the different concerns at issue or definitively reject the
applicability of Brady/Giglio to the warrant-application stage to resolve this case. The lack
of materiality is so clearly shown, even in the unlikely event that Brady/Giglio would apply
in this context, that it is unnecessary to address this threshold point.
3
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according to the particular pathway to relief, the concept generally requires the Defendants
to demonstrate that not knowing about Louvado’s crime at the time of the trial somehow
prejudiced them. Compare Robinson, 627 F.3d at 950 (holding that evidence of police
misconduct is not material for purposes of a Rule 33 motion for a new trial when it “says
little about [a defendant’s] guilt or innocence on the[] [charged] counts”), with United
States v. Fulcher, 250 F.3d 244, 254–55 (4th Cir. 2001) (holding that newly discovered
evidence was material for purposes of a Rule 33 motion because it went to the heart of the
defendants’ defense); compare also Kyles v. Whitley, 514 U.S. 419, 433 (1995) (stating,
for purposes of Brady claims, that “evidence is material, and constitutional error results
from its suppression by the government, if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different”), with United States v. Bagley, 473 U.S. 667, 680 (1985) (holding that, for Giglio
purposes, impeachment evidence is immaterial if “failure to disclose it would be harmless
beyond a reasonable doubt”).4 At bottom, the Defendants argue that Louvado tainted the
The Defendants’ Brady/Giglio-based argument isn’t a true Brady/Giglio claim
because the newly discovered evidence is not exculpatory and, while it may have been of
some theoretical impeachment value, Louvado did not testify at their trial. To argue around
this problem, they assert that had Louvado’s misconduct been disclosed earlier, they would
have sought a Franks hearing to challenge the admissibility of the evidence obtained as a
result of the search warrants and wiretap authorizations that he played a role in obtaining.
See Franks v. Delaware, 438 U.S. 154 (1978). Even accepting this look-through approach,
during a Franks hearing, the defendant carries the burden of showing materiality, which in
this context requires showing that the omitted information undermines the probable-cause
determination. See United States v. Moody, 931 F.3d 366, 371 (4th Cir. 2019) (“[T]he
defendant must show materiality—that is, that the false statements were necessary to the
finding of probable cause. A district court may not hold a Franks hearing where, after
stripping away the allegedly false statements, the truthful portions of the warrant
(Continued)
4
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trial evidence because had he disclosed his own criminal conduct from 2009 in the
affidavits and applications he signed, no judge would have approved those requests. That
may well be true, but it does not satisfy the Defendants’ burden of showing materiality.
To be clear, the Defendants do not identify any evidence that Louvado manufactured
nor do they claim that he was ever in a position to manufacture evidence against them such
that a fair inference of manufactured evidence could arise. Their briefing does not assert
that he had a history of that type of misconduct in other cases. Nor do they argue that the
affidavits or applications Louvado signed contained any false statements or omissions
bearing directly on the probable-cause determination needed to grant the requests. Their
argument thus does not align with the circumstances in which we and other courts have
held that an investigating officer’s own misconduct cast sufficient doubt on the case against
the defendant so as to warrant a new trial. See United States v. Fisher, 711 F.3d 460, 466
(4th Cir. 2013) (recounting the “highly uncommon circumstance[]” presented “in which
gross police misconduct goes to the heart of the prosecution’s case” because a law
enforcement officer described events in a search warrant affidavit that did not occur and
described statements by a confidential informant who “had no connection to the case”); see
also Milke v. Ryan, 711 F.3d 998, 1000–01, 1018 (9th Cir. 2013) (holding that evidence of
a police officer’s undisclosed “long history of lying under oath and other misconduct” was
application would still support probable cause.” (cleaned up)). Thus, the same materiality
problem thwarts the Defendants’ ability to show the likely success of a Franks motion. See
United States v. Lull, 824 F.3d 109, 118 (4th Cir. 2016) (concluding that an affiant’s
omission of a confidential informant’s past unreliability was material because the
informant’s statements were essential to establish probable cause and so the informant’s
reliability was important when assessing the existence of probable cause).
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material to the verdict because the evidence at “trial was, essentially, a swearing contest
between” the defendant and the police officer, making the officer’s “credibility . . . crucial
to the state’s case”).
Instead, the purported basis for a new trial is entirely unrelated to (1) the evidence
establishing probable cause for any evidence obtained as a result of the wiretaps or
searches, and (2) the evidence introduced to establish the Defendants’ guilt at trial. Their
sole point in raising Louvado’s criminal conduct is to argue that he was a corrupt officer
with suspect credibility. (And since he did not testify at trial, Louvado’s credibility only
comes into play in this case to the extent it swayed a judge to issue the requested warrants
and wiretap authorizations. Put differently, they assert that no judge who knew this
information about Louvado would have approved a request bearing his signature.) But we
have previously held that evidence which is “merely impeaching” “does not generally
warrant the granting of a new trial.” United States v. Custis, 988 F.2d 1355, 1359 (4th Cir.
1993). To the contrary, “motions for a new trial based on impeaching evidence discovered
after trial should be granted ‘only with great caution and in the most extraordinary
circumstances,” as “‘[t]here must be a real concern that an innocent person may have been
convicted.’” Id. at 1360 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d. Cir.
1992)). That principle from the Rule 33 context is also consistent with the Supreme Court’s
recognition in the Giglio context that when the Government’s case does not depend on a
particular government witness, then undisclosed information that would impeach that
witness is immaterial as it does not create a reasonable probability of a different result at
trial. Strickler v. Greene, 527 U.S. 263, 292–96 (1999). And both this Court and our sister
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circuit courts have recognized under similar circumstances that the materiality requirement
is not satisfied when a law enforcement officer’s misconduct is tangential to the evidence
establishing a defendant’s own culpability. E.g., Robinson, 627 F.3d at 950, 952–53
(holding that a new trial was not warranted under either Rule 33 or Brady/Giglio because
the misconduct evidence “would do little to undermine the largely separate investigation’s
result” and did not “cut into a somewhat thin and entirely circumstantial government case,”
while also observing the strength and independence of the government’s evidence gleaned
“from other sources”); United States v. Jones, 399 F.3d 640, 647–48 (6th Cir. 2005)
(holding the same because evidence that members of the investigating law-enforcement
unit had “engaged in widespread misconduct” did not prejudice the defendant “[g]iven the
overwhelming evidence of guilt”); United States v. Williams, 985 F.2d 749, 757 (5th Cir.
1993) (holding the same because evidence that the crime lab chemist “pilfer[ed] drugs from
the lab” did not call into question evidence that the substance the defendants possessed was
“cocaine or crack” when the stolen drugs were of a different kind and were entirely
unrelated to the defendants’ case).
In this case, the district court reasonably concluded that Louvado played only a
minor role in the MMP investigation as a whole and that his unrelated prior criminal
conduct—while serious—did not call into question the evidence against the Defendants or
the validity of their convictions. Indeed, the bulk of the Government’s case at trial did not
involve Louvado at all. Of the small part of the Government’s case that Louvado had a
minor role in, he was either accompanied by other law enforcement officers or
documentary evidence corroborated events. And the one controlled buy during which
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Louvado was unaccompanied for a time with the confidential informant was not introduced
at trial. Moreover, each time Louvado played a role in obtaining a search warrant or wiretap
authorization, the probable cause establishing the basis for those requests was based on
third-hand evidence unrelated to Louvado personally. He may have signed the requests,
but that personal attestation mattered little to the underlying support for obtaining
authorization to proceed. As the district court aptly observed in describing the limited
impeachment value Louvado’s misconduct had, “there is a wide gap between deliberate
but tangential omissions about an affiant’s general credibility and deliberate falsehoods
with real factual nexus to the case itself.” Bailey, 2022 WL 1451653, at *7. Further,
“[e]xcluding any declarations from Louvado as to his personal honesty or including the
omitted information about the 2009 theft still leaves sufficient confidential informant and
other information to justify probable cause for the wiretaps and searches.” Id. at *9.
Because Louvado’s criminal misconduct was immaterial to the evidence
establishing the Defendants’ criminal culpability, the district court did not err in denying
their motion for a new trial.
2. Motion to Enforce Plea Agreement (Bailey)
Just days before the trial began, Bailey moved for enforcement of a plea agreement
that would have avoided exposing him to a mandatory sentence of life imprisonment. The
district court denied the motion after finding that there had been no meeting of the minds
between Bailey and the Government and thus no plea agreement. At the broadest level, the
court looked to the communications as a whole and concluded that none set out essential
terms of an enforceable plea agreement. For further support, the court observed that the
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Government’s emails had repeatedly indicated that certain of its offers “were contingent
on [four other] defendants pleading guilty, which did not happen.” J.A. 7688. In addition,
the court pointed out that the Government’s emails showed that the Government framed its
discussions in contingent language that had to be submitted to supervisors for approval,
which was never given.
On appeal, Bailey reiterates his belief that the Government failed to honor either of
two offers that he contends he accepted. In view of that perceived breach, he argues that
the district court committed reversible error in proceeding to trial rather than holding the
Government to its word.5 First, Bailey asserts that the Government offered a plea deal for
27-40 years’ imprisonment in August and October 2018, which he supposedly accepted in
October 2018. Second, he claims that the Government offered him another plea deal for a
“straight” term of 37 years’ imprisonment in January 2019, which he contends he accepted
the following month.6
Alternatively, Bailey argues that the circumstances presented show that trial
counsel was ineffective in failing to procure a signed plea agreement and that this error is
“conclusively establishe[d]” on the record such that it is cognizable on direct appeal. See
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We disagree that he has
met this high standard and so reject this argument.
6
On appeal, Bailey relies on two affidavits from trial counsel that were submitted
after the district court denied his motion and which were not part of any motion to
reconsider the court’s decision. At oral argument, we explored with counsel the unusual
posture in which those affidavits were made part of the district court record and questioned
the propriety of considering them on appeal. Ultimately, we need not resolve this question.
The bulk of their contents was already provided to the district court as part of the motion
and hearing process. And even if we considered their additional contents, the district court
still did not err in determining that a plea agreement did not exist.
5
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We disagree. The district court did not err in concluding that the parties never
entered into an enforceable plea agreement. “[J]udicial interpretation of plea agreements is
largely governed by the law of contracts.” United States v. Martin, 25 F.3d 211, 216–17
(4th Cir. 1994). While oral agreements can be made, we have strongly “suggest[ed] that
lower courts require all . . . plea agreements be reduced to writing.” United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997). Before a plea agreement can be enforced, then,
the party seeking enforcement must show that a binding contract has been formed. And
“[t]he essence of contract formation is . . . a meeting of the minds of the contracting
parties.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (cleaned
up).
Turning to the first alleged “agreement,” emails exchanged between the relevant
parties throughout August and October 2018 show initial negotiations and Bailey’s attempt
to “accept” an offer on terms that did not reflect the Government’s most recent offer. Rather
than recite all the permutations of the partially documented discussions, we focus on the
evidence of where everyone stood just before Bailey allegedly accepted a plea deal “on or
around October 9, 2018.” Opening Br. 42. In an October 5 email from the AUSA, the
Government rejected Bailey’s “counter proposal,” stating that it “would accept a plea to a
range of 27-40, or a straight 37, if [four co-defendants] plead guilty. Unfortunately, they
are all still at the table at this point.” J.A. 6580. The AUSA then acknowledged that this
position was “not what you want to hear” and expressed her willingness to talk further.
J.A. 6580. Later that evening, in response to Bailey’s counsel asking if the AUSA could
“write up the 27 to 40 [agreement] for [Bailey’s counsel] to take to [Bailey]” on Monday,
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October 8, when she planned to visit him, the AUSA apologized and said that she “can’t
get approval for a plea by Monday.” J.A. 6581. Bailey’s counsel continued to push for a
written plea agreement to take to Bailey on Wednesday, October 10, but the AUSA again
indicated that she was “sorry to say I’m not going to be able to get you a plea offer in time
for tomorrow’s visit.” J.A. 6582. On October 10, Bailey’s counsel apparently discussed the
terms of a potential plea deal with Bailey, communicating later that day to the AUSA that
“we cleared 27 to 40 with our client who asked us to request a specific number – 35 or 37.
