United States v. Gross

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4458

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ELMER GROSS, JR., a/k/a Grip, a/k/a Man,

Defendant - Appellant.

No. 03-4459

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES D. WILKES, a/k/a Turkey,

Defendant - Appellant.

No. 03-4543

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
RONALD EDDIE,

Defendant - Appellant.

No. 03-4641

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EARL FEASTER,

Defendant - Appellant.

No. 03-4673

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ELMER GROSS, SR., a/k/a Stink,

Defendant - Appellant.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
02-201-JFM)

Argued: February 3, 2006 Decided: June 28, 2006

2
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded in part by
unpublished opinion. Judge Duncan wrote the opinion, in which
Judge Traxler joined. Judge Gregory wrote a separate opinion
concurring in part and dissenting in part.

ARGUED: Gary Allen Ticknor, Elkridge, Maryland; Robert Henry
Waldman, Annapolis, Maryland, for Appellant. Christine Manuelian,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Neil I.
Jacobs, Rockville, Maryland, for Appellant Ronald Eddie; Frank
Policelli, Utica, New York, for Appellant James Earl Feaster;
Francis Albert Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland, for Appellant James Elmer Gross, Sr. Allen F. Loucks,
United States Attorney, Robert R. Harding, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

3
DUNCAN, Circuit Judge:

James Gross, Sr., James Gross, Jr., James Wilkes, James

Feaster and Ronald Eddie appeal their convictions and sentences for

numerous offenses arising out of a racketeering enterprise and

conspiracy operated in Baltimore, Maryland. For the reasons that

follow, we affirm all of the appellants’ convictions and affirm

Ronald Eddie’s sentence. We vacate the sentences of James Gross

Sr., James Gross, Jr., and James Wilkes, and remand for

resentencing consistent with United States v. Booker, 543 U.S. 220

(2005).

I.

At differing times, the wide-ranging conspiracy at issue

involved one or more, but rarely all, of the appellants

simultaneously. We therefore initially present only those facts

descriptive of the operation generally. We provide additional

facts as necessary to discuss the specific issues raised by

individual defendants.

James Gross, Sr. (“Gross Sr.”) and Louis Colvin (“Colvin”)

were incarcerated on federal drug charges from the early to late

1990s. While his father was in prison, James Gross, Jr. (“Gross

Jr.”) became involved in drug trafficking. When Gross Sr. and

Colvin were released, they joined and eventually assumed the

leadership of Gross Jr.’s drug trafficking operation. Testimony

4
would establish that the Gross-Colvin operation, and later, the

operation led by Gross Sr., trafficked in large quantities of

cocaine and heroin obtained from a variety of sources including

contacts located in New York and Delaware. Evidence introduced at

trial reflected that the enterprises made approximately $3,000 to

$3,500 a day selling heroin, and $8,000 to $10,000 a day selling

cocaine.

Using proceeds from the drug trafficking activities, Gross Sr.

and Colvin opened a nightclub called Strawberry’s 5000 in 1999.

Although Strawberry’s 5000 was the hub of their illicit activities,

Gross Sr. and Colvin also opened and ran other front businesses,

including another nightclub called Intellects.

Gross Sr. obtained an insurance policy for Strawberry’s 5000

that provided $300,000 in coverage for the building and $100,000 in

coverage for the business property that it contained. Because

Gross Sr. and Colvin had prior felony convictions, however, they

were unable to obtain a liquor license in their own names. They

recruited James Feaster (“Feaster”) to act as nominal owner of the

club and obtain the liquor license in his name. In documentation

to the Liquor Board, Feaster claimed that he was a 100% stockholder

of and was making ongoing financial contributions to the nightclub.

Gross Sr. and Colvin testified that they had obtained a food permit

for the club in their own names for logistical reasons. Gross Sr.

also testified that he worked for the club as a consultant. In

5
fact, Gross Sr. and Colvin owned Strawberry’s 5000; Feaster was

paid a salary and provided a sport utility vehicle for his

participation in the enterprise.

Throughout 1999, Feaster engaged in a pattern of behavior

reflecting inconsistent positions regarding his involvement with

Strawberry’s 5000. For example, he entered into a number of

financial transactions, including the refinancing of his home and

lease transactions for several new cars. In the documentation for

these transactions Feaster stated that he was employed as a college

campus security officer and worked a second job as a manager at

Strawberry’s 5000. He made no representations in these documents

regarding an ownership interest in the club. However, during this

same period, Feaster incorporated 5000 Entertainment LLC and

applied for the club’s liquor license. In February of 2000, the

Liquor Board issued the liquor license for Strawberry’s 5000 to

Feaster and 5000 Entertainment LLC.

In March of 2000, Strawberry’s 5000 was raided by the Drug

Enforcement Agency (“DEA”) in connection with an investigation into

the drug trafficking activities of Gross Sr. and Colvin. Feaster

represented to the agents that he was the owner and manager,

although he later admitted to the DEA that Gross Sr. and Colvin

were the true owners, and that he was paid a salary and had a car

leased for him in exchange for having the liquor license in his

name.

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 Later in March of 2000, Feaster informed the Liquor Board that

he had purchased Strawberry’s 5000, and made arrangements to have

the insurance policy transferred into the name of 5000

Entertainment LLC. The Liquor Board convened a hearing, at which

Colvin testified that Gross Sr. had told a club employee to testify

that Feaster was the owner of the club. Colvin also testified to

other conversations with Gross Sr. and Feaster about lying to the

Liquor Board regarding the ownership of Strawberry’s 5000. At the

conclusion of the hearing, the Board suspended the club’s liquor

license for thirty days.

As Colvin’s testimony at the Liquor Board hearing suggests,

his relationship with the Grosses had begun to deteriorate. It

deteriorated further in 2001, after Strawberry’s 5000 burned to the

ground. In the weeks prior to the fire, Gross Jr. talked to Colvin

about setting fire to the building to collect the insurance

proceeds. Colvin objected because of the club’s financial success.

Gross Jr. nevertheless approached Sean Chance (“Chance”) and Ronald

Eddie (“Eddie”) about the proposed arson. Colvin and a club

employee moved most of the television sets and much of the stereo

equipment to Intellects, the other night club owned by Gross Sr.

and Colvin. The alarm system was deactivated on January 20, 2001

using Gross Sr.’s alarm code, and was not reactivated prior to the

fire.

7
 On January 27, 2001, the day of the fire, Gross Jr., Chance

and Eddie obtained gasoline and crafted lighting devices using

tennis balls. They took the devices to Strawberry’s 5000, where

Chance acted as a lookout and Eddie and Gross Jr. set the fire.

Gross Sr. later informed Colvin that Gross Jr. had followed through

on the plan to burn Strawberry’s 5000.

On the day of the fire, Feaster had gone to the club and

observed that stereo equipment was missing. When he confronted

Colvin about it, Colvin claimed that the equipment was actually

rental property that had been returned. Feaster later admitted to

a Baltimore County Detective that he knew this statement was

false.1 Nevertheless, two days after the fire, Feaster contacted

the insurance company that held the policy on the club in order to

report the fire, and filed a claim for the limits of the policy.

When the insurance checks were received, Feaster was paid $30,000

of the proceeds.

By the summer of 2001, the relationship between Colvin and the

Grosses had disintegrated irreparably. The Grosses had come to

believe that Colvin was cutting them out of his business dealings.

For his part, Colvin discovered that Gross Jr. had been stealing

money from Intellects, which, by then, Colvin operated. This

1
On June 26, 2001, agents of the Bureau of Alcohol, Tobacco
and Firearms raided the Intellects nightclub and recovered pieces
of stereo equipment that had been removed from Strawberry’s 5000
prior to the fire.

8
discovery led to a fight between Gross Jr. and one of Colvin’s

employees. Colvin banned Gross Jr. from Intellects, which resulted

in a lawsuit against Colvin by the Grosses.

A government witness, Martin Young (“Young”) later testified

that, during this period, he witnessed Gross Jr. point a gun at

Colvin’s head while the three of them were in an automobile

together. Gross Jr. was in the back seat while Colvin was in

front. Young saw Gross Jr. point the gun, but Colvin did not.

Nevertheless, Colvin came to believe that the Grosses had put out

a hit on him, and the three had several tense encounters. On one

occasion, Gross Jr. and his confederates surrounded Colvin at

Intellects and threatened him. On another occasion, James Wilkes

(“Wilkes”), at Gross Jr.’s behest, attempted to lure Colvin away

from his security guards.

Matters came to a head between Colvin and the Grosses in

September of 2001, when Wilkes shot Colvin. The bullet broke

Colvin’s wrist and traveled through his upper arm. Wilkes was

witnessed fleeing the scene of the shooting. Wilkes was also later

identified by Colvin and other witnesses, who had also observed him

at Strawberry’s 5000 and Intellects.

At about the time of the final break with Colvin, Gross Jr.

began to experience difficulty obtaining drugs from his regular

sources and turned to a Nigerian supplier. To obtain the necessary

funds for the purchase of drugs, Gross Jr. and Chance planned an

9
armed robbery at a Stop, Shop ‘N Save store in Baltimore. On

September 13, 2001, Chance and another associate recruited by Gross

Jr. robbed the store of approximately $2,350. Gross Jr. remained

in the getaway car during the robbery. Both Gross and Chance were

armed with 9mm firearms.

II.

Following trial, appellants were convicted of numerous charges

related to their racketeering activities. James Gross Sr. was

convicted of racketeering in violation of 18 U.S.C. § 1962(c);

conspiracy to commit racketeering in violation of 18 U.S.C. §

1962(d); conspiracy to distribute and possession with the intent to

distribute narcotics in violation of 21 U.S.C. § 846; malicious

destruction of a building and vehicle by means of fire in violation

of 18 U.S.C. § 844(I); use of fire to commit a felony in violation

of 18 U.S.C. § 844(h)(1); two counts of witness tampering in

violation of 18 U.S.C. § 1512(b)(1); and mail fraud in violation of

18 U.S.C. § 1341. Gross Sr. was sentenced to a total term of 600

months in prison.

