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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-4037
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NELSON EVANS,
Defendant – Appellant.
No. 24-4051
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KALUB SHIPMAN, a/k/a Kato, a/k/a Baydo,
Defendant – Appellant.
No. 24-4073
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAQUATE SIMPSON, a/k/a Quay, a/k/a J, a/k/a Stacks, a/k/a Predator,
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Defendant – Appellant.
No. 24-4103
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LANDIS JACKSON, a/k/a Juve, a/k/a Juvie,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Norfolk. John A. Gibney, Jr., Senior District Judge. (2:20-cr-00090-JAG-LRL-4; 2:20-cr00090-JAG-LRL-3; 2:20-cr-00090-JAG-LRL-1; 2:20-cr-00090-JAG-LRL-2)
Argued: October 23, 2025 Decided: January 21, 2026
Before NIEMEYER, RUSHING, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Heytens wrote the opinion, which Judge Niemeyer
and Judge Rushing joined.
ARGUED: Gerald Thomas Zerkin, Richmond, Virginia; Heather Lynn Carlton,
CARLTON LAW PLC, Charlottesville, Virginia; William Jeffrey Dinkin, WILLIAM J.
DINKIN, PLC, Richmond, Virginia; Elizabeth Anne Franklin-Best, ELIZABETH
FRANKLIN-BEST, P.C., Columbia, South Carolina, for Appellants. Daniel J. Honold,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Erik S. Siebert, United States Attorney, Kristin G. Bird, Assistant United
States Attorney, Joseph E. DePadilla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
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TOBY HEYTENS, Circuit Judge:
Defendants Jaquate Simpson and Landis Jackson ran a lucrative drug ring. When a
customer (Brandon Williams) failed to pay for a shipment of drugs, Simpson and Jackson
set out to punish him and offered Defendant Kalub Shipman $10,000 to kill someone close
to Williams. Shipman recruited his cousin (Defendant Nelson Evans) to help him. Shipman
and Evans traveled from North Carolina to Virginia and murdered Williams’ aunt, Lillian
Bond.
Defendants were charged with a litany of offenses and a jury found them guilty on
all counts. The district court sentenced each defendant to life imprisonment. We affirm.
I.
Jackson, Shipman, and Evans raise sufficiency challenges. We start there “because
any defendant who prevails” on such a challenge “is entitled to a judgment of acquittal
without further proceeding.” United States v. Huskey, 90 F.4th 651, 662 (4th Cir. 2024). In
judging sufficiency, we consider all evidence the jury had before it, “both admissible and
inadmissible,” viewed “in the light most favorable to the prosecution.” Id. (quotation marks
removed). We assume the jury “resolved all credibility disputes or judgment calls in the
government’s favor” and “must uphold the jury’s verdict if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation
marks removed). Applying those standards, we conclude none of the sufficiency challenges
succeed.
A.
Jackson challenges his convictions for participating in a continuing criminal
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enterprise (Count 1) and murder while engaged in such an enterprise (Count 2), arguing
there was insufficient evidence that he “occupie[d] a position of organizer, a supervisory
position, or any other position of management” with respect to “five or more other
persons.” 21 U.S.C. § 848(c)(2)(A). We disagree. The jury heard evidence that Simpson
(who raises no sufficiency challenge) ran an organization of more than five people. The
jury also heard that Jackson was Simpson’s “right-hand man,” JA 3425, 4583; that he
personally oversaw more than five sub-dealers; and that he eventually took over for
Simpson as the organization’s leader. That evidence is sufficient to support the jury’s
verdict. See United States v. Ricks, 882 F.2d 885, 891 (4th Cir. 1989) (“[T]he statute does
not require that the additional five individuals be under the direct and immediate control or
supervision of defendant.”).
B.
