Filed: Mar. 10, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4774 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHIRLAND L. FITZGERALD, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Samuel G. Wilson, District Judge. (4:08-cr-00001-sgw-mfu-1) Argued: December 10, 2010 Decided: March 10, 2011 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished opinion. Judge Gregory wrote the opinion, in w
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4774 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHIRLAND L. FITZGERALD, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Samuel G. Wilson, District Judge. (4:08-cr-00001-sgw-mfu-1) Argued: December 10, 2010 Decided: March 10, 2011 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished opinion. Judge Gregory wrote the opinion, in wh..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHIRLAND L. FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Samuel G. Wilson, District
Judge. (4:08-cr-00001-sgw-mfu-1)
Argued: December 10, 2010 Decided: March 10, 2011
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge Wynn joined.
ARGUED: Angela Dawn Whitley, THE WHITLEY LAW FIRM, Richmond,
Virginia, for Appellant. Anthony Paul Giorno, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON
BRIEF: Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
This is an appeal from a jury conviction for six counts of
conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h). Shirland Fitzgerald appealed his conviction and
sentence on seven grounds: (1) the denial of a motion to
suppress; (2) the insufficiency of the evidence; (3) the
government’s introduction of excluded evidence; (4) the grant of
the government’s motion to quash the subpoenas duces tecum; (5)
the application of the sentencing guidelines from 2001; (6) the
application of the sophisticated means enhancement to his
sentence; and (7) the application of the obstruction of justice
enhancement to his sentence. After consideration of the issues,
we conclude that Fitzgerald’s convictions and sentence should be
affirmed.
I.
On April 27, 2003, while executing a lawful search warrant
against Robert DeNova in Pittsylvania, Virginia, the Drug
Enforcement Agency (“DEA”) discovered documents related to
several vehicle purchases from Fitzgerald Auto Sales in
Danville, Virginia by a “known drug dealer,” Jarett Doss.
Fitzgerald Auto Sales is owned and operated by the defendant-
appellant, Shirland Fitzgerald.
2
On April 28, 2003, while conducting an interview with Doss’
father, DEA agents observed the arrival of Doss’ girlfriend in a
2002 GMC Envoy which officers determined was purchased at
Fitzgerald Auto Sales. The officers then seized the car as the
fruit of illegal drug activities.
Later that day, after Fitzgerald had closed the car lot, a
police officer placed a call to Fitzgerald posing as a potential
car buyer. Approximately fifteen minutes later, Fitzgerald
returned to the lot and was confronted by ten to eleven police
officers. After Fitzgerald refused to give them permission to
search the lot, Officer Robertson set out to obtain a search
warrant.
At the suppression hearing, there was a factual dispute
about the timing of the police search of the premises. Two
officers, Nicholson and Robertson, testified that there was no
search upon entry into the lot. They both stated that they only
began searching after a warrant was obtained. Officer Taylor
seemed to contradict this statement by stating that the search
began almost immediately after Fitzgerald arrived to open the
car lot. However, Taylor also testified that there was a
warrant before he started searching the premises.
It is undisputed that after determining that they needed a
warrant, the agents forced Fitzgerald to sit and wait for
approximately an hour and a half while police secured a search
3
warrant for the premises. This first search warrant gave police
the right to search for documents relating to the sale of
vehicles by Jarett Doss, Jared Doss, J&D Leasing, Shawn Samuels,
Michael Henderson II, Crystal Tuck, Clarence Martin Jr., Robert
DeNova, Michael Farmer, Eddie Fielders, and “any and all
documents consistant [sic] with the laundering of drug
proceeds.” J.A. 80. The government claims that the warrant was
issued at 5:30 p.m. though there is no time stamp on the
document. The warrant articulates three facts to support a
finding of probable cause for the warrant: the documents
retrieved at DeNova’s trailer, Crystal Tucks’ car registration,
and Officer Robertson’s experience.
At 7:57 p.m., the police sought and obtained a second
warrant to remove “various documents relating to the sale of
conveyances.” J.A. 89. On April 29, 2003, a third search
warrant was executed on Fitzgerald’s residence. This time, the
scope of the search was much broader and sought evidence that
Fitzgerald had been engaged in money laundering.
After the suppression hearing, the district court
determined that Fitzgerald had been unlawfully seized while the
police sought the warrant. However, the district court
ultimately concluded that since no illegally obtained evidence
was used to procure the search warrants, the evidence obtained
4
from the search warrants was “sufficiently distinguishable to be
purged from the unlawful detention.” J.A. 263.
