United States v. Chinua Shepperson

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4618

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CHINUA SHEPPERSON, a/k/a Nu, a/k/a NuNu, a/k/a King Nu,
a/k/a Chinua Shepperdson,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00598-AW-17)

Argued: October 31, 2013 Decided: January 8, 2014

Before MOTZ and AGEE, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Motz and Judge Anderson concurred.

ARGUED: Ray M. Shepard, SMITH, GILDEA & SCHMIDT, LLC, Towson,
Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland;
Emily N. Glatfelter, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
AGEE, Circuit Judge:

Chinua Shepperson (“Shepperson”) was convicted of several

crimes, including conspiracy and murder. On appeal, Shepperson

contends that the district court erred by not affording him the

assistance of two attorneys under the terms of 18 U.S.C. § 3005.

Separately, he argues that the district court also erred by not

excluding the testimony of a cooperating witness based on the

Government’s failure to furnish him with a list of witnesses

three days before commencement of trial, as is required in

capital cases by 18 U.S.C. § 3432. For the reasons that follow,

we affirm the judgment of the district court.

On October 27, 2010, a grand jury in the United States

District Court for the District of Maryland returned a

superseding indictment charging nineteen alleged Latin King gang

members—including Shepperson—with five counts: (1)conspiracy to

participate in a racketeering enterprise, in violation of 18

U.S.C. § 1962(d); (2) murder in aid of racketeering, in

violation of 18 U.S.C. § 1959; (3) interference with commerce by

threats or violence, in violation of 18 U.S.C. § 1951; (4)

discharge of a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c); and (5) murder as

a result of using and carrying a firearm in furtherance of a

2
crime of violence, in violation of 18 U.S.C. § 924(j). Although

the indictment contained capital-eligible offenses, the Attorney

General elected not to seek the death penalty.

All but one of the defendants in the case pleaded guilty;

Shepperson was the lone defendant who proceeded to trial. On

March 14, 2011, after approximately two weeks of trial, a jury

found Shepperson guilty on all counts. He was subsequently

sentenced to life plus ten years’ imprisonment.

Shepperson now appeals, and we have jurisdiction pursuant

to 28 U.S.C. § 1291.

II.

On appeal, Shepperson contends that the district court

erred by (1) not affording him the assistance of two counsel

provided for in 18 U.S.C. § 3005; and (2) not excluding the

testimony of a cooperating witness based on the Government’s

failure to furnish him under 18 U.S.C. § 3432 with a list of

witnesses three days before commencement of trial. We address

each issue in turn.

Shepperson first contends that the district court erred in

failing to advise him of his statutory right to two attorneys

under 18 U.S.C. § 3005, which provides:

3
Whoever is indicted for treason or other
capital crime shall be allowed to make his
full defense by counsel; and the court
before which the defendant is to be tried,
or a judge thereof, shall promptly, upon the
defendant’s request, assign 2 such counsel,
of whom at least 1 shall be learned in the
law applicable to capital cases.

In United States v. Boone, 245 F.3d 352 (4th Cir. 2001), we held

that a defendant charged with a capital-eligible crime is

entitled, under § 3005, to representation by two attorneys

regardless of whether a capital sentence is actually sought. 1 As

noted in Boone, however, “[t]he defendant must . . . request the

1
We note that we are bound by our previous decision in
Boone, which adhered to our precedent in United States v.
Watson, 496 F.2d 1125, 1129 (4th Cir. 1973) (“[D]efendant ha[s]
an absolute statutory right to two attorneys under § 3005.”).
Our interpretation of § 3005 is at odds with the view adopted by
all our sister circuits to have considered the issue of whether
the statute requires a second lawyer if the death penalty has
been removed from consideration. See, e.g., United States v.
Douglas, 525 F.3d 225, 237 (2d Cir. 2008) (“[W]e agree with the
majority of the federal courts of appeals that once the
government has formally informed the court and the defendant of
its intention not to seek the death penalty, the matter is no
longer a capital case within the meaning of § 3005.”); United
States v. Waggoner, 339 F.3d 915, 918 (9th Cir. 2003) (“[T]he
term ‘capital crime’ as used in § 3005 does not encompass the
underlying offense when capital punishment cannot be imposed”);
United States v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002)
(“[A]fter the government declared that it would not seek the
death penalty, the appellants were no longer capital
defendants.”); United States v. Grimes, 142 F.3d 1342, 1347
(11th Cir. 1998); United States v. Shepherd, 576 F.2d 719, 729
(7th Cir. 1978); United States v. Weddell, 567 F.2d 767, 770
(8th Cir. 1977). This dispute over the applicability of § 3005
when the death penalty is not a possible punishment is not
dispositive here because it does not affect the resolution of
this case.

