United States v. McDuffie , 24 F. App'x 167 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4883
GARY D’ANGELO MCDUFFIE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4914
BENNIE D. TURNER, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4915
ERIC SYLVESTER DORSEY,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-99-203)
Argued: September 25, 2001
Decided: December 20, 2001
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
2 UNITED STATES v. MCDUFFIE
Affirmed by unpublished opinion. Judge Widener wrote the opinion,
in which Judge Niemeyer and Judge Michael joined.
COUNSEL
ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant
Dorsey; Thomas Brian Walsh, MARTIN, ARIF, PETROVICH &
WALSH, Springfield, Virginia, for Appellant McDuffie; David
Thomas Williams, WILLIAM B. CUMMINGS, P.C., Alexandria,
Virginia, for Appellant Turner. Robert Andrew Spencer, Assistant
United States Attorney, Alexandria, Virginia, for Appellee. ON
BRIEF: William B. Cummings, WILLIAM B. CUMMINGS, P.C.,
Alexandria, Virginia, for Appellant Turner. Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
WIDENER, Circuit Judge:
Defendants Gary McDuffie, Eric Dorsey and Bennie Turner appeal
their criminal convictions from a jury trial for assorted combinations
of conspiracy, bank and post office robbery, use of a firearm in a
crime of violence and other firearms violations, and witness tamper-
ing. The defendants raise multiple issues on appeal including, inter
alia, whether a police officer may request a passenger in a lawfully
stopped vehicle to produce identification; the admissibility of prior
out-of-court statements by a deceased robbery victim; evidence of an
overt act charged in the conspiracy that occurred outside the jurisdic-
tion; and the district court’s handling of three separate jury incidents.
For the reasons that follow, we affirm.
UNITED STATES v. MCDUFFIE 3
I.
On March 23, 1999 defendants were stopped for speeding by an
Arlington County police officer. Prior to the stop, the driver of the
van in which defendants were riding, Gary Spinner, had pulled along-
side the police car and asked the officer for directions. Based on his
observations of the vehicle and its occupants, the officer followed the
van and subsequently initiated a traffic stop when the vehicle
exceeded the speed limit. Spinner was driving the van, Dorsey was in
the front passenger seat; Turner was sitting directly behind the driver;
and, McDuffie was sitting in the third seat, at the very rear of the van.
In the course of the traffic stop, the officer determined that the
driver of the van, Spinner, did not have a valid license. When the offi-
cer asked passenger Dorsey to check the glove box for Spinner’s
license and registration, he observed a surgical glove on the floor of
the van. The officer asked Dorsey for identification and ran a check
on the card Dorsey produced which revealed an outstanding warrant
for robbery. The officer asked Dorsey to step out of the van and as
he was doing so, a black ski mask fell to the ground.
With the assistance of backup officers, McDuffie and Turner were
also removed from the van and all four men were handcuffed. A
search of the van revealed a sawed-off shotgun, a handgun, ammuni-
tion, a black ski mask, surgical gloves, brown cloth gloves, a mask
made from a long underwear sleeve, a camouflage bandana and a
skull cap. In addition, Dorsey had straws and a pipe used for smoking
or inhaling narcotics, and both Spinner and Dorsey had pawn receipts
for jewelry which had been stolen from a Washington, D.C. jeweler
on January 26, 1999.
Spinner pleaded guilty to bank robbery and to using a firearm in
a crime of violence, cooperated with the government, and testified at
trial against McDuffie, Dorsey, and Turner.
Prior to trial, the district court denied defendants’ motion to sup-
press the evidence seized from the van, finding that the stop was a
legitimate traffic stop. The district court also denied defendants’
motion to strike the D.C. jewelry store robbery from the indictment,
concluding that venue was proper in any district where at least one
4 UNITED STATES v. MCDUFFIE
overt act had occurred and there were significant substantive offenses
alleged to have occurred in the court’s jurisdiction.
In addition, finding enough indicia of reliability, the court granted
the prosecution’s motion in limine to admit a prior statement of iden-
tification made by a deceased witness. The witness, who committed
suicide before trial, was an employee in the D.C. jewelry store rob-
bery who had made statements to police and identified Dorsey in a
photo spread.
Three jury issues developed in the final stages of the trial. First,
during the trial a personal friend of one of the jurors was stabbed to
death and the incident was reported in the Washington Post. Because
the event had been the subject of some discussion among the jurors,
the court conducted voir dire of each juror to determine if they had
been affected so that they could no longer be impartial. Based on the
jurors’ demeanor and responses to questioning, the court concluded
that the jury had not been tainted and denied defendants’ motion for
a mistrial.
