UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON T. SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cr-00031-PJM-1)
Argued: May 17, 2013 Decided: June 26, 2013
Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Marc Gregory Hall, HALL & CHO, PC, Rockville, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Jonathan Biran,
Appellate Chief, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 18, 2011, a jury found Appellant Jason T. Scott
guilty of eleven counts related to burglaries and home invasions
that took place between September 2008 and June 2009. Scott
appeals his convictions, arguing that (1) the district court
erred in denying his motion to suppress evidence seized pursuant
to a supplemental search warrant, (2) the district court should
not have allowed a police officer to testify as an expert
regarding how certain tools in Scott’s possession related to
burglary, and (3) the district court should have declared a
mistrial because the government committed a discovery violation.
Because we find that Scott’s arguments lack merit, we affirm.
I.
On May 26, 2009, someone burglarized J.C. Arms, a federally
licensed firearms dealer located in Carroll County, Maryland.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
conducted an investigation into the burglary, leading to several
controlled purchases of stolen guns from Scott. As a result of
these purchases, the ATF obtained a warrant to search Scott’s
home and car for firearms, documents related to the J.C. Arms
burglary, proof that Scott lived at the residence, cell phones,
tools to remove serial numbers from firearms, metallic fillings
from firearms, money, and safes. During their initial search,
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the agents saw ski masks, bullet-proof vests, flexicuffs, dark-
colored clothing, various electronic devices, police scanners,
financial statements, and other items such as gloves and
binoculars. The ATF then obtained a supplemental search warrant
allowing it to search Scott’s home and car for these items.
Scott was arrested thereafter and admitted that he committed
twenty-eight residential burglaries, committed nine armed home
invasion robberies, took photographs of a nude minor girl during
one of the home invasions, and burglarized J.C. Arms.
A federal grand jury returned a superseding indictment
charging Scott with eleven counts that arose from four armed
home invasion robberies in Prince George’s County, Maryland, and
the burglary of J.C. Arms. The charged offenses included
carjacking in violation of 18 U.S.C. § 2119 (Counts One, Three,
and Five); use of a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. § 924(c) (Counts Two, Four,
Six, and Nine); theft of firearms in violation of 18 U.S.C.
§ 922(u) (Count Seven); sexual exploitation of a minor by
production of a sexually explicit image in violation of 18
U.S.C. § 2251(a) (Count Eight); unlawful possession of a stolen
weapon in violation of 18 U.S.C. § 922(j) (Count Ten); and
unlawful possession of an unregistered silencer in violation of
26 U.S.C. § 5841 (Count Eleven). The J.C. Arms burglary formed
the basis of Count Seven, and agents discovered the silencer and
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stolen firearm that are the subjects of Counts Ten and Eleven
when they searched Scott’s home and car. We discuss the facts
underlying the remaining counts below.
On September 23, 2008, April 3, 2009, and May 23, 2009,
Scott and an accomplice broke into three houses and detained the
occupants at gunpoint. During each home invasion, Scott and his
accomplice stole a vehicle. These home invasions were the
subjects of Counts One through Six. On June 13, 2009, Scott
committed a fourth home invasion without an accomplice,
targeting a seventeen-year-old girl whose photograph and
telephone number he saw at the scene of the May 23 home
invasion. After detaining the girl’s family, Scott brandished a
firearm, ordered the girl to undress, and placed a pillowcase
over her head. He then touched her and forced her to pose while
he used two cameras to photograph and videotape her. Agents
seized objects that Scott had on his person when he appeared in
the video, and his voice is audible during the recording. This
home invasion was the subject of Counts Eight and Nine.
Prior to trial, Scott moved to suppress evidence seized
from his home and car pursuant to the supplemental search
warrant, averring that the affidavit supporting the warrant did
not establish a sufficient nexus between his alleged criminal
conduct and the items to be seized. The district court denied
the motion on May 24, 2011. At trial, Scott objected to the
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testimony of Prince George’s County Police Sergeant Matthew
Stauffer, who testified as an expert regarding how certain tools
in Scott’s possession could be used during burglaries and home
invasions. Scott argued that Stauffer’s testimony did not
satisfy the requirements of Federal Rule of Evidence 702. The
court overruled the objection. Scott ultimately moved for a
mistrial, contending that the government committed a discovery
violation when it failed to inform Scott about forensic
information it recovered from a computer that it seized from
Scott’s home. The court denied the motion for a mistrial.
The jury found Scott guilty of all eleven counts, and the
district court sentenced him to a total of 100 years’
imprisonment. Scott now appeals, arguing that the district
court (1) erred in denying his motion to suppress evidence
seized pursuant to the supplemental search warrant, (2) abused
its discretion in allowing Stauffer to testify as an expert
regarding the relation of certain tools in Scott’s possession to
burglary, and (3) should have declared a mistrial due to the
government’s discovery violation. We have jurisdiction pursuant
to 18 U.S.C. § 3742(a)(1).
