Professional Documents
Culture Documents
No. 12-4047
No. 12-4052
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:11-cr-00063-JRS-2; 3:11-cr-00063-JRS-1)
Argued:
February 1, 2013
Decided:
March 8, 2013
PER CURIAM:
Winston Sylvester Oliver, II and Warren Harold Brown were
tried jointly and convicted in the Eastern District of Virginia
for one count of conspiracy to commit robbery under 18 U.S.C.
1951(a) (2006), one count of attempt to commit robbery under 18
U.S.C. 2, 1951(a), and two counts of using or carrying a
firearm
in
furtherance
of
crime
of
violence,
18
U.S.C.
924(c).
motion
to
suppress,
and
both
appellants
argue
that
the
As explained below,
I.
First, Oliver argues that the district court abused its
discretion
in
denying
his
motion
to
sever
his
trial
from
Browns.
A.
We review a district courts ruling on a motion to sever
for
abuse
error.
of
discretion,
and
its
factual
findings
for
clear
2012);
1994).
United
States
v.
Shores,
33
F.3d
438,
442
(4th
Cir.
United
States v. Khan, 461 F.3d 477, 490-91 (4th Cir. 2006) (quoting
United States v. Strickland, 245 F.3d 368, 384 (4th Cir. 2001)).
A defendant must show that he was prejudiced by the denial of a
severance motion in order to establish that the district court
abused its broad discretion in that regard.
United States v.
statement
clearly
implicates
the
defendant.
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).
However, only statements that facially incriminate the defendant
violate
the
Confrontation
Clause
and
require
severance;
evidence
Confrontation
Richardson
introduced
Clause
v.
Marsh,
and
481
at
trial
therefore
U.S.
do
200,
do
not
208-11
not
violate
require
severance.
(1987);
statements
that
replaced
defendants
name
the
see
also
We have
with
the
the
defendant
when
combined
4
with
other
evidence
introduced at trial.
and
which
referred
generally
and
without
facial
B.
In this case, Browns statement was redacted by replacing
Olivers name with the term the driver.
the
person
third
and
in
grammatically
correct
phrases;
the
Accordingly,
we conclude that the district court did not abuse its discretion
in denying Olivers motion to sever.
II.
Second,
denying
his
Brown
argues
motion
to
that
the
suppress
district
his
court
statements
to
erred
in
Detective
A.
In
reviewing
motion
to
suppress,
[w]e
review
the
Id.
during
pre-trial
motion
to
suppress.
United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
6
questioning,
that
he
wishes
to
remain
silent,
the
that if a suspect has invoked his right to remain silent and has
requested an attorney, he may not be subject[ed] to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication,
exchanges,
or
conversations
with
the
police.
B.
Viewing the evidence in the light most favorable to the
Government, we conclude that the district court did not err in
denying Browns motion to suppress his incriminating statements.
Both Detective Ellett and Special Agent Umphlet followed proper
procedures in obtaining Miranda waivers from Brown. None of the
actions
taken
by
either
Detective
Ellett
or
Special
Agent
Blake,
2009)
571
F.3d
331,
340-41
(4th
Cir.
(finding
that
previously
invoked
his
right
to
counsel
is
not
functional
equivalent of interrogation).
Finally,
the
Supreme
Courts
decision
in
Montejo
v.
556
U.S.
and
778,
intelligent
786-87
(2009)
waiver
of
(holding
his
Miranda
defendants
rights
also
knowing
operates
as
III.
Finally,
both
Oliver
and
Brown
argue
that
the
district
A.
We review Double Jeopardy determinations de novo.
United
Jeopardy
Clause
protects
defendant
against
The
the
criminal
trial
and
being
and
multiple
emphasis
counts
omitted).
exposes
subjected
successive
Charging
defendant
to
to
single
the
risk
offense
of
in
multiple
punishments
for
unconstitutional.
the
same
offense,
and
is
therefore
Id. at 207.
A defendant who
32
F.3d
convictions
for
102,
107
separate
(4th
Cir.
crimes
of
the
Double
Jeopardy
United States v.
1994).
Additionally,
violence
can
lead
to
Clause
only
if
the
underlying
Id. at 494.
B.
Here, it is clear that the Double Jeopardy Clause does not
bar multiple charges under 924(c).
Conspiracy is a
Ayala, 601 F.3d 256, 267 (4th Cir. 2010) ([A] conspiracy is
itself
crime
of
violence
when
its
objectives
are
violent
person
liable
for
substantive
offenses
committed
by
co-
IV.
For the reasons explained above, we affirm the judgment of
the district court.
AFFIRMED
10