Jackson also asserts the jury heard insufficient evidence to convict him for selling
cocaine to Williams (the delinquent customer whose aunt was later murdered) in
April 2016 (Count 5), contending that particular transaction was all Simpson’s doing. But
the jury found Jackson guilty of engaging in a continuing criminal enterprise with Simpson
to distribute cocaine, which necessarily means the two were coconspirators. See Rutledge
v. United States, 517 U.S. 292, 300 (1996). If the April 2016 sale to Williams was a
“reasonably foreseeable” act “in furtherance of” Jackson and Simpson’s drug conspiracy,
then Jackson is liable for the sale as a conspirator. United States v. Ashley, 606 F.3d 135,
142–43 (4th Cir. 2010); see Pinkerton v. United States, 328 U.S. 640, 647–48 (1946). And,
as Jackson concedes, witnesses testified that Simpson’s organization had previously sold
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cocaine to Williams’ organization and that Jackson played a role in those transactions. That
is enough evidence to permit the jury to infer coconspirator liability for the April 2016 sale.
C.
Shipman (the person Simpson and Jackson recruited to murder one of Williams’
relatives) argues there was insufficient evidence he was engaged in a conspiracy to
distribute cocaine when he murdered Lillian Bond (Count 4) because he neither knowingly
joined the drug conspiracy nor personally trafficked drugs. But a defendant “may be
convicted of conspiracy with little or no knowledge of the entire breadth of the criminal
enterprise,” so long as he “joins the conspiracy with an understanding of the unlawful
nature thereof and willfully joins in the plan on one occasion.” United States v. Burgos,
94 F.3d 849, 858 (4th Cir. 1996) (en banc) (quotation marks removed). Even “apart from
selling narcotics,” “a variety of conduct . . . can constitute participation in” a conspiracy to
distribute narcotics, from “supplying firearms” to “purchasing plane tickets for
coconspirators.” Id. at 859.
Those established standards foreclose Shipman’s sufficiency challenge. Shipman
told a government witness that the hit was ordered to punish Williams for taking drugs
without paying. Based on that evidence, along with evidence about Shipman’s relationship
with Jackson and the nature of the hit itself, the jury could infer that Shipman knew about
“an agreement to [distribute substantial amounts of cocaine] . . . between two or more
persons” and that the hit’s purpose was to support the drug conspiracy. Burgos, 94 F.3d
at 857. No more was necessary.
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D.
Jackson, Shipman, and Evans cite a variety of reasons why the evidence was
insufficient to convict them for murder-for-hire (Count 8) and conspiracy to commit
murder-for-hire (Count 7). The murder-for-hire statute makes it unlawful to “travel[] in or
cause[] another . . . to travel in interstate or foreign commerce, or use[] or cause[]
another . . . to use the mail or any facility of interstate or foreign commerce” with the intent
“that a murder be committed . . . as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value.” 18 U.S.C. § 1958(a). We are
not persuaded by any of the various sufficiency challenges.
1.
Jackson argues there was “no evidence” he “had any role” in Bond’s murder. Defs.
Br. 60. Not so. The jury heard evidence that Simpson and Jackson discussed how to handle
Williams’ failure to pay and that Jackson offered up “two dudes” to kill someone close to
Williams. JA 4588–89.
2.
Shipman asserts there was no evidence he received any payment for Bond’s murder.
But Shipman forfeited any sufficiency challenge to the relevant counts (Counts 7 and 8) by
failing to renew his mid-trial motion for a judgment of acquittal on those counts after
putting on a defense case. See JA 5623 (renewing motion for a judgment of acquittal on
sufficiency grounds only “with respect to Counts Four and Nine”). For that reason,
appellate review is “foreclosed” unless Shipman “can show a manifest miscarriage of
justice.” United States v. Watkins, 111 F.4th 300, 307 (4th Cir. 2024) (quotation marks
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removed). Shipman makes no argument that his murder-for-hire and conspiracy to commit
murder-for-hire convictions meet that high bar—and, in any event, the jury heard testimony
that Shipman was promised $10,000 for the hit.
3.
Evans argues there was insufficient evidence that he: (i) shot Bond; (ii) intended to
murder Bond when he traveled in interstate commerce (i.e., when he drove with Shipman
from North Carolina to Virginia); (iii) intended to murder Bond in exchange for something
of pecuniary value; or (iv) conspired with others to murder Bond. Once again, we see no
basis for disturbing the jury’s verdict.
