Filed: Mar. 23, 2020
Latest Update: Mar. 23, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4299 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOAKAI BOKER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00092-MOC-1) Submitted: February 20, 2020 Decided: March 23, 2020 Before NIEMEYER, HARRIS, and RUSHING, Circuit Judges. Dismissed in part and affirmed in part by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4299 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOAKAI BOKER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00092-MOC-1) Submitted: February 20, 2020 Decided: March 23, 2020 Before NIEMEYER, HARRIS, and RUSHING, Circuit Judges. Dismissed in part and affirmed in part by unpublished per curiam o..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOAKAI BOKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00092-MOC-1)
Submitted: February 20, 2020 Decided: March 23, 2020
Before NIEMEYER, HARRIS, and RUSHING, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Robert Carpenter, ALLEN STAHL & KILBOURNE, Asheville, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Boakai Boker appeals from his convictions following a jury trial for wire fraud, in
violation of 18 U.S.C. § 1343 (2018) (Count 1); bank fraud, in violation of 18 U.S.C.
§ 1344(a)(2) (2018) (Count 2); making false claims to the Internal Revenue Service, in
violation of 18 U.S.C. § 287 (2018) (Count 3); and aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1), (b) (2018) (Count 4). Boker’s charges arose from a fraudulent
scheme in which the Government alleged that he obtained individuals’ personal
identification information, filed false tax returns in their names, claimed illegitimate
refunds, and deposited the resultant refund checks from the United States Treasury into
accounts that Boker had fraudulently opened in the victims’ names. On appeal, Boker
argues that the magistrate judge violated his right to due process by failing to advise him
during his initial appearance that Count 4 carried a mandatory sentence, and that the
magistrate judge additionally erred by ordering his pretrial detention and by granting his
request to proceed pro se. Boker further contends that the district court erred by denying
his motion to suppress and by limiting his cross-examination of a witness. We dismiss in
part and affirm in part.
I
Boker first contends that his due process rights were violated because the magistrate
judge violated Fed. R. Crim. P. 5 by failing to advise him during his initial appearance that
Count 4 carried a mandatory minimum term of imprisonment of two years. Because Boker
raises this challenge for the first time on appeal, we review this claim for plain error.
2
United States v. Jackson,
706 F.3d 264, 270 n.2 (4th Cir. 2013); see United States v.
Dennison,
925 F.3d 185, 190 (4th Cir. 2019) (discussing plain error standard).
Rule 5 does not require the district court to inform a defendant facing felony charges
of the applicable minimum and maximum penalties at his initial appearance. See Fed. R.
Crim. P. 5(d). Furthermore, the record demonstrates that Boker was aware, prior to the
start of his trial, that Count 4 carried a two-year mandatory term of imprisonment, to run
consecutively to any other sentence imposed. Thus, this claim is meritless.
II
Next, Boker challenges the magistrate judge’s decision to order his pretrial
detention. The Government argues that Boker is no longer subject to pretrial detention due
to his conviction, so this challenge is moot. We agree. See Murphy v. Hunt,
455 U.S. 478,
481-82 (1982); United States v. Springer,
715 F.3d 535, 540 (4th Cir. 2013) (discussing
mootness doctrine). Accordingly, we dismiss this portion of the appeal as moot.
III
Boker also contends that the magistrate judge erred in granting his motion to
proceed pro se. Boker argues that his request to represent himself was essentially
involuntary because neither of his court-appointed attorneys was willing to file certain
motions that the attorneys believed were legally unsupportable but that Boker believed
were necessary. “The Sixth Amendment guarantees to a criminal defendant the right to the
assistance of counsel before he can be convicted and punished by a term of imprisonment”
and “also protects a defendant’s affirmative right to self-representation.” United States v.