He knows you will be asking for 40. Our understanding was that 35 was ‘No’ and 37 was
only if we could get the others to take the offer made to them. . . . We believe there is a
much better chance . . . if . . . the plea is done. We could have had a signed deal . . . last
week and still can get one if we could get something to sign!!” J.A. 6583. Bailey’s counsel
closed the email by saying, “We feel like we have a sure thing that keeps slipping away as
the time passes.” J.A. 6583.
All this to say, before Bailey is even alleged to have accepted any offer, his counsel
had heard multiple times from the AUSA that there was no firm offer to present to Bailey.
Bailey’s counsel’s own statements to the AUSA at the time reflect her recognition of that
basic fact: the parties were still discussing the terms and no final agreement had been
reached. In fact, Bailey’s counsel was continuing to tweak terms on October 10 when she
sought the Government’s approval of a different term of imprisonment than the range
Bailey had purportedly “cleared” earlier that day. On this record, the district court did not
err in determining the parties never reached a meeting of the minds such that there was any
plea deal for Bailey to accept “on or around October 9.”
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We reach the same conclusion as to the negotiations that took place in January 2019,
which culminated with Bailey’s purported “acceptance” on February 18, 2019. The record
shows that after the Government communicated to Bailey’s counsel that it would not offer
a plea to thirty-seven years’ imprisonment unless four other co-defendants pleaded guilty,
Bailey’s counsel unilaterally drafted a document incorporating standard language of a plea
agreement in that district. The document stated that the parties agreed to a thirty-seven year
term of imprisonment without mentioning anything about the deal being contingent on
other co-defendants pleading guilty. On February 18, 2019, Bailey and his counsel signed
this document. Counsel then sent the document, along with a letter recounting the plea
negotiations, to the Government. Particularly instructive here, the letter acknowledges that
the Government’s most recent communication had said “that although we had reached
agreement on the terms of a plea agreement for Mr. Bailey, you would not extend a formal
written offer unless and until [four co-defendants] pled.” J.A. 6589. The letter asked the
Government to “agree that permitting Mr. Bailey to plead guilty to the terms on which we
have agreed is the appropriate resolution of the charges against him, whether or not his codefendants plead, and that you will execute the agreement we are providing.” J.A. 6589.
The record could not be clearer—Bailey sought to unilaterally change the conditions under
which the Government had indicated it would be willing to accept a plea deal. Plainly there
was no meeting of the minds. Bailey could not “accept” a plea based on terms the
Government never offered to him. And the Government never accepted the terms Bailey
presented to it.
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Because a plea agreement was never formed, the district court properly denied
Bailey’s motion to enforce a (non-existent) plea agreement.
3. Rehaif Error (Davis)
This trial took place before the Supreme Court issued its decision in Rehaif, so
neither the district court nor the parties had the benefit of that ruling, which “brought a sea
change to [§ 922(g)(1)] cases.” United States v. Gallman, 57 F.4th 122, 130 (3d Cir. 2023).
In Rehaif, the Supreme Court held that the statutory term “knowingly” applied to the
defendant’s conduct and status. 588 U.S. at 229. And as had been the situation in so many
cases brought before Rehaif was decided, the jury here was not specifically instructed that
the Government had to come forward with proof that those defendants charged with a
§ 922(g)(1) offense knew that they fell within a class prohibited from possessing firearms.
Although the Government moved to dismiss Anderson’s § 922(g)(1) conviction
after Rehaif, it did not do the same with respect to Davis’ two § 922(g)(1) convictions
(Counts 16 and 30). Nonetheless, at sentencing, the Government noted the possibility that
Davis’ § 922(g)(1) convictions may be reversed on appeal in light of Rehaif and it asked
the district court to specify whether it would have imposed the same sentence for Davis’
convictions on the other counts regardless of whether his § 922(g)(1) convictions were later
reversed on appeal. The district court readily agreed to do so, stating that it would impose
the same sentence, irrespective of any Rehaif error as to Davis’ § 922(g)(1) convictions.
On appeal, the parties agree that Rehaif error occurred. Their dispute is limited to
whether Davis can establish relief on plain-error review, specifically whether the error
affected his substantial rights. United States v. Barronette, 46 F.4th 177, 198 (4th Cir.
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2022) (reiterating that this requires a defendant to show “a reasonable probability that, but
for the error, the outcome of the proceeding would have been different”). On this point,
since Rehaif, the Supreme Court has recognized that the mere fact that a defendant has a
prior felony conviction is not dispositive to proving whether he knew of his status, though
“common sense” suggests that an individual who is a convicted felon “ordinarily knows
he is a felon.” Greer v. United States, 593 U.S. 503, 506, 508 (2021) (emphasis added).
That typical scenario gives way, however, when the defendant “can make an adequate
showing on appeal that he would have presented evidence in the district court that he did
not in fact know he was a felon when he possessed firearms.” Id. at 509.
In assessing whether a defendant satisfies plain-error review in a Rehaif context, our
decision in United States v. Barronette is instructive. There, we held that a § 922(g)(1)
defendant had satisfied his burden on plain-error review of a Rehaif error. The defendant
had prior state-law convictions for offenses classified as misdemeanors under state law but
which met the technical requirements to be classified as felonies for purposes of
§ 922(g)(1). 46 F.4th at 198–99. Although the defendant had been sentenced to more than
one term of imprisonment over one year long, most of the sentences had been suspended
such that he served only one stint in prison that lasted slightly more than one year. Id. at
199. In those circumstances, we concluded that “there [was] a lack of record evidence that
[the defendant] knew that he was convicted of a state crime [that met the federal definition
of a felony for § 922(g)(1) purposes], especially when his crimes were labeled as
misdemeanors,” leading us to hold that “the Rehaif error affected his substantial rights”
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and satisfied plain-error review. Id.; see also id. at 200–01 (distinguishing Greer and
explaining this conclusion further).
Barronette counsels the same result here. While that defendant had multiple prior
convictions that met the federal definition of a “felony,” Davis had a single prior state
conviction that did so. In both Barronette and here, the state conviction was labeled under
state law as a “misdemeanor.” And while the defendant in Barronette had actually served
time in prison for more than one year, Davis’ entire sentence had been suspended. Given
Barronette’s conclusion, Davis has shown even more clearly “that, but for the Rehaif error
in the jury instructions, there is a reasonable probability that a jury would have acquitted
him” of the § 922(g)(1) counts. Greer, 593 U.S. at 510; see also Barronette, 46 F.4th at
198–201.7
Despite Davis satisfying the other elements of plain-error review, we only afford
relief “if the error had a serious effect on the fairness, integrity or public reputation of
judicial proceedings.” Barronette, 46 F.4th at 201 (cleaned up). As we did in Barronette,
we hold the Rehaif error had a serious effect on Davis’ § 922(g)(1) conviction. Specifically,
Davis has shown “why a jury in an error-free trial might have reasonable doubts as to the
knowledge-of-felon-status element, thus calling into question whether a jury would have
convicted [him] had they been required to find beyond a reasonable doubt that he knew at
Arguing against this result, the Government points to a single jailhouse phone call
in which Davis stated that he had stashed firearms in the woods but was not going to
retrieve them because of a police presence. The Government asks too much of that evidence
to cast it as proving that Davis knew of his felon status at the time this statement was
uttered.
7
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the time of his” possession offense that he also knew of his felon status. Id. (cleaned up).
These circumstances combine to effect “a miscarriage of justice” should we affirm his
§ 922(g)(1) convictions. Id. (citation omitted). We therefore reverse Davis’ § 922(g)(1)
convictions (Counts 16 and 30).
The question then becomes the scope of our remand instruction. Given the
sentencing transcript, we believe justice is best served by remanding for entry of an
amended judgment without the need for a plenary resentencing. During sentencing, the
district court specifically engaged the question of whether it would impose the same
sentence if the § 922(g)(1) convictions were reversed. It unequivocally responded that it
would impose the identical sentence regardless of this outcome, stating:
[A]bsolutely, Counts 16 and 30, if for some reason those 10-year sentences
had to be vacated, I would still believe that the 25 years on the other counts,
followed by the five years on Count 32, would be reasonable and sufficient
without being greater than necessary.
J.A. 6527. Reviewing the nature of Davis’ remaining convictions and the district court’s
explanation at sentencing for the sentence it imposed, we conclude that this statement
adequately addresses the basis for Davis’ sentence and eliminates the need for
resentencing.
4. Admissibility of Evidence
The Defendants raise various objections to the district court’s rulings authorizing
the admission of certain evidence at trial. First, all of the Defendants challenge on plainerror review the district court’s decision to allow the Government to admit certain music
videos, music lyrics, and social media posts created by the Defendants, which they claim
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did not prove any element of any offense and were unfairly prejudicial under Federal Rule
of Evidence 403. Next, Bailey argues that the district court abused its discretion in allowing
the introduction of expert testimony concerning a “match” in firearms evidence because
that testimony conflicted with the district court’s pre-trial ruling limiting the scope of the
expert testimony. Lastly, Davis and Anderson argue that because their felon-in-possession
convictions cannot stand under Rehaif, evidence that was admissible only in support of that
offense—namely, evidence of their felon status—was otherwise unfairly prejudicial and
requires vacatur of their remaining convictions.
a. Music Videos, Lyrics, & Social Media Evidence
The Government introduced into evidence music videos, lyrics, and social media
posts generated by and depicting the Defendants and others, which the Defendants contend
on appeal were irrelevant and unduly prejudicial because they did not prove any element
of any offense and were inherently inflammatory. They argue that this evidence should not
have been admitted under a proper assessment of Rules 401, 402, and 403. And they argue
that the error prejudiced them such that their convictions should be vacated and the case
remanded. We disagree.
As an initial matter, we note two procedural concerns before turning to the merits.
First, the parties disagree on whether this issue was preserved in the district court and how
that affects our standard of review. We need not resolve that question, however, because
even assuming that the Defendants adequately preserved the issue when Davis (acting
alone) raised it in a motion in limine, they have not demonstrated the district court abused
its discretion in allowing the admission of this evidence.
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Second, we note that by attacking distinct categories of evidence in cursory fashion
on appeal, the Defendants have painted their challenge with such a broad brush that they
arguably fell short of the requirements of Federal Rule of Appellate Procedure 28(a), which
requires meaningful engagement with the record and applicable case law. See Fed. R. App.
P. 28(a)(8); see Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017)
(noting that to adequately raise an issue on appeal, parties are required to take more than
“a passing shot at [an] issue”). Instead, the Defendants challenge the admissibility of
everything from social media posts and images to music videos and lyrics collectively,
using only a few examples to support their sweeping argument that the admission of this
evidence wholistically impacted the entire trial. We need not rely on this procedural
deficiency, however, and instead employ a similarly broad-brush approach rather than a
piece-by-piece review. Undertaking this review, we discern no error in the district court’s
decision to admit these categories of evidence.
The challenged evidence was not clearly irrelevant nor was it unfairly prejudicial.
First, it met the “relatively low” threshold for establishing relevancy in that it had “‘any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.’” United
States v. Powers, 59 F.3d 1460, 1465 (4th Cir. 1995) (quoting Fed. R. Evid. 401 (emphasis
added)). In the specific context of social media posts and music lyrics, we have previously
recognized that such evidence “can be relevant if [it] match[es] details of the alleged crime”
or “show[s] a defendant’s knowledge or motive.” United States v. Recio, 884 F.3d 230,
235 (4th Cir. 2018). Some of the evidence was relevant to the charged conspiracies because
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it helped the Government to establish identity and relationships given that the Defendants
and co-conspirators are depicted together. Still more of this evidence lent additional
support for components of the charged conspiracies. For example, they feature the
Defendants surrounded by firearms or cash; making MMP hand signals or wearing MMP
clothing; and flaunting a violent, drug-fueled lifestyle with specific lyrics and images
connecting these acts specifically to MMP’s turf. In short, we find no reversible error
occurred under Rule 401’s standards.