At trial, the government introduced evidence that
Fitzgerald attempted to conceal his crime after the search
warrants were executed. For example, on May 19, 2003,
Fitzgerald participated in a conversation with Bobby Doss,
Jarett Doss’ father, in which he agreed to sell two cars
belonging to Jarett and give the proceeds to Bobby. Also, after
Fred Rogers was arrested in connection with the conspiracy,
Theresa Tyler, his sister, visited Fitzgerald to tell him to
stick to the “story” that the car was purchased by Tyler not
Rogers. Finally, an audiotape was played at trial which
revealed conversations between Fitzgerald and co-conspirators
about ensuring that they all tell the same story.
On September 10, 2008, the government filed a Second
Superseding indictment naming Fitzgerald that included seven
counts against him for conspiracy to launder money in violation
of 18 U.S.C. § 1956(a)(1)(B) and 18 U.S.C. § 1956(h).
On October 20, 2008, the government filed a notice of
404(b) evidence, announcing that it planned to introduce
evidence that Fitzgerald had participated in narcotics deals
with Clarence Martin, Sr. to prove that he knew the source of
the funds used to purchase cars. Fitzgerald objected.
5
On April 6, 2009, less than a month before trial was set to
start, Fitzgerald filed subpoenas duces tecum seeking, among
other things, documentation from various Danville car
dealerships about their sales practices over several years. The
government objected to the issuance of the subpoenas because
they were not timely 1 and there was no showing of relevancy,
admissibility, and specificity of the evidence sought. On April
9, 2009, the district court partially granted the motion to
quash based on the government’s objections.
Trial commenced on May 4, 2009. During the trial, Quentin
Pinchback testified that Fitzgerald was involved in drug
dealing. Fitzgerald’s attorney moved for a mistrial based on
the prejudicial nature of the testimony. The motion was denied
and the court gave a curative instruction to the jury –- telling
them to ignore the impermissible evidence. Later, Clarence
Trent testified about Fitzgerald’s alleged drug dealing past and
the court again instructed the jury to disregard it.
At trial, Fitzgerald testified that he did not know that
the cars were being sold to drug dealers. He believed that Doss
was leasing the cars he bought and/or selling them with a mark
up. There was also testimony that Rhonda Carter, Fitzgerald’s
girlfriend, would gamble with Doss and some of his associates
1
The deadline for completing discovery was November 2008.
6
after the lot was closed. They would play dice and cards.
Fitzgerald testified that he did not participate in the games,
did not like that they occurred, but did not feel that he could
interfere since Doss was a customer.
Fitzgerald was convicted of six of the seven counts against
him and sentenced to 140 months in prison on August 11, 2009.
II.
A. Motion to Suppress
On appeal from a motion to suppress, this Court reviews the
factual findings of a district court for clear error, and
reviews legal determinations de novo. United States v.
Wardrick, 350 F.3d 446, 451 (4th Cir. 2003). Probable cause
determinations by a trial court are given great deference.
United States v. Hurwitz,
459 F.3d 463, 473 (4th Cir. 2006).
We adopt the district court’s reasoning with respect to the
motion to suppress. In its opinion, the district court found
that (1) Fitzgerald was illegally detained; (2) the search
warrant was valid; and (3) the search warrant was obtained
without any fruits from the illegal detention.
Fitzgerald was illegally seized while he waited for the
police to obtain the first search warrant. A seizure occurs
when “taking into account all of the circumstances surrounding
the encounter, the police conduct would have communicated to a
7
reasonable person that he was not at liberty to ignore the
police presence and go about his business.” Kaupp v. Texas, 538
U.S. 626, 629 (2003) (internal quotations and citations
omitted). The district court concluded that Fitzgerald was
illegally seized based on several facts including that he was
“lured” to the lot on false pretenses; he was confronted by ten
to eleven officers with visible weapons; and he was forced to
sit in a chair while he waited for the warrant to be obtained.
The search warrant was valid on its face. In their warrant
application the police relied on three facts: the documents
retrieved at DeNova’s trailer, Crystal Tucks’ car registration,
and the officer’s experience. We find that the facts
articulated in the warrant are sufficient to form the basis for
a probable cause determination and to believe that the fruits of
a crime are contained within the parking garage.
The search warrant was not tainted by the illegal seizure.
To determine whether evidence is inadmissible as a result of an
illegal seizure, the court asks “whether the search pursuant to
warrant was in fact a genuinely independent source of the
information and tangible evidence at issue here.” Murray v.
United States, 487 U.S. 533, 542 (1988). Evidence obtained by a
search warrant is not admissible if the “decision to seek the
warrant was prompted by what [the police] had seen during [an]
initial [unconstitutional] entry, or if information obtained
8
during [an unconstitutional] entry was presented to the
Magistrate and affected his decision to issue the warrant.”