We start with the dispute about who exactly shot Bond. It is—at minimum—unclear
whether this question matters for sufficiency purposes because the murder-for-hire statute
does not even require that a murder take place. See 18 U.S.C. § 1958(a) (requiring only
that a defendant take certain actions “with intent that a murder be committed”). But we do
not pursue the matter further, both because the government does not raise that issue and
because we agree with the government that a reasonable jury could have found that Evans
shot Bond. True, the sole eyewitness to the shooting offered a description that did not match
Evans. But the jury could have disregarded the eyewitness’s testimony and still had
sufficient evidence to conclude that Evans shot Bond given that: (i) Shipman told a
government witness that Evans would be the shooter; (ii) Evans and Shipman went to
Bond’s house to “do[] recon” the night before the murder, JA 4108–09; and (iii) cell-site
location data put Evans in the area at the time of the murder.
A reasonable jury also could have inferred that Evans already planned to kill Bond
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when he and Shipman traveled in interstate commerce. Soon after Shipman and Evans
arrived in Virginia, Shipman told a witness—in Evans’ presence—that they were there “to
do the hit,” and Evans expressed neither surprise nor disagreement. JA 4106–08. Based on
this evidence, a rational factfinder could infer that Evans knew about the plan before he
arrived in Virginia.
The evidence was likewise sufficient to find that Evans intended to kill Bond in
exchange for money. Shipman told a witness he had been promised $10,000 for the hit and
offered that witness a cut of the payment to be the shooter. When the witness declined,
Shipman recruited Evans instead, and after the murder, Evans’ girlfriend found him
counting “at least [$]2,000” in cash. JA 3379–80. Based on this evidence, the jury could
infer that Shipman offered Evans a cut of the $10,000 to kill Bond and that Evans killed
her for that reason.
Finally, the evidence we have just recounted shows why there was sufficient
evidence that Evans conspired with Shipman to murder Bond. Shipman told a witness that
he would “get his cousin [Evans] to do the shooting.” JA 4108. Evans and Shipman
traveled together from North Carolina to Virginia, they both went to Bond’s home the night
before the murder to “do[] recon,” and they traveled back to North Carolina together after
the murder. JA 4108–09.
II.
All four defendants argue that convicting and sentencing them for both
murder-for-hire (Count 8) and conspiracy to commit murder-for-hire (Count 7) violated
the Double Jeopardy Clause. Evans, Jackson, and Shipman preserved this challenge by
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timely raising it before the district court, while Simpson failed to do so. Preserved or not,
we conclude the outcome is the same for all four defendants: Their convictions for both
murder-for-hire and conspiracy to commit murder-for-hire do not violate the Double
Jeopardy Clause.
The Fifth Amendment declares that “[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Among other
restrictions (such as prohibiting retrials after an acquittal), the Double Jeopardy Clause
forbids punishing a defendant for violating two statutes that “are in law and in fact the same
offense.” United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (quotation marks
removed). To determine whether that standard is satisfied, we ask whether “each” charge
“requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S.
299, 304 (1932). Applying that standard here, we conclude that murder-for-hire and
conspiracy to commit murder-for-hire are different constitutional offenses because each
requires proof of a fact the other does not.
Start with murder-for-hire. To commit that offense, a defendant must do something
that affects interstate commerce by “travel[ing] in or caus[ing] another . . . to travel in
interstate or foreign commerce, or us[ing] or caus[ing] another . . . to use the mail or any
facility of interstate or foreign commerce.” 18 U.S.C. § 1958(a). In contrast, there is no
such requirement for conspiracy to commit murder-for-hire. “It is elementary that a
conspiracy may exist and be punished whether or not the substantive crime ensues, for the
conspiracy is a distinct evil, dangerous to the public, and so punishable in itself.” Salinas
v. United States, 522 U.S. 52, 65 (1997). Murder-for-hire thus requires proof of at least one
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fact that conspiracy to commit murder-for-hire does not.