Nor have the Defendants shown plain error under Rule 403’s grounds for
admissibility. Under this rule, district courts have broad discretion to “exclude relevant
evidence if its probative value is substantially outweighed by a danger of,” inter alia,
“unfair prejudice.” Fed. R. Evid. 403. But this rule “generally favor[s] admissibility.”
United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998). Yet again, we are guided by our
prior recognition that while there are times that “in some cases courts have excluded lyrics,
finding they primarily served to paint the defendant in an unflattering light,” “[t]his is not
such a case.” Recio, 884 F.3d at 236. The Defendants were charged for their conduct arising
from a multi-year RICO and drug conspiracy involving the MMP, and evidence of the
music videos, lyrics, and social media posts went to that point without being unfairly
prejudicial as to matters beyond making that connection. Further, given the extensive
evidence demonstrating each of the Defendants’ own connection to specific acts within the
conspiracies and other offenses, the admission of the challenged evidence—which went
more broadly to big-picture matters in the case—was harmless. See Fed. R. Crim. P. 52(a)
(“Any error, defect, irregularity, or variance that does not affect substantial rights must be
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disregarded.”); Fed. R. Evid. 103(a) (stating that evidentiary errors require reversal only if
they “affect[] a substantial right”).
In short, the admission of this evidence does not constitute reversible error.
b. Firearms-Match Evidence (Bailey)
Before James Wagster, an expert in firearms identification, testified on behalf of the
Government, Bailey moved to exclude or limit his testimony on the ground that it was
impossible to say with one-hundred-percent certainty that firearms and ballistics evidence
“matched” each other. The district court ruled that Wagster could offer his opinion that
something was a match, stating: “I’m not going to prevent him from saying that, in his
opinion, it came from the same gun or that it is a match within a reasonable degree of
certainty in the field of ballistics.” J.A. 3858. The court also indicated that it would give a
limiting instruction that “the fact that someone is allowed to testify as an expert does not
mean that the jury has to accept that opinion.” J.A. 3863.
At the outset of Wagster’s testimony, the district court gave that limiting instruction.
Wagster then testified about how he conducted comparisons of firearms and ammunitions
components, the industry standards he uses in conducting his comparisons, and how his
office runs cross-checks on their conclusions. Wagster then testified about ballistics
evidence recovered from the scenes of two crimes allegedly involving Bailey: (1) a
shooting on February 8, 2015, at a BP gas station, and (2) the murder of James Edwards
on February 12, 2015. Wagster described the six casings and one live round recovered from
the BP gas station shooting as all having been fired from “the same unknown firearm,” a
.40 caliber Smith & Wesson. J.A. 3883–88. He described casings and live rounds recovered
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from the scene of Edwards’ murder, stating that they too were fired from a .40 caliber
Smith & Wesson and had all come from “the same firearm, same unknown firearm.” J.A.
3888–90. Lastly, he testified that the casings and live rounds recovered at the BP gas station
and the scene of Edwards’ murder were all fired from “the same unknown firearm.” J.A.
3890–92. On direct and cross-examination, Wagster reiterated the bases for making his
comparisons and his conclusion about them. J.A. 3892–900. Bailey did not object to
Wagster’s testimony about his comparison conclusion at the time it was given.
On appeal, Bailey argues that the district court committed reversible error by
allowing Wagster to testify in contradiction to the pre-trial ruling limiting the degree of
certainty to which he could opine that the ballistics evidence matched. Bailey asserts that
Wagster’s testimony that the evidence was the “same” or a “match” expressed an
impermissible level of certainty and was prejudicial because it served as the linchpin of the
Government’s case connecting Bailey to Edwards’ murder. As such, he requests that this
Court reverse his conviction for murder in aid of racketeering.
We discern no plain error in the admission of this evidence. At the outset, on appeal,
Bailey does not challenge the district court’s initial ruling on his motion in limine but
instead argues that the court erred in allowing Wagster to testify outside the scope of that
ruling at trial. It was Bailey’s responsibility to object if he believed that this had occurred,
yet he did not do so. Accordingly, we review his objection for plain error. See United States
v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (stating that the Court reviews for plain
error when the “motion in limine was not based upon [and did not seek] a ruling on the
precise issue [the defendant] now seeks to raise” (emphasis added) (cleaned up)).
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Bailey’s argument is predicated on a misapprehension of the district court’s initial
ruling and Wagster’s actual testimony. The district court ruled that Wagster could testify
that, in his opinion, the firearms evidence recovered from the scene of the BP gas station
and Edwards’ murder “matched.” It could not have been clearer in rejecting Bailey’s
contention that such testimony veered into presenting opinion testimony as certitude,
stating: “I think that saying that something is the same or a match, in his opinion, is not the
same as saying, ‘And I’m a hundred precent convinced that my opinion is correct.’” J.A.
3858. The Court then elaborated that it was “not going to prevent [Wagster] from saying
that, in his opinion, it came from the same gun or that it is a match within a reasonable
degree of certainty in the field of ballistics.” J.A. 3858. Wagster’s testimony fell within
those parameters, providing his opinion that the crime-scene firearms/ballistic evidence
from the BP gas station and Edwards’ murder stemmed from the same firearm. The
Government’s questions on this point were framed in a broad manner so as to solicit
Wagster’s opinion without seeking the degree of certainty he had that his opinion was
correct—e.g., “what conclusions were you able to draw . . . ?,” J.A. 3891, and “does that
mean that you concluded . . . ?,” J.A. 3893.
Not only did Wagster’s testimony not express a degree of certitude in his opinion,
but the district court’s limiting instruction reinforced that point to the jurors, reminding
them that although Wagster was permitted to offer opinion testimony on the firearms
evidence, they were still charged with the duty to determine what weight to give it:
I will remind the jury, as I think I said at the very outset of the case, the fact
that a witness is found qualified to give you opinion testimony, it’s still up to
you whether to accept that testimony. It’s up to you to listen; to consider the
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reasons, the training and experience; and then you give an expert’s opinion
the weight, if any, that you believe it should have, just as you do with any
other witness.
J.A. 3877. We generally presume the jurors follow such limiting instructions. Samia v.
United States, 599 U.S. 635, 646 (2023) (“[O]ur legal system presumes that jurors will
attend closely the particular language of such instructions in a criminal case and strive to
understand, make sense of, and follow them.” (cleaned up)); United States v. Johnson, 54
F.3d 1150, 1160–61 (4th Cir. 1995). No juror following this instruction would mistake
Wagster’s opinion testimony for certitude. Thus, considering both the substance and
context of Wagster’s testimony against the district court’s pre-trial ruling, we reject
Bailey’s argument that reversible error occurred.
c. Felon-Status Evidence (Anderson and Davis)
The final issue arising from the admission of evidence stems from the reversals of
Anderson’s and Davis’ felon-in-possession convictions. As noted, after the trial and in light
of Rehaif, the Government moved to dismiss Anderson’s § 922(g) conviction. And, we
have now held that Davis’ § 922(g) convictions must also be reversed in light of Rehaif.
Because the § 922(g) charges were at issue during the trial, the Government was permitted
to introduce evidence of Anderson’s and Davis’ prior felony convictions. That evidence
likely would not have been admissible without the § 922(g) charges. Anderson and Davis
contend that the admission of that evidence had a prejudicial spillover effect that requires
reversal of their remaining convictions.
To prevail on an assertion of prejudicial spillover effect, defendants must show two
things: (1) “that the challenged evidence would have been inadmissible at trial without the
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vacated count,” and (2) that the challenged evidence “prejudiced his convictions on the
remaining counts.” United States v. Hart, 91 F.4th 732, 741 (4th Cir. 2024).
Anderson and Davis cannot show prejudice for at least three reasons. First, the
evidence of a prior, non-violent felony conviction was introduced in a Sergeant Joe Friday
“just the facts” manner—briefly and without any description of the underlying offense
conduct. So, the jury could glean very little from the evidence before it that might tempt
them to infer culpability for the charged offenses just as a consequence of any prior
convictions. Second, the evidence showing Anderson’s and Davis’ culpability for the
remaining convictions was extensive, amply supporting the jury’s guilty verdicts beyond a
reasonable doubt. Third, a jury instruction mitigated the risk of prejudicial spillover.
Specifically, this Court has previously recognized that “concerns of prejudicial spillover
[can be] mitigated by the district court’s explicit instruction that the jury must consider
each count separately.” United States v. Barringer, 25 F.4th 239, 249 (4th Cir. 2022)
(cleaned up). The district court gave that instruction here, and, absent evidence to the
contrary, we can presume that the jury followed it. For these reasons, we conclude that
Anderson and Davis have not shown any prejudicial spillover arising from the admission
of their prior convictions.
5.
Banks’ Verdict Form
Banks raises two arguments in support of his contention that his drug conspiracy
conviction should be reversed because of a perceived flaw in the verdict form.
The charged conspiracy under 21 U.S.C. § 846 was an agreement to violate the
terms of 21 U.S.C. § 841(b)(1)(C), which prohibits the distribution of certain controlled
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substances, subject to a “term of imprisonment of not more than 20 years.” That baseline
offense is subject to two aggravated variations of the offense, which trigger different
statutory punishments. Offenses involving “28 grams or more” of cocaine base are subject
to a term of five years to forty years’ imprisonment. § 841(b)(1)(B)(iii). And offenses
involving “280 grams or more” of the same are subject to a term of imprisonment of ten
years to life. § 841(b)(1)(A)(iii).
If the jury found Banks guilty of the drug conspiracy offense (as it did), then the
jury was asked to “determine unanimously the quantity of cocaine base (‘crack’)
reasonably foreseeable to him.” J.A. 6356. The verdict form provided two options with a
line for the jury to place a “check” next to its finding. One option was for an amount of
“280 grams or more” and the other was for “[l]ess than 280 grams.” J.A. 6356. The jury
checked “[l]ess than 280 grams.” J.A. 6356. Consistent with that verdict, the district court
sentenced Banks to less than twenty years’ imprisonment.
Banks first contends that the verdict form is erroneous, requiring reversal of his drug
conspiracy conviction. As support, he argues that the statute divides the offense based on
three drug weights—“less than 28 grams,” “28 grams or more,” and “280 grams or more”
of cocaine base—and the verdict form impermissibly diverges from this language to create
a new offense based on the drug weight of “[l]ess than 280 grams.” Banks asserts that the
verdict form’s departure led to a conviction for a “judicially created, and, thus,
constitutionally invalid offense,” which must be vacated. Opening Br. 79.
Contrary to Banks’ argument, this is not a case where the verdict form permitted the
jury to convict a defendant of an offense that does not exist. To the contrary, §§ 841 and
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846 permit a conviction based on evidence that the defendant entered into the charged
conspiracy to distribute a controlled substance regardless of the specific type of narcotic or
drug weight attributable to Banks personally. See United States v. Collins, 415 F.3d 304,
314 (4th Cir. 2005) (“Guilt of the substantive offense defined in § 841(a) is not dependent
upon a determination of the amount or type of narcotics distributed.”). Here, the operative
indictment alleged a drug conspiracy to distribute, inter alia, 280 grams or more of cocaine
base. The jury found Banks guilty of participating in that conspiracy. That’s sufficient to
sustain his conviction.