James Gross Jr. was convicted of racketeering in violation of

18 U.S.C. § 1962(c); conspiracy to commit racketeering in violation

of 18 U.S.C. § 1962(d); conspiracy to distribute and possession

with the intent to distribute narcotics in violation of 21 U.S.C.

§ 846; three counts of violent crimes in aid of racketeering in

10
violation of 18 U.S.C. § 1959(a)(3) & (5); two counts of malicious

destruction of a building and vehicle by means of fire in violation

of 18 U.S.C. § 844(I); use of fire to commit a felony in violation

of 18 U.S.C. § 844(h)(1); two counts of witness tampering in

violation of 18 U.S.C. § 1512(b)(1); mail fraud in violation of 18

U.S.C. § 1341; and possession of heroin with the intent to

distribute in violation of 21 U.S.C. § 841(a)(1). Gross Jr. was

sentenced to a total of 412 months in prison.

James Feaster was convicted of conspiracy to commit

racketeering in violation of 18 U.S.C. § 1962(d) and mail fraud in

violation of 18 U.S.C. § 1341. Feaster was sentenced to a total of

30 months in prison.

James Wilkes was convicted of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) and committing a

violent crime in aid of racketeering in violation of 18 U.S.C. §

1959(a)(3). Wilkes was sentenced to a total of 300 months in

prison.

Ronald Eddie was convicted of racketeering in violation of 18

U.S.C. § 1962(d); conspiracy to commit racketeering in violation of

18 U.S.C. § 1962(d); conspiracy to distribute and possession with

intent to distribute narcotics in violation of 21 U.S.C. § 846; and

malicious destruction of a building and vehicle by means of fire in

violation of 18 U.S.C. § 844(I). Eddie was sentenced to a total of

262 months in prison.

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 The appellants timely filed this appeal challenging various

aspects of their convictions and sentences.

III.

Appellants make numerous claims of error with respect to their

convictions, which we discuss in turn.2

A.

Appellants argue that the district court erred by failing to

conduct an in camera review of certain discovery materials that

were requested from, but not produced by, the government with

respect to government witness Sean Chance. Appellants argue that

the following list of documents should have been reviewed by the

court to determine whether they were discoverable under the Jencks

Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963) or

Giglio v. U.S., 405 U.S. 150 (1972):

(1) notes, summaries and other materials related to the

government’s interviews with witness Sean Chance;

(2) un-redacted grand jury testimony from the Bureau of

Alcohol, Tobacco and Firearms agent Brian Klas; and

2
James Wilkes and James Gross, Sr., appearing pro se, filed
supplemental briefs challenging other aspects of the proceedings
below. Having carefully reviewed their arguments, we find no
reversible error. In addition, we have reviewed Ronald Eddie’s
argument regarding the sufficiency of the allegations in the
indictment and find no reversible error.

12
 (3) Agent Klas’ investigative reports.

Appellants’ sought this information in pursuit of ammunition with

which to attack Chance’s credibility on cross-examination. After

reviewing the record, we find no error in the district court’s

decision not to conduct an in camera review of the requested

materials.

1. Jencks Act Claims

The Jencks Act requires the government to produce statements

made by a witness that relate to the subject matter of his or her

direct examination. 18 U.S.C. § 3500(b). Under the Jencks Act, a

“statement” is defined as an oral or written statement “signed or

otherwise adopted or approved” by the witness, a recording or

transcription that is a “substantially verbatim recital of an oral

statement made by [the] witness and recorded contemporaneously with

the making of such statement,” or testimony made before a grand

jury. 18 U.S.C. § 3500(e)(1)-(3). The Act does not cover an

investigator’s notes of an interview with a witness unless the

witness reviews and approves such notes. United States v.

Roseboro, 87 F.3d 642, 645 (4th Cir. 1996). We review the denial

of a request for materials under the Jencks Act for clear error.

Id.

Where the government contests disclosure of material, “the

Jencks Act vests trial judges with the affirmative duty of

administering the Act by deciding whether government documents

13
relating to witness testimony are to be safeguarded or produced.”

Id. In order to justify an in camera review of contested material,

the defendant must

first make a sufficiently specific request and provide
some indication that the witness gave a pretrial
statement . . . generally related to the witness' direct
testimony. The defendant’s showing need not be great,
but it must be more than a mere automatic demand for
government witness' statements. An inadequate foundation
may be grounds alone on which the court can properly deny
further inquiry.

Id. (emphasis added).

The district court’s decision not to conduct an in camera

review of the unredacted grand jury transcripts of Agent Klas and

Agent Klas’ investigative reports in relation to Sean Chance’s

testimony was not error because the appellants failed to make a

“sufficiently specific request” for such materials. Appellants

have not identified any specific request in the record identifying

the information sought and providing some indication that it

related to Chance’s direct testimony. A general request for “all

materials covered by the Jencks Act” fails to lay a sufficient

foundation to invoke the district court’s duty under the Act; the

initial responsibility to identify lies with the defendant, not

with the court.

The dissent argues that the district court’s decision not to

conduct an in camera review of the unredacted grand jury

transcripts in relation to Agent Klas’ testimony was error. This

is not the case, however, because appellants failed to make a

14
timely request therefor.3 The law in this circuit is that “[t]o

invoke a court's duty under the [Jencks] Act, a defendant must,

after the direct testimony of a government witness, first make a

sufficiently specific request and provide some indication that the

witness gave a pretrial statement to a government agent generally

related to the witness' direct testimony.” Roseboro, 87 F.3d at

645 (emphasis added). Indeed, the text of the Jencks Act limits

its own operation, including the mandate for in camera review under

subsection (c), to the period of time after a witness has testified

on direct examination. 18 U.S.C. §§ 3500(a) (“no statement or

report . . . which was made by a Government witness . . . shall be

the subject of subpoena, discovery, or inspection until said

witness has testified on direct examination in the trial of the

case.”), (c). Although the government can voluntarily agree to

disclose Jencks Act material prior to the time when the act would

require it do so, the act itself contains no requirement and, in

fact, provides no legal basis either to compel production or order

in camera inspection of contested materials prior to a witness’s

direct examination.

Appellants made their only specific request for the redacted

portions of the grand jury transcripts on January 16, 2003, several

3
In addressing this issue, we give appellants the benefit of
the doubt with respect to whether they have waived it. Although
one could construe appellants’ brief to raise this issue, it is
neither clearly presented nor fully argued therein.

15
weeks before Agent Klas’ direct examination on February 6, 2003.

J.A. 538-39. The district court denied this request on January 21,

2003. J.A. 555. There is nothing in the record to suggest that

appellants renewed this request or made a new Jencks Act request

for the unredacted transcripts after Agent Klas’ testimony. Had

appellants made a such request after Agent Klas testified and laid

the requisite foundation for an in camera inspection at that time,

we might reach a different conclusion today. However, the record

before us does not demonstrate that appellants made a timely

request that was sufficient to invoke the district court’s duties

under the Jencks Act.

Further, the district court’s decision not to conduct an in

camera review of notes, summaries and other materials related to

the government’s interviews with witness Sean Chance was not error

because the appellants failed to identify any representations made

by Chance that would constitute a “statement” for purposes of the

Jencks Act. Appellants point to nothing in the record to indicate

that Chance signed, adopted or approved any statements that he made

to the government. Nor do appellants point to evidence that the

government made any recording or transcription of a statement by

Chance. Because the appellants failed to lay a sufficient

foundation for the investigative materials related to Chance to

invoke the district court’s duty under the act, the district

16
court’s decision not review the Chance materials in camera did not

prejudice them.

2. Brady and Giglio Claims

In Brady, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of

the prosecution.” Brady, 373 U.S. at 87. “[E]vidence is

‘material’ under Brady, and the failure to disclose it justifies

setting aside a conviction, only where there exists a ‘reasonable

probability’ that had the evidence been disclosed the result at

trial would have been different.” Wood v. Bartholomew, 516 U.S. 1,

5 (1995) (citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)).

In Giglio, the Supreme Court held that, in cases where the

“reliability of a given witness may well be determinative of guilt

or innocence, nondisclosure of evidence affecting credibility” of

that witness is grounds for reversal. Giglio, 405 U.S. at 154

(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)) (internal

quotations omitted). However, reversal is warranted only if the

non-disclosure or suppression “‘could . . . in any reasonable

likelihood have affected the judgment of the jury.’” Id. (quoting

Napue, 360 U.S. at 271). The appellants have failed to establish

either Brady or Giglio error because they have not identified any

evidence related to their request for materials concerning Chance

17
that – if produced – would warrant reversal under either standard.

Chance was, at best, a peripheral player in the Gross/Colvin

Enterprise whose testimony will not bear the weight appellants

attempt to assign it.

B.

Gross Jr. argues that the district court erred in denying his

post-trial motion for judgment of acquittal on the charge of using

fire to commit a felony in violation of 18 U.S.C. § 844(h)(1)

because the government failed to indict him for or convict him of

the predicate offense of mail fraud in violation of 18 U.S.C. §

1341. We review the denial of a motion for judgment of acquittal

de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005).

Under § 844(h)(1), an individual “who uses fire or an

explosive to commit any felony which may be prosecuted in a court

of the United States . . . shall, in addition to the punishment

provided for such felony, be sentenced to imprisonment for 10

years.” 18 U.S.C. § 844(h)(1). Gross Jr. argues that this statute

does not create a stand-alone cause of action, but, rather,

requires the government to indict and obtain a conviction for

whatever predicate felony involved the use of fire or explosive.

