United States v. Graham

796 F.3d 332

UNITED STATES of America, Plaintiff–Appellee

v.Aaron GRAHAM, Defendant–Appellant.

Electronic Frontier Foundation;

National Association of Criminal Defense Lawyers;

American Civil Liberties Union Foundation of Maryland;

Center for Democracy & Technology ;

American Civil Liberties Union Foundation, Amici Supporting Appellant.

United States of America, Plaintiff–Appellee

v.Eric Jordan, Defendant–Appellant.

Electronic Frontier Foundation;

National Association Of Criminal Defense Lawyers;

American Civil Liberties Union Foundation of Maryland;

Center for Democracy & Technology ;

American Civil Liberties Union Foundation, Amici Supporting Appellant.

Nos. 12–4659

12–4825.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 11, 2014.

Decided: Aug. 5, 2015.

ARGUED:Meghan Suzanne Skelton, Office of the Federal Public Defender, Greenbelt, Maryland; Ruth J. Vernet, Ruth J Vernet, Esq., LLC, Rockville, Maryland, for Appellants. Rod J. Rosenstein, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant Aaron Graham. Nathan Judish, Computer Crime & Intellectual Property Section, United States Department of Justice, Washington, D.C.; Benjamin M. Block, Assistant United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. Nathan Freed Wessler, Catherine Crump, Ben Wizner, American Civil Liberties Union Foundation, New York, New York; David R. Rocah, American Civil Liberties Union Foundation of Maryland, Baltimore, Maryland; Kevin S. Bankston, Gregory T. Nojeim, Center for Democracy & TECHNOLOGY, Washington, D.C.; Thomas K. Maher, Vice–Chair, 4th Circuit Amicus Committee, National Association of Criminal Defense Lawyers, Durham, North Carolina; Hanni Fakhoury, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae.

Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

Affirmed by published opinion. Senior Judge DAVIS wrote the majority opinion, in which Judge THACKER joined. Judge THACKER wrote a separate concurring opinion. Judge MOTZ wrote an opinion dissenting in part and concurring in the judgment.

DAVIS, Senior Circuit Judge:

Appellants Aaron Graham and Eric Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court's admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government's warrantless procurement of the CSLI was an unreasonable search in violation of Appellants' Fourth Amendment rights. Nevertheless, because the government relied in good faith on court orders issued in accordance with Title II of the Electronic Communications Privacy Act, or the Stored Communications Act (“SCA”), we hold the court's admission of the challenged evidence must be sustained.

Jordan separately challenges restrictions on his own testimony imposed by the district court, the court's denial of his motion for severance, the exclusion of certain out-of-court statements attributed to Graham, the admission of evidence seized during a search of his residence, and the sufficiency of the evidence supporting several of his convictions. Finding no reversible error in these respects, we affirm the judgment of the district court.

I.

This prosecution arose from a series of six armed robberies of several business establishments located in Baltimore City and Baltimore County, Maryland. After a nine-day joint trial in the U.S. District Court for the District of Maryland, a jury found Appellants guilty on all counts submitted to it. Aaron Graham was convicted of being a felon in possession of a firearm, Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and brandishing a firearm in connection with all six robberies. Eric Jordan was convicted of conspiracy, Hobbs Act robbery, and brandishing a firearm in connection with three of the robberies.

A.

The evidence adduced at trial permitted the jury to find the following facts.

The first robbery occurred the evening of January 17, 2011, at a Dollar Tree store in Baltimore County. Graham entered the store, brandished a small black gun, and directed a cashier to open a cash register. The cashier removed cash from the register and gave it to Graham. Graham reached over the counter to grab additional cash before fleeing the store.

The second and third robberies occurred five days later. On the evening of January 22, 2011, five individuals, including Graham, arrived at Mondawmin Mall in Baltimore in a dark colored Ford F–150 pickup truck, exited the vehicle, and entered the shopping mall before the truck pulled away. Graham, seen on video surveillance wearing the same clothing worn during the Dollar Tree robbery five days earlier, entered the Milan Gold & Diamonds jewelry store (“Milan Gold”) inside the mall with a second individual. After two other individuals entered the store, leaving a fifth standing outside the door, Graham pointed a gun at a clerk and demanded, “Don't be smart with me. Just give me everything.” J.A. 1522. The three persons with Graham picked up the jewelry as the clerk removed it from a display case. Graham demanded a specific watch from a separate display case and, after the clerk gave it to him, he and the others left the mall.

