UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROOSEVELT SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:07-cr-00040-FPS-JES-1)
Submitted: April 21, 2010 Decided: May 27, 2010
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER,
Morgantown, West Virginia, for Appellant. Sharon L. Potter,
United States Attorney, David J. Perri, Robert H. McWilliams,
Jr., Assistant United States Attorneys, Wheeling, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roosevelt Simmons appeals his conviction and sentence
on one count of being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He contends
that the district court committed reversible error in conducting
a jury view of the crime scene, permitting identification
testimony of Simmons, denying a motion to suppress the result of
a gun-shot residue test (GSR test), admitting evidence that
Simmons used a firearm while possessing the ammunition, and
enhancing his sentence. For the foregoing reasons, we affirm.
I.
Early on the morning on November 4, 2007, Roosevelt
Simmons called 911 after returning home from work to report that
his apartment at the Eagle Court Apartments in Wheeling, West
Virginia, had been burglarized. Simmons told the responding
officers that he believed his neighbors had committed the crime
as retaliation for Simmons’s reporting them to the police for
loud music several nights earlier. Simmons then left his
apartment and drove to stay with his girlfriend, Nina Speights.
The next morning, Simmons and Speights’s cousin, Cameron Sealey,
drove to Steubenville, Ohio, to place a wager on a football
game. The two then drove back to the Eagle Court Apartments.
Proceeding at a high rate of speed, Simmons pulled up
2
haphazardly in front of his apartment building and entered the
building along with Sealey. Simmons approached apartments 322
and 323, his direct neighbors, and began banging on their doors,
yelling that someone must have known about the burglary on
November 4. Sarah Ruthers and her boyfriend Richard Gooch were
in apartment 322 at the time. Both noticed Simmons’s car as it
entered the lot and parked. Both recognized Simmons as he
exited the car and recognized his voice in the hallway.
Although neither Ruthers nor Gooch considered themselves friends
with Simmons, Gooch shared a cigarette with him on several
occasions and the pair often saw Simmons coming and going from
the apartment.
Gooch did not open the apartment door, but a person in
apartment 323, Jaime Conley, 1 did. Simmons began yelling at
Conley about his apartment break-in, “getting in her face,” and
telling her that whoever had robbed him had “f***ed with the
wrong n*****r.” Conley noticed another man, who she did not
recognize, standing in the hallway. Conley told Simmons that
she knew nothing about the burglary and, frightened, slammed the
door in his face. Conley did not know Simmons’s name, but she
recognized him as the man that had come over several nights
earlier to complain about loud music in the apartment.
1
Conley was not a resident of the Eagle Court Apartments
but was staying with friends in the complex at the time.
3
Gooch began watching the events unfold through the
peephole in Ruthers’s apartment. Gooch heard Simmons verbally
abusing Conley and also saw a man he did not recognize standing
further down the hallway. After Conley slammed the door, Gooch
saw Simmons pull a handgun from a brown paper bag he was
holding. Gooch told Ruthers to call 911 and retreated back into
the apartment. Moments later the residents heard gunfire and
the sound of breaking dishware and glass. Gooch heard four
shots in quick succession followed by a fifth shot seconds
later. One of the occupants of apartment 323 called 911, as did
Ruthers. Ruthers, who had been seated in her living room
looking out over the parking lot, saw the unidentified man exit
the building into the parking lot prior to the shots being
fired. Gooch and Ruthers then watched together as Simmons and
the unidentified male entered the car and left the parking lot
at a high rate of speed with Simmons driving. Sealey testified
that he was the man standing down the hallway and that, when he
saw Simmons pull a gun, he tried to dissuade him from using it.
Unable to do so, Sealey fled the apartment building and heard
multiple gunshots as he reached the parking lot.
Officers from the Wheeling Police Department responded
to the scene. Gooch and Ruthers both identified “Rosie” Simmons
as the shooter and provided a description of him and his car.
4
Conley also provided a description of the suspect and told
officers that he lived in the building.
