United States v. Gbemisola, Abdul J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2000 Decided September 12, 2000

No. 99-3123

United States of America,
Appellee

v.

Abdul J. Gbemisola,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00129-01)

Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellant.

Elizabeth Carroll, Assistant United States Attorney, ar-
gued the cause for appellee. With her on the brief were
Wilma A. Lewis, Unites States Attorney, and John R. Fisher,
Thomas J. Tourish, Jr., William J. O'Malley, Jr., and Eumi
Choi, Assistant United States Attorneys.

 Before: Sentelle, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Abdul J. Gbemisola appeals his
conviction for possession with intent to distribute over one
kilogram of heroin. He argues that evidence obtained
through the use of an electronic tracking device should have
been suppressed because the device was installed outside the
jurisdiction of the magistrate judge who issued the warrant
for its installation. He also argues that the evidence at trial
was insufficient to support his conviction and that he was
improperly joined for trial with two co-defendants. We find
no merit to these arguments and affirm the conviction.

I

On March 6, 1998, the U.S. Customs Service at the port of
entry in Memphis, Tennessee selected for examination a box
being shipped by Federal Express from Cambodia to a "Mail
Boxes Etc." location in Washington, D.C.1 The box aroused
Customs' suspicions because it came from a narcotics source
country, had atypical merchandise, and had no value listed on
the waybill. Upon opening the box, agents found six cooking
pots that smelled of fresh paint, were unusually heavy, and
had observable "depth discrepancies"--i.e., false bottoms.
Inside the false bottom of each pot was a translucent bag of
heroin. Customs then checked for other boxes from the same
shipper and found another also addressed to Mail Boxes Etc.
in the District of Columbia, albeit at a different District
location. This one, too, contained six pots and they, too,
contained heroin secreted in false bottoms. Customs found a
third box, also containing six freshly-painted pots with false
bottoms filled with heroin, in a Federal Express shipment in
Indianapolis, Indiana. The third box had been shipped from
the Philippines and was bound for yet a third Mail Boxes Etc.
location in the District of Columbia. Each box contained
approximately 1500 grams of heroin with a very high level of

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1 Mail Boxes Etc. rents mailboxes with 24-hour access at
numerous locations in the Washington, D.C. area and worldwide.

purity--approximately 90%. The heroin in each box had a
street value of approximately $1 million.

Customs agents repackaged the pots in their original boxes
and sent them on to Customs' Washington, D.C. area field
office at Dulles Airport in Northern Virginia. There, agents
reopened the boxes and installed electronic tracking devices
pursuant to a warrant obtained from a federal magistrate
judge in the District of Columbia. Each device emitted a
radio signal with the capacity to indicate when the box was
moving and to disclose when it was opened. Agents removed
some of the pots from each box, and diluted the heroin in the
remaining pots with flour. Telephone books were added to
the boxes to compensate for the weight of the removed pots.
The boxes were then resealed and delivered to the three Mail
Boxes Etc. addresses on the shipping labels: 1429 G Street,
N.W.; 4401 Connecticut Avenue, N.W.; and 5505 Connecticut
Avenue, N.W.

Meanwhile, on March 4, 1998, around the time that the
boxes were being shipped from Southeast Asia, a person
using the name "Winston" made three telephone reservations
for travel on March 9 from O'Hare International Airport in
Chicago to Baltimore-Washington International Airport
(BWI) in Maryland. The reservations were made in the
names of "Abdul Gevemisola [sic]," "Wahab Akanni," and
"Winston Gillsillian [sic]." On March 9, "Winston" made new
reservations for the same three to travel on March 10. On
that day, the tickets were purchased with cash because the
credit card with which "Winston" initially attempted to make
the purchase was reported as unverifiable. The plane arrived
at BWI at 10:17 a.m., and a ticket for three travelers--later
found in the pocket of Gbemisola's co-defendant Wahab Akan-
ni--was purchased for the 12:00 p.m. "Super Shuttle" from
BWI to downtown Washington, D.C. The Shuttle ride takes
approximately one hour.