Later that evening, Graham, again wearing the same clothes, entered a 7–Eleven store in Baltimore, walked behind the counter, grabbed the clerk, and demanded that he open the cash register. The clerk did not see a gun but saw Graham's hand inside his jacket and later testified that “it felt like there was some kind of weapon, some kind of material in there....” J.A. 1600. Graham emptied two cash registers and then ordered the clerk to go into a back room inside the store. After Graham left, the clerk observed Graham enter the driver's side of an F150 truck and depart. The clerk recorded video of the truck pulling away and its appearance matched that of the truck used at Mondawmin Mall earlier that evening.

The fourth robbery occurred on February 1, 2011, at a Shell gas station in Baltimore County. Graham and a masked individual entered the cashier's booth, where Graham pushed the clerk to the floor, began punching and kicking him, and then brandished a small gun, placing it near the clerk's ear. Meanwhile, a third individual stood near the door to the store with a sawed-off shotgun. When a customer attempted to leave, the third robber blocked the exit, forced the customer to the ground, and beat him in the head with the shotgun. After Graham and the second robber removed cash from the booth, the three robbers departed.

The fifth and sixth robberies occurred four days later. On February 5, 2011, at approximately 3:29 p.m., Graham entered a Burger King restaurant in Baltimore wearing the same jacket worn during the Dollar Tree, Milan Gold, and 7–Eleven robberies, and carrying a small black gun with a white handle. Graham brandished the weapon and demanded money. The restaurant manager opened several cash registers, which Graham emptied before departing. Graham was seen entering a dark colored F–150 truck on the passenger side before the truck pulled away.

About forty five minutes later, Graham entered a McDonald's restaurant approximately two miles from the Burger King, went behind the counter, and demanded money, brandishing a small black gun with a white handle. After the restaurant manager opened three cash registers, Graham removed cash and stuffed it into his jacket before departing. The manager saw Graham enter the passenger side of a dark pickup truck, which pulled away rapidly.

While investigating the Burger King robbery, Officer Joshua Corcoran of the Baltimore Police Department received reports describing the robber, his clothing, and the pickup truck. Shortly thereafter, he heard a radio call regarding the McDonald's robbery and indicating that the pickup truck was possibly headed toward his location.

After leaving the Burger King, Corcoran spotted a pickup truck matching the descriptions he received and observed that a passenger inside the vehicle wore a jacket matching the description of that reportedly worn by the Burger King robber. During Corcoran's pursuit of the truck, the driver drove it up onto a sidewalk and accelerated. Corcoran continued pursuit just before the truck became trapped between heavy traffic, a construction barrier, and a moving train in front of it, and was forced to stop.

Corcoran and another officer conducted a felony car stop, directing orders to Graham and the driver, Jordan. Graham and Jordan were non-compliant with some of the officers' instructions but were eventually secured and arrested. At the scene, employees of Burger King and McDonald's identified Graham as the robber. A black .25 caliber Taurus pistol with a pearl handle was recovered from under the passenger seat. Nearly $1,100 in cash bundles were recovered from the person of Graham and Jordan, and from an open console inside the truck.

B.

During the ensuing, post-arrest investigation, Detective Chris Woerner recognized similarities between the restaurant robberies and the Milan Gold and 7–Eleven robberies. Woerner prepared search warrants for Graham's and Jordan's residences and the pickup truck. The probable cause portion of each of the warrant affidavits described what was known at the time about the Milan Gold, 7–Eleven, Burger King, and McDonald's robberies. The search warrants were issued by a judge of the Circuit Court of Maryland for Baltimore City.

While Woerner was seeking the warrant for Graham's residence, other officers conducted a search of Jordan's apartment, recovering a sawed-off shotgun, a matching shotgun shell, a .357 caliber Rossi revolver, .357 caliber cartridges, and...