US v. Winston Oliver, II

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00063-JRS-2. Copies to all parties and the district court/agency. [999059026].. [12-4047, 12-4052]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4047

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINSTON SYLVESTER OLIVER, II,
Defendant - Appellant.

No. 12-4052

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN HAROLD BROWN,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:11-cr-00063-JRS-2; 3:11-cr-00063-JRS-1)

Argued:

February 1, 2013

Decided:

March 8, 2013

Before WILKINSON and FLOYD, Circuit Judges, and Joseph R.
GOODWIN, United States District Judge for the Southern District
of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

ARGUED: Christopher J. Collins, Richmond, Virginia; Mark Bodner,
Fairfax, Virginia, for Appellants. Erik Sean Siebert, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, Alexandria, Virginia, Roderick C.
Young, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Winston Sylvester Oliver, II and Warren Harold Brown were
tried jointly and convicted in the Eastern District of Virginia
for one count of conspiracy to commit robbery under 18 U.S.C. §
1951(a) (2006), one count of attempt to commit robbery under 18
U.S.C. §§ 2, 1951(a), and two counts of using or carrying a
firearm

in

furtherance

of

a

crime

of

violence,

18

U.S.C.

§

924(c).

On appeal, Oliver argues that the district court abused

its discretion in denying his motion to sever his trial from
Brown’s, Brown argues that the district court erred in denying
his

motion

to

suppress,

and

both

appellants

argue

that

the

district court erred in denying their joint motion to dismiss
one of the two § 924(c) charges.

We have jurisdiction pursuant

to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

As explained below,

we reject the appellants’ challenges and affirm.

I.
First, Oliver argues that the district court abused its
discretion

in

denying

his

motion

to

sever

his

trial

from

Brown’s.

A.
We review a district court’s ruling on a motion to sever
for

abuse

error.

of

discretion,

and

its

factual

findings

for

clear

United States v. Hornsby, 666 F.3d 296, 308 (4th Cir.
3

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2012);
1994).

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United

States

v.

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Shores,

33

F.3d

438,

442

(4th

Cir.

It is well-settled in this circuit that “[g]enerally,

individuals indicted together should be tried together.”

United

States v. Khan, 461 F.3d 477, 490-91 (4th Cir. 2006) (quoting
United States v. Strickland, 245 F.3d 368, 384 (4th Cir. 2001)).
A defendant must “show that he was prejudiced by the denial of a
severance motion in order to establish that the district court
abused its broad discretion in that regard.”

United States v.

Lighty, 616 F.3d 321, 348 (4th Cir. 2010).
“[S]everance is required to preserve [a] defendant’s Sixth
Amendment right to confront his accusers” when a non-testifying
codefendant’s

statement

“clearly

implicates”

the

defendant.

United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).
However, only statements that facially incriminate the defendant
violate

the

Confrontation

Clause

and

require

severance;

statements that incriminate the defendant only when linked with
other

evidence

Confrontation
Richardson

introduced

Clause

v.

Marsh,

and
481

at

trial

therefore
U.S.

do

200,

do
not

208-11

not

violate

require

severance.

(1987);

Akinkoye, 185 F.3d at 198; Lighty, 616 F.3d at 376-77.
upheld

statements

that

replaced

a

defendant’s

name

the

see

also

We have
with

the

terms “client” or “driver” because the use of those terms did
not facially incriminate the defendant, even if the statement
implicated

the

defendant

when

combined
4

with

other

evidence

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introduced at trial.

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See United States v. Vogt, 910 F.2d 1184,

1191-92 (4th Cir. 1990); United States v. Glisson, 460 F. App’x
259, 263 (4th Cir. 2012).

We have also upheld statements that

were “[w]ritten in the third person and in grammatically correct
phrases”

and

which

“referred

generally

and

without

facial

incrimination to some number of individuals who could, or could
not, be the other defendants.”

United States v. Min, 704 F.3d

314, 321 & n.5 (4th Cir. 2013).

B.
In this case, Brown’s statement was redacted by replacing
Oliver’s name with the term “the driver.”

For instance, part of

the statement read:
The driver planned the armed robbery and had directed
Brown regarding what to do.
When asked for further
clarification, Brown stated the driver planned the
entire armed robbery . . . Brown stated that the
driver provided the handgun used to commit the armed
robbery. Brown stated the last time he had seen this
handgun, he had left it on the back seat of the
driver’s vehicle.
Brown stated that the driver did
not tell him, Brown, who the handgun belonged to and
Brown did not ask any questions about the gun.
J.A. 384.

First, it is clear that the statement was written in

the

person

third

and

in

grammatically

correct

phrases;

the

replacement of Oliver’s name with “the driver” did not result in
any obvious indication of deletion.

See Min, 704 F.3d at 321.

Moreover, both of Oliver’s arguments are based on the fact that

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the prosecution admitted other evidence identifying Oliver as
the driver.

The redacted statement, standing alone, did not

facially incriminate Oliver.

Under the standards set forth by

the Supreme Court and our prior decisions, Brown’s statement as
redacted did not violate the Confrontation Clause.

Accordingly,

we conclude that the district court did not abuse its discretion
in denying Oliver’s motion to sever.

II.
Second,
denying

his

Brown

argues

motion

to

that

the

suppress

district

his

court

statements

to

erred

in

Detective

Ellett and Special Agent Umphlet.

