United States v. Briscoe

101 F.4th 282

UNITED STATES of America, Plaintiff - Appellee, v. Andre Ricardo BRISCOE, a/k/a Poo, Defendant - Appellant.

No. 23-4013

United States Court of Appeals, Fourth Circuit

Argued: March 22, 2024

Decided: April 30, 2024

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, Senior District Judge. (1:20-cr-00139-RDB-1) ARGUED: Marc Gregory Hall, LAW OFFICE OF MARC G. HALL, P.C., Greenbelt, Maryland, for Appellant. Spencer Todd, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Erek L. Barron, United States Attorney, Paul E. Budlow, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before WILKINSON and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Thacker wrote the opinion in which Judge Wilkinson and Judge Floyd joined.

THACKER, Circuit Judge:

Andre Ricardo Briscoe ("Appellant") was involved in the purchase and sale of narcotics in the Baltimore area. He learned from a contact, Kiara Haynes, that Jennifer Jeffrey had received a large supply of heroin. Appellant and Haynes decided to rob Jeffrey. Appellant went to Jeffrey's house, robbed her of at least 80 grams of narcotics, shot and killed her, and shot and killed her seven year old son, K.B., whom Appellant feared might testify against him.

Appellant was arrested on a criminal complaint and initially charged by information with possession with intent to distribute narcotics, conspiracy to distribute narcotics, and possessing a firearm as a convicted felon. A later superseding indictment added three new counts: two counts of murder with a firearm during the commission of a drug trafficking crime and one count of killing a witness to prevent communication with law enforcement. After a twelve day jury trial, Appellant was convicted on all charges.

Appellant now appeals his judgment of conviction on five bases. First, he argues that three of his charges were barred by the statute of limitations. Second, he argues that his Fourth Amendment rights were violated when police used a cell site simulator to determine his location, searched the apartment in which he was found, and searched his person. Third, he argues that the Government committed a Brady¹ violation by failing to investigate whether a broken security camera found in the kitchen of the murder victims had recorded any footage from the time of the murder. Fourth, he argues that the Government used perjured testimony at trial. And fifth, he argues that the district court should have granted his Rule 29 motion for a judgment of acquittal based upon the insufficiency of the evidence.

As detailed below, each of these five contentions lacks merit. Therefore, we affirm.

I.

A.

Appellant participated in a narcotics distribution conspiracy in the Baltimore area between March 2015 and October 2015. His co-conspirators were Haynes, Jeffrey, and Tony Harris. Their ultimate source for narcotics, which they believed to be heroin, was Curtis Williams, Jeffrey's housemate. Jeffrey and Williams supplied drugs to Harris, who, in turn, supplied drugs to Appellant. Appellant's cousin, Wane Briscoe, testified at trial that Appellant asked him to help Appellant sell heroin, and Appellant's uncle, Alfred Harris, testified that he knew Appellant was selling heroin because he tried Appellant's product and, as a longtime heroin user, he recognized its appearance and effects.

B.

In May 2015, Williams was arrested and detained for possession with intent to distribute cocaine. In a recorded jail call, he directed Jeffrey to retrieve 80 grams of narcotics and sell them to Appellant in order to raise money for Williams' bail. When Appellant learned that Jeffrey had acquired these drugs, he decided to rob Jeffrey and kill her. Haynes was also in on the plan. Haynes helped Appellant obtain a .45 caliber firearm on May 26, 2015, in a transaction brokered by Haynes's nephew.² That night, Appellant visited Jeffrey at her home, where she showed him the 80 grams of narcotics.

Shortly before noon the next day, Appellant returned to Jeffrey's house and robbed her of at least 80 grams of narcotics. He then murdered her, shooting her multiple times, and then went upstairs to murder her seven year old son, K.B., whom he also shot multiple times in the head and neck. He later told several witnesses about the robbery and the murders. And he told them he had killed K.B. because he feared the boy would testify against him.

C.

On May 28, Jeffrey's brother discovered the bodies of Jeffrey and K.B. Baltimore City Police homicide detectives responded to the scene and opened an investigation into the murders. They found a flip phone that belonged to Jeffrey and discovered that the last dialed call, placed one day before the murders, was to a number ending in -2413. That number belonged to Appellant.