The verdict form’s two choices for the jury’s finding as to how much cocaine base
to attribute to Banks was relevant solely for purposes of establishing what statutory
penalties would apply to him as a result of that conviction. The baseline § 841 offense for
distributing any amount of cocaine base—including amounts less than 28 grams—carries
a penalty of zero to twenty years’ imprisonment, and that’s the range within which Banks
was sentenced. Certainly, there are also two aggravated forms of the offense that subject a
defendant to a higher statutory range based upon a jury’s finding that the offense involved
28 grams or more or 280 grams or more. And under Supreme Court case law, findings that
increase the statutory penalty to which a defendant is exposed must be submitted to the
trier of fact and found beyond a reasonable doubt. See United States v. Promise, 255 F.3d
150, 154–57 (4th Cir. 2001) (en banc). But neither of those findings are required for the
jury to find a violation of §§ 841 and 846 in the first instance. Rather, those findings as to
drug weight were required strictly to determine whether the statutory penalty would be
adjusted beyond the baseline statutory penalty. See Collins, 415 F.3d at 314–15; see also
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United States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (“[A] jury . . . must determine
the threshold drug quantity used to establish a defendant’s statutory sentencing range under
§ 841(b).”).
Here, the verdict form limited the statutory penalty to two options, one consistent
with sentencing under the baseline penalty (“less than 280 grams,” which would subject
Banks to zero to twenty years’ imprisonment) and one consistent with one of the enhanced
penalty ranges (“280 grams or more,” which would subject him to punishment between ten
years’ and life imprisonment). Far from a judicially crafted offense, this reflects a valid
way to articulate the § 841 offense and a potentially applicable punishment variation had
the jury made the requisite finding to support it. The jury did not find an amount of 280
grams or more attributable to Banks, so the district court’s sentence needed to be—and
was—within § 841’s baseline statutory penalty for possession of any amount of cocaine
base: zero to twenty years’ imprisonment.
Next, Banks contends that the verdict form was flawed because the jury should have
been permitted to hold him responsible for the lesser-included offense of participating in a
conspiracy involving less than 28 grams of cocaine base. He contends that had the jury
been instructed properly, it is likely that it would have found him responsible for that lesser
quantity because the record evidence did not support a finding of 28 grams or more, just as
it did not support a finding of 280 grams or more. This omission matters, he asserts, because
the district court would have had to attribute less than 28 grams of cocaine to him for
purposes of calculating his Guidelines offense level, which in turn may have resulted in a
lower sentence.
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We reject this argument based on the principles already discussed. Had the verdict
form provided the jury with the option of finding “less than 28 grams” attributable to him,
that would not have altered in any way the statutory penalty to which he was subject. And
Banks’ argument that this lesser option might have affected the Guidelines calculation is
irrelevant. As we have repeatedly recognized, “[o]nce this maximum [statutory] penalty is
established, a fact (sentencing factor) that may increase the actual sentence imposed within
that maximum is not subject to” being found beyond a reasonable doubt by a jury. Promise,
255 F.3d at 156 n.5. Instead, at sentencing, the district “court is entitled to find
individualized drug quantities by a preponderance of the evidence, as part of its calculation
of an advisory Guidelines range, so long as its resulting sentence is within the relevant
statutory range.” Brooks, 524 F.3d at 562. That’s exactly what the district court did here—
it sentenced Banks consistent with the statutory penalty that would apply for a violation of
§ 841 involving any amount of cocaine base, and then, when calculating the advisory
Guidelines range, it made findings about an individualized drug quantity to attribute to
Banks using a preponderance-of-the-evidence standard. At bottom, the district court was
not required to submit permutations involving the Sentencing Guidelines’ assessment of
drug weight to the jury because that is a separate function that occurs after the trier of fact
establishes the defendant’s statutory sentencing exposure.
Because the purported error Banks complains of would not alter the validity of his
conviction, he has not shown error requiring reversal of his drug conspiracy conviction.
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****
To recap the issues related to the Defendants’ convictions, we hold that Davis has
shown reversible Rehaif error as to his § 922(g)(1) convictions but that the Defendants’
remaining arguments challenging their convictions lack merit.8 Next, we turn to the
Defendants’ challenges to their sentences.
We have also considered the Defendants’ other trial-oriented objections and
conclude that they can each be rejected without lengthy discourse.
First, Davis and Anderson both challenge the sufficiency of the evidence to prove
their participation in the two charged conspiracies. Our review of the record confirms
ample evidence for the jury to find each element of the charged conspiracy was satisfied.
Critically, the Government was not required to show that either defendant “knew the
particulars of the conspirac[ies]” so long as the record shows that each defendant “joined
with an understanding of the unlawful nature thereof and willfully joined in the plan on
one occasion even if he played only a minor part” or was involved in only one aspect of it.
United States v. Tillmon, 954 F.3d 628, 640 (4th Cir. 2019). Nor must the record “exclude
every reasonable hypothesis of innocence” to provide sufficient evidence of guilt,
“provided the summation of the evidence permits a conclusion of guilt beyond a reasonable
doubt.” Id. (cleaned up). On this standard, in light of the extensive evidence put forward at
trial, we hold that the evidence was sufficient to support the jury’s verdicts.
Next, Banks, Anderson, and Davis assert that the district court abused its discretion
in refusing to give a multiple conspiracies instruction. But that instruction “is not required
unless the proof at trial demonstrates that [they] were involved only in separate conspiracies
unrelated to the overall conspiracy charged in the indictment.” United States v. Squillacote,
221 F.3d 542, 574 (4th Cir. 2000) (cleaned up). And the failure to give a multiple
conspiracies instruction constitutes reversible error only upon showing that “the evidence
of multiple conspiracies [was] so strong in relation to that of a single conspiracy that the
jury probably would have acquitted on the conspiracy count[s] had it been given a
cautionary multiple-conspiracy instruction.” United States v. Bartko, 728 F.3d 327, 344
(4th Cir. 2013) (cleaned up). On this high standard and the evidence put forward at trial,
we find no reversible error as to this issue.
Lastly, Anderson claims that his convictions should be reversed because the
Government’s arguments at closing contradicted the terms of a pre-trial stipulation. We
have considered the underlying facts, including the terms of the stipulation and the
Government’s argument at closing, and conclude that Anderson’s argument is predicated
on an interpretation of the stipulation that goes beyond its actual language. Moreover, once
Anderson objected at trial, he agreed to resolving his concern through clarifying statements
(Continued)
8
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B. Sentencing Challenges
The Defendants raise several issues challenging the procedural or substantive
reasonableness of their sentences, which we review under a highly deferential standard of
review. United States v. Provance, 944 F.3d 213, 217 (4th Cir. 2019); see Gall v. United
States, 552 U.S. 38, 46 (2007) (instructing that appellate review of a sentence “is limited
to determining whether they are ‘reasonable’”). The Court’s first duty is to “ensure that the
district court committed no significant procedural error,” Gall, 552 U.S. at 51, such as by
“failing to properly calculate the applicable Sentencing Guidelines range, failing to
consider the 18 U.S.C. § 3553(a) factors, and failing to adequately explain the sentence—
‘including an explanation for any deviation from the Guidelines range,’” Provance, 944
F.3d at 218 (quoting Gall, 552 U.S. at 51). Only upon assuring ourselves that the sentence
is procedurally reasonable do we turn to the question of substantive reasonableness, which
requires “taking into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. at 219 (cleaned up).
1. Davis
Davis challenges the substantive reasonableness of his sentence, arguing that it was
predicated on a criminal history assessment that was too high. He notes that his three past
offenses consisted of “a juvenile adjudication and two minor convictions, none of which
resulted in a sentence of imprisonment,” making a criminal history category of III
unreasonable. Opening Br. 91. He asserts the district court should have recognized that
to the jury, which were given. We therefore find no basis for reversing his convictions as
a result of these circumstances.
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the resulting Guidelines range over-represented his criminal history, making a sentence
within that range substantively unreasonable.
We have reviewed the record and disagree with Davis. On appeal, we afford Davis’
within-Guidelines sentence a presumption of substantive reasonableness. See United
States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013). Davis has not come forward
with anything that rebuts that presumption. To the contrary, our review of the record and
sentencing transcript confirms that the district court’s chosen sentence was reasonable and
adequately explained.9
2. Anderson
Anderson challenges the procedural and substantive reasonableness of his sentence,
arguing (1) the district court clearly erred in imposing U.S.S.G. § 2D1.1(b)(1)’s firearm
offense-level enhancement because no evidence connected Anderson’s possession of a
firearm to his role in the drug conspiracy, and (2) the district court did not adequately
In his reply brief, Davis adds a second argument to support his contention that his
sentence is substantively unreasonable based on over-representation of his criminal history.
Citing newly enacted and retroactively applicable amendments to the Guidelines
(Amendment 821), he observes that the version of § 4A1.1(d) (2018) that had been used to
assess one criminal history point apiece for two of his prior state convictions was repealed.
Davis contends that the replacement language, which is retroactively applicable and found
in § 4A1.1(e) (2024), is narrower and would not apply to him, resulting in two fewer
criminal history points and a lower criminal history category. This change, he contends,
further supports his position that his sentence should be vacated and remanded for
resentencing based on his Guidelines range’s over-representing his criminal history.
We decline Davis’ invitation to address this Guidelines change now, but note that
nothing prohibits him from arguing for relief based on Amendment 821 in a motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2).
9
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explain the basis for imposing an upward variant sentence. Neither of these arguments has
merit.
The court did not clearly err in calculating Anderson’s offense level to include
§ 2D1.1(b)(1)’s firearm enhancement. That enhancement applies when a defendant
possesses a “dangerous weapon (including a firearm)” during the course of the drug
trafficking offense, “unless it is clearly improbable that the weapon was connected with
the offense.” § 2D1.1(b)(1) & cmt. n.11(A). The district court reasonably held that the
enhancement applied here given the extensive trial evidence that Anderson “suppl[ied]
large quantities of heroin in other areas, traveling around, perhaps, to do that. . . . [And it]
makes a great deal of sense that [the loaded, stolen handgun found in his possession] was
for the purpose of . . . protecting himself and drugs in the course of the conspiracy.” J.A.
6774–75.
We also reject Anderson’s contention that the district court failed to adequately
explain the basis for an upward-variant sentence. In imposing Anderson’s sentence, the
district court recapped his offense conduct, highlighting particular § 3553(a) factors and
individual characteristics that drove its sentencing decision. It was not required to do more.
The court’s explanation for the sentence it selected shows “a rationale tailored to the
particular case at hand and adequate to permit meaningful appellate review,” “lea[ving] no
doubt regarding the court’s reasons for selecting the particular sentence.” United States v.
Allmendinger, 706 F.3d 330, 343 (4th Cir. 2013); United States v. King, 673 F.3d 274, 283
(4th Cir. 2012) (tethering the adequacy of the district court’s sentencing explanation,
including any deviation from the Guidelines range, to providing an “individualized
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assessment” that “need not be elaborate or lengthy” so long as the court gives “serious
consideration” to its decision (citations omitted)).
3. Lockley
Lockley argues that his sentence is procedurally and substantively unreasonable
because (1) it relied in part on his participation in a murder that the jury had specifically
rejected finding him responsible for, and (2) it selected a sentence unreasonably aimed to
avoid a sentencing disparity between co-defendants when they were far more culpable
than he was. Having reviewed the record, we discern no error.
Under the preponderance-of-the-evidence standard applicable at sentencing, the
district court found that Lockley was aware of other conspirators’ violent acts, including
having witnessed a murder, even though the jury determined that the evidence did not
show beyond a reasonable doubt that murder was reasonably foreseeable to him in
furtherance of the racketeering conspiracy. As we have previously recognized in a
different, but comparable, context, “an acquittal does not necessarily establish the criminal
defendant’s lack of criminal culpability, and a jury cannot be said to have necessarily
rejected any facts when it returns a general verdict of not guilty. Instead, the different
standards of proof that govern at trial and sentencing enable the sentencing court to find a
fact by a preponderance of the evidence that the jury may not have found beyond a
reasonable doubt.” United States v. Jinwright, 683 F.3d 471, 484 (4th Cir. 2012) (cleaned
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up).10 The district court thus did not err in considering Lockley’s role in the murder despite
the jury’s finding.
