PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4668

JAMES DINKINS, a/k/a Miami,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4669

MELVIN GILBERT,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4755

DARRON GOODS, a/k/a Moo Man,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Senior District Judge.

(1:06-cr-00309-JFM-1; 1:06-cr-00309-JFM-5;

1:06-cr-00309-JFM-9)
Argued: March 22, 2012

Decided: August 14, 2012

Before SHEDD, KEENAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Shedd and Judge Floyd joined.

COUNSEL

ARGUED: Gary Proctor, LAW OFFICES OF GARY E.

PROCTOR, LLC, Baltimore, Maryland; Jonathan Paul Van

Hoven, Baltimore, Maryland; C. Justin Brown, LAW

OFFICE OF C. JUSTIN BROWN, Baltimore, Maryland, for

Appellants. Debra Lynn Dwyer, OFFICE OF THE UNITED

STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF: Rod J. Rosenstein, United States Attorney, Joan

Mathias, Law Clerk, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we review the convictions of three defendants who were tried together on charges relating to the murder of certain government witnesses, the murder of a coconspirator, and numerous other narcotics and firearmsrelated offenses arising from the defendants’ involvement in

a drug-trafficking organization in Baltimore. Among the several issues presented, we consider the primary issues of: (1)

the district court’s decision to empanel an "anonymous jury,"

2 UNITED STATES v. DINKINS
in which biographical information about prospective jurors

was withheld from the parties and their counsel; and (2) the

admissibility of hearsay statements of a murdered government

witness under the "forfeiture-by-wrongdoing" exception to the

hearsay rule and the Confrontation Clause. We conclude that

the district court did not abuse its discretion in maintaining

juror anonymity, and that the challenged hearsay statements

were admissible based on the defendants’ conduct leading to

the witness’ death. Upon our review of these primary issues,

and the remaining issues presented, we affirm the district

court’s judgment. 

I.

We begin by setting forth the general factual background of

the case, based on the evidence presented at trial. Additional

relevant facts are included in later sections of this opinion as

necessary for our consideration of the issues raised on appeal.

In 2003, the Baltimore City Police Department conducted

an investigation of a local organization commonly known as

"Special," whose members were suspected of distributing

large amounts of narcotics in the Bartlett neighborhood of Baltimore.1

 The investigation revealed that members of Special

regularly distributed heroin, cocaine, cocaine base, and marijuana, and committed numerous acts of violence in furtherance of their narcotics activities. One member of Special

stated that each day he sold tens of thousands of dollars of

heroin and cocaine. 

Melvin Gilbert was the "leader" of Special, who received

and controlled the proceeds derived from Special’s narcotics

operation. James Dinkins was a member of Special who

served as an "enforcer," committing murders "for hire." Dar1The word "Special" also is a reference to the street name of the heroin

that was sold by this organization. 

UNITED STATES v. DINKINS 3
ron Goods, also a member of Special, sold drugs for the organization. These three men are the defendants in this case.

Gilbert had several "lieutenants" who helped him conduct

Special’s operations, including Tracy Love, Tamall Parker,

and Randy McLean. Additionally, several other individuals

were members of Special, or otherwise "worked with" the

group, including Michael Bryant, Damien West, John Dowery

(Dowery), Dowery’s son Cecil Dowery, and Cornell Booker.

Based on months of surveillance and investigation, the

police learned that Gilbert planned to arrive in the Bartlett

neighborhood on October 16, 2003, with a large amount of

narcotics. In anticipation of this delivery, the police obtained

search warrants for three houses located on Bartlett Avenue

that were suspected of containing narcotics. Gilbert’s grandmother owned one of these houses. 

On October 16, 2003, the officers saw Gilbert drive into the

neighborhood and park his car in front of his grandmother’s

house. He was observed carrying a grey bag into one of the

other two houses before he returned outside, met with several

individuals, and pointed them toward the house he had

entered. Past police surveillance had indicated that narcotics

were kept in that house. One of the individuals with whom

Gilbert spoke entered the house, brought out a package, and

engaged in hand-to-hand movements that were indicative of

a drug transaction. At that time, several officers emerged from

covert locations and arrested the various suspects, including

Gilbert and McLean. Dinkins and Goods were not among the

individuals arrested at that time. 

