United States v. Michael Kenneth Young ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL KENNETH YOUNG, a/k/a Mizzle,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Margaret B. Seymour, Senior District Judge. (3:15-cr-00051-MBS-1)
Argued: September 25, 2018 Decided: October 25, 2018
Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded by unpublished opinion.
Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.
ARGUED: William Michael Duncan, AUSTIN & ROGERS, PA, Columbia, South
Carolina, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake,
United States Attorney, Jimmie Ewing, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:
Michael Kenneth Young was charged in a single indictment with six drug- and
gun-related offenses, stemming from four separate encounters with the police. The jury
acquitted Young on three of those charges, each related to drugs, but convicted him on
the remaining three charges, each related to possession of a firearm.
On appeal, Young challenges, first, the joinder of the offenses against him in a
single indictment, and the district court’s refusal to sever and try separately certain of the
charges. A misjoinder or failure to sever requires reversal only if it results in prejudice to
the defendant, and because we conclude that there was no such prejudice here, we find
that the district court did not reversibly err in denying Young’s motion.
Young also challenges the district court’s refusal to suppress evidence seized in
connection with three of his arrests. We agree with the district court as to the first two
arrests, but disagree as to the third, in which the government invoked the inventory search
exception to justify a warrantless search of a car. Because the government failed to
present any evidence that the search was conducted pursuant to standardized criteria, the
inventory search exception does not apply, and we therefore conclude that the district
court erred in denying Young’s motion to suppress the firearms recovered from that
search.
I.
A.
2
We begin by describing the four incidents that gave rise to the six charges against
Young. First, law enforcement officers arranged for a confidential informant to purchase
crack cocaine in a controlled buy on July 28, 2012. The informant later identified Young,
a convicted felon, as the person who sold him the crack cocaine. Second, on April 2,
2014, law enforcement officers pulled over a car in which Young was riding as a
passenger while his then-girlfriend (now wife), Amelia Cunningham, drove. The officers
searched the car, and recovered a gun from the passenger-side door and crack cocaine
from above the passenger-side visor. Within throwing distance of the car, they found a
bag of marijuana. Young was then stopped again, on November 3, 2014, once more
riding as a passenger while Cunningham drove. Again, officers searched the car, and this
time, they recovered a gun from between the passenger’s seat and the center console.
It was Young’s fourth and final arrest that led to the inventory search at issue in
this appeal. On January 30, 2015, Deputy Kimberly MacGregor of the Richland County
Sheriff’s Department followed Young’s car into a hotel parking lot. Young, who had
been driving, got out of the car, and MacGregor asked him for his license. MacGregor
discovered that Young’s license was suspended, and arrested him. MacGregor then
attempted to locate the owner of the car, and when she was unsuccessful, arranged to
impound the car and have it towed. At around the same time, officers working with
MacGregor searched the car, and recovered two guns under the passenger seat.
B.
The government charged Young with crimes relating to these four incidents in a
six-count indictment. Count 1 of the indictment, arising from the controlled buy in July
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2012, charged Young with possession with intent to distribute and distribution of cocaine
base, and aiding and abetting the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)
(2012) and 18 U.S.C. § 2 (2012). As to the April 2014 traffic stop and vehicle search,
Young was charged with three counts: possession with intent to distribute cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count 2); using and carrying a firearm
during and in relation to, and possession of a firearm in furtherance of, a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2012) (Count 3); and being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2012)
(Count 4). For the November 2014 traffic stop and vehicle search, Young was charged
with a second count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (Count 5). And as a result of the January 2015 vehicle
search, Young was charged with a third count of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (Count 6).
Before trial, Young moved to sever Counts 1 and 5 from each other and from
Counts 2, 3, and 4. 1 Young, in other words, sought three separate trials: one on the drug
charge arising out of the July 2012 controlled buy (Count 1); a second on the drug and
gun charges arising out of the April 2014 traffic stop and vehicle search (Counts 2, 3, and
4); and a third on the gun charge arising out of the November 2014 traffic stop and
1
Count 6 was not initially included in the indictment against Young. The grand
jury returned a superseding indictment on July 7, 2015, which added Count 6 based on
Young’s January 2015 arrest. By then, Young already had filed his severance motion,
and he did not amend that motion or otherwise move to sever Count 6 in response to the
superseding indictment.