We also reject Lockley’s argument that his sentence is substantively unreasonable.
In so arguing, he seriously understates the record evidence as to his role in the offense
conduct. The district court ably supported the basis for the sentence it imposed, setting out
in detail the offense conduct and other § 3353(a) factors that led to its decision. Moreover,
the district court—which was intimately familiar with the specific nuances in each of the
co-defendants’ conduct—acted within its “sizeable discretion” to assess the Defendants’
relative culpability in considering the statutory instruction to impose sentences that avoid
unwarranted sentencing disparities. United States v. Abu Ali, 528 F.3d 210, 266 (4th Cir.
2008); see 18 U.S.C. § 3553(a)(6) (stating that one of the factors to consider in sentencing
is “the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct”); United States v. Engle, 592 F.3d
495, 500 (4th Cir. 2010) (“Given the institutional advantages of district courts with regard
to sentencing matters, all sentences, including sentences significantly outside the
We note that on April 17, 2024, the United States Sentencing Commission
announced amendments to the Guidelines that will “prohibit” acquitted conduct from being
used in calculating the Guidelines range. U.S. Sentencing Comm’n News Release,
Commission Votes Unanimously to Pass Package of Reforms Including Limit on Use of
Acquitted
Conduct
in
Sentencing
Guidelines
(April
17,
2024),
https://www.ussc.gov/about/news/press-releases/april-17-2024 (last visited June 5, 2024)
[https://perma.cc/3MTH-XRGC]. Assuming Congress does not alter them, those
amendments do not go into effect until November 1, 2024. Id. For that reason, those
amendments have no bearing on our review.
10
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Guidelines range, must be reviewed under a deferential abuse-of-discretion standard.”
(cleaned up)).
4. Banks
Banks contends that his sentence is procedurally unreasonable because the district
court held him responsible for at least 196 grams of cocaine base, which he contends was
too much and thus made his offense level too high. He argues that the district court’s drugweight calculation was inconsistent with the jury’s verdict because the jury’s rejection of
a drug weight of “280 grams or more” necessarily means that it did not believe him to be
responsible for some of the drug quantity that the district court later relied on at
sentencing. He also contends that the district court improperly speculated about the drug
weight for which to hold him responsible by engaging in random extrapolations rather
than focusing on precise testimony to support the amounts.
We review for clear error the district court’s calculation of drug weight for purposes
of establishing a defendant’s Sentencing Guidelines offense level. United States v.
Randall, 171 F.3d 195, 210 (4th Cir. 1999). The Guidelines notes instruct that when no
known amount of drugs can be relied on to establish a defendant’s attributable drug
weight, the district court must “approximate the quantity of the controlled substance” at
issue. U.S.S.G. § 2D1.1 cmt. n.5. In undertaking that task, district courts “enjoy
considerable leeway” and “may give weight to any relevant information before it,
including uncorroborated hearsay, provided that the information has sufficient indicia of
reliability to support its accuracy.” United States v. Williamson, 953 F.3d 264, 273 (4th
Cir. 2020) (cleaned up); see also United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004)
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(observing that “a district court need not ‘err[]’ on the side of caution or otherwise; it must
only determine that it was more likely than not that the defendant was responsible for at
least the drug quantity attributed to him”). Further, “sentencing courts may consider
acquitted conduct in establishing drug amounts for the purpose of sentencing, so long as
the amounts are established by a preponderance of the evidence.” Perry, 560 F.3d at 258.
That said, courts must “exercise caution in estimating drug quantity at sentencing, and
[must] not attribute speculative or scantily supported amounts to defendants.” Williamson,
953 F.3d at 273.
Wherever the line between a proper estimate and speculation lies, it is far removed
from what the district court did here. As the district court recounted, holding Banks
responsible for 196 grams was a conservative estimate based on the evidence before it.
Banks had participated in a multi-year conspiracy where he supervised others also
engaged in the distribution of cocaine base. The district court reasonably extrapolated an
approximate amount of cocaine base attributable to Banks based on his role in the
narcotics conspiracy. It did not clearly err in that calculation, nor is any plain error
otherwise evident from the record.11
This argument fails for another reason too. Even if Banks were correct that the
district court miscalculated the drug weight, any error at sentencing would have been
harmless. At sentencing, the district court repeatedly stated that the Guidelines were just
one factor in determining Banks’ sentence, and it also expressly stated that “regardless of
any error that I may have made in calculating the guidelines,” “[t]he sentence that I have
announced is the sentence that I believe is reasonable” based on the totality of the § 3553(a)
analysis. J.A. 6438. So even assuming error occurred, we can be confident that the sentence
would not have changed as a result of the drug-weight calculation and his sentence is
otherwise reasonable.
11
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III.
For the reasons set out above, we reverse Davis’ § 922(g) convictions (Counts 16
and 30) for Rehaif error that is cognizable on plain-error review. We vacate and remand
his criminal judgment solely for the district court to enter an amended judgment and
sentence consistent with this decision without the need for plenary resentencing. As to the
Defendants’ other arguments, we reject them and thus affirm their convictions and
sentences.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
WITH INSTRUCTIONS
46
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APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
v.
DANTE BAILEY, et al.
*
*
Criminal Action No. CCB-16-267
*
*
*
*
*
*****
AMENDED MEMORANDUM
The defendants in this case were convicted of a variety of racketeering conspiracy,
conspiracy to distribute controlled substances, firearm possession, and murder charges. Now
pending are a motion to reopen the suppression hearing and for a new trial for defendant Sydni
Frazier (ECF 1502) and a motion for a new trial for remaining defendants Dante Bailey, Randy
Banks, Jamal Lockley, Corloyd Anderson, and Shakeen Davis (ECF 1505). The defendants also
submitted a supplemental memorandum (ECF 1514) in support of their motion, offering
additional evidence. The government opposed these motions in one consolidated response (ECF
1554), and the defendants replied in support of their original motions (ECF 1609; ECF 1622).
Other supplemental memoranda have been filed and are considered in this opinion. 1
The defendants argue that a police officer involved in the investigation failed in 2016 and
2017 to disclose his past misconduct (not directly related to their case) in search warrant
affidavits that produced evidence used against them; they argue that this evidence is tainted and
that they should all get new trials. A supplemental memorandum (ECF 1691) identifies two 2009
cases in which, they say, the officer lied. The government responds that the misconduct in
question is mere impeachment evidence that does not contradict the substantive facts used to
1
The court also has considered the various motions to seal, which are not opposed. Finding that sealing is justified
based on the well-documented risk public identification poses to cooperating witnesses in criminal cases,
particularly those involving violence such as this one, the motions will be granted.
Case 1:16-cr-00267-CCB Document 1756 Filed 05/09/22 Page 2 of 24
APPENDIX B
support probable cause for those searches; regardless, he did not testify at trial, and evidence tied
to him was amply corroborated.
The issues have been briefed, and no oral argument is necessary. Local Rule 105.6 (D.
Md. 2021). For the reasons stated herein, the court will deny the defendants’ motions.
BACKGROUND
Detective Ivo Louvado was a corrupt Baltimore City police officer who, while executing
a search in February 2009 with a squad including certain other corrupt BPD officers, stole and
resold three kilograms of cocaine — a fact that did not surface with direct evidence until April
2019. In 2010, he was detailed to a task force with the Bureau of Alcohol, Tobacco, and
Firearms (ATF). While on the ATF task force, he participated in an investigation of the
defendants’ criminal enterprise. The relevant details of that investigation, the defendants’
prosecution, and the investigation into Louvado follow.
Investigation
The MMP investigation: Homeland Security (2015) and ATF (2016–17)
In March 2016, the ATF became involved in an investigation of a Bloods gang subset
known as the Murdaland Mafia Piru (MMP). But key evidence used in the eventual MMP
prosecutions was generated even before the ATF’s involvement.
The investigation of MMP was years in the making, and it was conducted by over a
hundred federal, state, and local law enforcement officers even before Louvado’s and the ATF’s
involvement. Before ATF’s involvement, law enforcement officers from Homeland Security
Investigations and Baltimore County and City police investigated MMP. Officers conducted
traffic stops and searches from February through May of 2015, the evidence from which was
used to obtain authorization in June and July 2015 for wiretaps of the gang’s heroin supplier —
Case 1:16-cr-00267-CCB Document 1756 Filed 05/09/22 Page 3 of 24
APPENDIX B
ultimately, there were eight wiretaps. Based on these intercepted communications (in which the
heroin supplier discussed drug trafficking, guns, and violence with MMP members including
defendants Bailey and Lockley), investigators conducted more traffic stops and searches, seizing
drugs and other evidence in the summer of 2015. This investigation wound down that summer
and included Bailey’s July 2015 arrest.
Outside of the 2015 HSI/BCPD/BPD investigation, routine police work also yielded
evidence supporting the MMP prosecutions, much of it predating Louvado’s and the ATF’s
involvement. Service calls, traffic stops, and seizures in 2012, 2014, 2015, and 2016 led to the
recovery of drugs, guns, and cash from the defendants.
After the ATF’s involvement, which began in March 2016, investigators conducted four
wiretaps in July and August 2016. They used confidential informants to engage in recorded
controlled narcotics purchases, going on to search Bailey’s home in May 2016 and his iCloud
account in August 2016 as well as 36 seized phones and electronic devices and social media
accounts in January 2017. A February 2017 arrest of Davis yielded drugs, a gun, $1,373 in cash,
and four cell phones. Intercepted jail communications in September 2017 revealed that Bailey
had ordered a hit on a cooperating witness, and a search of the assigned hitman’s home yielded
guns, a bulletproof vest, cell phones, and the hit letter itself. Jail calls throughout this period
implicated the defendants in a wide variety of criminal activity, and forty-five such calls were
introduced at trial. The evidence at trial was overwhelming.
Louvado’s participation in the ATF investigation
Louvado was part of the MMP investigation after the ATF joined. There were two
instances in the 18-month investigation where Louvado acted outside the presence of other
officers in a moment or manner germane to the MMP case.
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APPENDIX B
•
•
First, he participated in a July 2016 controlled narcotics purchase in which he was
unaccompanied while he checked the confidential informant beforehand to make
sure the informant did not have any contraband. The actual transaction, however,
was audio- and video-recorded, and other officers were involved in the buy itself
and the recovery of the evidence. Evidence of this controlled buy was not
introduced at trial, nor was information about it included in any search warrant.
Second, in August 2016, Louvado surveilled Lockley as Lockley exited his home,
got into a car, and drove away. Louvado captured video corroborating his
observations.
Other than these two instances, there are no records of Louvado being alone with
evidence or in a position to fabricate information used later in the investigation.
The focus of the defendants’ motions is Louvado’s role in certain wiretaps and search
warrants between June 2016 and March 2017:
•
•
•
•
Louvado was the sole affiant for wiretaps of Dwight Jenkins (TT1) and Jacob
Bowling (TT2), approved in June 2016. (ECF 1505-4, TT1/TT2 Wiretap
Application). The probable cause was based on a series of four audio- and videorecorded controlled buys and text messages with informants in May and June
2016. Louvado wrote the report for one of the controlled buys but was
accompanied at all times by other officers; he did not participate at all in the
others.
That same affidavit was incorporated by reference into an ATF lead investigator’s
July 2016 application for a wiretap of Lockley (TT3). (ECF 1505-5, TT3 Wiretap
Application). The application discussed two calls from the TT1 wiretap, but the
TT3 probable cause was mainly based on a March 2016 controlled buy that
Louvado was not involved in. (Id. at 39–43). TT1 and TT2 information and the
Louvado affidavit was similarly incorporated by reference into an ATF
investigator’s August 2016 application for a wiretap of Anderson (TT4). (ECF
779-5, TT4 Wiretap Application ¶ 51).