Gross Jr. contends that because he was neither indicted for nor

convicted of mail fraud, the government failed to prove an

18
essential element of the § 844(h)(1) charge. We find Gross Jr.’s

argument unpersuasive.

We have not confronted this issue before in the context of a

§ 844(h)(1) charge, but have addressed a similar argument in the

context of a charge brought under 18 U.S.C. § 924(c)(1). See

United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). Under

§ 924(c)(1), “any person who, during and in relation to any crime

of violence or drug trafficking crime . . . for which the person

may be prosecuted in a court of the United States, uses or carries

a firearm . . . shall, in addition to the punishment provided for

such crime of violence or drug trafficking crime,” be subject to

additional penalties. 18 U.S.C. § 924(c)(1). We have recognized

that “18 U.S.C. § 844(h)(1) is almost identical to § 924(c)(1), it

differs only in the fact that the defendant must use fire or

explosive with the underlying crime.” United States v. Barnette,

211 F.3d 803, 813 (4th Cir. 2000).

In Crump, we held that a conviction for violation of §

924(c)(1) “does not depend on [the defendant] being convicted--

either previously or contemporaneously--of the predicate offense,

as long as all of the elements of that offense are proved and found

beyond a reasonable doubt.” Crump, 120 F.3d at 466. Based on the

similarities between § 844(h)(1) and § 924(c)(1), and our treatment

of § 924(c)(1) in Crump, we conclude that the government did not

need to indict Gross Jr. for or convict him of the predicate

19
offense in order to obtain a conviction for violation of §

844(h)(1). See United States v. Nguyen, 28 F.3d 477, 481 (5th Cir.

1994) (upholding § 844(h)(1) conviction based on strength of

evidence of predicate offense where defendant was contemporaneously

acquitted of predicate offense). The government did, however, need

to prove each element of the predicate offense to the jury beyond

a reasonable doubt in order to convict Gross Jr. under § 844(h)(1).

Although Gross Jr. did not challenge the sufficiency of the

evidence on this count, our independent review of the record

demonstrates that there was sufficient evidence to support the

jury’s verdict in this regard. Accordingly, we find no error in

the district court’s denial of Gross Jr.’s motion for judgment of

acquittal on count 10.

C.

Appellant Feaster argues that the district court erred in

denying his motion for severance based on the possible spillover

effect of the evidence admitted against his co-defendants. Feaster

argues that he was a minor player in the racketeering enterprise

who was not involved in the heinous acts of the co-defendants, and

that the evidence admitted against them prejudiced him.

We review a district court’s denial of a motion for severance

for abuse of discretion. United States v. Ford, 88 F.3d 1350, 1361

(4th Cir. 1996). A “party moving for severance must establish that

20
prejudice would result from a joint trial.” United States v.

Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992).

We find Feaster’s argument unpersuasive. “[D]efendants who

have been charged in the same conspiracy indictment should

ordinarily be tried together.” Id. Because Feaster was involved

in the same overall conspiracy as his co-defendants, it was proper

for all of the co-conspirators to be tried together. The mere fact

that evidence against one defendant may be stronger than other

defendants does not warrant severance. Id. Each of the charges

against Feaster arose out of the same racketeering enterprise as

those of his co-defendants. While Feaster was not alleged to have

engaged in some of the more egregious acts perpetrated by his co-

defendants, that fact alone does not justify severing his trial.

Further, Feaster is unable to meet his burden of showing that he

was predjudiced by the joinder. The propriety of the district

court’s denial of the severance motion is confirmed by the fact

that the jury convicted Feaster on one count of conspiracy to

commit racketeering and one count of mail fraud, but acquitted him

of racketeering and two counts of money laundering, thus

demonstrating its ability to segregate the facts involving Feaster

from those involving his co-defendants.

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 D.

We next address the claims raised by the Appellants regarding

the district court’s denial of their various motions for judgment

of acquittal based on insufficiency of the evidence. We review a

district court’s denial of a motion for judgment of acquittal de

novo. Alerre, 430 F.3d at 693. A “jury's verdict must be upheld

on appeal if there is substantial evidence in the record to support

it.” United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999).

In determining whether there is substantial evidence in the record,

“we view the evidence in the light most favorable to the government

and inquire whether there is evidence that a ‘reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant's guilt beyond a reasonable doubt.’” Id.

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc)). We now turn to an analysis of each claim.

1. Count 2 against James Feaster (Conspiracy to Commit
Racketeering)

Feaster argues that there was insufficient evidence to support

his conviction for conspiracy to commit racketeering under 18

U.S.C. § 1962(d). Feaster contends that the government did not

present sufficient evidence to demonstrate that he agreed to engage

in a pattern of racketeering activity. We find no merit to this

argument.

To prove a conspiracy charge under the Racketeer Influenced

and Corrupt Organizations Act (“RICO”), the government must

22
establish that a defendant “‘objectively manifested, through words

or actions, an agreement to participate in the conduct of the

affairs of the enterprise through the commission of two or more

predicate crimes.’” United States v. Starrett, 55 F.3d 1525, 1543

(11th Cir. 1995) (quoting United States v. Russo, 796 F.2d 1443,

1455 (11th Cir. 1986)). A defendant need only agree to participate

in the overall enterprise; he need not evince an intent to

participate in each individual predicate act. Id.

In considering the unique evidentiary nature of conspiracy

charges, we have recognized that:

[b]y its very nature, a conspiracy is clandestine and
covert, thereby frequently resulting in little direct
evidence of such an agreement. Hence, a conspiracy
generally is proved by circumstantial evidence and the
context in which the circumstantial evidence is adduced.
Indeed, a conspiracy may be proved wholly by
circumstantial evidence.

Burgos, 94 F.3d at 857-58 (internal citations omitted). Here, the

government presented sufficient circumstantial evidence,

particularly when viewed in the light most favorable to it, from

which the jury could infer Feaster’s entrance into the conspiracy.

Specifically, the government put on evidence that (1) Feaster

became involved in Strawberry’s 5000 to facilitate circumventing

the Liquor Board’s rules on felons obtaining liquor licenses; (2)

Feaster was directly involved in the corporate machinations

surrounding Strawberry’s 5000; (3) Feaster was paid a salary by the

Gross-Colvin Organization and helped operate the nightclub, which

23
was a front for the organization’s illicit activities; (4) Feaster

was present both before and directly after the fire at the

nightclub, and knew that Colvin was lying to him regarding the

removal of stereo equipment from the club prior to the fire; (5)

Feaster filed an insurance claim after the fire; and (6) Feaster

received money from the insurance proceeds for the fire. This

evidence is sufficient to support the jury’s verdict against

Feaster on Count 2.

2. Count 12 against James Feaster (Mail Fraud)

Feaster next argues that there was insufficient evidence to

convict him of mail fraud because the government failed to prove

that he had a specific intent to defraud the insurance company when

he mailed the insurance claim form for the fire at Strawberry’s

5000. This argument is similarly unavailing. In order to prove a

claim for mail fraud, the government must establish a “specific

intent to defraud, which ‘may be inferred from the totality of the

circumstances and need not be proven by direct evidence.’” United

States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001) (quoting United

States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993)). At trial, the

government presented evidence that (1) Strawberry’s 5000 was burned

in order to recover insurance proceeds; (2) Feaster was aware that

stereo equipment had been removed from the nightclub prior to the

fire; (3) Feaster confronted Colvin about the missing equipment on

the day of the fire and believed that Feaster lied to him about its

24
removal; (4) Feaster filed an insurance claim by mail two days

after the fire; (5) Colvin later told Feaster that Gross Jr.

deliberately set the fire; and (6) Feaster partly shared in the

insurance proceeds. This evidence is sufficient particularly when

viewed in a light most favorable to the government for the jury to

infer that Feaster had a specific intent to defraud the insurance

company when he mailed the claim form for the fire.

3. Count 17 against James Wilkes (Violent Crimes in Aid of
Racketeering - the assault on Louis Colvin)

Although Wilkes concedes that there was sufficient evidence

for the jury to conclude that he assaulted Colvin, he argues that

the evidence was not sufficient to establish that he committed this

assault in connection with the racketeering enterprise. We are

unpersuaded by this argument.

In order to establish that Wilkes committed a violent crime in

aid of a racketeering enterprise, the government had to prove,

inter alia, that Wilkes committed a violent crime “for the purpose

of gaining entrance to or maintaining or increasing position in an

enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a).

Particularly when viewed in the light most favorable to the

government, there was sufficient evidence presented at trial to

meet this burden.

The government presented evidence of the deterioration in the

relationship between Colvin and the Grosses. The evidence

reflected that, as a consequence, Gross Jr. took steps to harm

25
Colvin, and sought Wilkes’ assistance in doing so. Wilkes was

already involved with Gross Jr. in the drug trafficking activities

of the enterprise. Sean Chance testified that Gross Jr. stored

guns, drugs and drug paraphernalia in Wilkes’ apartment. Chance

further testified that the day before Wilkes was arrested for

possession of a firearm, the two men rode around with Gross Jr.

trying to find Colvin because Gross Jr. wanted to torture and kill

him. The gun in Wilkes’ possession on that day was subsequently

recovered from his apartment along with two of Gross Jr.’s scales.

On another occasion, Wilkes attempted to lure Colvin away from his

bodyguards. Finally, on September 24, 2001, Wilkes shot Colvin.

There is ample evidence from which the jury could infer that Wilkes

committed that assault for the purpose of maintaining his position

in the enterprise.