Id.; see also United States v. Mowatt, 513 F.3d 395, 405 (4th
Cir. 2008) (where an illegal search or seizure has occurred, the
government must show that “the decision to seek the warrant--and
thus involve the magistrate--was not prompted by the original
illegal search.”).
Here, there is no evidence that the illegal seizure
influenced the magistrate’s decision to grant a search warrant.
In determining that the seizure was not tainted, the district
court relied on the testimony of Officers Robertson and
Nicholson who said that they did not search the premises until
they obtained a search warrant. 2 We find that this reliance was
appropriate.
B. Sufficiency of the Evidence
In determining whether the evidence was sufficient to
support a conviction, a reviewing court must determine whether
“any rational trier of fact could have found the essential
2
Fitzgerald claims that Officer Taylor testified that the
premises were searched before then, but Taylor’s testimony is
that the search only happened after Fitzgerald had been handed a
search warrant. Furthermore, in Fitzgerald’s own testimony at
the suppression hearing, he testified that the premises were not
searched until the search warrant was obtained. In any event,
the district court concluded that no improper search took place,
and we find this determination to be reasonable.
9
elements of the crime beyond a reasonable doubt.” United States
v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir. 2009)
(quotation omitted). Issues of law are reviewed de novo.
Id.
Fitzgerald argues that the government failed to present
sufficient evidence to show that he had the requisite intent to
show a conspiratorial agreement. The district court gave the
jury a ‘willful blindness’ instruction which stated that “[t]he
law says that if there is something obvious that anyone would
see, anyone would recognize, you can’t bury your head in the
sand and expect to get out that easy.” J.A. 1524. Fitzgerald
argues that this is essentially reading a negligence standard
into the count and that this confused the jury where there was
not sufficient evidence to convict. 3
In an effort to prove that there was not sufficient
conspiratorial intent, Fitzgerald points out that he charged
Doss the regular rates for cars, did not conceal the
transactions, and reported his profits on his income tax
documents.
The government contends that there is more than enough
evidence of conspiratorial intent to justify upholding
Fitzgerald’s conviction. The government articulates several
3
Fitzgerald did point out that the court also instructed
the jury that this is a higher standard than “more likely than
not.”
10
facts from the record which support his conviction, including
that he received almost $1,000,000 in proceeds from known drug
dealers; he used straw purchasers; and he was careful to record
transactions in increments under $10,000 so as not to be
required to report it. Additionally, at least one witness,
Michael Henderson, testified at trial that the organization
openly bought cars to launder money; that Fitzgerald had lent
out cars to members of the drug cartel who left drugs in the car
and were reprimanded because Fitzgerald said it could get him in
trouble; and that Fitzgerald was present during discussions of
the drug selling business on several occasions.
We find that there is sufficient evidence on the record to
support a conviction for conspiracy involving the Doss drug
cartel and Fitzgerald.
C. Motion for a Mistrial
A denial of a motion for a mistrial is reviewed for abuse
of discretion. United States v. Dorsey, 45 F.3d 809, 817 (4th
Cir. 1992).
Fitzgerald argues that the district court erred in failing
to grant a mistrial where evidence of past crimes was presented
to the jury despite the court’s instructions to the government
otherwise. During the government’s direct examination of
Quentin Pinchback, Mr. Pinchback indicated that Fitzgerald was a
known drug dealer. The district court concluded that this
11
evidence was inadmissible under the Fed. R. Evid. 403 and gave a
curative instruction to the jury. Despite this, the government
elicited similar statements from Clarence Trent, and went on to
ask that witness specifically whether he had any contact with
Fitzgerald regarding drug transactions. The court admonished
the government and took Fitzgerald’s contemporaneous motion for
a mistrial under advisement. The district court later concluded
that its curative instruction was sufficient to mitigate the
prejudice.
The government contends that these statements were not
sufficient to declare a mistrial and that the district court
properly denied the motion for a mistrial.
While we are troubled by the actions of the government with
respect to this matter, we cannot find that a mistrial is
appropriate for two reasons. First, despite their questionable
efficacy, curative instructions are presumed to be effective.
United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009).
Therefore, the alleged prejudice was mitigated when the district
court instructed the jury to disregard the testimony. Second,
the overwhelming evidence against Fitzgerald in this matter
outweighs any of the potential prejudice stemming from the
statements made by the witnesses in this case.
12
D. Motion to Quash
The district court’s grant of a motion to quash is reviewed
for abuse of discretion. United States v. Bennett, 675 F.2d 596
(4th Cir. 1982).
Fitzgerald argues that the district court erred in granting
the government’s motion to quash the subpoenas duces tecum.
Fitzgerald argues that the government lacked standing to quash
the subpoenas duces tecum since it had no privilege or
proprietary interest in the information sought by subpoena.