Louvado applied in September 2016 for a warrant to search several residences and
vehicles, including Lockley’s home, Anderson’s home and business, and Davis’s
home. (ECF 1505-7, Takedown Warrant). The probable cause was based on
wiretap calls, a recorded controlled buy (during which Louvado was accompanied
at all times), and a confidential informant.
Louvado applied in February 2017 for a warrant to search Frazier’s cell phones;
the probable cause was based on ballistic and DNA evidence from a homicide
investigation Louvado was not part of and testimony about Frazier’s arrest, given
by someone other than Louvado. (ECF 1505-8 ¶¶ 13, 18–19, Frazier 1/25/17 Cell
Phone Warrant). So, too, for a February 2017 warrant application to search
Frazier’s Instagram account, the probable cause for which was based on public
Instagram posts, the aforementioned homicide investigation, and a recorded jail
call. (ECF 1505-9, Frazier @Getmneyboy Instagram Warrant).
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APPENDIX B
•
•
Louvado applied in March 2017 for a warrant to search Davis’s cell phones; the
probable cause was based on the circumstances of Davis’s arrest, which Louvado
was not involved in. (ECF 1505-10, Davis 2/24/17 Cell Phone Warrant).
Louvado applied in March 2017 for a warrant to search Davis’s Instagram, based
on Davis’s arrest and public Instagram posts. (ECF 1554-1, Davis @fh_dinero
Instagram Warrant).
The defendants do not allege any specific false statements of substantive fact. Instead,
they take issue with Louvado’s statements of his own veracity, since he did not disclose his
February 2009 drug thefts in these 2016 and 2017 affidavits and applications. For example, in
affidavits supporting search warrant applications for Frazier’s cell phones and Instagram account
and Shakeen Davis’s cell phones, Louvado declared that he had not “excluded any information
known to [him] that would defeat a determination of probable cause.” (ECF 1505-8, Frazier
1/25/17 Cell Phone Warrant 5 ¶ 11). The defendants argue that Louvado’s omission of his 2009
theft and resale of cocaine constitutes an omission that would have defeated probable cause.
The MMP prosecutions
These investigatory efforts led to September 2016 and June 2017 federal grand jury
indictments of the defendants for racketeering conspiracy, a variety of drug and gun offenses,
and murder in aid of racketeering. (ECF 46, Indictment Sep. 22, 2016; ECF 515, Indictment June
1, 2017).
Frazier moved in August 2017 to suppress evidence from the searches of his cell phone
and Instagram account. (ECFs 590–94). There was no evidentiary hearing, and the motions were
denied in August 2018. (ECF 875). Anderson and Lockley moved to suppress evidence from the
searches of their homes and evidence from the ATF wiretaps. (ECF 399, 398, 492, 493).
Notably, Davis did not move to suppress evidence from the searches of his cell phones or
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APPENDIX B
Instagram account. (See ECFs 385–91, 689–90, 694, 746). None of the defendants requested
Franks hearings to challenge Louvado’s sworn statements.
There were two hearings on pretrial motions, the first in June 2018 (ECF 800) and the
second in August 2018 (ECF 873). Louvado testified at the first hearing, exclusively addressing
a custodial statement made by defendant Dent during a transport ride. He did not testify at the
second hearing.
The defendants went to trial in March 2019 and all were convicted in April 2019 (ECFs
1149–77, 1180), except for Frazier; due to a medical emergency his counsel experienced midtrial, Frazier’s case was severed via mistrial, and he was convicted in March 2020 after a retrial.
(ECF 1453).
The investigation of Louvado
Unbeknownst to the MMP defendants, at the same time as their case was progressing, the
United States Attorney’s Office was investigating corruption within BPD’s Gun Trace Task
Force, since then the subject of significant media coverage. Members of the GTTF were indicted
for racketeering and racketeering conspiracy in February 2017, five months after the MMP
indictment.
Louvado, however, was not a member of the GTTF, and his name had not come up in the
GTTF investigation until July 2017, when a GTTF member admitted in a proffer that he and
another officer had stolen money while executing a February 2009 search; he suspected that a
third officer had also stolen that night. (ECF 1554-6, 7/17/17 Jenkins Proffer). That GTTF
member did not name Louvado in the same way as he named himself and two others as potential
thieves; he noted only that shortly after that, Louvado had bought a boat. (Id. at 3, 5). He did not
offer direct evidence that Louvado had participated in the misconduct, but rather seemed to have
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APPENDIX B
inferred from Louvado’s presence at the February 2009 search and from his purchase of a boat
that Louvado had participated. (Id. at 5). In August 2017, USAO supervisors and GTTF
prosecutors met with the MMP trial AUSAs to summarize the developments, and they explained
that the GTTF officer had not seen Louvado steal money, had never talked to Louvado about it,
and did not know whether Louvado had participated. (ECF 1554 at 41). Subpoenas of Louvado’s
financial records did not show large cash deposits shortly after the February 2009 search. (Id. at
43–44).
Months later, in March 2018, a former bail bondsman close to a GTTF officer told
investigators that Louvado had “got proceeds” from the February 2009 search, but that bail
bondsman was not present at the search (ECF 1554-8, Stepp Proffer), so his knowledge was
second-hand. When GTTF investigators interviewed Louvado first in May 2018 (ECF 1554-10,
Louvado Interview) and again in February 2019 (ECF 1554-12, Louvado Interview), he denied
any knowledge of criminal activity.
Federal GTTF investigators did not have direct evidence of Louvado’s misconduct until a
witness’s April 2019 proffer (three weeks into the MMP trial), in which he recounted that he had
seen Louvado steal the drugs in February 2009. (ECF 1554-13, Gladstone Proffer). The GTTF
investigators notified USAO supervisors of the direct evidence of Louvado’s misconduct, but the
USAO’s Giglio officers advised the MMP trial AUSAs that no Giglio obligation existed because
(1) Louvado was not a trial witness; (2) the information in Louvado affidavits was independently
verifiable; and (3) the GTTF investigation was still underway with potential covert steps to be
taken. (ECF 1554 at 48–49).
The April 2019 proffer’s direct evidence led to further investigation and the January 2020
official opening of a confidential matter against Louvado as a criminal target. The government
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APPENDIX B
filed a March 2020 criminal information against Louvado for lying to investigators about the
drug theft, and he pled guilty on November 6, 2020. (ECF 8 in United States v. Louvado, Crim.
No. 20-cr-0098-CCB (D. Md. filed Mar. 11, 2020)).
Previous cases with suspected Louvado dishonesty
The defendants also raised concerns about two prior cases in which Louvado was an
investigating agent. According to the defendants, these two cases gave the government reason to
doubt Louvado’s credibility as early as 2009.
First, the defendants raised a 2009 criminal case in which Louvado was an investigating
agent. United States v. Tyrone Powell and Gregory Fitzgerald, Crim. No. L-09-0373 (now CCB09-0373) (D. Md. criminal complaint filed June 22, 2009). The defendants filed a motion to
suppress evidence from a car stop because of alleged lies by Louvado, but Judge Legg ruled in
the Government’s favor. (ECF 1554-16, Ex. 16, Powell/Fitzgerald Joint App’x at 169–96, 232).
After the order, Powell pled guilty, and the Government elected in November 2009 to dismiss
the charges against Fitzgerald. (ECF 63 (Nov. 10, 2009) in Powell; ECF 1554-16 at 251–60).
Despite the dismissal, Judge Legg concluded that the defense had “chipped around the edges” of
Louvado’s testimony but had “not overcome . . . the credibility of [Louvado’s] testimony” about
the hand-to-hand drug transaction that had occurred. (ECF 1554-16 at 259). The Government
dismissed the Fitzgerald case because Fitzgerald was under investigation in another matter and a
separate, future indictment was possible. (Id. at 247–49). Fitzgerald was later indicted and pled
guilty in United States v. Fitzgerald, WDQ-12-289 (D. Md. Filed May 15, 2012).
Second, the defendants raised in their supplemental memorandum another case, United
States v. Gerrod Davis, Crim. No. CCB-09-0400 (D. Md. Filed July 21, 2009). Davis had filed a
September 2009 motion to suppress evidence obtained pursuant to a search warrant sworn out by
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APPENDIX B
Louvado, and he requested a Franks hearing. (ECF 1514-1, Davis ECF 15). The motion alleged
that certain critical allegations were false, and it included witness and documentary evidence
indicating that Louvado had actually been in Towson at a time when he said he had been
observing the defendant sell drugs. (Id. at 3). The motion also accused Louvado of misstating
information from an online database and of other misconduct. (Id. at 3–4). The Government did
not respond to this motion to suppress, instead dismissing the indictment in December 2009.
(ECF 1514-2, Davis ECF 18). No reason was stated in the dismissal motion or on the record.
Taken together, the defendants argue that these two cases show the Government knew or
had reason to know that Louvado had a propensity for making false statements under oath, and
they call for the production of documents and information to reveal what law enforcement
agencies knew about Louvado, when they knew it, and why they permitted him to swear out
wiretap and search warrant affidavits.
Moore EEOC action
Finally, in November 2021, the defendants submitted another supplemental memorandum
(ECF 1692) in support of their motion for a new trial, this time discussing ATF Special Agent
Timothy Moore’s credibility rather than Louvado’s. Moore’s credibility was at issue because the
government’s opposition to the defendants’ Louvado-focused motion for a new trial detailed how
Moore and Special Agent Christian Aanonsen, rather than Louvado, were the key figures in the
investigation.
The supplemental memorandum recounted the Government’s April 2021 disclosure of an
unrelated Equal Employment Opportunity Commission case whose final liability decision did
not directly refer to Moore but did find for the complainant. (ECF 1692-3).
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APPENDIX B
ANALYSIS
The defendants have moved for a new trial under Rule 33 and Brady/Giglio. The court
considers each in turn.
I.
New evidence — Rule 33
Rule 33 of the Federal Rules of Criminal Procedure provides that “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial to the defendant if the interest
of justice so requires.” Fed. R. Crim. P. 33(a). Such motions should be awarded “sparingly,” as
“a jury verdict is not to be overturned except in the rare circumstance when the evidence ‘weighs
heavily’ against it.” United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (quoting United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)). Whether to grant or deny a motion for a new
trial is within the district court’s broad discretion, which should be disturbed only in very limited
circumstances. Perry, 335 F.3d at 320.
The Fourth Circuit has developed a five-part test for evaluating motions for a new trial
based on newly discovered evidence. A motion for a new trial should only be granted if:
(1) the evidence is newly discovered;
(2) the movant exercised due diligence in discovering the evidence;
(3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material to the issues; and
(5) the evidence would probably result in an acquittal at a new trial.
United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) (going on to note that the evidence of
guilt from other witnesses was “overwhelming” and that the district court had properly denied
the motion for mistrial). A motion for a new trial requires a defendant to establish each of the
five elements. United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
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APPENDIX B
The defendants’ core argument is that various judges would have denied key wiretaps
and search warrants had Louvado disclosed his misconduct in the affidavits supporting those
applications, because those judges would not have found his MMP-related statements credible.
Louvado was the only affiant in those applications, and the defendants say the evidence resulting
from those wiretaps and searches is tainted, effectively dismantling the government’s case
against all five defendants. Specifically, the defendants argue for the suppression of all evidence
obtained as a result of the two wiretaps (TT1 and TT2) for which Louvado was the affiant; two
additional wiretaps (TT3 and TT4) where the affidavit incorporated by reference Louvado’s
affidavit; and the 15 search warrants where Louvado was the affiant.
The defendants’ Rule 33 motion hinges on the third, fourth, and fifth Chavis factors. The
court finds that the evidence of Louvado’s prior misconduct is impeachment evidence (see § I.A,
infra) that is not material to the issues involved in this case and would not probably result in an
acquittal at a new trial (see § I.B, infra).
