United States v. Reginald Dargan, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4171

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

REGINALD DUANE DARGAN, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00578-CCB-3)

Argued: October 30, 2013 Decided: December 24, 2013

Before WILKINSON, AGEE, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Keenan joined.

ARGUED: Brian L. Stekloff, PAUL, WEISS, RIFKIND, WHARTON &
GARRISON, LLP, Washington, D.C., for Appellant. Benjamin M.
Block, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Sean Welsh, Legal Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WILKINSON, Circuit Judge:

Appellant Reginald Dargan, Jr., was convicted by a jury of

three counts arising from the armed robbery of a jewelry store.

He now appeals his conviction, contending that the district

court erred in denying his motion to suppress evidence seized

pursuant to a warrant during a search of his residence. He also

argues that testimony about out-of-court statements made by a

co-conspirator was erroneously admitted in violation of both the

Federal Rules of Evidence and the Confrontation Clause. For the

following reasons, we reject Dargan’s claims and affirm his

conviction.

I.

Shortly after noon on March 30, 2011, three men robbed a

jewelry store located in a mall in Columbia, Maryland. Two of

the participants were armed with firearms, while the third

carried a knife. After waiting for a customer to leave, one of

the men detained a sales clerk at gunpoint. Another held a knife

to the clerk’s leg and forced him to dump a case of Rolex

watches into a bag. Meanwhile, the remaining culprit restrained

a second employee at the back of the store. Once the watch case

was emptied, the three men hastily exited the mall. They escaped

with over thirty men’s Rolex watches, with a retail value of

approximately $275,000.

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 The following day, the police issued a news release asking

the public to submit information relevant to the investigation.

The release contained images of the suspects captured by mall

security cameras. Based on tips received, the authorities

arrested three individuals: Deontaye Harvey, Aaron Pratt, and

Gary Braxton. Officials soon doubted Braxton’s involvement,

however, and he was released. The investigation also implicated

a fourth individual, nicknamed “Little Reggie,” who was not

apprehended at that time.

Two months later, appellant Dargan was arrested in

connection with the robbery. Police suspected that Dargan was in

fact Little Reggie, the knife-wielding participant in the

Columbia heist. Investigators subsequently obtained a search

warrant for Dargan’s residence. Attachment A to the warrant

enumerated items subject to seizure, including, among other

things, “[i]ndicia of occupancy.” J.A. 70. During the search,

officers seized a purchase receipt for a Louis Vuitton belt. The

receipt was found in a bag located on top of a dresser in

Dargan’s bedroom. It indicated that the belt cost $461.10 and

that the buyer, who identified himself as “Regg Raxx,” purchased

the belt with cash the day after the robbery.

On October 26, 2011, a federal grand jury returned an

indictment against Dargan, Harvey, and Pratt. As relevant here,

the indictment charged Dargan with conspiracy to interfere with,

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as well as actual interference with, interstate commerce by

robbery in violation of 18 U.S.C. § 1951. It also charged him

with using and carrying a firearm during and in relation to a

crime of violence in violation of 18 U.S.C. § 924(c).

Prior to trial, Dargan moved to suppress the purchase

receipt for the Louis Vuitton belt seized during the search of

his residence. The district court found that the receipt did not

fall under the terms of Attachment A to the search warrant, but

that the seizure was nevertheless justified under the plain-view

exception to the warrant requirement.

The government also filed a pretrial motion to admit

testimony regarding out-of-court statements made by Dargan’s co-

defendant, Harvey, to a cellmate, Zachary Shanaberger. The

conversation took place after Braxton had been released and

Dargan arrested. Specifically, the government intended to elicit

testimony regarding Harvey’s alleged confession to robbing a

jewelry store in the Columbia Mall with two co-conspirators and

his disclosure that they were all imprisoned in the same

facility at the time of the conversation. In his statements to

Shanaberger, Harvey did not identify the third participant --

whom the prosecution contended was Dargan -- by name.

The government argued that Harvey’s comments were

admissible under Federal Rule of Evidence 804(b)(3), which

provides an exception to the general prohibition against hearsay

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for statements against interest. Dargan not only contested this

assertion, but further contended that the introduction of the

statements at trial would violate his Confrontation Clause

rights. Ruling from the bench, the district court rejected each

of Dargan’s objections and granted the government’s motion.

At Dargan’s trial, the prosecution both introduced the

Louis Vuitton receipt and called Shanaberger as a witness. It

also provided independent evidence directly linking Dargan to

the Columbia robbery. For instance, the government called two

witnesses who each identified Dargan as one of the culprits

depicted in the footage taken by mall surveillance cameras. One

of the witnesses was Dargan’s own godmother, who had known him

for over thirteen years.