II.
We first consider Scott’s argument that the district court
erred in denying his motion to suppress evidence that the ATF
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seized pursuant to the supplemental search warrant. Subject to
certain exceptions that are not applicable in this case, police
officers must obtain a warrant to conduct a search or seizure.
See U.S. Const. amend IV; see also United States v. Kelly, 592
F.3d 586, 589 (4th Cir. 2010). The affidavit supporting the
warrant that authorizes the search or seizure “must provide the
magistrate with a substantial basis for determining the
existence of probable cause” in light of the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
“[T]o establish probable cause, the facts presented to the
magistrate need only ‘warrant a man of reasonable caution’ to
believe that evidence of a crime will be found.” United States
v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (per curiam)
(quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality
opinion)). This standard requires the supporting affidavit to
make it clear to a reasonable person “that there is some nexus
between the items to be seized and the criminal activity being
investigated.” Doe v. Broderick, 225 F.3d 440, 451 (4th Cir.
2000). On appeal, we give “[g]reat deference . . . [to] a
magistrate’s assessment of the facts when making a determination
of probable cause.” Williams, 974 F.2d at 481.
Scott contends that the affidavit accompanying the
supplemental search warrant failed to establish the necessary
link between the criminal activity at issue and the items the
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ATF sought to seize. Specifically, Scott argues that there is
an insufficient connection between the crimes listed in the
affidavit—possession and sale of stolen firearms in violation of
18 U.S.C. § 922(j), possession of firearms with obliterated
serial numbers in violation of 18 U.S.C. § 922(k), and theft of
firearms in violation of 18 U.S.C. § 922(u)—and the items
identified in the affidavit: “[c]lothing which can be used to
commit burglaries,” certain electronic devices, certain
“[b]urglary tools,” police frequency scanners, and “[f]inancial
documents that are related to acquiring and disposing of
proceeds from burglaries.” For the reasons we discuss below,
Scott’s argument lacks merit.
Contrary to Scott’s assertions, the affidavit supporting
the supplemental warrant contains several additional facts that
justify the expanded scope of the warrant. In particular, the
affidavit explains that “a federal firearms licensee named J.C.
Arms located in Woodbine, MD[,] was burglarized and . . . many
of the firearms listed in [the original affidavit] were stolen
from that location.” The affidavit also notes that the agents
who searched Scott’s residence and car saw various burglary
tools in plain view when they executed the initial warrant.
These facts identify Scott as a possible participant in the
burglary of J.C. Arms. Furthermore, the affidavit draws a
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direct link between the items to be seized and burglary based on
the affiant’s experience:
Your affiant knows from his training and experience,
and from the training and experience of other ATF
agents, that suspects who engage in burglaries of
federal firearms licensees: wear protective clothing
such as ski masks, bullet proof vests and dark
clothing to hide their identity, use flexicuffs to
restrain people found during the course of the
burglaries to prevent their escape; use burglary
tools, like those identified in Attachment B, to gain
entry into locations; use binoculars to scope out
locations; use videocameras to record various
locations and use[] DVDs and other media to record the
locations; use police scanners to detect the presence
of law enforcement in the area.
. . . Your affiant also knows from his training and
experience, that suspects who engage in burglaries of
federal firearms licensees often keep and generate
records related to the planning and carrying out of
burglaries on their computers, external hard drives,
floppy disks, flash drives, and thumb drives in their
residences where they can have regular access to them.
The Supreme Court has held that officers “may draw
inferences based on [their] own experience in deciding whether
probable cause exists,” Ornelas v. United States, 517 U.S. 690,
700 (1996), and this Court has reached the same conclusion, see,
e.g., United States v. Wellman, 663 F.3d 224, 229 (4th Cir.
2011). The agent who prepared the affidavits in this case
detailed his experience investigating firearms-related crimes,
including two years as an ATF agent. He could therefore rely on
his experience to establish a link between the items to be
seized and Scott’s criminal activity. Accordingly, the district
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court did not err in determining that the affidavit established
the probable cause necessary to search Scott’s home and car for
burglary-related items.
III.
Next, Scott contends that the district court should not
have allowed Prince George’s County Police Sergeant Matthew
Stauffer to testify as an expert regarding the relation of
certain tools that the ATF recovered from Scott’s home and car
to burglary. These items included bolt cutters, screwdrivers, a
pry bar, a black cap and gloves, a ski mask, a hammer,
binoculars, a flashlight, and a window punch. We review the
district court’s decision to allow expert testimony for abuse of
discretion. See United States v. Dorsey, 45 F.3d 809, 812 (4th
Cir. 1995).