Ductan,
800 F.3d 642, 648 (4th Cir. 2015). A defendant “may waive the right to counsel
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and proceed at trial pro se only if the waiver is (1) clear and unequivocal, (2) knowing,
intelligent, and voluntary, and (3) timely.” United States v. Bernard,
708 F.3d 583, 588
(4th Cir. 2013). Ultimately, “the defendant should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that he knows what
he is doing and his choice is made with eyes open.” United States v. Bush,
404 F.3d 263,
270 (4th Cir. 2005) (alteration and internal quotation marks omitted). 1
The record demonstrates that the magistrate judge confirmed that Boker’s decision
to represent himself was clear, unequivocal, knowing, and voluntary. Despite
understanding the penalties that would result from a guilty verdict and despite the
magistrate judge’s warnings about the disadvantages of proceeding without an attorney,
Boker chose to represent himself. His disagreement with his attorneys’ legal analyses does
not render this decision involuntary. To the extent Boker challenges the appointment of
his prior attorney as standby counsel, he “had no right . . . to a standby counsel of his
choosing.” United States v. Cohen,
888 F.3d 667, 680 (4th Cir. 2018). Accordingly,
Boker’s claims lack merit.
IV
Boker argues that the district court erred in denying his motion to suppress evidence
obtained from his apartment during a search conducted pursuant to a warrant signed by a
United States magistrate judge. “In considering the appeal of a denial of a motion to
1
The parties disagree about the applicable standard of review. Because Boker’s
argument fails under either the plain error or abuse of discretion standard, we decline to
resolve the dispute.
4
suppress, we review the district court’s legal conclusions de novo and its factual findings
for clear error.” United States v. Bullette,
854 F.3d 261, 265 (4th Cir. 2017) (internal
quotation marks omitted). “We further construe the evidence in the light most favorable
to the [G]overnment—the prevailing party below.”
Id. (internal quotation marks omitted).
At the suppression hearing, United States Secret Service Special Agent Matthew
Hayes testified that after he, along with other law enforcement officers, conducted the
search, he left with Boker a copy of the face sheet of the search warrant and an inventory
of the items seized in the search. Hayes did not leave attachments A and B to the warrant—
describing the premises to be searched and the items to be seized, respectively—nor did he
leave the affidavit in support of his application for the search warrant. The district court
denied Boker’s motion to suppress, stating “that there is no requirement that a copy of the
affidavit or the attachments which support the affidavit be served on the defendant . . . at
the time of the search.” (J.A. 552) 2; see Fed. R. Crim. P. 41(f)(1)(C).
“There are two categories of Rule 41 violations: those involving constitutional
violations, and all others.” United States v. Simons,
206 F.3d 392, 403 (4th Cir. 2000).
“Non-constitutional violations of Rule 41 warrant suppression only when the defendant is
prejudiced by the violation or when there is evidence of intentional and deliberate disregard
of a provision in the Rule.”
Id. (internal citations and quotation marks omitted). “[T]he
Fourth Amendment is not offended where the executing officer fails to leave a copy of the
search warrant with the property owner following the search . . . or fails even to carry the
2
“J.A.” refers to the joint appendix filed by the parties in this appeal.
5
warrant during the search.” United States v. Hurwitz,
459 F.3d 463, 472 (4th Cir. 2006)
(internal citation omitted).
Here, the district court credited Agent Hayes’ testimony that he left a copy of the
face of the warrant and an inventory of the items seized in the search, see Fed. R. Crim. P.
41(f)(1)(C), but that he did not leave attachments A and B to the warrant or the affidavit in
support of his application for the search warrant. Even assuming arguendo that a violation
of Rule 41 occurred, Boker has offered no evidence or argument, in the district court or on
appeal, that this nonconstitutional violation was intentional or prejudicial. Accordingly,
we conclude that the district court did not err in denying Boker’s motion to suppress.
V
Finally, Boker contends that the district court abused its discretion by cutting short
a statement Boker made while cross-examining Agent Hayes at trial. “We review . . .
evidentiary rulings for abuse of discretion.” United States v. Burfoot,
899 F.3d 326, 340
(4th Cir. 2018). We further review evidentiary rulings for harmless error and will not
reverse the district court’s ruling so long as “we can say with fair assurance, after pondering
all that happened without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.”
Id. (internal quotation marks omitted). Our
review of the record leads us to conclude that the district court did not abuse its discretion
in this regard.
VI
Accordingly, we dismiss as moot Boker’s challenge to his pretrial detention order
and affirm the district court’s judgment. We dispense with oral argument because the facts
6
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART,
AFFIRMED IN PART
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