The prosecution also introduced several text messages

recovered from Dargan’s phone pursuant to a search warrant. The

messages were exchanged between Dargan and Harvey during the

direct lead-up to the robbery. The conversation ceased during

the actual commission of the crime. Shortly before 11:15 that

morning, Harvey texted Dargan to “Get dressed . . . . We on. Da

way.” J.A. 620. At 11:16, he further instructed Dargan to “Bring

da knife out.” Id. Finally, at 11:43, Dargan texted Harvey to

inform him that “We out front.” Id.

On November 8, 2012, the jury found Dargan guilty of each

of the three counts listed above. The district court sentenced

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him to 135 months of incarceration, in addition to a period of

supervised release and restitution. This appeal followed.

II.

Dargan first contends that the seizure of the Louis Vuitton

belt receipt violated the Fourth Amendment because the receipt

did not fall under any of the items enumerated in Attachment A,

which delineated the warrant’s scope. 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, and no Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” In

interpreting the Fourth Amendment, the thought of unfettered

police discretion is unthinkable, and any practice of minute

judicial management is impractical, and the question thus must

always be where the balance lies.

A.

The last clause of the Fourth Amendment contains a

“particularity requirement,” which “is fulfilled when the

warrant identifies the items to be seized by their relation to

designated crimes and when the description of the items leaves

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nothing to the discretion of the officer executing the warrant.”

United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).

The Framers included this provision in order to end the

practice, “abhorred by the colonists,” of issuing “general

warrants.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

The requirement is designed to preclude broadly-phrased warrants

from authorizing officers to conduct “exploratory rummaging in a

person’s belongings.” Andresen v. Maryland, 427 U.S. 463, 480

(1976) (internal quotation marks omitted). Thus, when executing

a warrant, officers are limited by its terms. Williams, 592 F.3d

at 519.

Nevertheless, a warrant is not intended to impose a

“constitutional strait jacket” on investigating officers. United

States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988)

(internal quotation marks omitted). Courts must refrain from

interpreting warrant terms in a “hypertechnical” manner, and

should instead employ a “commonsense and realistic” approach.

Williams, 592 F.3d at 519 (internal quotation marks omitted);

see also Illinois v. Gates, 462 U.S. 213, 231 (1983) (using

similar language with respect to judicial review of affidavits).

This rule of construction strikes a middle ground by ensuring

that warrants serve their central purpose -- precluding officers

from conducting fishing expeditions into the private affairs of

others -- while simultaneously preserving the flexibility of law

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enforcement to adapt to the unforeseen circumstances that

necessarily arise in an investigation predicated on incomplete

information.

Interpreting warrants in a commonsense manner serves the

further, significant purpose of encouraging officers to obtain

judicial approval prior to conducting a search. United States v.

Phillips, 588 F.3d 218, 223 (4th Cir. 2009). This court, along

with many others, has stated a strong preference for officers to

obtain a warrant prior to intruding on constitutionally

protected domains. United States v. Srivastava, 540 F.3d 277,

288 (4th Cir. 2008). A warrant cabins executive discretion,

gives the imprimatur of lawful authority to potentially

intrusive police conduct, and helps to ensure that valuable

evidence is not later excluded as a result of an illicit search.

See Gates, 462 U.S. at 236. A “grudging or negative attitude by

reviewing courts towards warrants” is inconsistent with this

approach. Id. (internal quotation marks omitted).

An overly stringent rule of construction would encourage

warrantless searches by reducing the benefits a warrant

provides. Officers are motivated to secure judicial approval in

part because of the safe harbor it represents. The sense of

confidence a warrant affords, however, is diminished to the

extent that its terms are subject to an excessively narrow

interpretation. Faced with such an interpretation, “police might

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well resort to warrantless searches, with the hope of relying on

consent or some other exception to the Warrant Clause that might

develop at the time of the search.” See id. Courts can help to

head off this eventuality by consistently adopting a commonsense

reading of a warrant’s scope.

B.

Here, Attachment A to the warrant, which enumerated the

items subject to seizure, relevantly included “[i]ndicia of

occupancy, residency, of the premises . . . including but not

limited to, utility and telephone bills, [and] canceled

envelopes.” J.A. 70. The officers conducting the search could

plausibly have thought that the occupant of the premises was

also the purchaser identified on the belt receipt discovered in

the bedroom. The receipt, which listed the buyer as “Regg Raxx,”

therefore constituted at least some indication of occupancy and

fell within the terms of Attachment A.

This conclusion is corroborated by the warrant’s inclusive

language: Attachment A states that “[i]ndicia of occupancy”

“includ[es]” but is “not limited to” certain listed items

(“utility and telephone bills, [and] canceled envelopes”). Id.