The officers proceeded to execute the search warrants for

the three houses. Upon searching the houses, the officers

seized about 800 vials of white powder that tested positive for

cocaine, 700 capsules of powder that tested positive for heroin, a quantity of marijuana, several firearms including a

9mm machine pistol and a .357 magnum revolver, boxes of

4 UNITED STATES v. DINKINS
ammunition, and thousands of dollars in United States currency. 

The grey bag that Gilbert was observed carrying into one

of the houses contained 525 capsules of heroin. While no narcotics or guns were found in Gilbert’s grandmother’s house,

on Gilbert’s person, or in his automobile, the authorities

seized over $700 in currency in an envelope found in Gilbert’s grandmother’s house. 

After his arrest in October 2003, Gilbert remained incarcerated until July 2005. Shortly after he was released, Gilbert

was introduced to Frank Batts, the leader of "24/7," another

large drug organization operating in Baltimore. Over the next

year, Batts purchased "wholesale" quantities of heroin from

Gilbert and other members of Special on about fifteen occasions, in amounts that ranged between one-fifth of a kilogram

and one-half of a kilogram. 

On one occasion, Gilbert told Batts that Shannon Jemmison, an individual who lived in the neighborhood where 24/7

operated, was a government informant, or a "snitch." It was

widely believed that Jemmison had cooperated with law

enforcement officers regarding the operations of yet another

large drug organization, led by the "Rice Brothers." 

Batts knew that Gilbert did not "like" snitches, and Gilbert

earlier had told him "about a snitch that he was trying to get."

After Gilbert asked whether Batts would "want to get" Jemmison, Batts responded affirmatively. Gilbert later introduced

Batts to Dinkins, who agreed to kill Jemmison in exchange

for several thousand dollars. Gilbert consented to bearing the

initial cost of paying Dinkins, subject to Batts’ agreement to

reimburse Gilbert in their next drug transaction. 

On September 10, 2005, Batts drove Dinkins to a trailer

where Jemmison was playing cards. At that location, Dinkins

shot Jemmison several times at point-blank range, killing him.

UNITED STATES v. DINKINS 5
After Batts heard the shots, he moved to a designated location

where he met Dinkins and drove him to another neighborhood. That evening, Batts paid Dinkins $4,000, which was

about half his "fee" for killing Jemmison.2

In October 2004, James Wise, a drug dealer not affiliated

with Special, was murdered on a street corner during daylight

hours after he had robbed a member of Special. John Dowery,

a drug dealer who sold drugs as a member of Special, was a

witness to the murder. 

Dowery contacted certain law enforcement officers and

provided them information about the Wise murder. Dowery

also began sharing with the officers information concerning

other investigations in the Bartlett neighborhood, including

information about the organizational structure and operations

of Special. Parker and Love, who were both "high-ranking"

members of Special, were arrested after Dowery provided

incriminating information concerning them. After their arrest,

Dowery became widely known as a "snitch." 

Before Dowery could testify at the upcoming state murder

trial of Parker and Love, on October 19, 2005, Dinkins told

West, another drug dealer who was a member of Special, that

they had been "nominated to kill" Dowery. That day, Dinkins

and West arrived at Dowery’s house and waited outside for

him to return from work. When Dowery arrived, Dinkins and

West fired more than a dozen shots at Dowery, striking him

multiple times. After Dinkins later learned that Dowery did

not die from his injuries, Dinkins stated to West: "We have

to go to the hospital to finish him off."3

2At the time of trial in the present case, Batts had pleaded guilty to possession with intent to distribute between one and three kilograms of heroin, but he had not yet been sentenced for that offense. 

3At that time, however, Dinkins and West did not further pursue this

plan. 

6 UNITED STATES v. DINKINS
Dowery eventually recovered from his gunshot wounds. He

spoke with detectives after the shooting, and identified

Dinkins from a photo array as the individual who had shot him.4

Michael Bryant, a member of Special, had given Dinkins

the name of an individual who agreed to provide new firearms

in exchange for the guns used to shoot Dowery. On November 10, 2005, Dinkins, West, and Bryant met to complete this

transaction. After problems arose that prevented them from

completing this transaction, Dinkins shot Bryant, killing him.