4. Counts 1 and 2 against James Gross Jr. (Racketeering and
Conspiracy to Commit Racketeering)

Gross Jr. argues that there was insufficient evidence to

support his conviction for racketeering and conspiracy to commit

racketeering. He contends that the government failed to

demonstrate his participation in three of the predicate RICO acts

underlying his convictions: the Stop, Shop and Save robbery

(racketeering act 3); the assault on Peter Williams (racketeering

act 13) and the assault on Louis Colvin (racketeering act 14). In

order to prove a charge of racketeering under 18 U.S.C. § 1962(c)

or conspiracy to commit racketeering under 18 U.S.C. § 1962(d), the

26
government must establish, inter alia, that the defendant either

engaged in or conspired to engage in at least two racketeering

acts. See 18 U.S.C. § 1961(5) (defining “pattern of racketeering

activity” required under 18 U.S.C. § 1962(c) as requiring “at least

two acts of racketeering activity”); United States v. Tillett, 763

F.2d 628, 632 (4th Cir. 1985) (requiring proof of conspiracy to

engage in two predicate RICO acts for conviction under 18 U.S.C. §

1962(d)).

Gross Jr. was found guilty of ten predicate RICO acts by the

jury. Even accepting his argument regarding the insufficiency of

the evidence to support his conviction on the three predicate acts

he challenges on appeal, Gross Jr. does not challenge the seven

other predicate acts proved by the government. We therefore find

Gross Jr.’s argument unpersuasive on this ground alone.

Gross Jr. next argues that there was insufficient evidence to

support the enterprise element of the RICO charges against him.4

In order to prove a RICO charge, the government must prove that the

organization was a RICO enterprise with the basic elements of

“continuity, unity, shared purpose and identifiable structure.”

4
Gross Jr. also argues that the pattern element of the RICO
statute is unconstitutionally vague as applied to the facts of this
case because it did not provide him sufficient notice that the
activities alleged in the indictment constituted a pattern of
racketeering activity that exposed him to a RICO prosecution. We
have previously rejected such as-applied challenges, United States
v. Bennett, 984 F.2d 597, 606-07 (4th Cir. 1993), and do so here on
the facts of this case.

27
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (quoting

United States v. Griffin, 660 F.2d 996, 1000 (4th Cir. 1981)).

Gross Jr. argues that the government failed to provide sufficient

evidence to establish these components. We find no merit to his

arguments. The evidence establishes that there was continuity in

the organization in that it was headed by Gross Sr. and Colvin --

and later by Gross Sr. alone -- with Gross Jr. and various other

individuals as active members over a period of at least four years.

There was unity in the organization in that its activities were

coordinated and operated through the various businesses created by

Gross Sr., Colvin and the other members. There was a shared

purpose of making money by illicit means, including drug dealing

and fraud. There was an identifiable structure in that the

organization was headed by Gross Sr. and Colvin -- and later by

Gross Sr. alone -- with Gross Jr. and various other individuals as

the street level operatives. Based on these facts, we find that

the government presented sufficient evidence to support the

enterprise element of the racketeering charges against Gross Jr.

Although Gross Jr. also purports to challenge his conviction

for conspiracy to commit racketeering based on the sufficiency of

the evidence, he failed to lodge any specific argument against the

conspiracy charge independent of his general arguments against his

substantive racketeering conviction. Regardless, we find that

there was sufficient evidence to support his conviction for

28
conspiracy to commit racketeering. “To establish a RICO conspiracy

violation . . ., the government must prove that the defendant[]

‘objectively manifested, through words or actions, an agreement to

participate in the conduct of the affairs of the enterprise through

the commission of two or more predicate crimes.’” Starrett, 55

F.3d at 1543 (quoting Russo, 796 F.2d at 1455). The government

presented extensive evidence of Gross Jr.’s participation in the

illicit activities of the Gross-Colvin Organization and, after the

falling out with Colvin, the Gross Enterprise. This evidence was

sufficient to support Gross Jr.’s RICO conspiracy conviction.

5. Count 17 against James Gross Jr. (violent crime in aid of
racketeering, aiding and abetting - the assault on Louis
Colvin)

Gross Jr. next argues that there was insufficient evidence to

convict him of aiding and abetting a violent crime in aid of

racketeering (“VICAR”) for the assault on Louis Colvin because the

government failed to prove that he took any action with the

specific intent to facilitate the assault. This argument is

unavailing.

Proof of specific intent to facilitate a crime is a necessary

element of a charge of aiding and abetting. See Burgos, 94 F.3d at

895 (Michael, J. dissenting in part and concurring in part). There

is sufficient evidence here particularly when viewed in the light

most favorable to the government from which the jury could infer

that Gross Jr. had the specific intent to facilitate the assault on

29
Colvin in aid of the racketeering enterprise. The government

presented evidence that (1) Colvin was an integral member of his

father’s racketeering enterprise; (2) Colvin had a significant and

contentious falling out with Gross Sr. and Gross Jr. over the

racketeering enterprise; (3) Gross Jr. sought out Colvin several

weeks before the assault in order to kidnap and torture him; (4)

Gross Jr. pointed a gun at Colvin’s head on another occasion; and

(5) Gross Jr. threatened Colvin on another occasion. This evidence

is sufficient to support Gross Jr.’s conviction for aiding and

abetting a violent crime in aid of racketeering.

6. Count 4 against James Gross Jr. (violent crimes in aid of
racketeering - the assault on Peter Williams)

Gross Jr. argues that there was insufficient evidence to

convict him of a violent crime in aid of racketeering for the

assault on Peter Williams. In August 2000, a fight broke out in

Strawberry’s 5000 that involved Peter Williams (“Williams”), an

individual unrelated to the Gross-Colvin Organization’s

racketeering activities, and Colvin. Gross Sr. became involved in

the melee and was struck over the head with a metal stanchion by

Williams. Gross Sr.’s injury required hospitalization. While at

the hospital with his father, Gross Jr. talked with Colvin and

Chance about exacting revenge against the man who had assaulted his

father. Chance testified that Gross Jr. indicated that he wanted

to handle revenge on Williams “[b]ecause it was personal. It was

his father.” J.A. 301.

30
 In November 2000, Williams was shot while driving his car. A

passenger in Williams’ car testified to seeing a silver Lexus, the

type of car driven by Gross Jr., following them just prior to the

shooting. Chance testified that during the week prior to the

shooting, he had driven around Baltimore with Gross Jr. and Michael

Randolph (“Randolph”), another individual involved in the

racketeering enterprise, looking for Williams to exact revenge for

the assault on Gross Sr. Chance further testified that Gross Jr.

and Randolph came to his house after the shooting and stated that

they had gotten “the guy.” Gross Jr. and Randolph then described

to Chance how the shooting occurred.

Gross Jr. subsequently directed Chance and Randolph to destroy

the silver Lexus he had been driving when the Williams shooting

occurred. When Chance and Randolph complied, Gross Jr. called the

police to report the fire and later filed an insurance claim for

the Lexus.

In order to prove the VICAR claim for the assault on Williams,

the government must show, inter alia, that Gross Jr. engaged in a

violent act “for the purpose of gaining entrance to or maintaining

or increasing position in an enterprise engaged in racketeering

activity.” 18 U.S.C. § 1959(a). The government need not show that

“maintaining or increasing position in the RICO enterprise was the

defendant's sole or principal motive.” United States v.

Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). Rather, this element

31
is satisfied “if the jury could properly infer that the defendant

committed his violent crime because he knew it was expected of him

by reason of his membership in the enterprise or that he committed

it in furtherance of that membership.” Id. Gross Jr. argues that

the government cannot satisfy this element because he undertook the

assault on Peter Williams for personal reasons, rather than reasons

related to the racketeering conspiracy. We find this argument

unpersuasive.

Based on the facts surrounding the shooting of Williams, the

government presented sufficient evidence, particularly when viewed

in a light most favorable to it, to establish that Gross Jr.’s

assault on Williams was motivated at least in part by a desire to

maintain or increase his position within the racketeering

enterprise. The shooting was in retaliation for an assault on one

of the leaders of the enterprise that occurred at the hub of the

its illicit activity. Further, it is significant that Gross Jr.

enlisted members of the enterprise to assist him in locating and

assaulting Williams, and then in covering their tracks by

destroying evidence. The evidence reflects that one of Gross Jr.’s

primary roles in the enterprise was to serve as an enforcer. His

failure to avenge a physical assault on his father would assuredly

have undermined his credibility in this regard. This evidence

supports the jury’s verdict because it establishes a sufficient

connection between the racketeering enterprise and the assault to

32
support the inference that Gross Jr. undertook the assault on

Williams at least in part to aid the racketeering enterprise.

E.

Gross Sr. argues that the district court erred by denying his

motion to dismiss the indictment against him based on a plea

agreement that he entered into with the United States and the State

of Maryland in July 2000.

On February 8, 1999, Gross Sr. sold heroin to a confidential

informant and was subsequently arrested. In addition to violating

state drug laws, Gross Sr.’s sale of heroin also violated the terms

of his federal supervised release for drug violations in the early

1990s. Following his arrest, Gross Sr. entered into a plea

agreement with both state and federal officials. Under its terms,

the government agreed not to prosecute Gross Sr. for any conduct

other than the supervised release violations of which it was aware

that occurred prior to the date of the agreement. J.A. 72 (Plea

Agreement ¶ 11). In addition, Gross Sr. agreed that he would “not

commit any offense in violation of federal, state or local law

between the date of this agreement and his sentencing in this

case.” J.A. 70 (Plea Agreement ¶ 1(e)). In January 2001, Gross

Sr. was arrested for raping a twelve year old girl at Strawberry’s

5000 and pleaded guilty. As a result, the government nullified the

plea agreement and later charged Gross Sr. with the various

33
racketeering-related charges in this case. Gross Sr. sought to

have all charges against him dismissed based on the plea agreement

by arguing that, under it, the government agreed not to prosecute

him for any conduct prior to the date of the agreement, and the

rape constitutes such conduct. The district court denied his

motion, and Gross Sr. now appeals that denial. We find Gross Sr.’s

arguments unpersuasive.