The same is true of conspiracy to commit murder-for-hire. Under normal
circumstances, there is no double jeopardy problem with convicting a defendant of both
conspiracy and the underlying substantive offense because the conspiracy requires proof
of an unlawful agreement while the substantive offense does not. See, e.g., Pereira v.
United States, 347 U.S. 1, 11 (1954). Defendants argue that principle breaks down here
because murder-for-hire requires that the accused take the required act “with intent that a
murder be committed in violation of the laws of any State or the United States as
consideration for the receipt of, or as consideration for a promise or agreement to pay,
anything of pecuniary value.” 18 U.S.C. § 1958(a). In defendants’ view, “consideration”
requires “concerted action,” which means that murder-for-hire—just like conspiracy to
commit murder-for-hire—requires proof that a defendant made an agreement with at least
one other person. Defs. Br. 97. In other words, defendants argue that the essence of a
conspiracy offense (an unlawful agreement) is already baked into the substantive
murder-for-hire statute.
We see no double jeopardy problem because we disagree with defendants’ reading
of the murder-for-hire statute. Instead, we join “the overwhelming majority of circuits” in
holding that the substantive murder-for-hire offense “does not require the existence of an
actual murder-for-hire agreement.” United States v. Dvorkin, 799 F.3d 867, 875 (7th Cir.
2015) (collecting cases). Like those courts, we conclude “the statutory phrase
‘consideration for a promise or agreement to pay’ does not create a separate ‘agreement
element,’ but rather modifies the type of intent which a defendant must possess” when
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traveling in or otherwise affecting interstate commerce. Id. at 875–76. In contrast,
conspiracy to commit murder-for-hire requires an agreement between at least two people:
“an agreement that the underlying offense be committed.” United States v. Runyon,
994 F.3d 192, 202 (4th Cir. 2021). For that reason, the two offenses are not the same for
double jeopardy purposes.
III.
We turn next to the district court’s denials of defendants’ motions to suppress
various evidence. We review legal conclusions de novo and factual findings for clear error
and may “affirm on any ground supported by the record.” United States v. Brown, 701 F.3d
120, 125 (4th Cir. 2012) (quotation marks removed); see United States v. Ordonez-Zometa,
141 F.4th 531, 548 (4th Cir. 2025). Here too, we see no reversible error.
A.
Simpson argues the district court should have suppressed location data from a GPS
tracker placed on a rental car he drove because the warrant authorizing it was based on
stale information from an unreliable informant. Simpson further contends that, because
officers relied on data captured by the GPS tracker to authorize a pole camera and pen
register, the district court also should have suppressed information obtained from those
devices.
We conclude the GPS-tracker warrant was valid and thus reach no other issues. The
warrant application supported the informant’s credibility by describing the person’s long
history of providing accurate information to law enforcement. See United States v.
Gondres-Medrano, 3 F.4th 708, 716 (4th Cir. 2021); United States v. Bynum, 293 F.3d 192,
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197 (4th Cir. 2002). Simpson argues the informant’s intel about his extensive drug dealing
and use of multiple cars (including rental cars) to facilitate that drug dealing was stale by
the time the warrant issued. But the district court found that the fact that Simpson had
“continue[d] to rent multiple cars” during the intervening period suggested he was still
dealing drugs when officers obtained the warrant. JA 2744; see United States v. McCall,
740 F.2d 1331, 1335–36 (4th Cir. 1984). Finally, we reject Simpson’s argument that the
GPS-tracker warrant was an impermissible general warrant because the warrant was
limited to a single vehicle that law enforcement had probable cause to believe Simpson
was using to traffic cocaine.
B.
Simpson next mounts a specific challenge to the pen register evidence, asserting
that the court order authorizing it did not describe its “geographic limits” as required by
federal and state statutes. 18 U.S.C. § 3123(b)(1)(C); N.C.G.S. § 15A-263(b)(1)(c). But the
installation and use of a pen register is not a Fourth Amendment “search,” so suppression
under the Fourth Amendment’s exclusionary rule is not an available remedy. See Smith v.