Just after 1:00 p.m., an individual, later identified as Gbe-
misola's co-defendant Winston Gillfillian, entered the Mail
Boxes Etc. location at 1429 G Street, N.W. in downtown
Washington. An employee testified that Gillfillian appeared

to be accompanied by two other men, one of whom had a
shoulder bag, who remained waiting outside. Although Gill-
fillian attempted to retrieve the Federal Express package,
which had been delivered to a box in the name of "Aldrich
Hinton," Customs had already removed it. Gillfillian left
empty-handed.

A half hour later, defendant Gbemisola entered the Mail
Boxes Etc. franchise at 4401 Connecticut Avenue, N.W.,
carrying a shoulder bag. One of the three Federal Express
boxes had been addressed to the mailbox of "Anthony Brown"
at that location. Gbemisola presented a notice of mail for
"Anthony Brown" and retrieved the box. Before leaving the
premises, Gbemisola renewed the rental of "Brown's" box for
another three months.

Gbemisola then walked out the door, and law enforcement
agents watched as he entered a taxi. They followed in their
own car. Almost immediately, the electronic tracking device
alerted the agents that the box had been opened. The agents
stopped the taxi and arrested Gbemisola. They found the
Federal Express box lying open on the floor of the taxi's back
seat. Inside Gbemisola's shoulder bag was the pot of heroin
and the telephone books, as well as an envelope addressed to
"Anthony Brown" at 4401 Connecticut Avenue, N.W. The
envelope contained an auto repair estimate in the name of co-
defendant Akanni.

At about the time of Gbemisola's arrest, co-defendant Ak-
anni entered a taxi in the 4600 block of Connecticut Avenue,
N.W. The third co-defendant, Gillfillian, was already in the
taxi. The taxi proceeded northbound to the 5500 block of
Connecticut Avenue N.W., where Akanni exited. The taxi
continued and, minutes later, stopped again to let Gillfillian
out. Akanni then entered the third Mail Boxes Etc. location
at 5505 Connecticut Avenue, N.W., where he picked up the
third Federal Express box, which had been addressed to
"Cecil Dover." Like Gbemisola, Akanni renewed the rental
on the box for another three months. As Akanni left the
store with the box, co-defendant Gillfillian hailed a cab. Both

were then arrested. Agents found documents related to the
two other Mail Boxes Etc. stores on Gillfillian's person.

A grand jury returned an indictment against the three
men. In Count One, all three were charged with conspiracy
to distribute narcotics, in violation of 21 U.S.C. s 846. In
Count Two, Gbemisola alone was charged with possession
with intent to distribute a kilogram or more of heroin, in
violation of 21 U.S.C. s 841(a)(1), (b)(1)(A)(I). In Count
Three, the other two men were charged with the same crime.
The three were tried together. None of the defendants
testified, and Gbemisola did not present any witnesses. Dur-
ing the trial, the government moved to dismiss the conspiracy
charge because of discrepancies in dates listed in the indict-
ment, and the court granted the motion. The jury found
Gbemisola guilty on his remaining count, but acquitted his co-
defendants on theirs.

Gbemisola appeals his conviction, citing three motions that
he contends the trial court erroneously denied. First, during
the trial a government witness testified that although the
warrant for the tracking devices had been issued by a magis-
trate judge sitting in Washington, D.C., the devices were
actually installed in Virginia. Contending that this rendered
the warrant invalid, defendant moved to suppress the evi-
dence obtained from the use of the tracking device in the box
he retrieved. Second, after the court dismissed the conspira-
cy count mid-trial, Gbemisola moved to sever his case from
that of his co-defendants. Finally, Gbemisola moved for
judgment of acquittal on the ground that the evidence was
insufficient to sustain the conviction.

II

Gbemisola's appeal of the denial of his motion to suppress
does not involve any factual dispute. Both parties agree that
the warrant purporting to authorize installation of the track-
ing device was issued in the District of Columbia, that the
monitoring actually occurred in the District, but that the
agents installed the device in Virginia. The only question is a
legal one--whether the evidence obtained through use of the

device was unlawfully obtained. We decide that question de
novo. See In re Sealed Case No. 96-3167, 153 F.3d 759, 764
(D.C. Cir. 1998).

Section 3117(a) of Title 18 of the United States Code states
as follows:

If a court is empowered to issue a warrant or other order
for the installation of a mobile tracking device, such
order may authorize the use of that device within the
jurisdiction of the court, and outside the jurisdiction if
the device is installed in that jurisdiction.