Love offered an additional explanation at trial for Dinkins’

decision to kill Bryant, a co-conspirator and fellow member

of Special. According to Love, Bryant was upset that Dinkins

had attempted to kill Dowery, because Bryant thought this

attempt would cause more "trouble" for Love and Parker at

their upcoming trial. Love testified that Dinkins murdered

Bryant because of Bryant’s "fussing" about the attempt on

Dowery’s life. Love stated that Dinkins "lure[d] [Bryant] out

of the house and they drove to [ ] a dark area," where Dinkins

"pistol-whipped" Bryant in the head, and then shot Bryant

twice. Dinkins was arrested on December 9, 2005, and has

remained incarcerated since that date.

In January 2006, Dowery testified in the state trial of Parker and Love.5

 After the attempt on Dowery’s life in October

2005, measures were taken to protect him as a witness, and

he was relocated for his safety outside the Bartlett neighborhood. However, even with these measures in place, Dowery

received a message from Gilbert through Dowery’s son Cecil,

also a member of Special, in which Gilbert threatened: "I

know where you are at. I know where you walk your girl to

4West ultimately pleaded guilty for his role in the attempted murder of

Dowery in October 2005. 

5Parker and Love also were charged in the indictment in the present federal case. They each entered guilty pleas to one count related to the murder

of Wise, and to one count of conspiring to distribute narcotics. 

UNITED STATES v. DINKINS 7
the bus stop. I can get you out there. Don’t come around

here." Recognizing that Dowery’s safety had been compromised, Baltimore City Police Department Detective Michael

Baier began arranging for Dowery and his family to be

moved. 

Despite Gilbert’s warning and against the advice of Detective Baier, Dowery decided to return home to Bartlett for

Thanksgiving Day, 2006. As explained later in this opinion,

Gilbert and Goods shot Dowery several times on Thanksgiving Day, and Dowery died from those wounds. 

Other testimony presented at trial provided additional context for the violent acts described above. Love testified that he

and Dinkins spoke about several of the incidents related

above during the time that they were incarcerated in the same

jail. Regarding the Jemmison murder, Love testified that

Dinkins admitted in jail that he had killed Jemmison by shooting him "six times in the face." Dinkins also reportedly told

Love that he was paid $4,000 by Batts to kill Jemmison "for

somebody that was in the Rice [Brothers] case."

Batts’ lengthy trial testimony concerning the Jemmison

murder was substantially similar to Love’s testimony. Batts

testified concerning his coordination with Dinkins and Gilbert

in the plan to murder Jemmison. Batts also confirmed that he

had paid Dinkins $4,000 to have Jemmison killed. 

Regarding the attempt on Dowery’s life in 2005, Love testified that he also talked with Dinkins in jail about that subject.

According to Love, Dinkins admitted that he had "shot [Dowery] and he was sorry that he didn’t kill him." 

II.

On the basis of these facts and other evidence in the record,

a grand jury charged Dinkins, Gilbert, and Goods (collectively, the defendants), as well as Love, Parker, and McLean,

8 UNITED STATES v. DINKINS
in a twelve-count indictment. The predominating count of the

indictment was the charge of conspiracy to distribute narcotics, resulting from the defendants’ involvement with Special,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C),

846. 

Based on the October 2003 seizure of narcotics and firearms, the indictment charged Gilbert with: distribution of heroin and cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), (b)(1)(C); and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§§ 2, 924(c)(1)(A)(i). The indictment also charged Dinkins

and Gilbert with several counts relating to the murder of Jemmison: murder with intent to prevent the attendance and testimony of a person in an official proceeding, and to prevent the

communication of information regarding a federal offense to

law enforcement, in violation of 18 U.S.C. §§ 2,

1512(a)(1)(A), 1512(a)(1)(C); use of a firearm in furtherance

of a drug-trafficking crime, in violation of 18 U.S.C. §§ 2,

924(c)(1)(A)(iii); and willfully causing the death of a person

by using a firearm in furtherance of a drug-trafficking crime,

in violation of 18 U.S.C. §§ 2, 924(j). 

With respect to the attempted murder of Dowery, the

indictment charged Dinkins with the use of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§§ 2, 924(c)(1)(A)(iii). The indictment also charged Dinkins

with several counts relating to the Bryant murder: use of a

firearm in furtherance of a drug-trafficking crime, in violation

of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii); and willfully causing the

death of a person by using a firearm in furtherance of a drugtrafficking crime, in violation of 18 U.S.C. §§ 2, 924(j). 