Maryland, 442 U.S. 735, 745–46 (1979). To be sure, there are statutes that also authorize
suppressing evidence. See Part III(E), infra (providing examples). But the statutes at issue
here do not, and this Court has held that the “availability” of statutory suppression “depends
on the statutory text.” United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011). We thus
join at least five of our sister circuits in holding that statutory suppression is not an available
remedy for a pen register statute violation when, as here, the statutes do not provide for
suppression. See United States v. Wallace, 885 F.3d 806, 809–10 (5th Cir. 2018); United
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States v. Powell, 847 F.3d 760, 771 (6th Cir. 2017); United States v. Fregoso, 60 F.3d
1314, 1320–21 (8th Cir. 1995); United States v. Forrester, 512 F.3d 500, 512–13 (9th Cir.
2008); United States v. Thompson, 936 F.2d 1249, 1249–50 (11th Cir. 1991).
C.
Simpson makes a one-paragraph argument that a hearing under Franks v. Delaware,
438 U.S. 154 (1978), revealed that officers made materially false statements in a warrant
affidavit and that the district court abused its discretion in concluding otherwise. Defs.
Br. 101. But that portion of Simpson’s opening brief does not even identify the allegedly
false statements, much less explain how and why the district court committed reversible
error under the applicable standards of review. As a result, this argument is not properly
before us. See, e.g., Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).
D.
Shipman argues the district court should have suppressed cell-site location
information that officers obtained without a warrant. But the search was conducted before
the Supreme Court’s decision in Carpenter v. United States, 585 U.S. 296 (2018), so “the
good-faith exception to the exclusionary rule applies” here. United States v. Chavez,
894 F.3d 593, 608 (4th Cir. 2018).
E.
A North Carolina state court issued multiple orders authorizing wiretaps on
Simpson’s phones and listing Jackson as one of several “target subjects.” JA 1887–88,
1965–66, 2063–64, 2164–65, 2235–36. Both Simpson and Jackson seek to suppress the
resulting evidence, offering different theories. Here too, we are unpersuaded.
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1.
Simpson argues the initial wiretap applications failed to show that “normal
investigative procedures ha[d] been tried and ha[d] failed or reasonably appear[ed] to be
unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c); N.C.G.S.
§ 15A-293(a)(3). We review the district court’s contrary conclusion for abuse of discretion,
see United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007), and we see none here.
The government’s burden under the relevant statutes “is not great” and may be
satisfied by “present[ing] specific factual information” showing that officers have
“encountered difficulties in penetrating the criminal enterprise or in gathering evidence.”
Wilson, 484 F.3d at 281 (quotation marks removed). The district court reasonably
concluded the officers met their burden here by offering detailed, non-conclusory
explanations for why wiretaps were necessary and why other investigative techniques
(including physical surveillance, witness interviews, grand jury proceedings, search
warrants, and controlled buys) were insufficient. See United States v. Galloway, 749 F.3d
238, 243 (4th Cir. 2014). 1
2.
Although the orders were only to tap Simpson’s phones, Jackson contends the
government had to establish probable cause as to him—not just Simpson—because Jackson
1
In his reply brief, Simpson argues for the first time that officers also lacked
probable cause for the wiretap because they relied on “stale or unsubstantiated”
information. Defs. Reply Br. 12. But Simpson did not make that argument in his opening
brief, so it is not properly before us. See Grayson O Co., 856 F.3d at 316.
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was a named “target.” We disagree.
Like the parties, we agree the district court’s reason for denying Jackson’s motion
to suppress was incorrect. In an oral ruling, the court stated that Jackson lacked “standing”
to challenge the orders authorizing wiretaps on Simpson’s phones, analogizing this
situation to one where officers searched Simpson’s house and found evidence incriminating
Jackson. JA 2761; see Byrd v. United States, 584 U.S. 395, 410 (2018) (describing Fourth
Amendment “standing” as “a useful shorthand for capturing the idea that a person must
have a cognizable Fourth Amendment interest in the place searched before seeking relief
for an unconstitutional search”). But here we are dealing with statutes, not the Fourth
Amendment. And the relevant federal and state laws specifically authorize “[a]ny
aggrieved person”—including “a person who was a party to any intercepted . . .
communication”—to “move to suppress the contents of any wire or oral communication
intercepted pursuant to [the statute].” 18 U.S.C. §§ 2518(10)(a) & 2510(11); accord
N.C.G.S. § 15A‑294(g)(1) & 286(1); see United States v. Apple, 915 F.2d 899, 904–05 (4th
Cir. 1990). Jackson was thus entitled to seek suppression here, and the government does
not argue otherwise.