Gross Sr. first argues that the state rape charge did not

constitute a breach of the plea agreement because it was not

material to the subject matter of the agreement. This argument

lacks merit because, under the agreement, Gross Sr. agreed not to

commit “any crime,” not just those that were material to the

subject matter of the agreement.

Gross Sr. next argues that Paragraphs 10 and 15 are ambiguous

with respect to the government’s remedies in the event he breached

the plea agreement. We find no merit to this argument. Paragraph

10 of the agreement, in relevant part, provides that “if the terms

of this agreement are not met by your client, he agrees to serve a

term of imprisonment for two years for [his supervised release]

violations.” J.A. 71-72 (Plea Agreement ¶ 10). Paragraph 15

provides, in relevant part, that “if [Gross Sr.] should commit any

crime . . ., then the State or [U.S. Attorneys Office] will be free

. . . to charge him with other offenses, if any, that he has

committed.” J.A. 73 (Plea Agreement ¶ 15)(emphasis added). We

34
find no ambiguity or conflict between these two provisions because

each sets out a separate consequence for a breach of the agreement

by Gross Sr. Paragraph 10 specifies the consequence in relation to

Gross Sr.’s supervised release violations (two years imprisonment),

and Paragraph 15 specifies the general consequence for breach

(complete release of the governments’ obligations). Accordingly,

we find no error in the district court’s denial of Gross Sr.’s

motion to dismiss.

F.

Wilkes argues that the district court erred by denying his

motion to suppress a gun seized during a warrantless search of

Yvonne Shorts’ apartment where he resided at the time and

statements that he made during the course of and directly after

that seizure. Wilkes claims that the search violated the Fourth

Amendment because the Baltimore City Police officers entered

Shorts’ apartment without a warrant prior to receiving consent to

enter. Wilkes seeks to have all evidence -- both physical evidence

and statements made by him during the search -- obtained through

the search suppressed based on the illegality of the search. We

find no merit to Wilkes’ arguments.

In reviewing a district court’s ruling on a motion to

suppress, we review findings of fact for clear error and the legal

35
determination of whether such facts satisfy the Fourth Amendment de

novo. United States v. Gwinn, 219 F.3d 326, 332 (4th Cir. 2000).

Following his arrest, Sean Chance provided information to the

Baltimore City Police that James Wilkes was in possession of a

firearm at 921 North Carrollton Street in Baltimore. On the basis

of that information, Baltimore City Police conducted a warrantless

search of that location on September 7, 2001. At the time of the

search, Wilkes resided at the apartment, but it was leased by

Yvonne Shorts, Wilkes’ girlfriend. When the officers arrived at

921 North Carrollton Street, they found bags and boxes lying on the

front stoop of the building and going up the stairs, suggestive of

a tenant or tenants moving out.

The stairwell leading to Shorts’ apartment terminated directly

at the door to the apartment such that there was no vestibule,

hallway or foyer between the end of the stairs and the beginning of

the doorway. The stairwell was so narrow that the officers had to

proceed single file, avoiding the bags and boxes on the stairs as

they ascended. The stairs simply ended at the door to the

apartment, with no landing.

When the officers reached the threshold of the apartment, the

door to the apartment was wide open. Because of the layout, even

with the door standing open, the officers stood single-file on the

narrow stairs and their view of the activities within the apartment

was limited and they were necessarily vulnerable to aggression.

36
The officers knocked on the open door and identified themselves.

Again, because of the way in which the entrance was configured, the

officers had to cross the threshold of the apartment in order to

knock on the door and identify themselves.

After the officers knocked on the door, Yvonne Shorts and

James Wilkes appeared from another door in the apartment, and both

acknowledged that it was Shorts’ apartment. Officer James Knorlein

then asked Shorts if he could speak with her in private. She

consented and led Officer Knorlein to the kitchen, while several

other officers remained with Wilkes in the living room. Shorts

heard the officers ask Wilkes to take a seat on the couch.

Once in the kitchen with Officer Knorlein, Shorts stated that

she had seen both guns and drugs in the apartment before. She also

told Officer Knorlein that she saw Wilkes throw a handgun into a

clothes hamper in the bedroom when they heard the officers

approaching her apartment. Shorts was visibly upset and stated

that she was scared of Wilkes. Shorts then suggested as a ruse

that Officer Knorlein obtain her cigarettes from the bedroom, to

provide him with a reason to enter the room and observe the gun

without revealing her complicity to Wilkes.

At Shorts’ suggestion, Officer Knorlein then entered the

bedroom ostensibly to retrieve the cigarettes. While doing so, he

observed a .45 caliber semi-automatic handgun sitting on top of the

clothes hamper. Officer Knorlein re-entered the living room and

37
alerted the officers watching Wilkes that he had found a handgun.

Wilkes was placed under arrest, handcuffed and told to sit back

down on the couch.

Officer Knorlein then went back to the kitchen with Shorts and

asked her whether she would sign a consent to search form. She

agreed to do so and signed the consent form. The officers searched

the residence and found ammunition and two scales that later tested

positive for cocaine and heroin residue. At the conclusion of the

search, Wilkes was transported to a police station for processing.

After the officers entered Shorts’ apartment, they asked

Wilkes whether his nickname was “Turkey.” They asked Wilkes no

other questions. However, Wilkes talked throughout the encounter

and made a number of incriminating statements. The district court

specifically found the officers’ testimony about these events to be

credible.

Wilkes argues that the officers’ search of Shorts’ apartment

was unconstitutional because they crossed the threshold of the

apartment without a warrant and, therefore, all of the fruits of

that search should have been suppressed. We do not find this

argument persuasive.

The Fourth Amendment precludes a warrantless entry or search

of a home except where exigent circumstances are present. Payton

v. New York, 445 U.S. 573, 590 (1980). “The existence of exigent

circumstances must be determined as of the moment of the

38
warrantless entry of the officers onto the premises of appellee.”

United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991). “Courts

should consider ‘[t]he appearance of the scene of the search in the

circumstances presented as it would appear to reasonable and

prudent men standing in the shoes of the officers.’” Id. (quoting

United States v. Wysocki, 457 F.2d 1155, 1160 (5th Cir. 1972)).

The circumstances here justified the officers’ breach of the

apartment’s threshold in order to announce their presence.

When the officers approached Shorts’ apartment, the door was

wide open. Based on the physical layout of the approach to the

threshold of and the actual entrance to the apartment, the officers

had no choice but to cross the threshold in order to knock on the

open door and announce their presence. The evidence indicates that

the officers did not move significantly beyond the entryway until

Shorts provided consent. Accordingly, we find that the exigencies

created by the physical layout of the building in which Shorts’

apartment was located were sufficient to justify the minimal breach

of the threshold of her apartment. In any event, even if exigent

circumstances did not exist and the officers’ initial entry into

Shorts’ apartment was unlawful, we agree with the dissent that the

consent that Shorts later provided purged the taint of any unlawful

entry. We find no Fourth Amendment error in the officers’ search

of her apartment based on the valid consent she provided. See

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).

39
 Wilkes also argues that the district court erred by failing to

suppress statements that he made during the time the officers were

present in Shorts’ apartment, both before and after he was placed

under arrest. Wilkes essentially argues that any statements

obtained from him were fruits of an illegal search of Shorts’

apartment and should have been suppressed under the Fourth

Amendment. Wilkes does not assert that the statements should have

been suppressed under the Fifth Amendment. Because we find no

Fourth Amendment violation in either the officers’ entry into

Shorts’ apartment or subsequent search thereof, any statements that

Wilkes voluntarily made while the officers were present in the

apartment were not the fruits of an illegal search. We therefore

find no error in the district court’s denial of Wilkes’ motion to

suppress any such statements.

IV.

Having determined that appellants’ convictions must be upheld,

we turn to a consideration of their sentences. Appellants argue

that their sentences should be vacated and their cases remanded for

re-sentencing based on United States v. Booker, 543 U.S. 220

(2005). In Booker, the Supreme Court held that an application of

the Sentencing Guidelines in which the district court enhanced the

defendant’s sentence based on facts it found during the sentencing

proceeding violated the Sixth Amendment. Id. at 244. In the wake

40
of the decision we have come to recognize two types of Booker

error: constitutional and statutory. Rodriguez, 433 F.3d 411, 414

(4th Cir. 2006). Constitutional Booker error arises where a

district court enhances a defendant’s sentence “beyond the maximum

authorized by facts found by a jury beyond a reasonable doubt or

admitted by the defendant.” Id. Statutory Booker error arises

where a district court treats the Guidelines as mandatory rather

than advisory. Id. Here the appellants assert that their

sentences are infected with constitutional Booker error, while the

government asserts that only statutory Booker error exists.

Therefore, we must consider whether the appellants’ sentences must

be vacated and remanded under either standard.

Because the appellants raise this issue for the first time on

appeal, we review for plain error. Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993). “A defendant seeking

to overturn a ruling under the plain-error test bears the burden of

showing (1) that an error occurred, (2) that it was plain, and (3)

that the error affected his substantial rights.” Rodriguez, 433

F.3d at 415. In Hughes, we held that the imposition of a sentence

that violated the Sixth Amendment under Booker constituted plain

error. See United States v. Hughes, 401 F.3d 540, 555-56 (4th Cir.

2005) (holding that district court plainly erred “by imposing a

sentence exceeding the maximum authorized by the jury findings

alone” under Booker).