18 U.S.C. s 3117(a). Defendant contends that this statute
does not empower a court to authorize the installation of a
tracking device outside its jurisdiction. Although we are
inclined to agree,2 and although at oral argument the govern-

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2 In fact, the statute does not appear to authorize installation
of a tracking device at all. On its face, the statute is addressed to a
court already "empowered" by some other authority to issue an
order for the installation of such a device. The statute merely
permits such an otherwise-empowered court to authorize the use of
that device both inside the jurisdiction and outside the jurisdiction if
the installation is made inside. See also Sen. Rep. No. 99-541, at
33-34 (1986). Before section 3117 was enacted in 1986, courts
relied on Federal Rule of Criminal Procedure 41 for the power to
issue search warrants authorizing the installation and use of track-
ing devices. See In re Application of the United States ("White
Truck"), 155 F.R.D. 401, 402-03 (D. Mass. 1994) (discussing histori-
cal practice); cf. United States v. New York Tel. Co., 434 U.S. 159,
169-70 (1977) (holding Rule 41 broad enough to authorize installa-
tion and use of pen registers). At the time, however, Rule 41 only
authorized warrants issued by "a federal magistrate ... within the
district wherein the property or person sought is located," thus
rendering uncertain a court's power to issue a warrant permitting
the continued use of a mobile tracking device after it (and the
container in which it had been placed) left the district. Fed. R. Crim.
P. 41(a) (1986); see Clifford Fishman, Electronic Tracking Devices
and The Fourth Amendment: Knotts, Karo, and the Questions
Still Unanswered, 34 Cath. U. L. Rev. 277, 375 (1985). Section 3117
resolved that uncertainty by providing the necessary authority. See
White Truck, 155 F.R.D. at 403. In 1990, Rule 41 itself was

ment indicated its agreement as well, that agreement does
not resolve the suppression issue.

As is apparent on its face, section 3117 provides a basis for
authorizing the use of a mobile tracking device. But by
contrast to statutes governing other kinds of electronic sur-
veillance devices, section 3117 does not prohibit the use of a
tracking device in the absence of conformity with the section.
Cf. 18 U.S.C. s 3121(a) ("Except as provided in this section,
no person may install or use a pen register or a trap and
trace device without first obtaining a court order.... "); id.
s 2511(1) ("Except as otherwise provided in this chapter any
person who--(a) intentionally intercepts ... any wire, oral, or
electronic communication ... shall be punished.... "). Nor
does it bar the use of evidence acquired without a section
3117 order. Cf. id. s 2515 (barring use as evidence of wire or
oral communications intercepted in violation of statute). In-
deed, the statute that bars the interception of any "electronic
communication" except in conformity with its provisions ex-
pressly excludes section 3117 tracking devices from the defi-
nition of "electronic communication." See id. s 2510(12)(c).
Similarly, the legislative history of section 3117 makes clear
Congress' understanding that, under the Supreme Court's
decisions in United States v. Karo, 468 U.S. 705 (1984), and
United States v. Knotts, 460 U.S. 276 (1983), warrants are not
always required for either the installation or use of mobile
tracking devices. See H.R. Rep. No. 99-647, at 60 (1986)
(noting that Karo held a warrant was "not required where the
owner consents to installation," and that Knotts held the
warrantless "installation of a beeper on a container to follow
on a public roadway does not violate the Fourth Amend-
ment"). Accordingly, the question at issue in this case is

__________
amended to permit a magistrate to issue a search warrant not only
for property within the judicial district, but also for property "either
within or outside the district if the property ... is within the
district when the warrant is sought but might move outside the
district before the warrant is executed." Fed. R. Crim. P. 41(a); see
also id. Advisory Committee's note on 1990 amendment (suggesting
that amendment provides authority for issuance of warrant to follow
beeper across state lines).

whether Customs needed an authorizing warrant in the first
place--or instead whether the warrant that issued, although
perhaps invalid, was superfluous.