4
appointment of a second lawyer for the two-attorney requirement

to apply.” 245 F.3d at 359 n.7; see also 18 U.S.C. § 3005 (“[A]

judge thereof, shall promptly, upon the defendant’s request,

assign 2 such counsel.” (emphasis added)).

Shepperson concedes that he did not request additional

counsel under § 3005 in the district court. Our review is thus

for plain error. See Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731–32 (1993); United States v. Robinson,

275 F.3d 371, 383–84 (4th Cir. 2001) (reviewing forfeited claim

under § 3005 for plain error and affirming conviction). In

order to demonstrate plain error, Shepperson must show that an

error occurred, that the error was plain, and that the error

affected his substantial rights. See Olano, 507 U.S. at 732;

United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998).

Even if Shepperson can satisfy these requirements, correction of

the error remains within our sound discretion, which we “should

not exercise . . . unless the error seriously affects the

fairness, integrity or public reputation of judicial

proceedings.” Olano, 507 U.S. at 732 (internal quotation marks

and alterations omitted); Hastings, 134 F.3d at 239.

Despite the clear statutory mandate that a defendant must

request a second attorney, see 18 U.S.C. § 3005, Shepperson

nevertheless asserts that the district court committed error by

not advising him sua sponte of his right to additional counsel,

5
particularly because “he made the [district] court well aware

that he was dissatisfied with his . . . trial counsel.”

(Appellant’s Br. 14.) Shepperson essentially maintains that

when a defendant who is charged with a death-eligible crime

expresses dissatisfaction with appointed counsel, the district

court is under an affirmative statutory duty to advise the

defendant of his right to additional counsel under § 3005.

Whether the statute contains this requirement is a question of

law, which we review de novo. See United States v. Turner, 389

F.3d 111, 120 (4th Cir. 2004).

Shepperson’s argument, however, is simply unsupported by

the statutory text. As discussed above, the plain language of

§ 3005 imposes no affirmative obligation on the district court,

except its obligation to appoint a second attorney “upon the

defendant’s request.” 18 U.S.C. § 3005 (emphasis added). “We

decline to read into the statute a requirement that is not

readily apparent.” Boone, 245 F.3d at 360; see also United

States v. Hood, 343 U.S. 148, 151 (1952) (“We should not read

such laws so as to put in what is not readily found there.”).

Shepperson’s reliance on Smith v. United States, 353 F.2d

838 (D.C. Cir. 1965), is similarly misplaced. In Smith, the

defendant had stopped communicating with his attorney before

trial, and the attorney moved to withdraw from the case. 353

F.2d at 844. After a hearing, the attorney’s motion to withdraw

6
was denied. Though the defendant was facing the death penalty

at trial, he was ultimately sentenced to life imprisonment. Id.

at 846. On appeal, the defendant claimed, inter alia, that the

district court should have advised him of his right to

additional counsel under § 3005. Id. at 845–46. Although the

D.C. Circuit agreed, it found no reversible error—even assuming

prejudice from the district court’s failure to advise—due to

defense counsel’s vigorous defense in a case featuring

overwhelming evidence. Id.

Smith, however, has no precedential value and is

contradicted by a number of this Court’s previous decisions, all

of which have applied § 3005’s clear mandate of a defendant’s

request. See, e.g., Boone, 245 F.3d at 359 n.7 (“The defendant

must . . . request the appointment of a second lawyer for the

two-attorney requirement to apply.” (emphasis added)); United

States v. Williams, 544 F.2d 1215, 1218 (4th Cir. 1976) (“It is

settled that a defendant in a capital case is entitled to the

appointment of up to two counsel upon request.” (emphasis

added)).

