US v. Reginald Dargan, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion terminating Motion to file supplemental brief(s) [999230308-2] Originating case number: 1:11-cr-00578-CCB-3. [999266084]. [13-4171]

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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
opinion, in which Judge Agee and Judge Keenan joined.

wrote

the

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.

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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

arrested

in

apprehended at that time.
Two

months

later,

appellant

Dargan

was

connection with the robbery. Police suspected that Dargan was in
fact

Little

Columbia
warrant

Reggie,

heist.
for

enumerated

the

knife-wielding

Investigators

Dargan’s
items

subsequently

residence.

subject

to

participant
obtained

Attachment

seizure,

A

to

in
a

the

including,

the

search
warrant

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

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well

as

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actual

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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 codefendant,

Harvey,

conversation

to

a

took

place

cellmate,
after

Zachary

Braxton

had

Shanaberger.
been

released

The
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
admissible

government
under

argued

Federal

that

Rule

of

Harvey’s
Evidence

comments

were

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
and

affirmation,
searched,

upon

particularly

and

interpreting

the

the

probable

persons

Fourth

cause,

supported

describing

or

things

Amendment,

the

the
to

Oath

or

to

be

seized.”

In

place

be

thought

by

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

“particularity

clause

of

the

requirement,”

Fourth

which

“is

Amendment
fulfilled

contains
when

a
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

practice,

included

“abhorred

this

by

provision

the

in

colonists,”

order
of

to

issuing

end

the

“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.

(internal

Dornhofer,
quotation

interpreting

warrant

859

marks
terms

F.2d

1195,

omitted).
in

a

1198

Courts

(4th
must

“hypertechnical”

Cir.

1988)

refrain
manner,

from
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

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to

adapt

to

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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

gives

Cir.

the

intrusive

2008).

A

imprimatur
police

warrant
of

conduct,

cabins

lawful
and

executive

authority

helps

to

ensure

to

discretion,
potentially

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
extent

a

that

warrant
its

affords,

terms

are

however,

subject

to

is

diminished

an

excessively

to

the

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

“includ[es]”

but

is

A

states

“not

that

limited

“[i]ndicia
to”

certain

of

occupancy”

listed

items

(“utility and telephone bills, [and] canceled envelopes”). Id.
This “broad and inclusive language” cautions against a miserly
construction.
warrant

does

Phillips,
not

588

F.3d

explicitly
9

at

225.

mention

The

fact

receipts

that

the

is

not

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“law

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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

central

value

animating

as

an

the

“exploratory

particularity

rummaging.”

The

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

Amendment

undisputed
right

not

that
to

Harvey,

testify,

having

was

invoked

unavailable

his

Fifth

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

statements
Harvey

the

indicate

made

the

context
their

statements

and

content

of

the

self-inculpatory
to

a

cellmate

challenged

quality.
rather

First,

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 coconspirators 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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statements

were

Pg: 14 of 18

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
corroborating

together,
circumstances

these

factors

requirement

indicate
was

that

satisfied

the
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 outof-court
confront

statements
opposing

violated

witnesses.

his
The

constitutional

Confrontation

right

Clause

of

to
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

Doc: 45

U.S.

at

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52).

This

Pg: 16 of 18

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
statements

Clause

must,

is

to

therefore
be

inapplicable,

admissible,

still

though

such

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
16

to

testify,

but

his

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

him

instruction

at

trial.

that

the

The

district

confession

judge

did

not

gave

a

limiting

qualify

as

evidence

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

noting

the

the

limiting

“substantial
instruction

risk”

and

that

thereby

the

jury

violate

would

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

“substantial
defendant

a

Bruton

risk”

that

might

affect

claim
a

the

is

therefore

confession
jury’s

admitted

verdict

absent.
against

regarding

his

The
one
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).
17

Appeal: 13-4171

Our

Doc: 45

conclusion

Filed: 12/24/2013

that

Harvey’s

Pg: 18 of 18

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.

18