Lastly, regarding the Dowery murder, the indictment

charged Gilbert and Goods with several crimes. Those crimes

included: murder with intent to prevent the attendance and

testimony of a person in an official proceeding, and to prevent

the communication of information regarding a federal offense

UNITED STATES v. DINKINS 9
to law enforcement, in violation of 18 U.S.C. §§ 2,

1512(a)(1)(A), 1512(a)(1)(C); use of a firearm in furtherance

of a drug-trafficking crime, in violation of 18 U.S.C. §§ 2,

924(c)(1)(A)(iii); and willfully causing the death of a person

by using a firearm in furtherance of a drug-trafficking crime,

in violation of 18 U.S.C. §§ 2, 924(j). 

In pre-trial proceedings, the government filed a motion

requesting that the defendants be tried jointly. The district

court granted the motion, finding that a joint trial would be

more efficient than separate trials. The court later denied a

motion filed by Goods seeking severance of the charges

against him. 

As the date of jury selection approached, the district court

inquired whether any party requested an anonymous jury. Due

to concerns about juror safety and media attention, the government supported the measure. The defendants objected,

arguing that an anonymous jury would impede effective voir

dire, and would infringe the presumption of innocence

because jurors would think that they required protection from

the defendants. 

The district court concluded that certain biographical information about the jurors should not be disclosed to the parties

or to their counsel, because the case involved the murder of

government witnesses. As a result, the names of the venire

members and their spouses, the venire members’ employers

and those of their spouses, and the addresses of the venire

members, were not disclosed to the parties or to their counsel.

However, the juror questionnaires provided extensive information for counsel’s use during voir dire, including information regarding the general location of the venire members’

residences and the type of employment of the venire members

and their spouses.

During voir dire, the defendants made an objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), based on the

10 UNITED STATES v. DINKINS
government’s use of a peremptory challenge to strike an

African-American female member of the venire. The defendants asserted that the government had not established a raceneutral justification for its peremptory challenge and, therefore, that the offered explanation was mere pretext. The district court concluded that the government offered several raceneutral reasons to support its decision to strike the venire

member, and overruled the objection. Shortly thereafter, the

jury was empaneled and the trial began. 

On several occasions during trial, the government argued

that certain hearsay statements made by Dowery were admissible under the forfeiture-by-wrongdoing exception to the

hearsay rule and the Confrontation Clause. The government

argued that this exception was applicable because Dinkins and

Gilbert, or their co-conspirators, succeeded in rendering Dowery unavailable as a witness. 

The Dowery hearsay statements were highly relevant to the

government’s theory of the case. Those statements principally

included: 1) a description of Special’s members and operations; 2) an identification of Dinkins as one of the men who

shot Dowery in October 2005; and 3) the threatening message

Dowery received from Gilbert after witness-relocation measures were taken to protect Dowery. 

Dinkins and Gilbert objected to the admission of the hearsay statements. Goods, however, agreed with the government

that the statements regarding Special’s members and operations should be admitted, because Dowery had not named him

as a member of Special in his written statements to investigators. The district court ruled that the statements were admissible. 

After a twelve-day trial, the jury returned a verdict of guilty

against Dinkins, Gilbert, and Goods, on all counts but one.6

6The jury found Gilbert not guilty of willfully causing the death of Jemmison by using a firearm in furtherance of a drug-trafficking crime. HowUNITED STATES v. DINKINS 11
Each of the defendants was sentenced to life imprisonment on

multiple counts. The defendants timely filed notices of appeal.

III.

The defendants argue that the district court abused its discretion in refusing to order separate trials. The defendants

assert that they suffered prejudice resulting from the joint trial

for three reasons: (1) the jury was presented with evidence of

multiple murders, akin to a "blizzard of violence," even

though each murder was not attributable to every defendant;

(2) a defendant, such as Goods, who was not subject to

receiving the death penalty (non-capital defendant), should

not have had his case joined for trial with defendants Dinkins

and Gilbert who were facing the possible imposition of that

penalty (capital defendants); and (3) Goods presented a

defense that was mutually antagonistic to the defenses presented by Dinkins and Gilbert. We conclude that the defendants’ arguments are without merit. 