The government argues that Fitzgerald failed to make an
adequate showing of the required relevancy, admissibility, and
specificity. United States v. Fowler, 932 F.2d 306, 311 (4th
Cir. 1991) (citation omitted).
We find that the trial court did not abuse its discretion
in quashing Fitzgerald’s subpoenas. We do not reach the merits
of Fitzgerald’s argument that the government lacked standing to
bring a motion to quash. For a valid subpoena, a party must show
that the material subpoenaed meets the requirements of “(1)
relevancy; (2) admissibility; [and] (3) specificity.” United
States v. Nixon, 418 U.S. 683, 700 (1974) (cited with approval
in United States v. Richardson,
607 F.3d 357, 368 (4th Cir.
2010)). Subpoenas duces tecum must be “made in good faith and
[must] not [be] intended as a general ‘fishing expedition.’”
Id. The only reason given in Fitzgerald’s motion for the
13
subpoenas was “for the defendant to raise his defense of
innocence, as well as cast doubt on the evidence of the
government.” J.A. 292. While its true that the defendant
provided more details in the hearing, ultimately the trial court
concluded and we agree that defendant failed to make the
necessary showing. Additionally, it should be noted that
requests for the subpoenas came nearly five months after
discovery had been closed.
E. Ex Post Facto Sentencing
Fitzgerald argues that the district court erred in applying
sentencing guidelines from 2001 when the activity took place two
years before that date.
The government argues that there is no error since the
conspiracy spanned from 1999 to 2004 and therefore the 2001
guidelines were appropriately applied. Furthermore, the
government points out that Fitzgerald failed to object at the
time of sentencing and thus, this issue is reviewed for plain
error.
The Fourth Circuit has previously held that “[c]onspiracy
is a continuing offense,” and a district court may validly apply
sentencing guidelines from any time during the conspiracy.
United States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990).
Since this was true when the guidelines were mandatory, this
14
Court can find no reason to overturn this precedent, now that
the guidelines are merely advisory.
F. Sophisticated Means
Fitzgerald argues that the district court erred in applying
a sophisticated means enhancement since there is no evidence
that he utilized the type of tools imagined by the guidelines in
§ 2S1.1(b)(3), n.5(A). Furthermore, Fitzgerald argues that his
lack of a high school education should preclude him from being
described as sophisticated. Fitzgerald argues that this case
should be remanded for resentencing.
The government argues that Fitzgerald devised a multi-
layered scheme to conceal the sources of the cash and identities
of those paying for the cars and that this is sufficient to find
sophisticated means were used to carry out these crimes.
We find that the sophisticated means enhancement was
appropriately applied. Courts have found that sophisticated
means were used when individuals used other people to hide
assets, United States v. Middlemiss, 217 F.3d 112, 124 (2d Cir.
2000); and structured cash deals to avoid reporting, United
States v. Gricco,
277 F.3d 339 (3d Cir. 2002); United States v.
Guidry,
199 F.3d 1150, 1158-59 (10th Cir. 1999). The Seventh
Circuit has explained that the “essence of the definition [of
sophisticated means] is merely deliberate steps taken to make
the offense difficult to detect.” United States v. Kontny, 238
15
F.3d 815, 821 (7th Cir. 2001) (ellipses and quotations omitted).
Here, Fitzgerald used many straw purchasers 4 to hide assets and
avoided transactions under $10,000 to evade detection. We also
consider that over $1,000,000 worth of transactions were
attributed to this scheme. Additionally, we see no reason that
Fitzgerald’s lack of formal education would preclude him from
employing sophisticated means in this matter. Therefore, we
find that there is sufficient evidence to apply a sophisticated
means enhancement.
G. Obstruction of Justice
Fitzgerald argues that the district court erred in applying
the obstruction of justice enhancement since the basis for the
enhancement happened before he was indicted or investigated for
the crimes for which he has been found guilty.
The obstruction of justice enhancement was based on
evidence that Fitzgerald attempted to sell Jarett Doss’ cars,
which were evidence of crimes, after Doss was arrested.
Additionally, a tape recording reveals that Fitzgerald attempted
to keep stories consistent amongst co-conspirators in order to
deceive the police about the nature of the conspiracy.
4
Straw purchasers refers to individuals and companies who
are named or listed as “purchasers” for paperwork purposes in
order to disguise the actual buyer and source of the money in a
transaction.
16
The government argues that this evidence is enough to
warrant an obstruction of justice enhancement. We agree and
find that the district court was correct in concluding that
Fitzgerald was aware of the investigation before he attempted to
dispose of evidence and conceal the crime with other
conspirators. Therefore, the sentencing enhancement was
appropriately applied.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
17