We nonetheless affirm the district court’s denial of Jackson’s motion on alternative
grounds. The federal and state statutes at issue require probable cause to believe that “an
individual is committing, has committed, or is about to commit” a criminal offense and that
“particular communications concerning that offense will be obtained through such
interception.” 18 U.S.C. § 2518(3)(a), (b) (emphasis added); accord N.C.G.S.
§ 15A-293(a)(1), (2) (emphasis added). Jackson does not dispute that officers had probable
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cause to believe Simpson was conspiring to traffic narcotics and using these phone lines to
do so. Under the plain language of the statute, nothing more was required.
We disagree with Jackson’s assertion that United States v. Donovan, 429 U.S. 413
(1977), requires a different result. Donovan involved different provisions of the federal
wiretapping statute (18 U.S.C. § 2518(1)(b)(iv) and 2518(8)(d)) and addressed a different
question than the one we confront here: Which people must be named in a wiretap
application and later told that their communications have been intercepted? See Donovan,
429 U.S. at 422–23. But neither Donovan nor the statutory provisions it interprets “prohibit
the investigative agency from naming other individuals” too, including those for whom
“probable cause . . . ultimately may not be found.” United States v. Martin, 599 F.2d 880,
884–85 (9th Cir. 1979), overruled on other grounds by United States v. De Bright, 730 F.2d
1255 (9th Cir. 1984) (en banc). We thus join at least three of our sister circuits in holding
that, under the federal wiretapping statute, “the government need not establish probable
cause as to all participants in a conversation.” United States v. Tortorello, 480 F.2d 764,
775 (2d Cir. 1973); accord Martin, 599 F.2d at 884–85; United States v. Domme, 753 F.2d
950, 954 n.2 (11th Cir. 1985). Instead, so long as “probable cause has been shown as to
one such participant, the statements of the other participants may be intercepted if pertinent
to the investigation.” Tortorello, 480 F.3d at 755.
IV.
We conclude by rejecting various other arguments raised by three of the defendants.
A.
We begin with Simpson. He alone presses a different double jeopardy argument—
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that his convictions for both participating in a continuing criminal enterprise (Count 1) and
distributing cocaine (Count 5) violate the Fifth Amendment. As Simpson concedes,
however, the Supreme Court rejected that argument in Garrett v. United States, 471 U.S.
773, 786 (1985).
Simpson also argues the district court should have excluded evidence about another
murder-for-hire plot as improper character evidence. We review this “evidentiary ruling”
for “abuse of discretion,” and we see none. United States v. Brizuela, 962 F.3d 784, 791
(4th Cir. 2020). The general prohibition on character evidence does not cover “acts that are
a part of, or intrinsic to, the alleged crime.” Id. at 793 (quotation marks removed). That
standard is satisfied here. The evidence in question—wiretapped calls in which Simpson
discussed yet another murder-for-hire plot to avenge a different drug debt—is “intrinsic”
to the alleged crime because it was included in the indictment as part of the continuing
criminal enterprise charged in Count 1 and the drug conspiracy charged in Count 3.
B.
We turn next to Jackson, who asserts the district court erred by declining to give
two jury instructions he requested. Here too, we review for abuse of discretion, see United
States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010), and conclude the district court
committed no reversible error.
Jackson’s first proposed instruction would have told the jury that the government
must prove he “was a member of the conspiracy charged in the indictment,” not just “some
other conspiracy not charged in the indictment.” JA 5232. Under this Court’s precedent, a
district court’s refusal to give such an instruction is reversible error only if “the evidence
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of multiple conspiracies was so strong in relation to that of a single conspiracy that the jury
probably would have acquitted on the conspiracy count had it been given a cautionary
multiple-conspiracy instruction.” United States v. Cannady, 924 F.3d 94, 101 (4th Cir.