We conclude that the government did not require a warrant
to authorize its conduct in this case. Defendant concedes
that no warrant was required for the initial opening of the
box, as it arrived at the border via international mail. See
United States v. Ramsey, 431 U.S. 606, 619 (1977) (holding
that neither warrant nor probable cause is required for
search of letters sent through international mail). As defen-
dant further concedes, installing the tracking device did not
require any additional intrusion into anyone's reasonable
expectation of privacy. Without such an intrusion, there can
be no Fourth Amendment violation. See Karo, 468 U.S. at
712-13 (holding that placement of beeper does not violate
Fourth Amendment unless reasonable expectation of privacy
is infringed); Illinois v. Andreas, 463 U.S. 765, 771 (1983)
("No protected privacy interest remains in contraband in a
container once government officers lawfully have opened that
container and identified its contents as illegal.").3

The remaining question is whether a warrant was required
for the continuing use of the device--that is, for the electronic
reports it made concerning the location and reopening of the
box. In Karo, the Supreme Court held that a warrant was
required to monitor the location of a tracking device in a
private home because of the legitimate expectation of privacy
within a home. See 468 U.S. at 714-18. However, the Court
also held that no warrant was required for monitoring the
device during the time it was en route to the house in a truck
on a public road. See id. at 721. Reaffirming its previous
decision in Knotts, the Court declared that "the warrantless
monitoring of an electronic tracking device .. [does] not

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3 Moreover, under the theory suggested by defense counsel in
closing argument--that Gbemisola was merely picking up the box
for a friend--Gbemisola would not have had the necessary expecta-
tion of privacy in the first place. See Rakas v. Illinois, 439 U.S.
128, 143 (1978); United States v. Magnum, 100 F.3d 164, 170 (D.C.
Cir. 1996).

violate the Fourth Amendment when it reveal[s] no informa-
tion that could not have been obtained through visual surveil-
lance." Id. at 707.

The same analysis applies here. As Gbemisola left the
Mail Boxes Etc. building, entered a taxi, and drove away, he
was followed by a team of surveillance agents. Although the
tracking device reported the location of the box, so too did the
agents' visual surveillance. With respect to location, the
device added nothing to what the agents could see with their
eyes. That surveillance did not violate the Fourth Amend-
ment, as Gbemisola "ha[d] no reasonable expectation of priva-
cy" with respect to his travels on the public street. Knotts,
460 U.S. at 281. "[S]ince the movements of the automobile
and ... of the [object] containing the beeper ... could have
been observed by the naked eye, no Fourth Amendment
violation was committed.... " Karo, 468 U.S. at 713-714.

But, Gbemisola argues, the device also reported when the
box was opened--an event that the officers did not see. The
decisive issue, however, is not what the officers saw but what
they could have seen. See id.; Knotts, 460 U.S. at 282, 285.
At any time, the surveillance vehicle could have pulled along-
side of the taxi and the officers could have watched Gbemisola
through its window. Indeed, the taxi driver himself could
have seen the event simply by looking in his rear-view mirror
or turning around. As one cannot have a reasonable expecta-
tion of privacy concerning an act performed within the visual
range of a complete stranger, the Fourth Amendment's war-
rant requirement was not implicated. See Katz v. United
States, 389 U.S. 347, 351 (1967) ( "What a person knowingly
exposes to the public ... is not a subject of Fourth Amend-
ment protection.").

In sum, because no warrant was required for either the
installation or use of the mobile tracking device, the fruits of
that use were admissible at trial regardless of the validity of
the warrant obtained by the government. See, e.g., United
States v. Martinez, 78 F.3d 399, 401 (8th Cir. 1998) (upholding
search of car under automobile exception regardless of validi-
ty of warrant).

 III

Defendant's remaining two arguments, relating to the suffi-
ciency of the evidence to sustain the verdict and to the
propriety of a joint trial, merit only brief discussion.

We must affirm a jury's verdict if " 'any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.' " United States v. Lucas, 67
F.3d 956, 959 (D.C. Cir. 1995) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In making that determination, "the
prosecution's evidence is to be viewed in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, and giving full play to the
right of the jury to determine credibility, weigh the evidence
and draw justifiable inferences of fact." United States v.
Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986) (internal quota-
tion omitted).