4
vehicle search (Count 5). The district court denied Young’s motion, recognizing that the
Federal Rules of Criminal Procedure permit broad joinder and concluding that the
allegations in each count appeared to be “related to a common scheme or plan.” J.A. 44.
If necessary at trial, the district court explained, it would give “limiting instructions to the
jury . . . to cure any issue with regard to these counts.” Id.Young also moved to suppress the physical evidence collected from the April
2014, November 2014, and January 2015 vehicle searches. As to the April 2014 and
November 2014 searches, Young argued that the traffic stops that preceded the searches
were unlawful. This, according to Young, warranted suppression of all the evidence
discovered as a result of each stop. The district court disagreed, finding that on both
occasions, the officers had the requisite reasonable suspicion to stop the car, and that in
the course of each valid stop, the officers developed probable cause to search the car
under the automobile exception to the warrant requirement.
The warrantless search of the car in January 2015 was different: Instead of
arguing that probable cause justified the search under the automobile exception, the
government invoked the inventory search exception. As the district court explained, that
exception allows for searches of cars that are lawfully impounded – taken into police
custody – without a warrant and without probable cause, so long as the government
establishes that the search was “performed pursuant to standardized criteria such as a
uniform policy,” and that “such criteria [was] administered in good faith.” J.A. 179.
To support the application of the inventory search exception, the government
relied on the testimony of arresting officer Deputy MacGregor. At the suppression
5
hearing, MacGregor explained that after she arrested Young, she and other officers began
to prepare an inventory of the contents of the car Young had been driving. When asked
why, MacGregor responded that “[the car] was being towed and that way we were not
responsible for anything left in that vehicle.” J.A. 148. The government introduced no
other testimony or documentary evidence regarding Richland County Sheriff’s
Department policy on inventory searches of cars.
At the close of the suppression hearing, Young argued that the government had
failed to justify application of the inventory search exception because MacGregor never
testified that the January 2015 search was conducted pursuant to a standard departmental
policy or procedures. The district court acknowledged the requirement that inventory
searches be “performed pursuant to standardized criteria,” J.A. 179, but concluded that
MacGregor’s testimony was sufficient to satisfy this requirement because it showed that
the search was “undertaken in good faith and for the purpose of securing objects in the
vehicle and not because of any suspicion of criminal activity,” J.A. 180. Accordingly,
the district court found that the January 2015 search was valid under the inventory search
exception, and denied Young’s motion to suppress the evidence recovered from that
search.
The case proceeded to a jury trial. After a three-day trial, the jury acquitted
Young on all of the drug-related charges – Counts 1, 2, and 3 – and convicted Young on
the felon-in-possession charges – Counts 4, 5, and 6. Young was sentenced to 235
months’ imprisonment on each count of conviction, to run concurrently.
This timely appeal followed.
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II.
A.
We begin with Young’s contention that the charges against him were improperly
joined in the indictment and at trial. Specifically, Young argues that under Federal Rule
of Criminal Procedure 8(a), which governs the initial joinder of offenses, Counts 1 and 5
were improperly joined with Counts 2, 3, and 4 in the indictment. Even if there was no
misjoinder, Young contends, these Counts should have been severed for trial under
Federal Rule of Criminal Procedure 14(a), which allows a district court to order separate
trials if joinder will prejudice a defendant. “Although the joinder rules are related, we
apply a different standard of review to each rule.” United States v. Blair, 661 F.3d 755,
768 (4th Cir. 2011). We review de novo whether charges are properly joined in an
indictment under Rule 8(a), and for abuse of discretion whether the district court erred in
denying a motion to sever under Rule 14(a). Id.Under Rule 8(a), two or more offenses may be charged in the same indictment
when the offenses “are of the same or similar character,” “are based on the same act or
transaction,” or “are connected with or constitute parts of a common scheme or plan.”