2019) (alterations and quotation marks removed). That high bar is not met here. The
government presented evidence that Jackson played a central role in the single drug
trafficking organization identified in the indictment, including strategizing with Simpson
about how to fend off competitors and hiring hitmen to avenge unpaid drug debts.
Jackson’s second proposed instruction would have cautioned jurors that “mere
evidence of a simple buy-sell transaction is sufficient to prove a distribution violation, but
not conspiracy.” JA 5234. Once again, this Court’s precedent is against him. A district
court does not err by declining to give a buy-sell instruction where “the facts show[] that
the relationship went beyond that of a mere buy-sell transaction.” United States v. Mills,
995 F.2d 480, 485 (4th Cir. 1993). And here there was ample evidence that Jackson was
far more than just a customer: Mere buyers, after all, do not generally help their sellers
fend off competitors, much less hire hitmen.
C.
We end with Shipman. He asserts the district court should have: (i) excluded on
Confrontation Clause grounds statements that Evans (his fellow traveler to Virginia) made
to law enforcement officers; (ii) severed his and Evans’ trials because their defenses were
mutually antagonistic; and (iii) dismissed one of his convictions (Count 9) as duplicitous.
We conclude none of those arguments has merit.
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1.
The Sixth Amendment states that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. One way that right can be denied is if a “nontestifying codefendant’s confession
naming [the defendant] as a participant in the crime is introduced at their joint trial, even
if the jury is instructed to consider that confession only against the codefendant.”
Richardson v. Marsh, 481 U.S. 200, 201–02 (1987); accord Bruton v. United States,
391 U.S. 123, 126 (1968). But the bar for triggering that rule is a high one. Under this
Court’s precedent, a codefendant’s statement only triggers Bruton’s “narrow” rule if it
“facially” incriminates the defendant. United States v. Benson, 957 F.3d 218, 228 (4th Cir.
2020) (emphasis added). In contrast, if the codefendant’s statement incriminates the
defendant “only by virtue of linkage to other evidence at trial—that is, if it incriminates
inferentially rather than facially—then it does not implicate Bruton.” Id. (alterations and
quotation marks removed).
This Court has not said—and the parties have not briefed—what standard of review
applies to a district court’s determination that a given statement was or was not “facially”
incriminating. But even assuming the standard most generous to Shipman applies (de
novo), we conclude the district court made no reversible error.
Shipman argues the district court should have excluded the following statements
Evans made to FBI agents shortly after his arrest:
• Evans and Shipman went to Virginia “for vacation,” JA 5828;
• while in Virginia, they “weren’t together the whole time” because Shipman “had
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other business,” JA 5831;
• they stayed overnight at Shipman’s friend’s house;
• the next morning, Shipman woke Evans up early to return to North Carolina; and
• on the way back, they stopped at a gas station, where Shipman was captured on
security footage.
None of those statements were facially incriminating under this Court’s precedent because
they were not “sufficient by [themselves] to establish [Shipman’s] participation in” Bond’s
murder, but rather “would have required linkage to additional evidence.” Benson, 957 F.3d
at 232.
Further, the district court gave an appropriate limiting instruction, and we see no
“specific reason to doubt that the jury adhered to the district court’s limiting instruction.”
Id. at 230. Shipman claims the government asked the jury to use Evans’ statements as
evidence against him during both its initial closing argument and its rebuttal. We disagree.
Before discussing Evans’ statements during its closing argument, the government
cautioned the jurors—consistent with the district court’s limiting instruction—that the
statements could only be considered as evidence against Evans. And, having reviewed the
relevant transcripts, we conclude the statements in the government’s rebuttal with which
Shipman takes issue were clearly about Evans, not Shipman.
2.