This “broad and inclusive language” cautions against a miserly

construction. Phillips, 588 F.3d at 225. The fact that the

warrant does not explicitly mention receipts is not

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determinative: “law enforcement officers may seize an item

pursuant to a warrant even if the warrant does not expressly

mention and painstakingly describe it.” Id. Indeed, “[a] warrant

need not -- and in most cases, cannot -- scrupulously list and

delineate each and every item to be seized.” Id.

Here, the officers were lawfully in the residence pursuant

to the search warrant. Furthermore, they were justified in

opening the bag on top of the dresser in Dargan’s bedroom to

determine whether its contents matched any of the items they

were authorized by the warrant to seize. Attachment A, for

example, lists “[a]ny and all diaries, journals, or notes.” J.A.

70. These documents -- as well as a host of other physically

diminutive objects described in the attachment -- could easily

have been placed in the retail bag. Contrary to Dargan’s

contention, the officers were not required to assume that the

retail bag contained only retail items. See Williams, 592 F.3d

at 522. People put all kinds of things in bags for reasons of

convenience, carry, or concealment.

The facts of this case underscore the fallacy of Dargan’s

contention that only items listed by name may be seized during

the execution of a search warrant. That would require officers

possessed of incomplete knowledge to identify ex ante every item

of evidence that will be relevant and the precise form that it

will take -- a plainly unrealistic expectation. The officers in

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the instant case may not have foreseen that indicia of occupancy

located at the residence would take the form of a sales receipt

but, once faced with precisely that scenario, they were entitled

to seize the receipt under a commonsense reading of the

warrant’s terms. In no way could the search and seizure of the

receipt be characterized as an “exploratory rummaging.” The

central value animating the particularity requirement was

therefore preserved. See United States v. Robinson, 275 F.3d

371, 381 (4th Cir. 2001).

III.

Dargan next objects to the admission of Shanaberger’s

testimony regarding out-of-court statements made by co-defendant

Harvey to Shanaberger while the two were incarcerated together

following the robbery. Specifically, Dargan seeks to exclude

testimony with respect to two statements: Harvey’s confession to

robbing the Columbia Mall with two co-conspirators, and his

comment that all three co-conspirators were incarcerated in the

same facility at the time of his conversation with Shanaberger.

Dargan contends not only that the statements are inadmissible

under Federal Rule of Evidence 804(b)(3), but also that their

introduction violated his constitutional right to confrontation.

We address both contentions below.

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 A.

As a general matter, the Federal Rules of Evidence ban the

introduction of hearsay testimony at trial. Rule 804, however,

carves out an exception to this broad prohibition for specific

categories of hearsay considered especially reliable. See

Williamson v. United States, 512 U.S. 594, 598-99 (1994). As

relevant here, 804(b)(3) provides that a statement made by an

unavailable declarant is admissible if it is one that “a

reasonable person in the declarant’s position would have made

only if the person believed it to be true because, when made, it

. . . had so great a tendency to . . . expose the declarant to

civil or criminal liability.” The statement must also be

“supported by corroborating circumstances that clearly indicate

its trustworthiness, if it is offered in a criminal case as one

that tends to expose the declarant to criminal liability.” Id.

The district court’s decision to admit Shanaberger’s testimony

under this rule is reviewed for abuse of discretion. United

States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995).

It is undisputed that Harvey, having invoked his Fifth

Amendment right not to testify, was unavailable within the

meaning of 804(b)(3). See id. Dargan contends, however, that the

government failed to carry its burden with respect to the two

remaining elements: inculpation and corroboration.

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 The first of these requirements has been held to restrict

admission to “those declarations or remarks within the

confession that are individually self-inculpatory.” Williamson,

512 U.S. at 599. Whether this standard is satisfied can only be

determined by viewing the statement in light of the surrounding

circumstances. Id. at 603.

Here, both the context and content of the challenged

statements indicate their self-inculpatory quality. First,

Harvey made the statements to a cellmate rather than, for

instance, a police investigator. He thus had no obvious motive

to “shift blame or curry favor.” United States v. Jordan, 509

F.3d 191, 203 (4th Cir. 2007) (internal quotation marks

omitted). Second, the statements are intrinsically inculpatory

to the extent they demonstrate Harvey’s knowledge of

“significant details about the crime,” Williamson, 512 U.S. at

603, and “implicate him in a conspiracy,” United States v.

Udeozor, 515 F.3d 260, 267 (4th Cir. 2008). Harvey’s admission

that he committed the robbery with the assistance of two co-

conspirators not only revealed his knowledge of the number of

participants, but also potentially subjected him to conspiracy

liability. His statement that each of the participants was

currently incarcerated at the same facility further evidenced

his specific knowledge of the identities of the other robbers.

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The statements were therefore sufficiently inculpatory to

satisfy this element of the rule.