After leaving Eagle Court, Simmons and Sealey returned
to Speight’s home, where Sealey witnessed Simmons hide the gun
in a laundry detergent box on top of the refrigerator. Twenty
minutes later Officer Ben Heslep with the Bellaire, Ohio, Police
Department 2 spotted and stopped a vehicle matching the
description provided by Gooch and Ruthers. With Simmons
stopped, officers from the Wheeling Police Department escorted
Gooch to the scene to see if he could identify Simmons. Apart
from Simmons, only police officers in uniform were present at
the scene when Gooch arrived. While Gooch stayed in his
vehicle, Simmons was asked to stand up out of the police vehicle
where he was being detained; Gooch identified Simmons as the
shooter and Simmons was placed back in the car. Simmons was
then transported to the Bellaire Police Department, where
officers conducted a gun-shot residue test (GSR test) on
Simmons’s hands. At the time the officers conducted the GSR
test, Simmons had been requesting to use the restroom.
At the Eagle Court Apartments, officers recovered five
spent 9 mm. caliber shell casings in the hallway. Four were
clustered together outside of doors 322 and 323 and the fifth
2
Bellaire, Ohio, is located directly across the Ohio River
from Wheeling, West Virginia.
5
was fifteen feet down the hall. Three bullet holes were found
in the door to apartment 322 and two holes were found in the
door to apartment 323. One of the bullets shattered the
dishware in Ruthers’s apartment. Officers never recovered the
firearm used in the shooting.
Based upon the foregoing, a federal grand jury
indicted Simmons on December 4, 2007, on one count of being a
felon in possession of ammunition, in violation of 18 U.S.C.
§ 922(g)(1) and 924(a)(2). During the pretrial period,
investigators with the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”), obtained letters and jail phone recordings between
Simmons and Speights. In these conversations, Simmons informed
Speights that he had hidden the gun in a laundry box in
Speights’s apartment and arranged for his sister to remove the
gun. Simmons also suggested how Speights should make her
statements to investigators. In addition, a prison inmate
approached the Government with information that Simmons had
discussed the possibility of attempting to kill or seriously
injure the federal prosecutor in his case. Simmons apparently
hoped that removing the prosecutor would delay his trial and
provide him grounds to move for dismissal under the Speedy Trial
Act.
Prior to trial, Simmons moved to exclude the results
of the GSR test as well as both out-of-court and in-court
6
identification testimony from Gooch. The district court,
adopting the recommendation of the magistrate judge assigned to
the case, denied both motions. A jury trial was conducted from
August 26 to August 28, 2008. During the trial, the district
court conducted a jury view of the crime scene outside the
presence of Simmons, who was detained in a van in the parking
lot. The jury ultimately convicted Simmons on the ammunition
possession charge. The district court conducted a sentencing
hearing on November 3, 2008, and sentenced Simmons to 120 months
imprisonment. Simmons noted a timely appeal.
II.
On appeal, Simmons contends that the district court
committed reversible error in conducting a jury view of the
Eagle Court Apartments, permitting Gooch’s identification
testimony, denying the motion to suppress the GSR test, and
admitting evidence of the shooting. 3 We address each contention
in turn.
3
Simmons also contends that the district court committed
reversible error in sentencing him. Specifically, Simmons
argues that it violates the Sixth Amendment to impose sentencing
enhancements even under an advisory Guidelines scheme and even
if the resulting sentence is below the statutory maximum.
Simmons concedes that his argument is foreclosed by Booker v.
United States, 543 U.S. 220 (2005), but contends that Booker was
wrongly decided. Booker remains binding law, however, and we
thus reject Simmons’s argument.
7
A.
Simmons first contends that the district court
committed reversible error in conducting a jury view of the
Eagle Court Apartments during the trial. “The federal courts
recognize their inherent power to permit a jury view of places
or objects outside the courtroom. The decision to permit a view
is entrusted to the sound discretion of the trial court.”
United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.
1990) (citations omitted). See also United States v. Woolfolk,
197 F.3d 900, 905 (7th Cir. 1999) (noting that a district
court’s ruling on a motion for a jury view is reviewed for abuse
of discretion).
Three months prior to trial, the Government moved for
a jury view of the Eagle Court Apartments and included a
proposed list of sites. The district court granted the motion
as to the sites described by the Government and also offered
Simmons the opportunity to suggest additional sites.