Second, upon returning guilty verdicts on all counts, the jury
requested that the court address a question they had but "not in open
court:" "What safeguards are in place ensuring safety of jurors?" After
the verdicts were delivered, the court cleared the courtroom of both
spectators and the three defendants to address the jury’s safety ques-
tion. The court asked the jury if they had felt threatened or intimi-
dated during the trial and if the people in the gallery had in any
respect affected the jury’s judgment in the case. The court was satis-
fied by the jury’s responses that the jury properly and fairly adjudi-
cated the case. In response to the jury question about jury safeguards,
the court generally described the limitations on circulation of jury lists
and the prohibition on attorneys or party litigants questioning jurors
about the verdict without leave of court.
The third jury issue arose from a comment made by a departing
juror. After the jury was excused, as the jury was leaving, the juror,
as she was exiting the courtroom made a thumbs-up gesture and com-
ment to the prosecutors, saying, "You made up for O.J." The court
called the juror back and questioned her, under oath, about her com-
ment and specifically inquired whether the defendants’ race (all were
UNITED STATES v. MCDUFFIE 5
African American) had influenced her decision to find them guilty.
The juror denied that the comment had been race related and apolo-
gized for her remark, which she described as flippant and stupid. The
juror explained that she had African-American people in her own
family and meant only that the O.J. Simpson trial had been a personal
disappointment to her and that this trial had restored her faith in the
government because of the exemplary preparation and behavior of the
government lawyers and expert witnesses. Although the court
afforded them the opportunity, counsel for defendants declined to
submit any additional questions to the court to be posed to the juror.
Defendants filed motions for a mistrial, or alternatively, a new trial
which were denied. This appeal followed.
II.
A.
The district court denied a motion to suppress the fruits of what
Dorsey claimed was an illegal search. Specifically, Dorsey objected
to an officer’s request for identification during a lawful traffic stop of
the van in which he was a passenger. The district court’s legal conclu-
sions underlying a suppression determination are reviewed de novo
while its factual findings are reviewed for clear error. United States
v. Allen, 159 F.3d 832, 838 (4th Cir. 1998). There is no dispute that
the van was legally stopped for speeding. It is also undisputed that
Dorsey voluntarily produced his identification when requested to do
so by the officer. A computer check of this identification revealed an
outstanding warrant for Dorsey’s arrest.
It is clear that the temporary detention of individuals as the result
of a traffic stop is a seizure within the context of the Fourth Amend-
ment. United States v. Brugal, 209 F.3d 353, 356 (4th Cir. 2000) (en
banc). Here the seizure was a legal traffic stop based on probable
cause that the vehicle was speeding, going 62 mph in a 45-mph zone.
The Fourth Amendment is not implicated, however, in every instance
when an officer attempts to question citizens he encounters. See
United States v. Burton, 228 F.3d 524, 527 (4th Cir. 2000). Having
determined that the driver of the vehicle did not possess a valid driv-
er’s license, the officer’s request to the passengers to produce identifi-
6 UNITED STATES v. MCDUFFIE
cation, to determine whether anyone present could drive the vehicle
away after the traffic stop, was entirely reasonable.
Even if the request for identification could be construed as a
search, however, the search was lawful in this case because Dorsey’s
production of identification was consensual. See United States v. Per-
rin, 45 F.3d 869, 875 (4th Cir. 1995). Dorsey did not object in any
way to producing his identification at the officer’s request and volun-
tarily removed his ID from his wallet and handed it to the officer.
Accordingly, the district court’s denial of the suppression motion is
affirmed.
B.
Defendants next contend that the court erred in admitting evidence
of an overt act, the D.C. jewelry store robbery, although charged in
the indictment, because that occurred outside the jurisdiction. The
indictment against defendants charged a single conspiracy in violation
of 18 U.S.C. § 371, based on violations of (1) 18 U.S.C. § 2113(a) &
(d), bank robberies in the Eastern District of Virginia; (2) 18 U.S.C.
§ 2114(a), post office robberies in the Eastern District of Virginia and
Maryland; and (3) 18 U.S.C. § 1951(a), interference with interstate
commerce arising from the robbery of a jewelry store in Washington,
D.C.
A single conspiracy can be found when the conspiracy has "the
same objective, the same results, and the same product." United States
v. Crockett, 813 F.2d 1310, 1317 (4th Cir. 1987). Furthermore, "a
conspiracy may be prosecuted in any district in which the agreement
was formed or in which an act in furtherance of the conspiracy was
committed." United States v. Gilliam, 975 F.2d 1050, 1057 (4th Cir.