41
 We now turn to an examination of each appellant’s challenge to

his sentence.

1. James Gross Jr.

Gross Jr. argues that his sentence violates the Sixth

Amendment under Booker because it was improperly increased based on

numerous facts -- including the quantity of drugs involved in

counts 3 and 13 -- that were neither found by the jury nor admitted

by him. Gross Jr. was convicted and sentenced on thirteen separate

counts in the superseding indictment. He was sentenced to 292

months on counts 1, 2, 3 & 13; 120 months on counts 4, 11 & 14; 240

months on counts 5, 6, 9 & 17 and 60 months on count 7. The terms

of imprisonment for these counts were to run concurrently. In

addition, Gross Jr. was sentenced to 120 months on count 10 to run

consecutively to all other counts. For purposes of our Booker

analysis, we need look no further than Gross Jr.’s sentence on

counts 1, 2, 3 and 13, which each produced the longest term of

imprisonment, to determine the need to vacate and remand his

sentence.

Gross Jr.’s sentences for counts 1 and 2, the racketeering and

conspiracy to commit racketeering charges, were calculated by using

“the offense level applicable to the underlying racketeering

activity.” U.S.S.G. § 2E1.1(a)(2). The presentence report, which

the district court largely adopted, calculated the offense level

for the underlying racketeering activity under § 3D1.2(d), which

42
states that “[a]ll counts involving substantially the same harm

shall be grouped together into a single Group.” U.S.S.G. §

3D1.2(d). When sentencing under this grouping provision, the

offense level for the grouped charges is determined by using the

highest offense level of the grouped charges and then adding a

grouping adjustment. U.S.S.G. §§ 3D1.3(b), 3D1.4.

For purposes of Gross Jr.’s sentence, the district court

grouped counts 3, 4, 5, 6, 7, 9, 11, 13, 14 and 17. Counts 3 and

13, Gross Jr.’s drug violations, produced the highest base offense

level of 38.5 This offense level was achieved by attributing more

than three but less than ten kilograms of heroin to Gross Jr.,

which yielded a starting offense level of 34 under § 2D1.1(c)(3),

and then adjusting upward 4 levels based on specific offense

characteristics under § 2D1.1(b)(1) and role in the offense under

§ 3B1.1(b).6 A two level grouping adjustment under § 3D1.4 was

then added to reach the final offense level of 40, which was then

combined with a criminal history score of I to reach Gross Jr.’s

sentence of 292 months for counts 1, 2, 3 and 13.

Gross Jr.’s sentence on these counts violates the Sixth

Amendment under Booker because the quantity of drugs -– three to

5
The next highest offense level of the grouped offenses was 33
for counts 4, 5 and 17, which dealt with the charges of violent
crimes in aid of racketeering.
6
Because we find Sixth Amendment error based on the quantity
of drugs used to sentence Gross Jr., we need not address the
propriety of the other adjustments applied by the district court.

43
ten kilograms of heroin -– that provided the basis for the starting

offense level of 34 was not found by the jury beyond a reasonable

doubt or admitted by Gross Jr. The superseding indictment did not

specify any drug quantity in count 13 and only alleged one kilogram

or more of heroin and five kilograms or more of cocaine in count 3.

When the jury returned its verdict, its findings mirrored the drug

quantities identified in the indictment. Therefore, the maximum

quantity of drugs that Gross Jr. should have been sentenced for

based on the jury’s verdict was one kilogram of heroin and five

kilograms of cocaine. Such quantities yield a starting offense

level of 32 for counts 3 and 13. U.S.S.G. § 2D1.1(c)(4).

Sentencing Gross Jr. on the basis of three to ten kilograms of

heroin, rather than one or more, resulted in a two level increase

in his base offense level, which increased his maximum sentence

beyond that which was authorized by the facts found by the jury.

Gross Jr.’s sentence violates the Sixth Amendment under Booker

because the quantity of drugs that provided the basis for his

longest term of imprisonment was neither found by the jury nor

admitted by Gross Jr. Therefore, we must vacate Gross Jr.’s

sentence and remand to the district court for resentencing.

Because we find constitutional Booker error present, we need not

address the issue of statutory Booker error.

44
 2. James Gross Sr.

For the same reasons outlined in relation to Gross Jr., we

find that Gross Sr.’s sentence likewise must be vacated and

remanded to the district court. Gross Sr. was convicted and

sentenced on eight separate counts in the superseding indictment.

He was sentenced to 480 months on counts 1, 2 and 3; 240 months on

count 9; 120 months on counts 11 and 14; and 60 months on count 12.

Each of these sentences was to run concurrently. Gross Sr. was

also sentenced to 120 months on count 10 to run consecutively to

the other counts. For purposes of our Booker analysis, we need

look no further than Gross Sr.’s sentence on counts 1, 2 and 3,

which each produced the longest term of imprisonment, to determine

the need to vacate and remand his sentence.

Gross Sr.’s sentence violates the Sixth Amendment under Booker

for the same reasons detailed with respect to Gross Jr.. Gross

Sr.’s sentences on counts 1 and 2, the racketeering and conspiracy

to commit racketeering charges, were calculated by using “the

offense level applicable to the underlying racketeering activity.”

U.S.S.G. § 2E1.1(a)(2). The counts relating to Gross Sr.’s

underlying racketeering activities were grouped under § 3D1.2(d)

and count 3, the drug distribution charge, produced the highest

base offense level of 40.7 This offense level was achieved by

7
The next highest offense level of the grouped offenses was 28
for counts 9 and 12, which dealt with arson and mail fraud.

45
attributing three to ten kilograms of heroin to Gross Sr., which

yielded a starting level of 34 under § 2D1.1(c)(3), and then adding

adjusting upward 6 levels based on specific offense characteristics

under § 2D1.1(b)(1) and role in the offense under § 3B1.1(b).8

Gross Sr.’s offense level of 40 combined with a criminal history

score of VI provided the basis for his 480 month sentence on counts

1, 2, and 3.

Gross Sr.’s sentence on these counts violates the Sixth

Amendment because the quantity of drugs that provided the basis for

his longest term of imprisonment was neither found by the jury nor

admitted by Gross Sr. Therefore, we must vacate Gross Sr.’s

sentence and remand to the district court for resentencing.

Because we find constitutional Booker error present, we need not

address the issue of statutory Booker error.

3. James Wilkes

Appellant Wilkes argues that his sentence should be vacated

and remanded on constitutional grounds because it was increased

based on facts that were neither admitted by him nor found by a

jury beyond a reasonable doubt. We agree.

Wilkes was sentenced to 300 months on count 16 for being a

felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1) and to 240 months on count 17 for aiding and abetting a

8
Because we find Sixth Amendment error based on the quantity
of drugs used to sentence Gross Sr. we need not address the
propriety of the other adjustments applied by the district court.

46
violent crime in aid of racketeering in violation of 18 U.S.C. §

1959(a)(3).9 For the felon in possession charge, the district

court sentenced Wilkes as an armed career criminal under 18 U.S.C.

§ 924(e)(1) and U.S.S.G. § 4B1.4 based on his present violation of

18 U.S.C. § 922(g)(1) and his prior convictions for a violent

felony and multiple drug offenses.10 When calculating this

sentence, the district court held that Wilkes qualified for an

offense level of 34 under § 4B1.4(b)(3)(A) because he “used or

possessed the firearm or ammunition in connection with either a

crime of violence . . . or a controlled substance offense.”11

U.S.S.G. § 4B1.4(b)(3)(A). The court made this finding based on

facts that were neither admitted by Wilkes nor found by the jury

9
These two charges involved different underlying facts.
Wilkes violated § 922(g)(1) by possessing the firearm discovered at
Yvonne Shorts’ apartment. He violated § 1959(a)(3) for
participating in the assault on Louis Colvin that took place after
the search of Shorts’ apartment and involved a different firearm.
The government did not charge Wilkes for any firearms violations
for the gun he used to shoot Colvin.
10
Wilkes was convicted of assault in 1987, drug distribution
in 1989 and possession with intent to distribute cocaine in 1993.
The facts necessary to categorize these offenses as either violent
felonies or serious drug offenses for purposes of 18 U.S.C. §
924(e)(1) are inherent in the convictions. See United States v.
Thompson, 421 F.3d 278, 283-84 (4th Cir. 2005) (holding that facts
inherent in prior convictions need not be submitted to a jury to
pass constitutional muster under Booker).
11
Without the armed career criminal enhancement, Wilkes’
maximum base offense level was 24 under U.S.S.G. § 2K21.(a)(2) for
his violation of 18 U.S.C. § 922(g)(1).

47
beyond a reasonable doubt.12 This finding increased Wilkes’ base

offense level as an armed career criminal from 33 to 3413 and

violated the Sixth Amendment because it resulted from improper

judicial fact finding.

Accordingly, we vacate Wilkes’ sentence and remand to the

district court for re-sentencing. Because we find constitutional

Booker error present in Wilkes’ sentence, we need not address the

issue of statutory Booker error.

4. Ronald Eddie

Appellant Eddie argues that he was improperly sentenced based

on a finding that he was a career offender under U.S.S.G. §

4B1.1(a). Eddie was sentenced to 262 months on counts 1, 2, and 3

and 240 months on count 9. All of these sentences were to run

concurrently. The district court based the 262 month sentences for

counts 1, 2 and 3 on a finding that Eddie was a career offender

within the meaning of U.S.S.G. § 4B1.1. Eddie argues that the

district court violated the Sixth Amendment under Booker by

12
Although Wilkes was also convicted of a violent crime
involving the use of a firearm (the assault on Louis Colvin), that
conviction has no bearing on the armed career criminal analysis
because (1) Wilkes was never charged or convicted for possession of
the firearm he used to assault Colvin; (2) that conviction involved
different underlying facts than the § 922(g)(1) charge; and (3)
violations of 18 U.S.C. § 1959(a) do not give rise to enhanced
penalties under the Armed Career Criminal Act, see 18 U.S.C. §
924(e); U.S.S.G. § 4B1.4(b).
13
If Wilkes had not qualified for an offense level of 34 under
§ 4B1.4(b)(3)(A), the greatest offense level he would have
qualified for under § 4B1.4(b) was 33 under subsection (b)(3)(B).