In the district court, defendant contended there was insuffi-
cient evidence to show anything more than that he "was
picking up a box for a friend," a box the contents of which he
did not know. See Trial Tr. at 1699 (closing argument). But
the evidence recounted in Part I above--including travel to a
distant city, the suspicious manner in which the three men
fanned out to retrieve the three packages, the use of false
names on the mailboxes at all three locations, the defendant's
renewal of the mailbox account in a false name, and the
defendant's removal of the contents from the package--was
more than sufficient for a reasonable jury to conclude that
Gbemisola knew he was picking up a box of contraband. On
appeal, defendant contends that all of this could be explained
if Gbemisola had been involved in an illegal scheme to import
cultural artifacts, and that it need not necessarily mean he
knew the artifacts contained narcotics. Not only was this
theory not offered at trial, it does not "explain" what hap-
pened in this case. The Southeast Asian shippers placed
heroin in the false bottoms of the pots--in an amount (and
value) the jury could reasonably have doubted they would
have entrusted to recipients who thought they were merely
importing artifacts, and in a location that would have been

particularly risky if an "innocent" recipient had decided to use
the cooking pots for their apparent purpose. See United
States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997)
(holding that reasonable jury could infer from quantity of
drugs in false bottom of suitcase "that a 'prudent smuggler' is
not likely to entrust such valuable cargo to an innocent
person without that person's knowledge"); United States v.
Herrera, 931 F.2d 761, 763 (11th Cir. 1991) (holding that to
sustain conviction it "is not necessary that the evidence
exclude every" innocent explanation for lack of knowledge of
drugs in false suitcase compartment); see also United States
v. Brown, 33 F.3d 1014, 1015-16 (8th Cir. 1994) (sustaining
conviction where defendant used false name to pick up United
Parcel Service package containing hidden narcotics).

Gbemisola fares no better with his attack on his joint trial.
First, defendant argues that once the court dismissed the
conspiracy count, there was misjoinder under Federal Rule of
Criminal Procedure 8(b), which provides that:

Two or more defendants may be charged in the same
indictment or information if they are alleged to have
participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or
offenses. Such defendants may be charged in one or
more counts together or separately and all of the defen-
dants need not be charged in each count.

In Schaffer v. United States, however, the Supreme Court
held that if a conspiracy count makes initial joinder of defen-
dants permissible, the mid-trial dismissal of that count does
not render joinder improper under Rule 8(b). 362 U.S. 511,
514-16 (1960); see United States v. Clarke, 24 F.3d 257, 262
(D.C. Cir. 1994). Indeed, even if there had never been a
conspiracy count in this case, joinder of the remaining counts
was proper because the government "presented evidence that
[defendants'] offenses arose out of their participation in the
same drug distribution scheme." United States v. Halliman,
923 F.2d 873, 883 (D.C. Cir. 1991); see United States v.
Perry, 731 F.2d 985, 990 (D.C. Cir. 1984). Contrary to
defendant's contention, the charges in Counts Two and Three

did not refer to "two discrete events which ... were separat-
ed by time, location and their participants." Def. Br. at 14.
Rather, everything from the identical nature of the three
boxes and their contents, to the co-defendants' joint travel, to
their possession of documents in each other's names, makes
clear that defendants were involved in a common scheme.

As joinder was proper under Rule 8(b), the remaining
question is whether the district court should nonetheless have
severed the defendants to avoid prejudice, as permitted by
Federal Rule of Criminal Procedure 14. See Schaffer, 362
U.S. at 514-15; Clarke, 24 F.3d at 262.4 We review the
court's refusal to do so only for abuse of discretion, see
United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989),
and we find no abuse here. All of the evidence admitted at
the joint trial could properly have been admitted at a sepa-
rate trial to show the nature of the drug distribution scheme
in which Gbemisola was an active participant. Hence, no
prejudice arose from the joinder, and the court did not err in
trying the defendants together. See Schaffer, 362 U.S. at
514-15; United States v. White, 116 F.3d 903, 916-18 (D.C.
Cir. 1997); United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir.
1990).

IV

The judgment of the district court is affirmed.

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4 Rule 14 states in relevant part:

If it appears that a defendant or the government is preju-
diced by a joinder of offenses or of defendants in an indict-
ment or information or by such joinder for trial together, the
court may order an election or separate trials of counts,
grant a severance of defendants or provide whatever other
relief justice requires.

Fed. R. Crim. P. 14.