United States v. Simmons

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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.

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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

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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.

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 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

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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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