Federal Rule of Evidence 702 outlines the requirements for
expert testimony. As an initial matter, the court must
ascertain that the “witness . . . is qualified as an expert by
knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702. Prior to his testimony regarding the burglary tools,
Stauffer explained that he had served on the Prince George’s
County police force for fifteen years, investigated and
supervised the investigation of more than 2,000 burglaries, made
more than 100 arrests involving burglaries, and attended two
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schools where he received training in identifying burglary
tools. The government therefore established that Stauffer was
qualified by his “knowledge, skill, experience, training, or
education.”
To determine whether a witness’s testimony constitutes
permissible expert testimony, a court must next determine
whether the testimony meets four requirements. First, the court
must find that “the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.” Fed. R. Evid.
702(a). In this case, Stauffer’s knowledge of burglary tools
helped the jury understand how the assortment of items that the
police recovered from Scott’s home and car related to burglary.
Second, “the testimony [must be] based on sufficient facts or
data.” Id. 702(b). This requirement is not in dispute in this
case.
Third and fourth, “the testimony [must be] the product of
reliable principles and methods” that “the expert has reliably
applied . . . to the facts of the case.” Id. 702(c)-(d). Scott
argues that Stauffer’s testimony did not satisfy these
requirements because it was not “the product of reliable
principles and methods.” This Court has explained that, in the
context of experiential expert testimony such as Stauffer’s
testimony, these prongs of Rule 702 require witnesses to
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“explain how [their] experience leads to the conclusion reached,
why [their] experience is a sufficient basis for the opinion,
and how [their] experience is reliably applied to the facts.”
United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)
(quoting Fed. R. Evid. 702 advisory committee’s note) (internal
quotation marks omitted). After explaining his qualifications,
Stauffer answered “yes” when the government asked if, “[a]s part
of [his] training and experience, [he] ha[d] . . . come to
recognize the uses that can be made for tools in committing
. . . robberies.” The government then questioned Stauffer
regarding each of the tools at issue, and Stauffer used his
experience to explain how they related to burglary.
Consequently, Stauffer’s testimony comported with the third and
fourth requirements for expert testimony, and the district court
did not abuse its discretion in determining that Stauffer’s
testimony satisfied Rule 702.
Scott contends that this Court’s decision in United States
v. Johnson, 617 F.3d 286 (4th Cir. 2010), compels the opposite
result. In Johnson, the Court determined that a Drug
Enforcement Administration (DEA) agent’s testimony was
inadmissible under Rule 702 because “he provided virtually no
methodology or guiding principles that would enable him to
decode” the drug jargon that the DEA had intercepted via
wiretaps. Id. at 294. The Court noted that “the phrases [the
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agent] interpreted ‘were not typical drug code’ and ‘did not
have common meaning in the drug world.’” Id. at 295. However,
no similar problem exists in this case; Stauffer simply
testified regarding the common import that certain tools have in
the burglary context. Johnson therefore does not alter our
conclusion that the district court did not abuse its discretion
in allowing Stauffer to testify as an expert.
IV.
Finally, Scott contends that the district court erred when
it refused to declare a mistrial after it became aware that the
government had committed a discovery violation. Specifically,
Scott argues that the government erred when it failed to
disclose a forensic report regarding his computer. Scott
alleges that one of his accomplices created the explicit images
that are the subjects of Count Eight and transferred them to the
thumb drive on which the government found them. According to
Scott, the forensic report could prove or disprove this theory
because it likely shows whether the images in question passed
through the computer that the ATF seized from Scott’s home.
Scott concedes that, if the images passed through his computer—
which remained fixed in his home—his accomplices could not have
transferred the images. Pursuant to Federal Rule of Criminal
Procedure 16(a)(1)(E)(i), the government must permit the
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defendant to inspect documents if they are “material to
preparing the defense.” However, in this case, Scott’s attorney
ultimately stipulated that he received the report in question,
indicating that the government complied with Rule 16.
We recognize that the district court did not base its
decision not to declare a mistrial on the fact that Scott’s
attorney received the report. Instead, the court simply found
that Scott’s decision not to examine the computer himself
contributed to his lack of information as much as the
government’s “alleged non-production” did. However, even
assuming for the sake of argument that the government committed
a discovery violation, “we can 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. Nyman, 649 F.2d 208,
211-12 (4th Cir. 1980) (quoting Kotteakos v. United States, 328
U.S. 750, 756 (1946)). The evidence against Scott was
overwhelming with respect to the sexual exploitation charge: he
confessed to the crime, he appeared in the explicit video he
recorded and is audible in that video, the authorities
discovered the images in question in his residence, the thumb
drive containing the images also contained Scott’s homework
assignments, and the camera contained photos of Scott’s car and
living room.
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V.
For the foregoing reasons, we hold that (1) the district
court did not err in denying Scott’s motion to suppress evidence
that the ATF seized pursuant to the supplemental warrant, (2)
Sergeant Matthew Stauffer’s testimony conformed with Federal
Rule of Evidence 702, and (3) the district court did not err in
denying Scott’s motion for a mistrial. We therefore affirm
Scott’s conviction.
AFFIRMED
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