We next reject Shipman’s assertion that the district court committed reversible error
by not severing his trial from Evans’ after Evans argued in closing that Shipman and a
government witness committed the murder and then framed Evans. Had Shipman sought
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severance on that ground before the district court, we would have reviewed the district
court’s rejection of his request for abuse of discretion. See United States v. Najjar, 300 F.3d
466, 473 (4th Cir. 2002). Because Shipman did not do so, however, that argument is
forfeited and our review is solely for plain error under Federal Rule of Criminal
Procedure 52(b). 2 We conclude that even if Shipman can satisfy plain-error review’s first
two requirements—that the district court made an “error” that was “plain”—he cannot
carry his “burden” of showing “a reasonable probability that, but for the error, the outcome
of the proceeding would have been different.” Greer v. United States, 593 U.S. 503, 507–
508 (2021) (quotation marks removed).
A jury that accepted Evans’ last-minute argument that Shipman and a government
witness murdered Bond and then set up Evans to take the fall would presumably have
acquitted Evans. But the jury did not do so. What is more, the jury heard overwhelming
evidence connecting Shipman to Bond’s murder. Shipman told a witness he was in Virginia
to carry out a hit. In addition, testimony, cell phone records, and other evidence put
Shipman at Bond’s house three times before the murder, and again at the time of the
murder. For that reason, Shipman cannot show there is a reasonable probability that he
would have been acquitted had his trial been severed from Evans’. 3
2
Before trial, Shipman moved to sever his trial from Evans’ because he anticipated
that Evans would try to introduce prejudicial evidence of his (Shipman’s) gang affiliation.
At no point did Shipman raise before the district court the argument he now makes on
appeal: that Evans would or did argue that Shipman framed him.
3
In a single paragraph that lacks any citations beyond those to the trial transcript,
Shipman makes a series of scattershot arguments about questions asked by Evans’ counsel.
See Defs. Br. 52–53. We have reviewed each argument and conclude they all lack merit.
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3.
We close with Shipman’s duplicity argument. A charge is duplicitous if it “charges
two offenses in one count,” creating “the risk that a jury divided on two different offenses
could nonetheless convict for the improperly fused double count.” United States v. Burfoot,
899 F.3d 326, 337 (4th Cir. 2018) (quotation marks removed). The charge at issue here is
Count 9, which accused Shipman of unlawfully possessing a firearm that had been shipped
or traveled in interstate commerce. During trial, Shipman stipulated that the weapon used
to murder Bond was a .357 caliber firearm that had traveled in interstate commerce. But
during closing arguments, the government suggested it had charged Shipman with
unlawfully possessing the .357 and another firearm—“the .38 from Newport News.”
JA 5304. Shipman contends this argument converted Count 9 into a duplicitous charge
because it suggested that jurors could find him guilty based on either firearm.
Once again, we conclude Shipman forfeited this argument before the district court.
Shipman did not object to the government’s statement during closings. True, he later
moved for judgment of acquittal on Count 9. But that motion was not based on duplicity;
rather, Shipman insisted there was insufficient evidence to convict him of possessing the
.38. When the government conceded that was so, Shipman dropped the issue and told the
district court he was challenging only his conviction for possessing the .357. The district
court therefore rejected Shipman’s motion for acquittal “on the same basis” it had earlier
overruled Shipman’s objections about the .357. JA 5683. Shipman thus never gave the
district court an opportunity to consider and rule on his current argument: that the
government’s reference to the .38 in its closing rendered Count 9 duplicitous.
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Because Shipman failed to preserve that argument, we once again review only for
plain error. See Watkins, 111 F.4th at 311. And, here too, even assuming that Shipman
could meet that standard’s first two requirements, he cannot carry his burden of showing
prejudice. The jury found him guilty of using a firearm resulting in death, see 18 U.S.C.
§ 924(j), and the only firearm used in that offense was the .357. That verdict means that
the jury necessarily—and unanimously—credited the government’s evidence that Shipman
possessed or constructively possessed the .357. See United States v. Robinson, 627 F.3d
941, 957–58 (4th Cir. 2010). For that reason, Shipman cannot establish that he was
prejudiced by any confusion created by the government’s reference to the .38.
* * *
The judgments are
AFFIRMED.
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