48
sentencing him as a career offender. We find no merit to this

argument.

Under § 4B1.1(a), a defendant is a “career offender” if, inter

alia, he “has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.” U.S.S.G. §

4B1.1(a)(3). Here, Eddie has three prior convictions that facially

qualify as either crimes of violence or controlled substance

offenses. Specifically, Eddie was convicted of attempted murder in

November 1996 for which he was sentenced to 10 years in prison with

5 years suspended and 3 years of probation; manufacturing and

distributing a controlled substance in July 2001 for which he was

sentenced to 2 years in prison; and manufacturing and distributing

a controlled substance and possession of a controlled substance in

September 2001 for which he was sentenced to 5 years in prison.

The use of prior convictions and facts inherent therein are

excepted from the constitutional limitations enunciated in Booker.

United States v. Thompson, 421 F.3d 278, 281-82 (4th Cir. 2005).

Eddie, however, contends that the 2001 drug felonies could not

be used for purposes of the § 4B1.1 enhancement because both

involved conduct that formed the basis of the current racketeering

charges against him and, therefore, did not constitute prior felony

convictions that could be used for the career offender analysis.

We find this argument unpersuasive.

49
 In defining what constitutes a “prior felony conviction” for

purposes of § 4B1.1, § 4B1.2(c) relies in part on the treatment of

prior convictions under § 4A1.1 for purposes of the criminal

history score computation. Under § 4B1.2(c), “prior felony

convictions” can only be used in the career offender analysis if

the prior sentences “are counted separately under the provisions of

§ 4A1.1(a), (b), or (c).” U.S.S.G. § 4B1.2(c). Section 4A1.1

computes a defendant’s criminal history score based in part on his

or her “prior sentences.” Under Application Note 1 to § 4A1.2,

“prior sentence” for purposes of § 4A1.1 “means a sentence imposed

prior to sentencing on the instant offense, other than a sentence

for conduct that is part of the instant offense.” U.S.S.G. §

4A1.2, Application Note 1 (emphasis added). Therefore, as a

general rule, where a defendant has prior convictions that were

based on conduct that later forms the basis of a federal

conviction, such prior convictions cannot be used for a career

offender enhancement because of the relatedness of the underlying

conduct. See United States v. Garecht, 183 F.3d 671, 676-78 (7th

Cir. 1999).

RICO claims, however, present an exception to this general

rule. Section 2E1.1 of the sentencing guidelines provides the

offense level calculation for violations of 18 U.S.C. § 1962, which

Eddie was convicted of violating. Application Note 4 of § 2E1.1

establishes that prior convictions that form “part of a ‘pattern of

50
racketeering activity’” can be “treat[ed] as a prior sentence under

§ 4A1.2(a)(1) and not as part of the instant offense.” U.S.S.G. §

2E1.1, Application Note 4. See United States v. Marrone, 48 F.3d

735, 738-39 (3d. Cir. 1995) (holding that RICO predicate acts can

be used to compute criminal history score). Therefore, prior

convictions are treated differently in RICO cases and can be used

to increase a defendant’s sentence even though they involve the

same conduct underlying the RICO charge. Because RICO predicate

acts can constitute “prior sentences” for purposes of § 4A1.1, we

conclude that such predicate acts can also constitute “prior felony

convictions” for purposes of the career offender analysis. See

U.S.S.G. § 4B1.2(c).

Even if Eddie’s 2001 felony drug convictions involved

predicate conduct to the current RICO charges, the district court

did not err in considering such convictions for purposes of

determining whether Eddie was a career offender. Because the facts

necessary to the determination that Eddie was a career offender

inhere in his prior convictions and the sentencing guidelines do

not limit the use of RICO predicate acts in the career offender

analysis, we find no constitutional Booker error present in Eddie’s

sentence. We now turn to the issue of statutory Booker error.

Although the government concedes that statutory Booker error

was present in this case, we are not bound by such concession. See

Rodriguez, 433 F.3d at 414 n.6. “[A] court commits statutory error

51
if it treats the Guidelines as mandatory, rather than as advisory.”

Id. at 414. Because this was raised for the first time on appeal,

we review for plain error. Id. at 414-15. Under this standard,

the defendant bears the burden of establishing, inter alia, “

whether ‘after pondering all that happened without stripping the

erroneous action from the whole, . . . the judgment was . . .

substantially swayed by the error.’” United States v. White, 405

F.3d 208, 223 (4th Cir. 2005) (quoting Kotteakos v. United States,

328 U.S. 750, 765 (1946)) (omissions in original).

We conclude that Eddie has not satisfied his burden of

demonstrating that the district court’s sentence was “substantially

swayed” by the mandatory nature of the guidelines. Although Eddie

was sentenced at the bottom of the applicable guideline range, “the

record as a whole provides no nonspeculative basis for concluding

that the treatment of the guidelines as mandatory ‘affect[ed] the

district court's selection of the sentence imposed.’” Id. at 223

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). At

sentencing, the district court made no statements from which we can

infer that it would have entered a different sentence but for the

mandatory nature of the sentencing guidelines. Accordingly, we

find no statutory Booker error present in Eddie’s sentence.

Because Eddie has not demonstrated either statutory or

constitutional Booker error, we affirm his sentence.

52
 V.

In light of the foregoing, we affirm all appellants’

convictions and appellant Ronald Eddie’s sentence. We vacate the

sentences of James Gross, Sr., James Gross, Jr., and James Wilkes,

and remand those cases to the district court for re-sentencing.

AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED IN PART

53
GREGORY, Circuit Judge, concurring in part and dissenting in part:

Although I agree with the majority’s resolution of most of the

issues presented in this appeal, I must depart from its analysis in

two respects. First, I would remand this case to the district

court under the Jencks Act for in camera consideration of Brian

Klas’s unredacted grand jury testimony. Second, with respect to

the district court’s denial of James Wilkes’s motion to suppress,

I cannot agree with the majority that exigent circumstances

justified the officers’ warrantless entry of Yvonne Shorts’s

apartment. However, because I believe that Shorts’s subsequent

actions “purged the taint” of the initial violation, I agree that

the district court committed no error in denying the motion to

suppress.

I.

The Jencks Act, 18 U.S.C. § 3500, requires the government to

disclose “any statement” made by one of its witnesses that “relates

to the subject matter” of that witness’s testimony. Id. § 3500(b).

Under the Jencks Act, a “statement” is defined as: (1) “a written

statement made by said witness and signed or otherwise adopted or

approved by him;” (2) a recording or transcription that is “a

substantially verbatim recital of an oral statement made by said

witness and recorded contemporaneously with the making of such oral

statement;” and (3) “a statement, however taken or recorded, or a

54
transcription thereof, if any, made by said witness to a grand

jury.” Id. § 3500(e). To lay a proper foundation for the required

disclosure of Jencks Act materials, a defendant must “make a

sufficiently specific request and provide some indication that the

witness gave a pretrial statement . . . generally related to the

witness’ direct testimony.” United States v. Roseboro, 87 F.3d

642, 645 (4th Cir. 1996).

I agree with the majority that the appellants failed to lay

the requisite foundation for the prior statements of government

witness Sean Chance, in that the appellants could not show that any

of the requested materials contained Chance’s “statements,” as

defined by the Jencks Act. Chance, however, was not the only

government witness for whom the appellants sought Jencks Act

discovery; they also requested the prior statements of witness

Brian Klas, including his unredacted grand jury testimony. I

believe that, with respect to witness Klas, it was improper for the

district court to deny discovery without in camera review of Klas’s

unredacted grand jury testimony because it contained Klas’s

statements related to Klas’s trial testimony.

Unlike their request for the Chance-related materials, the

appellants laid the requisite foundation for their request of

Klas’s grand jury testimony. In both a written motion and in

arguments to the district court at trial, the appellants

specifically identified Klas’s unredacted grand jury testimony as

55
one of the objects of their discovery request. See J.A. 538-39

(noting the dates of Klas’s grand jury testimony and the missing

pages in the transcript); J.A. 552-55 (discussing the requested

discovery materials as they related to Klas’s trial testimony).

Moreover, grand jury testimony is, by definition, a “statement”

under the Jencks Act. 18 U.S.C. § 3500(e)(3). Finally, the

government itself acknowledged that some portions of Klas’s grand

jury testimony related to the subject of his trial testimony. See,

e.g., J.A. 555 (government counsel stating that “[Agent Klas is]

being called with respect to the John Brooks witness tampering

issue, which they have all the grand jury testimony on”).1

With this foundation before the district court, the

government’s sole argument against further disclosure or in camera

review by the district court was that the undisclosed portions did

not relate to the subject matter of Klas’s testimony. The district

court accepted this representation and refused to take further

action. J.A. 555. However, the Jencks Act does not permit

district courts to take the government at its word. To the

contrary, the Jencks Act requires the district court to examine the

disputed materials in precisely this circumstance:

1
The government disclosed these portions of Klas’s grand jury
testimony as “Jencks/Giglio materials” prior to trial. J.A. 179-
80. This was in accord with the discovery agreement the government
entered into to provide all Jencks materials no later than two
weeks prior to trial.