To the extent that Shepperson argues that the district

court’s failure to inform him of the provisions of § 3005

creates a presumption that he was the victim of ineffective

assistance of counsel in his defense, we do not agree. We have

previously explained:

7
It is well established that the [S]ixth
[A]mendment right to effective assistance of
counsel is a fundamental constitutional
right, one which may not be waived unless
there is a competent and knowing waiver by
the defendant. Johnson v. Zerbst, 304 U.S.
458, 58 S. Ct. 1019, 82 L.Ed. 1461 (1938).
However, the right provided by section 3005
is purely a statutory right, not a
fundamental constitutional right. Almost
without exception, the requirement of a
knowing and intelligent waiver has been
applied “only to those rights which the
Constitution guarantees to a criminal
defendant in order to preserve a fair
trial.” Schneckloth v. Bustamonte, 412 U.S.
218, 237, 93 S. Ct. 2041, 2052, 36 L.E.2d
854 (1973). It is not the function of the
court to advise a defendant of every statute
which might have some favorable bearing upon
his case. Barkan v. United States, 305 F.2d
774, 778 (7[th] Cir.), cert. denied, 371
U.S. 915, 83 S. Ct. 261, 9 L.E.2d 173
(1962). As we have indicated, . . . the
right is only a statutory right and creates
a presumption of ineffective assistance of
counsel only when a request is made.

United States v. Blankenship, 548 F.2d 1118, 1121 (4th Cir.

1976). Because the right to additional counsel under § 3005 is

solely statutory, we hold that the district court was not

required to call it to the attention of Shepperson. We thus

find no error, much less plain error. 2

2
At oral argument, Shepperson’s counsel relied for the
first time on the following language from a footnote in
Williams:

[A] waiver will be presumed unless the
defendant can show that there has been a
request for two counsel, or an equivalent
(Continued)
8
Accordingly, we affirm the judgment of the district court

as to the issue of appointment of counsel under § 3005.

Shepperson alternatively contends that the district court

erred by not excluding the testimony of a cooperating witness,

Roddy Paredes (“Paredes”), because the Government did not

furnish Shepperson with a list of witnesses three days before

commencement of trial, as is required in capital cases by 18

U.S.C. § 3432. A district court’s decision to admit evidence,

including testimony that allegedly violates § 3432, may

ordinarily be set aside only for an abuse of discretion. See

United States v. Fulks, 454 F.3d 410, 421–22 (4th Cir. 2006).

But here, because Shepperson did not move to exclude, or

otherwise object to, Paredes’s testimony on the basis of the

timing of the disclosure when Paredes was called as a witness,

our review is limited to plain error. See Fed. R. Crim. P.

circumstance which would clearly demonstrate
that the Defendant required additional
counsel.[FN4]

[FN4.] Such a circumstance may exist, for
example, where the defendant has expressed
dissatisfaction with his one attorney.

544 F.2d at 1219 & n.4. This language, however, is non-binding
dicta, as it was unrelated to the ratio decidendi of that case,
and furthermore, was not a point raised by that defendant.

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52(b); Olano, 507 U.S. at 731–32. However, our initial task is

to determine whether the statute applies in this case.

Section 3432 provides that “[a] person charged with treason

or other capital offense shall at least three entire days before

commencement of trial, excluding intermediate weekends and

holidays, be furnished with . . . the witnesses to be produced

on the trial for proving the indictment.” 18 U.S.C. § 3432. By

its plain terms, § 3432 is limited in its application to capital

offenses. See id. (“[a] person charged with treason or other

capital offense” (emphasis added)). It is undisputed that the

Attorney General elected not to seek the death penalty in this

case.

Our decision in Hall v. United States, 410 F.2d 653 (4th

Cir. 1969) is particularly instructive. In that case, although

we observed that “[p]rovision for [the] capital list is

mandatory, and failure to provide it in a capital case is

ordinarily reversible error,” we found that the list was not

required because, inter alia, the United States Attorney had

disavowed any intention of seeking the death penalty. Hall, 410

F.2d at 660; see also Fulks, 454 F.3d at 421 (specifically

applying § 3432 to a capital sentencing trial case). Because

“from the beginning the trial was understood not to present the

possibility of a capital sentence,” we held in Hall that the

10
Government’s “failure to provide the capital list [was] not a

ground for relief.” Id. at 661.