A district court’s denial of a motion to sever is reviewed for

abuse of discretion. United States v. Allen, 491 F.3d 178, 189

(4th Cir. 2007). Under Rule 8(b) of the Federal Rules of

Criminal Procedure, an indictment 

may charge 2 or more defendants if they are alleged

to have participated in the same act or transaction, or

in the same series of acts or transactions, constituting

an offense or offenses. The defendants may be

charged in one or more counts together or separately.

All defendants need not be charged in each count.

ever, the jury found Gilbert guilty of the Jemmison murder based upon the

theories of liability in two other counts: murder with intent to prevent the

attendance and testimony of a person in an official proceeding, and to prevent the communication of information regarding a federal offense to law

enforcement; and use of a firearm in furtherance of a drug-trafficking

crime. 

12 UNITED STATES v. DINKINS
However, if joinder of offenses or defendants "appears to

prejudice" any party, the court may order separate trials. Fed.

R. Crim. P. 14(a). 

We adhere to the general principle that when defendants

are indicted together, they should be tried together. United

States v. Singh, 518 F.3d 236, 255 (4th Cir. 2008) (citing

United States v. Strickland, 245 F.3d 368, 384 (4th Cir.

2001)). Joint trials are more efficient, and "generally serve the

interests of justice by avoiding the . . . inequity of inconsistent

verdicts." Richardson v. Marsh, 481 U.S. 200, 210 (1987).

Therefore, when an indictment properly has joined two or

more defendants under the provisions of Rule 8(b), severance

pursuant to Rule 14 is rarely granted. Cf. United States v.

Hornsby, 666 F.3d 296, 309 (4th Cir. 2012) (When offenses

"are properly joined under Rule 8(a), severance of the

offenses is rare."). 

Under these circumstances, severance generally is granted

only when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or

innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993).

We will not reverse a denial of a motion to sever absent a

showing of clear prejudice. See Hornsby, 666 F.3d at 309; see

also United States v. Casteel, 663 F.3d 1013, 1018 (8th Cir.

2011) (clear prejudice must be shown to reverse denial of

motion to sever codefendants’ trial); United States v. Thompson, 518 F.3d 832, 863 (10th Cir. 2008) (same).

The defendants first argue that they were prejudiced by

joint trials because they were forced to defend themselves

against a body of evidence that included separate murders not

attributable to all defendants. The indictment charged Dinkins

with murdering Michael Bryant, Dinkins and Gilbert with

murdering Shannon Jemmison, and Gilbert and Goods with

murdering John Dowery. 

UNITED STATES v. DINKINS 13
We conclude that severance was not required on this basis.

"[J]oinder is highly favored in conspiracy cases, over and

above the general disposition [supporting] joinder for reasons

of efficiency and judicial economy." United States v. Tedder,

801 F.2d 1437, 1450 (4th Cir. 1986). Here, the defendants and

others were charged with participating in a conspiracy to distribute large quantities of narcotics as members of Special.

Significantly, each defendant in the present case was charged

with a murder in furtherance of that conspiracy, charges

which are supported by the record. Thus, we are not confronted with a case in which defendants were "tried together

in a complex case and they [had] markedly different degrees

of culpability," Zafiro, 506 U.S. at 539 (emphasis added).

Moreover, any risk of prejudice that may have existed was

minimized by measures less drastic than severance, including

limiting instructions given by the district court when certain

evidence was admitted against one or more, but not all, defendants. See United States v. Hayden, 85 F.3d 153, 160 (4th Cir.

1996). Therefore, the defendants have not proved clear prejudice on this basis.

Next, Goods separately argues that, as a non-capital defendant, he should have been afforded a trial separate from that

of the capital defendants, Dinkins and Gilbert, because a noncapital defendant runs a risk of prejudice from being tried

jointly with capital defendants. Goods suggests that this risk

of prejudice stems from the exclusion of sympathetic jurors

from a "death-qualified" jury. 

The Supreme Court, however, has rejected this same argument, holding that a non-capital defendant "could not demonstrate that being tried by a death-qualified jury violated either

his right to a jury selected from a fair cross section of the

community or his right to an impartial jury." See United

States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010) (discussing

Buchanan v. Kentucky, 483 U.S. 402, 415-20 (1987)).