Fed. R. Crim. P. 8(a). Rule 8, as we have recognized, permits “very broad joinder
because the prospect of duplicating witness testimony, impaneling additional jurors, and
wasting limited judicial resources suggests that related offenses should be tried in a single
proceeding.” United States v. Hawkins, 776 F.3d 200, 206 (4th Cir. 2015) (internal
quotation marks and citations omitted). If joinder is proper under Rule 8, district courts
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nevertheless may, in certain circumstances, order separate trials of counts in the
indictment under Rule 14(a). See Fed. R. Crim. P. 14(a). “Such cases, however, will be
rare.” United States v. Cardwell, 433 F.3d 378, 387 (4th Cir. 2005). “[B]ecause of the
efficiency in trying [a] defendant on related counts in the same trial[,]” Hawkins, 776
F.3d at 206 (quoting Cardwell, 433 F.3d at 385), our precedent makes clear that “joinder
is the ‘rule rather than the exception,’” id. (quoting United States v. Armstrong, 621 F.2d
951, 954 (9th Cir. 1980)).
Young argues that his case fits within the exception, not the rule. Specifically,
Young contends that the charges related to each incident – the July 2012 controlled buy
(Count 1), the April 2014 traffic stop and vehicle search (Counts 2, 3, and 4), and the
November 2014 traffic stop and vehicle search (Count 5) – should have been tried
separately. Those incidents, Young notes, occurred months – and in some cases, years –
apart, and involved different law enforcement agencies and different trial witnesses. And
according to Young, the presence of the drug-related charges from July 2012 and April
2014 could well have affected his trial on the felon-in-possession charge from November
2014: Because of the drug-related charges, the government was able to elicit trial
testimony that drug dealers often carry firearms, encouraging the jury to infer from the
drug charges against Young that he also was likely guilty on the firearm charge. More
generally, Young cites the cumulative effect of the evidence from the multiple charges
against him, and its potential to confuse or overwhelm the jury into believing that he must
be guilty of something, notwithstanding weaknesses in each individual case.
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We disagree. As we have explained, under either Rule 8(a) or Rule 14(a), reversal
is warranted only where a misjoinder or failure to sever caused the defendant to suffer
prejudice at trial. Blair, 661 F.3d at 768 (reversal under Rule 8 is required only if the
misjoinder results in “actual prejudice” (quoting United States v. Hawkins, 589 F.3d 694,
704 (4th Cir. 2009), amended and superseded on other grounds by 776 F.3d 200)); id. at
770 (reversal under Rule 14 is required only if the trial resulted in “clear prejudice”
(quoting Cardwell, 433 F.3d at 387–88)). In assessing whether a misjoinder or failure to
sever resulted in prejudice, we consider three “indicia of harmlessness”:
(1) whether the evidence of guilt was overwhelming and the concomitant
effect of any improperly admitted evidence on the jury’s verdict; (2) the
steps taken to mitigate the effects of the error; and (3) the extent to which
the improperly admitted evidence as to the misjoined counts would have
been admissible at trial on the other counts.
Id. at 769 (quoting Hawkins, 589 F.3d at 704).
The government contends that the first two indicia show that any misjoinder or
failure to sever in this case did not prejudice Young, and we agree. 2 First, the evidence
of Young’s guilt as to the three felon-in-possession charges – the only charges on which
he was convicted – was overwhelming. At trial, Young stipulated that he previously had
been convicted of a felony, making him ineligible to possess a firearm. As to whether he
nevertheless did possess firearms, the government elicited highly probative testimony
from the arresting officers and from DNA experts. The officers who arrested Young in
2
The government does not rely on the third factor, involving the cross-
admissibility of evidence. We need not address that factor here because we agree with
the government that the first two are dispositive.