1992). The jewelry store robbery was part of the same conspiracy that
led to the robbery of banks and post offices. We are of opinion the
district court correctly admitted evidence of the robbery that occurred
in Washington, D.C. to demonstrate an overt act in furtherance of the
§ 371 conspiracy. Indeed, that robbery was explicitly and properly
included in the indictment as an overt act.
Defendants next contend that the district court erred in granting the
government’s motion in limine to admit hearsay testimony from a
UNITED STATES v. MCDUFFIE 7
deceased witness, Stephanie Williams, a victim of the D.C. jewelry
store robbery who committed suicide prior to the defendants’ trial.
Prior to her suicide, Williams made a tentative photo identification
of Dorsey as one of the men who had robbed the D.C. jewelry store
where she worked. Although Williams made her identification per-
haps in the presence of police officers and accompanied by her
lawyer-boyfriend, the circumstances under which we have found
guarantees of trustworthiness were not present here. Williams was not
under oath, see United States v. McHan, 101 F.3d 1027, 1038 (4th
Cir. 1996), was not providing grand jury testimony, see United States
v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982), nor was she compelled
to be truthful by a plea agreement, see United States v. Ellis, 951 F.2d
580, 583 (4th Cir. 1991). In addition, Williams was at one time con-
sidered a suspect in the robbery, a circumstance that, if she were
guilty, undermined her incentive to be truthful and similarly under-
mines the reliability of her statements. We are of opinion the indica-
tions of reliability were not sufficient to admit this otherwise
inadmissible hearsay.
But in this case, any such error was harmless. Dorsey’s involve-
ment in the jewelry store robbery was supported by his unexplained
possession of pawn receipts for jewelry stolen from the store found
upon him when he was arrested. Similarly, the testimony of Spinner
that Dorsey planned and participated in the robbery with him was cor-
roborated by Spinner’s similar possession of like pawn receipts at the
time of his arrest. In addition, the pawn receipts of both Spinner and
Dorsey were identified by the testimony of an employee of the pawn
shop, who matched them with the stolen articles of jewelry. Again,
this testimony was without explanation, so we are of opinion the hear-
say testimony of Williams was harmless error. While the mere fact of
sufficient other evidence to support the result will not suffice, because
we can, and do, say "with fair assurance, after pondering all that hap-
pened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error," we therefore
"conclude that substantial rights were not affected." Koteakos v.
United States, 328 U.S. 750, 765 (1946).
C.
Defendants also contend that the district court violated their rights
under the Fifth Amendment and Rule 43 of the Federal Rules of
8 UNITED STATES v. MCDUFFIE
Criminal Procedure to be present during trial and their Sixth Amend-
ment right to a public trial, by addressing the jury’s question regard-
ing precautions for juror safety in the absence of defendants.
Additionally, defendants argue that the district court failed to provide
a meaningful opportunity to determine if there was juror bias.
The jury, in a note announcing it had reached a verdict, asked the
court to address its concerns about juror safety. After the jury ren-
dered its verdict and was polled, the court, without objection from coun-
sel,1 cleared the courtroom except for counsel, addressed the jurors’
safety concerns and conducted voir dire to assess potential bias
related to the jurors’ fears. Satisfied that the jury had considered the
case properly and fairly, the district court dismissed the jury.
Also after the verdict, one juror, as she departed, made the congrat-
ulatory remark complained of to the prosecution, contrasting the trial
to the O.J. Simpson trial. The court recalled the juror, questioned her
about the remark itself and whether she harbored any racial bias that
may have influenced her verdict. Defense counsel were present,
although defendants were not, and declined the opportunity to have
the court pose additional questions of the juror.
Based on the Confrontation Clause of the Sixth Amendment and
the Due Process Clause of the Fifth Amendment, a defendant has a
constitutional "right to be present at all stages of the trial where his
absence might frustrate the fairness of the proceedings." United States
v. Rolle, 204 F.3d 133, 136 (4th Cir. 2000) (quoting Faretta v. Cali-
fornia, 422 U.S. 806, 819 n.15 (1975)). In addition, Rule 43 of the
1
At oral argument counsel for defendant McDuffie asserted that
although he made no formal objection at the time the district court
cleared the courtroom, the objection was an "ongoing objection" from
when he first requested the opportunity to talk to his client regarding the
court’s intention to clear the courtroom to address the jury’s safety ques-
tion. The record is clear, however, that no objection was made during the
bench conference when the court informed counsel that it had decided to
clear the courtroom of everyone, nor was an objection made when the
court actually ordered the defendants back to the cellblock and all specta-
tors removed to the hallway. In all events, we are of opinion that McDuf-
fie’s substantial rights were not affected.