A.
In

reviewing

a

motion

to

suppress,

“[w]e

review

the

district court’s legal determinations de novo and its factual
determinations for clear error.”
F.3d 586, 589 (4th Cir. 2010).

United States v. Kelly, 592
When a district court denies a

motion to suppress, “we construe the evidence in the light most
favorable to the government.”

Id.

We also “particularly defer

to a district court’s credibility determinations, for it is the
role of the district court to observe witnesses and weigh their
credibility

during

a

pre-trial

motion

to

suppress.”

United

States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
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Once an officer has given a suspect Miranda warnings, “[i]f
the individual indicates in any manner, at any time prior to or
during

questioning,

that

he

interrogation must cease.”
473-74 (1966).

wishes

to

remain

silent,

the

Miranda v. Arizona, 384 U.S. 436,

The Supreme Court has made it abundantly clear

that if a suspect has invoked his right to remain silent and has
requested an attorney, he may not be “subject[ed] to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication,

exchanges,

or

conversations

with

the

police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

B.
Viewing the evidence in the light most favorable to the
Government, we conclude that the district court did not err in
denying Brown’s motion to suppress his incriminating statements.
Both Detective Ellett and Special Agent Umphlet followed proper
procedures in obtaining Miranda waivers from Brown. None of the
actions

taken

by

either

Detective

Ellett

or

Special

Agent

Umphlet prior to obtaining the waivers can reasonably be deemed
functional equivalents of interrogation.

See United States v.

Blake,

2009)

571

F.3d

331,

340-41

(4th

Cir.

(finding

that

providing a statement of charges to custodial suspect who had

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previously

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invoked

his

right

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to

counsel

is

not

functional

equivalent of interrogation).
Finally,

the

Supreme

Court’s

decision

in

Montejo

v.

Louisiana disposes of Brown’s Sixth Amendment argument.

556

U.S.

and

778,

intelligent

786-87

(2009)

waiver

of

(holding

his

Miranda

a

defendant’s

rights

also

knowing

operates

as

a

knowing and intelligent waiver of his Sixth Amendment right to
counsel).

Accordingly, we conclude that the district court did

not err in denying Brown’s motion to suppress his incriminating
statements.

III.
Finally,

both

Oliver

and

Brown

argue

that

the

district

court erred in denying their joint motion to dismiss one of the
two § 924(c) charges.

A.
We review Double Jeopardy determinations de novo.

United

States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005).
Double

Jeopardy

Clause

protects

a

defendant

against

The
“the

imposition of cumulative punishments for the same offense in a
single

criminal

trial”

and

“being

prosecutions for the same offense.”
marks

and

multiple

emphasis

counts

omitted).

exposes

a

subjected

8

successive

Id. (internal quotation

Charging

defendant

to

to

a

single

the

risk

offense
of

in

multiple

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punishments

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for

unconstitutional.

the

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same

offense,

and

is

therefore

Id. at 207.

18 U.S.C. § 924(c) punishes the use or carry of a firearm
during and in relation to a crime of violence.

“A defendant who

has ‘used’ or ‘carried’ a firearm on several separate occasions
during the course of a single continuing offense . . . has
committed several section 924(c)(1) offenses.”
Camps,

32

F.3d

“convictions

for

102,

107

separate

(4th

Cir.

crimes

of

multiple sentences under § 924(c).”
F.3d 477, 493 (4th Cir. 2006).
violate

the

Double

Jeopardy

United States v.

1994).

Additionally,

violence

can

lead

to

United States v. Khan, 461

Consecutive § 924(c) sentences

Clause

only

if

“the

underlying

crimes are . . . identical under the [Blockburger v. United
States, 284 U.S. 299 (1932)] analysis.”

Id. at 494.

B.
Here, it is clear that the Double Jeopardy Clause does not
bar multiple charges under § 924(c).

First, Oliver and Brown

were charged with two separate crimes of violence: conspiracy to
commit robbery and attempt to commit robbery.
separate crime from the underlying crime.

Conspiracy is a

See United States v.

Ayala, 601 F.3d 256, 267 (4th Cir. 2010) (“[A] conspiracy is
itself

a

crime

of

violence

when

its

objectives

crimes.”) (internal quotation marks omitted).

9

are

violent

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Second, Brown used the handgun three times in relation to
the attempted robbery and in furtherance of the conspiracy. He
(1) brandished the handgun at Conrad; (2) brandished and fired
the handgun at Miss; and (3) fired the handgun at and shot
Edmond.
Finally, with respect to Oliver, we have held that “[t]he
[Pinkerton v. United States, 328 U.S. 640 (1946)] doctrine makes
a

person

liable

for

substantive

offenses

committed

by

a

co-

conspirator when their commission is reasonably foreseeable and
in furtherance of the conspiracy.”

United States v. Ashley, 606

F.3d 135, 142-43 (4th Cir. 2010).

Use of the handgun by Brown

was clearly in furtherance of the conspiracy to commit robbery,
and was clearly foreseeable to Oliver in this case.
Accordingly, we conclude that the district court did not
err in denying Oliver and Brown’s joint motion to dismiss one of
the two § 924(c) charges against them.

IV.
For the reasons explained above, we affirm the judgment of
the district court.
AFFIRMED

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