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April and November of 2014 both testified that when they conducted their traffic stops,
they observed guns in close proximity to the passenger seat in which Young was sitting:
in the passenger-side door in April and between the passenger seat and the center console
in November. A DNA expert bolstered that account, explaining that her analysis tied
Young’s DNA to the DNA found on both guns. As to Young’s January 2015 arrest, the
arresting officer testified that two guns were found underneath the passenger seat of the
car Young was driving, and a second DNA expert opined that the DNA on one of those
guns was 130 trillion times more likely to be Young’s DNA than that of anyone else in
the general population.
Second, the district court made good on its promise to mitigate any potential
prejudice through its instructions to the jury. Responding directly to the concern that
jurors might view the trial evidence cumulatively, rather than count-by-count, the court
instructed the jury that “the charges set forth in each count in the Indictment constitute
separate and distinct matters,” and that the jury must “consider each count and evidence
applicable to each count separately” and “state [its] findings as to each count separately.”
J.A. 740. And the court reiterated that “[t]he defendant may be found guilty or not guilty
of any one or all of the offenses charged.” Id. We have previously considered the effect
of virtually identical jury instructions, and concluded that they substantially “mitigate the
effect of any possible spillover of prejudicial evidence.” United States v. Mackins, 315
F.3d 399, 415 (4th Cir. 2003) (citing United States v. Lane, 474 U.S. 438, 450 (1986)).
We have no reason to doubt their efficacy in this case, especially given the jury’s verdict,
convicting Young on the three felon-in-possession charges but acquitting him on every
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drug-related charge. See id. (noting that a split verdict “strongly indicates” that the jury
has considered the evidence as to each count separately, rather than “allow[ing] the
evidence as to the misjoined [counts] . . . to affect their verdicts on the other counts”).
In short, we need not decide in this case whether the charges against Young were
properly joined in a single indictment, or whether they should have been severed for trial.
Even assuming that the charges were misjoined, reversal would be appropriate only if
that error actually prejudiced Young at trial. And for the reasons described above, we
conclude that there was no such prejudice here. On that ground, we hold that the district
court did not reversibly err when it denied Young’s motion to sever.
B.
We turn next to the district court’s denial of Young’s motion to suppress the
evidence recovered from the April 2014, November 2014, and January 2015 searches. In
reviewing a district court’s decision to deny a motion to suppress, we “review[]
conclusions of law de novo and underlying factual findings for clear error.” United
States v. Clarke, 842 F.3d 288, 293 (4th Cir. 2016) (quoting United States v. Banks, 482
F.3d 733, 738 (4th Cir. 2007)).
The district court concluded that there was no merit to Young’s motion to suppress
the evidence recovered from the April 2014 and November 2014 searches, and for the
reasons given by the district court, we agree: In both cases, reasonable suspicion
supported the initial traffic stops, and in both cases, probable cause to search the vehicles
under the automobile exception emerged during the course of those valid stops. See J.A.
176–78. We disagree, however, that the January 2015 search can be justified under the
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inventory search exception, the sole basis on which the government has sought admission
of the guns uncovered in that search.
An inventory search is a well-recognized exception to the Fourth Amendment’s
warrant requirement. Under that exception, the police may conduct a search of property
that has been lawfully seized and detained, like a car properly impounded and towed to a
police station. Such searches are reasonable even in the absence of a warrant or probable
cause, the Supreme Court has concluded, because they allow the police to “protect an
owner’s property while it is in the custody of the police, to insure against claims of lost,
stolen, or vandalized property, and to guard the police from danger.” Colorado v.
Bertine, 479 U.S. 367, 372 (1987). But to protect against “general rummaging in order to
discover incriminating evidence,” Florida v. Wells, 495 U.S. 1, 4 (1990), the Supreme
Court has insisted that inventory searches be conducted only pursuant to “standardized
search procedures” that “curtail the discretion of the searching officer” and are
“administered in good faith[,]” Banks, 482 F.3d at 739 (first citing Wells, 495 U.S. at 4;
then quoting Bertine, 479 U.S. at 374).