On the first day of the trial, the district court,
accompanied by counsel, the Defendant, and the lead
investigator, Agent James E. Sirbaugh of the ATF, took the jury
to view the Eagle Court Apartments. The Defendant stayed in a
van with U.S. Marshals during the view. Before entering the
apartments, Agent Sirbaugh suggested to the district court,
outside the presence of the jury, that the jurors look at the
8
bullet holes in the apartment doors from both sides, a request
the district court granted. Once inside the apartment, and
again outside the jury’s presence, Agent Sirbaugh suggested that
the jurors see the holes in Ruthers’s refrigerator. Simmons’s
counsel objected to that view because it was not on the
Government’s pretrial list of sites, and the district court
sustained the objection. The jurors completed the view and
returned to court.
On appeal, Simmons does not contest the conducting of
a jury view, but rather argues that, given Special Agent
Sirbaugh’s comments, the jury view was transformed from a
permissible crime scene inspection into an unconstitutional
opportunity for Agent Sirbaugh to testify outside of the
Defendant’s presence. Simmons also argues that he was unable to
communicate with counsel during the jury view, and that this
failure kept Simmons from having his counsel point out several
important features of the scene.
We do not believe either situation constituted
reversible error in this case. The presence of Simmons’s
counsel during the view resolves any constitutional issues
arising from Simmons’s inability to take part in the view. See
Snyder v. Massachusetts, 291 U.S. 97 (1934), (holding that a
jury view with counsel present is constitutional). In addition,
Agent Sirbaugh’s comments were not made in front of the jury,
9
and, even if they were, he was simply assisting the district
court in finding the sites already supplied by the Government.
Moreover, even assuming the district court erred in
conducting the view, Simmons cannot show that such error was
harmful. This court has held that jury views of crime scenes,
both court-ordered and unsupervised, are subject to harmless
error review. See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th
Cir. 1997) (court-ordered jury view subject to harmless error
review); Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996)
(en banc) (unsupervised jury view of crime scene subject to
harmless error review). In determining the possible harm of any
error, this court should “look to the nature and extent of the
[jury’s] activity and assess how that activity fit into the
context of the evidence presented at trial.” Sherman, 89 F.3d
at 1138. “The level of conjecture inherent in this inquiry is
reduced, making it even more appropriate for harmless-error
analysis, when the jury view is personally supervised by the
judge.” Arnold, 113 F.3d at 1361. An error is harmless “if a
reviewing court is able to ‘say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.’” United States v. Basham, 561 F.3d 302,
327 (4th Cir. 2009) (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)).
10
Applying this standard, any error in this case was
harmless. Two witnesses who knew Simmons, Gooch and Ruthers,
testified that he was the person in the hallway, and Gooch and
Conley both testified that Simmons drew a gun. Simmons’s own
companion that day, Cameron Sealey, testified that Simmons drew
a gun and that, in response, Sealey fled the apartment building
and subsequently heard gunshots. Conley and Gooch both
testified that they heard gunfire almost immediately after
Simmons drew the gun. During pretrial incarceration, Simmons
told his girlfriend Speights that he had hidden the gun and that
his sister was disposing of it. Sealey further testified that
he watched Simmons hide the gun in Speight’s home. Given this
wealth of testimony, it is difficult to see how Agent Sirbaugh’s
suggestion or Simmons’s exclusion were prejudicial. Simmons
suggests that he would have asked for different site views
regarding the ability to see the parking lot from the
apartments, but he had the opportunity to do so during the
pretrial period and also had ample opportunity to cross-examine
Ruthers and Gooch on that point.
B.
Next, Simmons argues that the district court erred in
permitting Gooch’s identification testimony at trial. “Due
process principles prohibit the admission at trial of an out-of-
court identification obtained through procedures ‘so
11
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.’” United States v.
Saunders, 501 F.3d 384, 389 (4th Cir. 2007) (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)). No due process
violation occurs if the “identification was sufficiently
reliable to preclude the substantial likelihood of
misidentification.” United States v. Johnson, 114 F.3d 435, 442
(4th Cir. 1997); see also Manson v. Brathwaite, 432 U.S. 98, 106
(1977) (stating that the central question is “whether under the
totality of the circumstances the identification was reliable
even though the [identification] procedure was suggestive”)
(internal quotations omitted).
We consider the admissibility of identification
testimony in two steps:
First, the defendant must show that the photo
identification procedure was impermissibly suggestive.
Second, if the defendant meets this burden, a court
considers whether the identification was nevertheless
reliable in the context of all of the circumstances.
Saunders, 501 F.3d at 389-90.