UNITED STATES v. MCDUFFIE 9
Federal Rules of Criminal Procedure not only embodies this constitu-
tional guarantee, but also codifies the broader common law right of
presence, explicitly providing a defendant with the right to be present
at every stage of the trial.2 Rolle, 204 F.3d at 136-37 (citations omit-
ted).
We have held that Rule 43 "mandates that a defendant be physi-
cally present at sentencing," United States v. Lawrence, 248 F.3d 300,
302 (4th Cir. 2001), and that defendants have "a right to be present
at trial during the impaneling of the jury and during direct testimony,"
United States v. Camacho, 955 F.2d 950, 953 (4th Cir. 1992), and the
right to be present at the voir dire of prospective jurors, United States
v. Tipton, 90 F.3d 861, 872 (4th Cir. 1996), even if the voir dire is
conducted individually in an in camera proceeding, United States v.
Rolle, 204 F.3d 133, 137 (4th Cir. 2000).
2
Fed. R. Crim. P. 43 in pertinent part states:
(a) Presence Required. The defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise provided
by this rule.
(b) Continued Presence Not Required. The further progress
of the trial to and including the return of the verdict, and the
imposition of sentence, will not be prevented and the defendant
will be considered to have waived the right to be present when-
ever a defendant, initially present at trial, or having pleaded
guilty or nolo contendere,
(1) is voluntarily absent after the trial has commenced-
(whether or not the defendant had been informed by the
court of the obligation to remain during the trial),
(2) in a noncapital case, is voluntarily absent at the
imposition of sentence, or
(3) after being warned by the court that disruptive con-
duct will cause the removal of the defendant from the court-
room, persists in conduct which is such as to justify
exclusion from the courtroom.
We note that the limited exceptions of 43(b) are not implicated in this
case.
10 UNITED STATES v. MCDUFFIE
In United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994), we consid-
ered the narrow question of whether the defendant must be present
when an answer to a jury question sent out during deliberations is for-
mulated and given. We held that it was "error to conduct, without the
presence of the defendant, an in chambers discussion with counsel for
the government and the defendant about a substantive question with
respect to its instructions sent out by a deliberating jury." Rhodes, 32
F.3d at 874. Unlike Rhodes, however, in this case, the exchange
between the court and the jury regarding juror safety and the ques-
tioning of the juror who made the departing comment occurred after
the jury had completed its deliberations and, significantly, after the
jury had delivered the verdict in the trial. There is nothing in the plain
language of Rule 43 or our cases to suggest that a defendant has a
right to be present after the verdict has been rendered.
Because defendants raised no objection at trial, we review the deci-
sion to exclude defendants from this exchange for plain error. Rolle,
204 F.3d at 138. The allegation of error in this case is significantly
undercut by the fact that the exchanges took place post-verdict and in
the presence of counsel. Even assuming arguendo that we could find
error, defendants cannot meet their burden to establish that such an
error affected their substantial rights, which requires a showing that
the error has caused "actual prejudice by affecting the outcome of the
trial." Rolle, 204 F.3d at 139. As the district court found, the evidence
of guilt was overwhelming, thus any alleged error was harmless.
In addition, the district court conducted extensive voir dire of the
jury in the presence of defendants’ counsel, who had the opportunity
to submit questions which would be posed to the jury by the court.
The unambiguous answers given by the jurors indicating that the ver-
dict was not in any way affected by safety concerns further support
the lack of prejudice. Similarly, the district court found the explana-
tion given by the juror who made the inappropriate comment upon
departing to be credible and the court was satisfied that the comment
was not a reflection of racial bias or misconduct. Accordingly, the
district court properly denied the motions for a new trial or mistrial.
III.
We have discussed in more detail above the principal points in this
appeal. We have also considered the various challenges to venue;
UNITED STATES v. MCDUFFIE 11
Dorsey’s challenge to the sufficiency of the evidence with respect to
his various convictions; McDuffie’s challenge to the sufficiency of
the evidence with respect to his various convictions; and Turner’s
challenge to the sufficiency of the evidence to support the conspiracy
charge of which he was convicted. We are of opinion there was no
error in the venue charged, the Eastern District of Virginia, and that
the evidence supported the verdicts against Dorsey, McDuffie and
Turner.
The judgment of the district court in each case is accordingly
AFFIRMED.3
3
The defendant’s motion to file a pro se supplemental brief is granted.