56
 If the United States claims that any statement ordered to
be produced under this section contains matter which does
not relate to the subject matter of the testimony of the
witness, the court shall order the United States to
deliver such statement for the inspection of the court in
camera. Upon such delivery the court shall excise the
portions of such statement which do not relate to the
subject matter of the testimony of the witness.

18 U.S.C. § 3500(c) (emphasis added). Thus, it was the duty of the

district court--not the government--to determine which portions of

Klas’s pretrial statement were to be redacted and which portions

were to be disclosed. See United States v. Alvarez, 86 F.3d 901,

906-07 (9th Cir. 1996) (“Under the Jencks Act, the government did

not have a right unilaterally to redact the reports. . . . [I]f the

government believes a portion of a witness statement is irrelevant,

the entire statement must be delivered to the court in camera for

the court to decide whether a portion of the statement should be

redacted.”). Simply put, the district court did not comply with

the plain language of the Jencks Act. See United States v. Lewis,

35 F.3d 148, 151-52 (4th Cir. 1994) (holding that the district

court was required to conduct in camera review of a government

witness’s report, where the government asserted that the redacted

portions of that report did not relate to the subject matter of the

witness’s expected testimony).2

2
In rejecting this challenge, the majority holds that the
appellants’ request for the Klas materials was not timely because
it was not renewed after Klas’s direct testimony. Here, however,
the government agreed to disclose Jencks Act materials prior to
trial, and neither the government nor the district court expressed
concern with the timing of the appellants’ request.

57
 Because the district court failed to fulfill its obligation of

in camera review of Klas’s grand jury testimony, remand is

necessary to allow this examination to occur. See United States v.

Truong Dinh Hung, 629 F.2d 908, 920-21 (4th Cir. 1980) (remanding

to the district court to examine whether undisclosed documents

contained Jencks Act statements and, if so, whether nondisclosure

was harmless error). Therefore, I respectfully dissent from Part

III.A.1 of the majority opinion, as I would remand this case to the

district court to examine Klas’s grand jury testimony.

II.

I must also part ways with the majority’s analysis of the

denial of Wilkes’s motion to suppress. Unlike the majority, I

would hold that the officers violated Wilkes’s Fourth Amendment

rights when they entered the apartment at which he was staying

without a warrant. Because I believe that Shorts’s subsequent

consent and other actions purged the taint of this initial

Presented with a similar situation in Lewis, we found that the
duty of in camera review had been invoked prior to the witness’s
testimony. See Lewis, 35 F.3d at 151 (where the government agreed
to disclose Jencks Act materials prior to trial, holding that in
camera review was required once the government objected to the
complete disclosure of a report on the basis that it did not relate
to the subject matter of the witness’s expected testimony).
Although the district court could not have fully resolved the issue
until after Klas’s testimony, see id., as in Lewis, I believe that
the appellants’ request was sufficient to invoke in camera review.

58
violation, however, I ultimately agree that the denial of the

motion to suppress was proper.

A.

“Absent some grave emergency, the Fourth Amendment has

interposed a magistrate between the citizen and the police. This

was done . . . so that an objective mind might weigh the need to

invade [the citizen’s] privacy in order to enforce the law.”

McDonald v. United States, 335 U.S. 451, 455 (1948) (emphasis

added). See also Groh v. Ramirez, 540 U.S. 551, 560 (2004)

(quoting same). As particularly relevant here, the “physical entry

of the home is the chief evil against which the wording of the

Fourth Amendment is directed.” United States v. United States

District Court, 407 U.S. 297, 313 (1972). Thus, “the Fourth

Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be

crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590

(1980). Where agents of the government nevertheless cross that

line, the government bears the burden to demonstrate exigent

circumstances that overcome their presumptively unreasonable entry.

Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).

Here, the majority concludes that the government has overcome

the presumption of unreasonableness because, “the exigencies

created by the physical layout of the building in which Shorts’

59
apartment was located were sufficient to justify the minimal breach

of the threshold of her apartment.” Op. at 39. I cannot agree.

The bare fact of the physical layout of a building, without more,

cannot constitute the sort of “grave emergency,” which excuses a

government agent’s constitutional obligation to secure a warrant

before entering a home. Rather, the sine qua non of the exigent

circumstances exception is that some urgency or impending danger

justifies immediate action without resort to a warrant. See

Georgia v. Randolph, 126 S. Ct. 1515, 1524 n.6 (2006) (recounting

situations where exigent circumstances would justify immediate,

warrantless action by police). Accordingly, the Supreme Court has

recognized that there would be exigent circumstances where:

officers need to act immediately to preserve evidence, id.;

officers are in hot pursuit of a suspect, Warden v. Hayden, 387

U.S. 294, 298-99 (1967); delay to obtain a warrant would endanger

the safety of the officers or others, id.; a building is on fire,

Michigan v. Tyler, 436 U.S. 499, 509 (1978); or a suspect is

fleeing or likely to take flight, Johnson v. United States, 333

U.S. 10, 15 (1948).

Here, such exigencies did not exist. The government has

failed to show any reason why it was immediately necessary for the

officers to enter Shorts’s apartment without a warrant. See

McDonald, 335 U.S. at 456 (the government must show that the

asserted exigencies made warrantless entry “imperative”). The

60
officers expressed no concern that the gun might be moved or

destroyed, that delaying the investigation would threaten the

safety of anyone inside or outside the building, that Wilkes might

flee, or even that Wilkes was aware of the officers’ presence.

Accordingly, I cannot join the majority’s finding that exigent

circumstances justified the entry of Shorts’s apartment.

B.

Although I conclude that the officers’ intrusion violated the

Fourth Amendment, I nevertheless agree with the majority that the

district court was correct to deny Wilkes’s motion to suppress.

Unlawful police action does not automatically render inadmissible

all subsequently discovered evidence. Rather, exclusion depends

upon “whether, granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at by

exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.” Wong Sun v.

United States, 371 U.S. 471, 488 (1963) (internal quotation marks

omitted). In other words, we must examine whether the evidence was

acquired sufficiently independent of the Fourth Amendment violation

that it should not be considered the “fruit of the poisonous tree.”

See id.

The question of whether evidence is the tainted fruit of a

Fourth Amendment violation is a fact-specific one. United States

61
v. Najjar, 300 F.3d 466, 477 (4th Cir. 2002). To answer this

question, we must consider several factors, including: “1) the

amount of time between the illegal action and the acquisition of

the evidence; 2) the presence of intervening circumstances; and 3)

the purpose and flagrancy of the official misconduct.” Id. See

also Brown v. Illinois, 422 U.S. 590, 603-04 (1975).

In United States v. Seidman, 156 F.3d 542 (1998), we examined

these factors in a factually similar situation. In that case, the

government agent (an informant who was wearing a wire) entered the

Seidman’s home through an unlocked door without a warrant or

consent. Id. at 547-48. Upon seeing the informant, Seidman did

not object to his presence and soon motioned him into the kitchen.

Id. at 549. About one minute after his entry, the informant began

questioning Seidman about his illegal conduct. Id. The two then

engaged in a forty-five minute conversation in which Seidman made

incriminating statements. Id.

In conducting the tainted fruit analysis, the Seidman court

acknowledged that the time between the illegal entry and the

acquisition of the evidence was quite short--beginning only about

one minute after the unlawful entry. Id. On the second factor,

however, the court found that Seidman’s consent to Schoop’s

continued presence and his willingness to engage in conversation

constituted intervening acts of free will that attenuated the

connection between the illegal entry and the evidence. Id. at 549

62
& n.10. With respect to the third factor, the court found that the

taint to be purged was a slight, technical violation that lacked

the degree of coercion present in cases where the evidence had to

be suppressed. Id. at 549, 550. In weighing the factors, the

court therefore determined that the incriminating statements did

not result from “exploitation of the unlawful entry.” Id. at 550.

The factors lead to a similar conclusion here. First,

although the time between the unlawful entry and the acquisition of

the evidence is short, that factor alone is not dispositive. See

id. at 549. Second, as in Seidman, Shorts’s intervening actions

almost immediately attenuated the taint arising from the intrusion.

Shorts’s voluntary consent to the officers’ entry further into her

apartment and her discussion with Officer Knorlein in the kitchen

confirms that her consent and cooperation were independent acts of

free will, not the result of any coercive effect from the officers’

two-foot breach of the threshold of her home. Specifically, she

confided in Officer Knorlein that she was afraid of Wilkes,

divulged that Wilkes had thrown his handgun in the bedroom clothes

hamper, and concocted a ruse about getting her cigarettes so that

Officer Knorlein would have the opportunity to observe the gun.

Third, as in Seidman, examining the purpose and flagrancy of the

misconduct reveals that the taint to be purged here is slight. The

officers entered the open door and stepped only a foot or two

63
beyond the threshold before Shorts consented to their further

entry.

Accordingly, I believe the evidence here was acquired

“sufficiently independent of the unlawful invasion to purge any

taint arising from the initial entry.” Id. at 547. That it was

Shorts, and not Wilkes, who provided the consent does not affect

this conclusion.3 I therefore conclude that the motion to suppress

was correctly denied and concur only in the judgment of Part III.F

of the majority opinion.

III.

For the foregoing reasons, I respectfully dissent from Part

III.A.1 of the majority opinion to the extent that I would remand

for the district court to examine Agent Klas’s grand jury testimony

pursuant to the Jencks Act. In addition, I concur in the judgment

only as to Part III.F. I join the majority opinion in all other

respects.

3
Notably, there is no evidence that Wilkes objected to the
further entry or search of Shorts’s apartment. Cf. Randolph, 126
S. Ct. at 1526 (“[A] warrantless search of a shared dwelling for
evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the
basis of consent given to the police by another resident.”).

64