In this case, the district court found, and Young does not dispute, that Deputy
MacGregor and the other officers acted in good faith when they conducted the January
2015 search of the car that Young had exited. But that is not the end of the inquiry
mandated by the Supreme Court. There remains the question of whether that search was
conducted according to “‘standardized criteria,’ such as a uniform police department
policy,” United States v. Matthews, 591 F.3d 230, 235 (4th Cir. 2009) (quoting Bertine,
479 U.S. at 374 n.6), that “sufficiently limit[ed] [the] searching officer’s discretion[,]”
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id.; see also Clarke, 842 F.3d at 293 (“For the inventory search exception to apply, the
search must have been [1] conducted according to standardized criteria . . . , and [2]
performed in good faith.” (internal quotation marks and alterations omitted) (quoting
Matthews, 591 F.3d at 235)).
We recognize that the bar for proving the existence of the requisite standard policy
is not a high one. The policy and criteria need not be in writing; “testimony regarding
standard practices” will do. Clarke, 842 F.3d at 294 (quoting Matthews, 591 F.3d at
235). But whether through introduction of written police department rules and
regulations or through police officer testimony, there must be “sufficient evidence” from
which a court may assure itself that the searching officer’s discretion was limited by
standardized criteria governing the conduct and scope of inventory searches. United
States v. Bullette, 854 F.3d 261, 266 (4th Cir. 2017).
Here – in contrast to other cases in which we have approved inventory searches –
the government did not provide a written departmental policy governing inventory
searches. Cf., e.g., Clarke, 842 F.3d at 294 (government provided both written
department policy and standard inventory search form signed by officer to district court);
Matthews, 591 F.3d at 233 (quoting detailed police department policy on inventory
searches); Banks, 482 F.3d at 739 n.5 (same). Nor, critically, did Deputy MacGregor’s
testimony fill that gap. To be sure, MacGregor explained her reason for conducting an
inventory search, testifying that the car was searched “[b]ecause it was being towed and
13
that way [the police] were not responsible for anything left in [the] vehicle.” J.A. 148.3
And that testimony, presumably, was the basis for the district court’s finding that the
search was conducted in good faith. But it does not describe nor even refer expressly to
any Richland County Sheriff’s Department policy, or to any standard procedures or
criteria that the department requires officers to observe in carrying out inventory
searches. And without that, we cannot assess whether the search in this case “conforms
to our precedent” requiring such standardized criteria, Bullette, 854 F.3d at 266, and we
cannot determine whether the searching officers’ discretion was “sufficiently limit[ed]”
by that criteria to bring it within the inventory search exception, Matthews, 591 F.3d at
235.
Accordingly, we conclude that the government failed to establish the existence of
the standardized criteria required to apply the inventory search exception to the January
2015 search. The government has identified no other ground for admission of the two
guns recovered from that search, which became the basis for Count 6’s felon-in-
3
We note that a police officer’s initial decision to tow and impound a vehicle – the
necessary predicate for an inventory search – also must be governed by standardized
criteria. Bertine, 479 U.S. at 375; see also United States v. Cartrette, 502 F. App’x 311,
315–16 (4th Cir. 2012) (while police are afforded “more discretion” in deciding whether
to impound vehicles than in conducting inventory searches, that discretion must be
“exercised according to standard criteria and on the basis of something other than
suspicion of evidence of criminal activity” (quoting Bertine, 479 U.S. at 375)). That
requirement was never discussed during the suppression hearing in this case. But
because Young has not raised the issue on appeal, we do not consider it here, and
consider only the associated inventory search of the vehicle. See Suarez-Valenzuela v.
Holder, 714 F.3d 241, 248–49 (4th Cir. 2013) (describing rule that contentions not raised
in opening brief on appeal are abandoned).
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possession charge against Young. We therefore reverse the district court’s denial of
Young’s suppression motion as it applies to the January 2015 search, vacate Young’s
conviction on Count 6 of the indictment, and remand for resentencing in light of this
decision.
III.
For the foregoing reasons, we affirm Young’s convictions on Counts 4 and 5 of
the indictment. We reverse the district court’s denial of Young’s suppression motion as it
applies to the January 2015 search, vacate Young’s conviction on Count 6 of the
indictment, and remand for resentencing in light of this decision.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED
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