If a witness’s out-of-court photo identification is
unreliable and therefore inadmissible, any in-court
identification is also inadmissible. Simmons, 390 U.S. at 383-
84. On appeal, we may assume the suggestiveness of a
identification procedure and move directly to the second step.
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994).
12
The magistrate judge denied Simmons’s motion to
exclude identification testimony after a hearing, and the
district court adopted that recommendation. The district court
assumed that the photo identification procedure was
impermissibly suggestive but concluded that the identification
was still reliable because Gooch knew Simmons personally and
made the identification roughly one half-hour after the
shooting.
We agree with the district court that, even assuming
the initial procedure was impermissibly suggestive, Gooch’s
identification was reliable and thus admissible. We have
explained that five factors should be considered in assessing
the reliability of an out-of-court identification: (1) the
witness’s opportunity to view the suspect at the time of the
crime; (2) the witness’s degree of attention at the time of the
crime; (3) the accuracy of the witness’s initial description of
the suspect; (4) the witness’s level of certainty in making the
identification; and (5) the length of time between the crime and
the identification. Saunders, 501 F.3d at 391. “In addition,
courts may consider other evidence of the defendant’s guilt when
assessing the reliability of the identification.” Id. (internal
quotation marks and alterations omitted).
Applying these factors, Gooch’s identification was
reliable. First, Gooch was certain that Simmons was the person
13
in the hallway, and Gooch was personally familiar with Simmons
because they lived in the same apartment complex. While Gooch
and Simmons lived on different floors, Gooch’s girlfriend, whom
Gooch was visiting that day, lived next to Simmons. After the
shooting, Gooch had Ruthers immediately dial 911 and identify,
by name, Simmons as the perpetrator. The actual identification
was made one half-hour after the shooting. Gooch had a good
opportunity to view Simmons’s approach and exit from the
apartment complex and recognized his car. In addition, two
other witnesses, Ruthers and Sealey, placed Simmons in the
apartment building. Likewise, Conley also identified Simmons at
trial as the man that she spoke with that day.
Because Gooch’s identification was reliable, the
district court correctly permitted his in-court testimony and
identification.
C.
Simmons asserts that the district court erred in
denying his motion to suppress the GSR test taken at the
Bellaire Police Department. In addressing the denial of a
motion to suppress evidence, we review the district court’s
findings of historical fact for clear error, “giving due weight
to inferences drawn from those facts by resident judges and
local law enforcement officers.” Ornelas v. United States, 517
U.S. 690, 699 (1996). We review de novo the ultimate legal
14
conclusion. Id. And, “[b]ecause the district court denied the
motion to suppress, we construe the evidence in the light most
favorable to the Government.” United States v. Perkins, 363
F.3d 317, 320 (4th Cir. 2004).
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated. . . .” U.S. Const. amend. IV. Warrantless
searches “are per se unreasonable under the Fourth Amendment-
subject only to a few specifically established and well-
delineated exceptions.” United States v. Bush, 404 F.3d 263,
275 (4th Cir. 2005) (quoting Mincey v. Arizona, 437 U.S. 385,
390 (1978)). One of the well-recognized exceptions to the
warrant requirement is a search incident to a lawful arrest.
See United States v. Currence, 446 F.3d 554, 556 (4th Cir.
2006). Pursuant to this exception, law enforcement officers
following a lawful arrest may search “the arrestee’s person and
the area ‘within his immediate control.’” Id. (quoting Chimel
v. California, 395 U.S. 752, 763 (1969)). Another such
exception is when exigent circumstances exist, situations “where
police officers (1) have probable cause to believe that evidence
of illegal activity is present and (2) reasonably believe that
evidence may be destroyed or removed before they could obtain a
15
warrant.” United States v. Cephas, 254 F.3d 488, 494-95 (4th
Cir. 2001).
The magistrate judge, after conducting an evidentiary
hearing, concluded that Simmons was lawfully arrested and that,
given the inherent destructibility of gun-shot residue evidence,
the police were permitted to run the GSR test without a warrant.
The district court adopted that recommendation, and we conclude
that the district court correctly denied the motion to suppress.
Recently, the Fifth Circuit concluded that a GSR test
is a reasonable search incident to arrest. United States v.
Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006). As the court
explained, “[b]ecause the presence of gun powder on his hands
was relevant evidence that [the defendant] (or merely time)
could have eventually removed or destroyed, if his arrest was
valid, the performance of the gun powder residue test was
lawful, and the admission of the results at trial was proper.”
Id. at 795-96. Such a result is dictated by Cupp v. Murphy, 412
U.S. 291 (1973), in which the Supreme Court concluded that
police, consistent with the Fourth Amendment, could take
fingernail samples incident to a lawful arrest. Id. at 295-96.
In Cupp, the Court explained the basis for the search incident
to arrest doctrine was the belief that “it is reasonable for a
police officer to expect the arrestee to use any weapons he may
have and to attempt to destroy any incriminating evidence then
16
in his possession. Id. at 295. Applying that rationale, the
Court concluded that the police were justified in performing a
“very limited search necessary to preserve the highly evanescent
evidence they found under his fingernails.” Id.
Likewise, the GSR test in this case was
constitutional. Simmons does not contest the lawfulness of his
arrest, and, given that concession, the GSR test, a “very
limited search,” was appropriate as a search incident to arrest.
In the alternative, exigent circumstances also justify the
search because Simmons was requesting to use the bathroom and
both parties agree that washing his hands could have removed any
gun-shot residue. The district court did not err in denying the
motion to suppress.
D.
Simmons also challenges the district court’s decision
to permit testimony regarding the shooting in order to prove
Simmons’s possession of ammunition, arguing that the evidence
was inadmissible under Federal Rules of Evidence 404(b) and 403.
We review evidentiary rulings of the district court for abuse of
discretion. United States v. Delfino, 510 F.3d 468, 470 (4th
Cir. 2007). We will not “‘vacate a conviction unless we find
that the district court judge acted arbitrarily or irrationally’
in admitting evidence.” United States v. Benkahla, 530 F.3d
17
300, 309 (4th Cir. 2008) (quoting United States v. Ham, 998 F.2d
1247, 1252 (4th Cir. 1993)).
Under Rule 404(b), “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Fed.
R. Evid. 404(b). The Rule 404(b) inquiry, however, applies only
to evidence of other acts that are “extrinsic to the one
charged.” United States v. Chin, 83 F.3d 83, 87 (4th Cir.
1996). “[A]cts intrinsic to the alleged crime do not fall under
Rule 404(b)'s limitations on admissible evidence.” Id. at 87-
88. “Evidence of uncharged conduct is not ‘other crimes’
evidence subject to Rule 404 if the uncharged conduct ‘arose out
of the same series of transactions as the charged offense, or if
[evidence of the uncharged conduct] is necessary to complete the
story of the crime on trial.’” Siegel, 536 F.3d at 316 (quoting
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)).
Rule 403 provides a more limited bar to otherwise
admissible evidence:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
Fed. R. Evid. 403.
18
Rule 403 is likewise a rule of inclusion, “generally
favor[ing] admissibility . . . .” United States v. Wells, 163
F.3d 889, 896 (4th Cir. 1998). District judges enjoy wide
discretion to determine what evidence is admissible under the
Rule. See United States v. Love, 134 F.3d 595, 603 (4th Cir.
1998). We “review a district court’s admission of evidence over
a Rule 403 objection under a broadly deferential standard.” Id.
(internal quotations omitted). Indeed, “[a] district court's
decision to admit evidence over a Rule 403 objection will not be
overturned except under the most extraordinary of circumstances,
where that discretion has been plainly abused.” United States
v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal
quotations omitted). In reviewing the admission of evidence, we
construe the evidence in the “light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.” United States v. Simpson, 910 F.2d 154,
157 (4th Cir. 1990).
Applying these standards, we have little difficulty
concluding that the district court did not abuse its discretion
in admitting the challenged evidence. First, evidence of the
shooting satisfied Rule 404(b) because it was intrinsic to the
crime charged—it was part of the same series of transactions as
the offense and helped to tell the story of the crime. In
addition, such testimony does not run afoul of Rule 403 because,
19
as intrinsic evidence, it was highly probative. The evidence
that Simmons was seen with a gun immediately before a shooting
occurred was damaging to Simmons’s case, but that is not the
standard under Rule 403 and such evidence was not unfairly
prejudicial.
III.
For the foregoing reasons, we affirm the district
court's judgment. Simmons’s motions to file supplemental briefs
are denied. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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