Similarly, the instant case may not be a capital case, as

the Attorney General never elected to seek the death penalty.

At the designated time—three days before commencement of trial—

the Government was barred by law from seeking the death penalty

because it had elected not to file the capital notice required

by 18 U.S.C. § 3593(a). Therefore, as in Hall, “from the

beginning the trial was understood not to present the

possibility of a capital sentence.” 410 F.2d at 661.

Assuming that Hall is not dispositive circuit precedent of

the § 3432 question, 3 Shepperson at best can point to no more

than unclear precedent in this circuit. That is insufficient to

show plain error.

When “we have yet to speak directly on a
legal issue and other circuits are split, a
district court does not commit plain error
by following the reasoning of another

3
The other circuits that have addressed this issue have
uniformly determined that § 3432 is inapplicable in cases not
involving the death penalty. See, e.g., United States v. Steel,
759 F.2d 706, 710 (9th Cir. 1985) (“[S]ince the statute’s
purpose derives from the severity of the punishment rather than
from the nature of the offense, we hold that the elimination of
the death penalty also eliminated the appellant’s right under 18
U.S.C. § 3432 to a prosecution witness list.”); United States v.
Trapnell, 638 F.2d 1016, 1029–30 (7th Cir. 1980) (holding that
because government did not seek death penalty, compliance with §
3432 was not required); United States v. Kaiser, 545 F.2d 467,
475 (5th Cir. 1977) (explaining that § 3432 was inapplicable
because capital portion of § 1111 void).

11
circuit.” United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012). We therefore
conclude that the district court’s error was
not plain under these circumstances. See,
e.g., United States v. Wynn, 684 F.3d 473,
480 (4th Cir. 2012) (holding that any error
was not plain when “[o]ur [C]ourt has never
addressed the [ ] argument, and the other
circuits are split on the issue”); United
States v. Abu Ali, 528 F.3d 210, 234 n.8
(4th Cir. 2008) (holding, in the absence of
controlling precedent, that the defendant
“cannot begin to demonstrate plain error
given that a number of our sister circuits”
have disagreed with the defendant’s
position).

United States v. Carthorne, 726 F.3d 503, 516–17 (4th Cir. 2013)

(alterations in original). Accordingly, we find no plain error

on this issue.

Moreover, we think the purpose for which the list is

usually required was otherwise met. It is undisputed that

Paredes was named as a potential witness on the Government’s

witness list—which was read aloud in open court during jury

selection—and that Shepperson received the list on March 1,

2011, the first day of trial, prior to jury selection. It is

equally undisputed that Paredes testified on March 4, 2011,

three days later, and that defense counsel received disclosures

regarding Paredes on the day before he testified. Thus, despite

Shepperson’s allegation that the Government withheld the

identity of Paredes as a trial witness, Shepperson had express

12
notice of the possibility that Paredes could be called to

testify as a witness for the Government.

Further, after the Government provided its disclosure

identifying Paredes as a witness, defense counsel did not seek

to exclude Paredes’s testimony due to the timing of the

disclosure. Nor did defense counsel request a continuance to

allow more time to prepare for Paredes’s testimony, including

his cross-examination. “Consequently the defense was not

surprised and denied an opportunity to prepare to examine [the

witness] and to meet [his] testimony. As the avoidance of such

surprise is the purpose of requiring the list . . . that purpose

was amply met.” 4 Id. at 661 (internal citation omitted).

4
Shepperson’s attempt to analogize this case to Roviaro v.
United States, 353 U.S. 53 (1957) is misplaced. In Roviaro, the
Supreme Court addressed whether it was reversible error for the
district court to allow the Government to withhold the identity
of a confidential informant. 353 U.S. at 55–56. In contrast to
the case at bar, the confidential informant’s identity was never
disclosed to the defendant in Roviaro, nor did the confidential
informant testify at trial. See id. (“During the trial [the
informant]’s part in the charged transaction was described by
government witnesses, and counsel for petitioner, in cross-
examining them, sought repeatedly to learn [the informant]’s
identity. The court declined to permit this cross-examination
and [the informant] was not produced, identified, or otherwise
made available.”).

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III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.