The investigators obtained a tracking order³ from the Circuit Court for Baltimore City to identify, among other things, cell site location information connected to Appellant's phone. Using this information, on June 5, 2015, they pinged Appellant's phone using a cell site simulator,⁴ which led them to an apartment building. Investigators then obtained a warrant to search apartment 101 because the cell site data was directing them to that unit. After unsuccessfully searching apartment 101, the officers continued to receive cell site data indicating that Appellant's phone was nearby. Thus, the officers went to the second floor where they attempted, but failed, to enter apartment 201. They then knocked on the door of apartment 202, the unit where Appellant was ultimately located. The occupant who opened the door of apartment 202 allowed them to enter.

Once inside apartment 202, the officers secured Appellant and his cell phone and conducted a protective sweep of the apartment. They discovered narcotics and drug paraphernalia in a bedroom and brought everyone in the apartment, including Appellant, to the police department for questioning. Appellant was charged with narcotics possession, but the charges were later dropped, and Appellant was released from detention on October 7, 2015.

D.

Federal investigators opened an investigation into Jeffrey and K.B.'s murders. Though Appellant was not initially charged with the murders, as a result of the investigation, Appellant was arrested on May 22, 2020, for drug charges and possessing a firearm as a convicted felon. The Government filed a criminal information on May 26, 2020, charging Appellant with conspiracy to distribute narcotics, possession with intent to distribute narcotics, and possession of a firearm by a convicted felon. Appellant did not waive indictment, but the Government could not indict Appellant at that time because the District of Maryland had suspended grand jury proceedings in light of the COVID-19 pandemic.

Appellant was ultimately indicted on July 1, 2020, when grand jury proceedings resumed. The indictment was nearly identical to the information apart from alleging a different end date to the facts underlying the conspiracy charge. Appellant moved to dismiss the indictment as barred by the statute of limitations. The district court denied that motion, concluding that the indictment related back to the earlier filed information.

On September 23, 2020, the Government filed a superseding indictment which added three new charges: two counts of causing murder with the use of a firearm during and in relation to a drug trafficking crime and crime of violence (for the deaths of Jeffrey and K.B.), and one count of killing a witness to prevent communication with law enforcement. The Government filed a second superseding indictment on June 23, 2021, to add Haynes as a co-defendant, and filed a third superseding indictment (the operative indictment) on December 8, 2021, which added two counts of murder and one count of killing a witness to prevent communication with law enforcement.

The operative indictment alleged six counts: (1) conspiracy to distribute and possession with the intent to distribute controlled substances, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm and ammunition by a prohibited person, in violation of 18 U.S.C. § 922(g)(1); (4) use and carry of a firearm during and in relation to a drug trafficking crime and crime of violence, causing the murder of Jennifer Jeffrey, in violation of 18 U.S.C. § 924(j)(1); (5) use and carry of a firearm during and in relation to a drug trafficking crime and crime of violence, causing the murder of K.B., in violation of 18 U.S.C. § 924(j)(1) and 18 U.S.C. § 3559(c)(2)(F), (d) and (f); and (6) killing a witness, K.B., to prevent communication to law enforcement, in violation of 18 U.S.C. § 1512(a)(1)(C) and (a)(3)(A) and 18 U.S.C. § 3559(c)(2)(F), (d) and (f).

E.

On June 8, 2022, after a twelve day trial, a jury found Appellant guilty on all counts. In special findings,⁵ the jury found that Appellant, being 18 years of age or older, intentionally killed K.B., a child under the age of 14 years. On January 1, 2023, the district court sentenced Appellant to 480 months as to Count One and 480 months as to Count Two (the drug charges), and 120 months as to Count Three (the firearm possession charge). The court sentenced Appellant to life imprisonment as to Counts Four, Five, and Six consistent with the special findings. The special findings equated to a life sentence because 18 U.S.C. § 3559(c)(2)(F), (d), and (f), require a mandatory sentence of "imprisonment for life" if a defendant commits "a serious violent felony," such as murder, against a victim under 14 years old and the victim dies as a result.

Appellant timely appealed.

II.

There are five issues in this appeal. First, Appellant argues that the charges against him should have been dismissed because his...