A. Mere impeachment evidence
First, the evidence of Louvado’s misconduct is mere impeachment evidence. It calls into
question the credibility of Louvado’s claim that he believed in the credibility of five confidential
informants whom investigators had used to make controlled drug purchases. This statement from
his affidavit in support of TT1 was later incorporated into the applications for wiretaps TT2,
TT3, and TT4. Those wiretaps produced evidence that formed the core of September 2016 and
February 2017 search warrant applications that Louvado swore out.
This is “classic impeachment evidence that cannot satisfy the third prong of the Chavis
test.” United States v. Ali, 991 F.3d 561, 571 (4th Cir. 2021). This evidence “does not directly
support some alternate theory of the crimes, nor does it provide any legal justification for” the
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APPENDIX B
defendants’ actions. Id. (citation and quotations omitted). Rather, it merely calls into question
Louvado’s “honesty on an issue orthogonal to the defendant’s guilt.” Id. (citation omitted).
While Louvado’s theft and resale of cocaine represents a deplorable betrayal of the public trust,
this misconduct is not directly relevant to the purpose of his initial affidavit, in which he vouched
for the credibility of key informants. That substantive connection would have been stronger if his
proven misconduct and his affidavit statements were more tightly connected — for example, if
his misconduct was that he had been known to lie about informants’ statements and his affidavit
primarily recounted what informants did or said. But that is not the case here. As impeachment
evidence, the evidence of his theft goes only to Louvado’s credibility and does not warrant the
grant of a new trial. Ali, 991 F.3d 561, 571 (citing United States v. Custis, 988 F.2d 1355, 1359
(4th Cir. 1993) (“Merely impeaching” evidence is ordinarily insufficient to justify a new trial)
(cleaned up)). See also United States v. Robinson, 627 F.3d 941, 948–51 (4th Cir. 2010)
(discussed at greater length in § I.B.3, infra). 2
The defendants cite United States v. Fisher to argue that Louvado’s misconduct is not
mere impeachment evidence. 711 F.3d 460 (4th Cir. 2013). The case is similar at first glance: An
officer-affiant who had committed fraud and theft lied in the sole sworn affidavit underpinning a
search warrant for the defendant’s residence and vehicle. Id. at 462. Those searches produced the
evidence forming the basis of the charge — though the Fisher defendant pled guilty rather than
go to trial. If the Fisher defendant had known of the officer-affiant’s misconduct, he would have
filed a motion to suppress that may have been successful. Id. at 463. The Fisher court held “that
2
The same analysis applies regarding the 2009 Powell/Fitzgerald and Davis cases, where the defendants argue that
the true, submerged motive for the dismissals was that Louvado had lied pretrial. While the Government provides
a compelling alternative explanation for the dismissal in Fitzgerald, the reasoning for the Davis dismissal remains
unclear. Regardless, the Davis dismissal (and, less critically, the Fitzgerald dismissal) is, at best, impeachment
evidence that does not meet the third requirement of the Chavis test. Failing to meet this requirement of the Rule
33 analysis, the court will consider Davis again only in the Brady/Giglio context, in which impeaching evidence is
not barred and it is relevant to inquire into the prosecution’s imputed knowledge (see § II, infra).
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APPENDIX B
the officer’s affirmative misrepresentation, which . . . tinged the entire proceeding, rendered the
defendant’s pleas involuntary and violated his due process rights.” Id. at 462.
But the facts of Fisher are distinguishable, and Bailey’s case does not present “highly
uncommon circumstances in which gross police misconduct goes to the heart of the
prosecution’s case.” Id. at 466. Though the Fisher officer-affiant had, like Louvado, committed
theft unrelated to the case, he had also committed misconduct directly related to the Fisher case.
The officer-affiant had lied about the source of the information he used in the affidavit, falsely
attributing that information to a particular confidential informant. Id. at 463. The Fisher court did
not make much of the officer-affiant’s theft not being noted in the affidavit; instead, the
untruthful statements in question concerned the informants and information central to the
probable cause determination in Fisher’s case specifically.
While it need not be the case that a motion to suppress undoubtedly would have prevailed
if the defendant had known of the officer’s misconduct, there is a wide gap between deliberate
but tangential omissions about an affiant’s general credibility and deliberate falsehoods with real
factual nexus to the case itself. The Louvado misconduct is mere impeachment evidence that
does not warrant a new trial under Rule 33.
B. Materiality to the issues and probability of acquittal
This impeachment analysis bleeds into the other two key considerations: whether
evidence of Louvado’s misconduct was material to the issues of the defendants’ case and
whether the evidence would likely have resulted in an acquittal. The two questions are bound
together closely. 3 Fourth Circuit caselaw does not provide an exact definition of materiality in
3
In other Circuits applying the nearly identical Berry Test to analyze Rule 33 motions based on newly discovered
evidence, “[t]he requirement that the evidence be material and not cumulative is closely related to the requirement
that the evidence be such that it would probably produce an acquittal.” 3 Charles Alan Wright & Arthur R. Miller,
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APPENDIX B
the Rule 33 new evidence context, and the parties’ briefs alternate between applying the
materiality standards from Brady/Giglio nondisclosures 4 and Franks suppression hearings. 5
Under either standard, however, the Louvado evidence was not material to this case.
1. Brady Analysis
The Brady analysis finds materiality where there “is a ‘reasonable probability’ of a
different result” had the favorable evidence been disclosed, such that the undisclosed information
“undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). As discussed in § II, infra, the court
finds that the evidence of Louvado’s theft was not material.
2. Franks Analysis
A Franks materiality analysis looks at whether the omitted information was “necessary to
the finding of probable cause.” Franks, 438 U.S. at 156. The court considers the “totality of the
circumstances,” evaluating the affidavit as a whole and all circumstances set forth within.
Colkley, 899 F.2d at 301–02. This includes the effect the omitted information had on the
reliability of the affiant’s information, whether the judge could properly consider the facts in the
affidavit as a basis for probable cause, and whether sufficient information remains to justify
Federal Practice and Procedure § 584 n.20 (4th ed. 2021) (collecting cases). The Berry factors are: (1) the
evidence is truly newly discovered; (2) the failure to learn of the alleged newly discovered evidence was not
because of a lack of due diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the alleged
newly discovered evidence is material; and (5) the alleged newly discovered evidence is of such a nature that if
introduced at trial it would probably produce an acquittal. Id. § 584 n.8; see, e.g., United States v. Forbes, 790
F.3d 403, 406–407 (2d Cir. 2015).
4
To prove materiality of a Brady/Giglio nondisclosure, the defendant must show “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A
reasonable probability is a probability sufficient to undermine the confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 682 (1985) (internal quotation marks omitted); accord United States v. Robinson, 627 F.3d
942, 951–52 (4th Cir. 2010).
5
To prove materiality in a Franks suppression hearing, “the defendant must show that ‘with the affidavit’s false
material set to one side, the affidavit’s remaining content is insufficient to establish probable cause.’” United
States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016) (quoting Franks v. Delaware, 438 U.S. 154, 156 (4th Cir. 2016)).
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APPENDIX B
probable cause even after excluding the statements colored by the omitted information. See
United States v. Lull, 824 F.3d 109, 118 (4th Cir. 2016).
The defendants rely heavily on United States v. Lull, in which the affiant omitted facts
about his confidential informant’s dishonest conduct during the controlled buy that substantiated
a subsequent warrant application. Lull, 824 F.3d at 118. Much of the information in the affidavit
came solely from that informant, and the magistrate could not accurately assess the reliability
and the veracity (and thus the significance) of the informant’s statements. Id. And when the Lull
court removed the informant’s information from the affidavit (considering only the information
actually presented to the magistrate), “little remain[ed]” — nothing identifying the defendant
specifically as the seller or connecting him to the drug transaction. Id. at 118–19, 119 n.3.
Lull is distinguishable from this case. As noted in § I.A, supra, the evidence of
Louvado’s thefts went to his credibility but did not directly relate to the facts of this particular
case as declared in his affidavit. In contrast, the Lull court focused almost exclusively on the
informant’s theft of the controlled buy money, an action that was not “separate” from the
controlled buy in the way Louvado’s was. Id. at 116. Instead, the Lull informant demonstrated
that he was unreliable “during the course of [that] very transaction.” Id. The Lull court discussed
the implications for the informant’s reliability but largely ignored the officer-affiant’s credibility,
which is the focus of the defendants’ claims about Louvado’s misconduct. Id. at 118. Finally,
eliminating the Lull informant’s contributions to the search warrant application left the
application facially insufficient. Id. at 119. Not so here; excluding every statement Louvado
made as a remedy for misconduct that did not bear on the substantive, case-related information in
his affidavit is not warranted. Excluding any declarations from Louvado as to his personal
honesty or including the omitted information about the 2009 theft still leaves sufficient
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APPENDIX B
confidential informant and other information to justify probable cause for the wiretaps and
searches.
3. Corroboration and Louvado’s involvement
As a coda on materiality and likelihood of acquittal, this court considers United States v.
Robinson, where the Fourth Circuit found it immaterial that four officers who had participated in
the investigation had been dismissed for misconduct unrelated to the particular case. 627 F.3d
941, 948–51 (4th Cir. 2010). Their misconduct, “while serious, did not relate to Robinson’s case
or to the truth-finding function of the criminal proceeding.” Id. at 949.
In discussing the misconduct evidence’s materiality and the likelihood of acquittal, the
Fourth Circuit acknowledged the officers had played some role in obtaining evidence but noted
that the defendant had overstated their impact on the trial. Id. at 950. The counts in question
stemmed largely from a separate investigation not run by their office, an investigation where the
four dismissed officers “played only bit parts” and would have been paired at all times with
agents from another office not under scrutiny. Id. at 950. The court also pointed to “the
impressive amount of evidence” from other sources. Id. at 950.
These same reasons apply here. Louvado did not engage in misconduct related to the
defendants’ case and did not affect the truth-finding function of the trial. The substance of his
affidavit remains unchallenged as to the confidential informants he discussed. He was
accompanied by other officers at all times during controlled drug buys and search warrant
executions, and there is no indication that he was alone while making observations, taking
statements, or recovering evidence.
Robinson is not a perfect analogy. The Fourth Circuit noted that even eliminating “all
traces of evidence from the dismissed officers, there remain[ed] overwhelming evidence” of the
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APPENDIX B
defendant’s guilt. Id. at 950 (emphasis added). The defendants in this case urge this court to
follow this dictum, taking a hatchet to the wiretaps and search warrants. But a scalpel is more
appropriate given the tenuous connection between the misconduct and the case and given the
tremendous corroboration available from confidential informants, other investigators, and trial
witnesses. It is more appropriate to eliminate all traces of evidence solely from Louvado, paying
attention — as in Robinson — to when he was paired with other officers as opposed to when he
was alone with informants or solely responsible for evidence collection.
Finally, and with a view to the administration of justice overall, the Robinson court
hesitated to invite credibility mini-trials motivated by unrelated misconduct evidence. Sharing
these concerns, this court wishes to acknowledge Louvado’s wrongdoing but still preserve the
finality of criminal proceedings except where the interests of justice truly demand otherwise.
Louvado’s drug thefts are reprehensible but not material to the defendants’ case, and knowledge
of Louvado’s misconduct would not likely result in acquittal at a new trial.