Rule 804(b)(3) also requires that statements against

interest be supported by corroborating circumstances. Our court

has enumerated several factors relevant to this particular

inquiry, including:

(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the
declarant’s motive in making the statement and whether
there was a reason for the declarant to lie, (3)
whether the declarant repeated the statement and did
so consistently, (4) the party or parties to whom the
statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the
conduct in question.

United States v. Kivanc, 714 F.3d 782, 792 (4th Cir. 2013)

(quoting Bumpass, 60 F.3d at 1102 (citations omitted)).

Considered together, these factors indicate that the

corroborating circumstances requirement was satisfied here.

Harvey had not pled guilty at the time of his statement, and

thus remained exposed to the full range of penal consequences

attached to his illicit conduct. See id. at 793. Furthermore, as

noted, the statements were made to a fellow prisoner; Harvey

thus had no motive to manipulate his narrative to please the

authorities. See Jordan, 509 F.3d at 203. Finally, the gist of

the statements was confirmed by a wealth of independent evidence

introduced by the government at trial, including the series of

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text messages between Dargan and Harvey discussing Dargan’s use

of a knife during the planned robbery. The district court

therefore did not abuse its discretion under the Federal Rules

in admitting Shanaberger’s testimony.

B.

Dargan also contends that the introduction of Harvey’s out-

of-court statements violated his constitutional right to

confront opposing witnesses. The Confrontation Clause of the

Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” This provision bars the admission of

“testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53-54 (2004).

“As Crawford and later Supreme Court cases make clear, a

statement must be ‘testimonial’ to be excludable under the

Confrontation Clause.” Udeozor, 515 F.3d at 268. The primary

determinant of a statement’s testimonial quality is “whether a

reasonable person in the declarant’s position would have

expected his statements to be used at trial -- that is, whether

the declarant would have expected or intended to ‘bear witness’

against another in a later proceeding.” Id. (citing Crawford,

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541 U.S. at 52). This definition flows from the Court’s

recognition that “the principal evil at which the Confrontation

Clause was directed was the civil-law mode of criminal

procedure, and particularly its use of ex parte examinations as

evidence against the accused.” Crawford, 541 U.S. at 50.

Under this standard, Harvey’s comments to Shanaberger are

plainly nontestimonial. Harvey made the challenged statements to

a cellmate in an informal setting -- a scenario far afield from

the type of declarations that represented the focus of

Crawford’s concern. The Supreme Court itself has noted, as a

general matter, that “statements from one prisoner to another”

are “clearly nontestimonial.” Davis v. Washington, 547 U.S. 813,

825 (2006). Harvey’s jailhouse disclosures to a casual

acquaintance were not made with an eye towards trial. He had no

plausible expectation of “bearing witness” against anyone. See

United States v. Jones, 716 F.3d 851, 856 (4th Cir. 2013). The

Confrontation Clause is therefore inapplicable, though such

statements must, to be admissible, still satisfy the

requirements of the Federal Rules of Evidence, here 804(b)(3).

Dargan devotes a significant portion of his brief to

contending that Shanaberger’s testimony was inadmissible under

the Supreme Court’s holding in Bruton v. United States, 391 U.S.

123 (1968). In that case, Bruton and his co-conspirator were

tried jointly. The latter declined to testify, but his

16
confession -- which directly implicated Bruton -- was admitted

against him at trial. The district judge gave a limiting

instruction that the confession did not qualify as evidence

against Bruton. Id. at 124-25, 128. On appeal, the Supreme Court

reversed, noting the “substantial risk” that the jury would

ignore the limiting instruction and thereby violate Bruton’s

Confrontation Clause rights. Id. at 126.

Dargan’s reliance on Bruton is misplaced for several

reasons. First, Dargan and Harvey were not tried jointly. Harvey

pled guilty and Dargan received an individual trial. The formal

structure of a Bruton claim is therefore absent. The

“substantial risk” that a confession admitted against one

defendant might affect the jury’s verdict regarding his co-

defendant is not presented on these facts. See United States v.

Johnson, 581 F.3d 320, 326 (6th Cir. 2009).

Second, and more significantly, Bruton is simply irrelevant

in the context of nontestimonial statements. Bruton espoused a

prophylactic rule designed to prevent a specific type of

Confrontation Clause violation. Statements that do not implicate

the Confrontation Clause, a fortiori, do not implicate Bruton.

See, e.g., United States v. Clark, 717 F.3d 790, 816 (10th Cir.

2013) (“[T]he Bruton rule, like the Confrontation Clause upon

which it is premised, does not apply to nontestimonial hearsay

statements.”) (citation and internal quotation marks omitted).

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Our conclusion that Harvey’s statements were nontestimonial

therefore suffices to dispatch Dargan’s Bruton argument as well. *

IV.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

*
We have reviewed the additional arguments contained in the
supplemental pro se brief and find nothing of merit therein.

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