II. Brady/Giglio
The defendants maintain that the government’s failure to disclose Louvado’s crimes
violated due process under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150, 154–55 (1972) (expanding Brady from exculpatory evidence to impeachment
evidence). To prove a Brady violation, a defendant must show that non-disclosed evidence was
(1) favorable to the accused, either because it was exculpatory or impeaching; (2) material to the
verdict at trial; and (3) suppressed by the prosecution (i.e., the prosecution had it but failed to
disclose it). Moore v. Illinois, 408 U.S. 786, 794–95 (1972); accord United States v. Chavez, 894
F.3d 593, 600 (4th Cir. 2018), cert. denied, 139 S. Ct. 278 (2018). The Fourth Circuit has
instructed courts to be “cautious . . . about importing the panoply of Brady protections from trial
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APPENDIX B
practice into warrant application proceedings.” United States v. Colkley, 899 F.2d 297, 302 (4th
Cir. 1990).
Prosecutors are responsible for obtaining and disclosing evidence. Law enforcement
officers have a correlative duty to turn over to the prosecutor any material evidence that is
favorable to a defendant. See Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846–47 (4th
Cir. 1964); see also Owens v. Balt. City State’s Attorney’s Office, 767 F.3d 379, 396 (4th Cir.
2014), cert. denied sub nom. Balt. City Police Dep’t v. Owens, 575 U.S. 983 (2015). Notably, in
some circumstances, “the knowledge of some who are part of the investigative team is imputed
to prosecutors regardless of the prosecutors’ actual awareness.” United States v. Robinson, 627
F.3d 941, 951 (4th Cir. 2010); accord Kyles v. Whitley, 514 U.S. 419, 437 (1995). Nevertheless,
there are no “hard and fast lines about the scope of Brady imputation . . . .” Robinson, 627 F.3d
at 952.
The Brady right is, at its core, a “trial right.” United States v. Moussaoui, 591 F.3d 263,
285–86 (4th Cir. 2010) (discussing but not ultimately resolving whether to extend the Brady
right to exculpatory information, as distinguished from impeachment evidence, in the pretrial
context of guilty pleas). 6 “It requires a prosecutor to disclose evidence favorable to the defense if
the evidence is material to either guilt or punishment, and exists to preserve the fairness of a trial
verdict and to minimize the chance that an innocent person would be found guilty.” Moussaoui,
591 F.3d at 285.
6
Though there is a well defined circuit split on the question, at least the First, Second, and Fifth Circuits have also
expressed doubts about whether the Brady right is active pretrial, specifically in the guilty plea context. See
United States v. Mathur, 624 F.3d 498, 506–07 (1st Cir. 2010) (“The animating principle of Brady is the
avoidance of an unfair trial. It is, therefore, universally acknowledged that the right memorialized in Brady is a
trial right.” (internal citations and quotation marks omitted)); United States v. Meza, 843 Fed. App’x 592, 599 n.3
(5th Cir. 2021) (citing Alvarez v. City of Brownsville, 904 F.3d 382, 395 (5th Cir. 2018)); Friedman v. Rehal, 618
F.3d 142, 154 (2d Cir. 2010). Unpublished cases are cited for persuasive reasoning, not binding precedent.
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APPENDIX B
Neither the Supreme Court nor the Fourth Circuit has ruled on whether the right covers
impeachment information at the search warrant stage. The Constitution does not require the
government to disclose material impeachment evidence prior to a plea agreement. United States
v. Ruiz, 536 U.S. 622, 629–33 (2002). In Ruiz, the Court noted first that impeachment
information is special in relation to the fairness of a trial, not in relation to the voluntariness of a
plea. Ruiz, 536 U.S. at 629. Second, the due process considerations that motivate Brady/Giglio
factor in not only (1) the nature of the defendant’s private interest in disclosure of impeachment
information but also (2) the value of a disclosure requirement at that stage and (3) the adverse
impact of such a disclosure requirement upon the government’s interests. Id. at 631 (citing Ake v.
Oklahoma, 470 U.S. 68, 77 (1985)). The Ruiz court additionally acknowledged the government’s
concern over premature disclosure of government witness information, which could disrupt
ongoing investigations. Id. at 631–32.
Brady also imposes a materiality requirement. Evidence is “material” to the verdict at
trial if “there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceedings would have been different. A reasonable probability is a probability
sufficient to undermine the confidence in the outcome.” United States v. Bagley,
473 U.S. 667, 682 (1985) (internal quotation and citation omitted); accord United States v.
Robinson, 627 F.3d 942, 950–52 (4th Cir. 2010). Thus, “Brady does not ‘automatically require a
new trial whenever a combing of the prosecutors’ files after the trial has disclosed evidence
possibly useful to the defense but not likely to have changed the verdict.’” Burr v. Jackson, 19
F.4th 395, 410 (4th Cir. 2021) (quoting Bagley, 473 U.S. at 677). The court must examine the
trial record and evaluate the withheld evidence in the context of the entire record to make its
determination as to the reasonable probability of a different result. Turner v. United States, 137
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APPENDIX B
S. Ct. 1885, 1893 (2017) (cleaned up) (citing United States v. Agurs, 427 U.S. 97, 112 (1976),
and Cone v. Bell, 556 U.S. 449, 469–70 (2009)). “As a general matter,” a showing that there is
“evidence that merely impeaches those who do not testify lacks relevance, much less
materiality.” United States v. King, 628 F.3d 693, 703–04 (4th Cir. 2011) (citing United States v.
Sanchez, 118 F.3d 192, 197 (4th Cir. 1997)) (emphasis added).
The core issues in this case are (1) whether Brady reaches search warrant impeachment
omissions, and whether the government knew of (2) material impeachment information (3) in
time for a disclosure that would affect the suppression hearings and therefore the trial.
The defendants argue that Louvado’s misconduct affected their trial rights, because the
outcome of the trial would have been more favorable to them had they or the warrant-issuing
judges known of the misconduct in time for a Franks challenge. They say this as though the
government’s case depended entirely on Louvado’s testimony — at least at the warrant
application stage, even if not at trial. As with other arguments they make in their motion, their
theory of the case relies on the notion that anything Louvado touched would be excluded from
trial, effectively dismantling the government’s case in one fell swoop.
The government, meanwhile, argues first that Brady applies only to trials and exists to
preserve the fairness of a trial verdict and to prevent wrongful convictions. They note that Ruiz’s
limitations on the Brady right should apply not just to the guilty plea stage but also to search
warrant applications. They argue that courts have not expanded the Brady/Giglio obligation to
search warrant affiants who did not testify at trial, especially not where the impeachment
evidence is unrelated to the facts of the case. On the contrary, the Fourth Circuit has expressed
caution about expanding Brady to warrant application proceedings. United States v. Clenney, 631
F.3d 658, 665 (4th Cir. 2011) (citing Colkley, 899 F.2d at 302–03). Requiring warrant
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APPENDIX B
applications to disclose all potentially exculpatory or impeaching information would be overly
burdensome given that the consequences of search or arrest are less severe and irremediable than
Brady’s primary concern: conviction. Colkley, 899 F.2d at 301–03. Instead, a Franks analysis
(see § I.B.2) should govern.
Even if Brady should extend backward to information that would impeach non-testifying
search warrant affiants, there was no Brady/Giglio obligation here because there was no
suppressed material information. Gun Trace Task Force investigators first learned of a direct
allegation of Louvado’s wrongdoing on April 9, 2019, three weeks into the MMP trial. They
immediately relayed the information to USAO supervisors. At that point, the trial AUSAs,
though not having been advised of any Brady or Giglio concerns with Louvado, had already
determined not to call Louvado as a witness, according to the government’s briefing (ECF 1554
at 47). After learning of the allegations of wrongdoing, the USAO supervisors saw no Giglio
obligation: Louvado would not testify at trial; there was no suggestion of misconduct during the
MMP investigation; the information in the Louvado-authored warrants could be independently
verified by other officers and evidence; and the covert GTTF investigation remained active.
The defendants do not state a true Brady/Giglio claim. They ask that they be granted a
new trial because the government did not (in time for June and August 2018 motions hearings)
disclose information that neither the USAO nor GTTF investigators learned until April 2019. On
the defendants’ theory, Brady/Giglio was first triggered not by the April 2019 direct allegations
of drug theft and resale (the focus of the defendants’ motion) but rather by a July 2017 witness
proffer circumstantially noting that Louvado had bought a new car and potentially a new boat
sometime shortly after an illegal search warrant execution by the GTTF. This is especially
tenuous given an August 2017 meeting with the same witness, who told USAO officials
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APPENDIX B
(including the trial AUSAs) that he had not seen Louvado steal money and he did not know
whether Louvado had participated. Summer 2018 subpoenas of Louvado’s financial records at
that time did not reveal any large cash infusions directly after the 2009 search, and Louvado
denied knowledge of any criminal activity in a March 2018 interview. There was no
corroborated accusation against Louvado at the time of the summer 2018 MMP motions hearings
or the spring 2019 trial, but the defendants nonetheless argue for suppression.
And even if the government had known of Louvado’s drug thefts at the time of the
motions hearings or the trial, the information is not material under Brady. Considering the
withheld evidence in the context of the entire record, this court concludes that “it is too little, too
weak, or too distant from the main evidentiary points to meet Brady’s standards.” Turner, 137 S.
Ct. at 1894. It is not reasonably probable that knowledge of Louvado’s unrelated drug thefts
could have led to a different result at trial, given the weakness of any hypothetical Franks
challenge (see § I.B.2), the fact that Louvado did not testify at trial, and that there was ample
corroboration for any information tied to Louvado. Confidence in the defendants’ guilty verdict
remains unshaken in the face of nondisclosure of this unavailable-at-the-time, non-case-related
impeachment information about a non-testifying witness.
The defendants’ last argument as to Louvado is that the dismissals of the 2009 Davis case
and, less convincingly, the 2009 Fitzgerald case, are Brady/Giglio evidence that the United
States Attorney’s Office knew of and should have disclosed even before the April 2019 first
direct misconduct allegations related to theft. Even assuming that Brady/Giglio obligated
disclosure about non-testifying search warrant affiants (an unsettled question, as noted supra),
this information is distinct from the kind of exculpatory or impeachment evidence that is most
clearly contemplated by the Brady/Giglio regime. Although it is possible that someone other than
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APPENDIX B
Louvado (that is, federal prosecutors who worked the 2009 cases) may have had some idea of
Louvado’s potential dishonesty and impropriety, the facts (1) that the affected officers and
prosecutors worked across state/federal lines and (2) that the alleged dishonesty in Davis and
Fitzgerald was unrelated to the investigation of the Bailey defendants together cut against a
finding that knowledge of the 2009 Fitzgerald and Davis allegations should be imputed to the
2019 Bailey prosecutors and investigators. See Robinson, 627 F.3d at 952. Indeed, courts have
routinely refused to extend Brady’s constructive knowledge doctrine where
doing so . . . would require prosecutors to do full interviews and background
checks on everyone who touched the case. And with good reason: it is one thing
to require prosecutors to inquire about whether police have turned up
exculpatory or impeachment evidence during their investigation. It is quite
another to require them, on pain of a possible retrial, to conduct disciplinary
inquiries into the general conduct of every officer working the case.
Id. (internal citations omitted). More importantly, the defendants’ allegations of Louvado’s 2009
dishonesty are circumstantial speculation at best and are not enough to justify the extraordinary
remedy they seek in comprehensive production of documents and information about every detail
of what law enforcement agencies knew about Louvado. Nor does this speculation warrant a new
trial.
The defendants’ final argument attacked Moore’s credibility by raising evidence of an
unrelated EEOC case Moore had been involved in. The final decision contained no cognizable
finding of Moore’s lack of credibility that would affect the reliability of his corroboration of the
overwhelming evidence produced during the MMP investigation. No new trial is warranted on
this basis.
III. Reopening Frazier’s Suppression hearing
For the reasons articulated above, Frazier has failed to show that there is a basis to reopen
his motion to suppress.
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APPENDIX B
CONCLUSION
For the reasons discussed above, the defendants’ motion for a new trial (ECF 1505) and
Frazier’s motion to reopen his suppression hearing (ECF 1502) will be denied. A separate Order
follows.
May 9, 2022
Date
/s/
Catherine C. Blake
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.