Because Goods has not distinguished the present case from

14 UNITED STATES v. DINKINS
the holding in Buchanan, his argument is foreclosed by that

decision.

The defendants argue, nevertheless, that they suffered clear

prejudice because Goods’ position was antagonistic to that of

Dinkins and Gilbert, in that Goods joined the government in

seeking admission of the Dowery hearsay statements. Goods

sought the admission of this evidence to show that Dowery

had the opportunity to identify Goods as a member of Special,

and did not do so, which allegedly tended to show that he was

not involved in the conspiracy or other charged criminal conduct. 

Although Dinkins and Gilbert opposed the introduction of

the Dowery statements, mutually antagonistic defenses are not

necessarily prejudicial. Zafiro, 506 U.S. at 538. Hostility

among defendants, and even a defendant’s desire to exculpate

himself by inculpating others, do not of themselves qualify as

sufficient grounds to require separate trials. United States v.

Najjar, 300 F.3d 466, 474 (4th Cir. 2002) (citing United

States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986)).

Instead, "[t]here must be such a stark contrast presented by

the defenses that the jury is presented with the proposition

that to believe the core of one defense it must disbelieve the

core of the other, or that the jury will unjustifiably infer that

this conflict alone demonstrates that both are guilty." Najjar,

300 F.3d at 474 (internal quotation marks and citations omitted). The defendants here have not shown clear prejudice,

because the jury was not presented with a "stark contrast"

such that believing Goods’ defense would result in disbelief

of the defense offered by Dinkins and Gilbert. Accordingly,

we conclude that the district court did not abuse its discretion

in denying the severance motion.

IV.

The defendants next argue that the district court committed

reversible error in deciding to empanel an anonymous jury.

UNITED STATES v. DINKINS 15
The defendants assert that the district court’s action was a

"drastic" measure, one warranted only when the record shows

that a defendant retains the capacity to harm or influence

jurors and likely will undertake this course of action. According to the defendants, there was no evidence before the district court to support such a finding. 

The issue whether a defendant in a criminal case may be

tried by an anonymous jury has been raised only in recent

decades, and initially was considered by a federal court of

appeals in United States v. Barnes, 604 F.2d 121 (2d Cir.

1979). In the decades following Barnes, federal courts have

increasingly used anonymous juries on a limited basis in certain types of criminal cases.7

The issue of the circumstances under which a district court

may empanel an anonymous jury presents a matter of first

impression in this Circuit.8 In examining this issue, we will

begin by considering the applicable standard of appellate

review. We next will consider precedent from our sister circuits and discuss the requirements for empaneling an anonymous jury. In making this assessment, we also will consider

the distinction between the decision to empanel an anonymous jury in capital cases and a like decision made in noncapital cases. After reviewing the present record involving

both classes of offenses, we will consider whether the district

court’s decision was supported by the record and whether the

district court took sufficient precautions to safeguard the

defendants’ constitutional rights.

7

See Adam Liptak, Nameless Juries Are on the Rise In Crime Cases,

N.Y. Times, Nov. 18, 2002, at A1 (noting that about 30 judicial decisions

discussed anonymous juries in the decade after Barnes, while about 180

additional judicial decisions discussed the practice in the next dozen

years). 

8

In one unpublished case, we briefly addressed a court’s decision to

empanel an anonymous jury, in the context of our review of a Batson challenge. See United States v. Williamston, No. 91-5163, 1993 WL 527977

(4th Cir. Dec. 21, 1993) (unpublished). 

16 UNITED STATES v. DINKINS
A.

The district court reached its conclusion that an anonymous

jury was necessary after reviewing the proposed juror questionnaire. During this review, the district court inquired

whether either party was requesting an anonymous jury.9 The

government argued in favor of having an anonymous jury

seated, while the defendants objected to the measure. 

After hearing argument on the matter, the district court

stated that the only issue ripe for decision was whether the

juror questionnaire would be sent to the venire members in a

form that protected their anonymity. The district court

addressed that issue, stating:

[T]he bottom line on this, whatever it takes, certainly

I am prepared to bite the bullet on this. This is a case

involving the murder of a witness. I understand. I’ve

read the memorandum that the witness is in jail, and

the question is organization. . . . But be that as it

may, I’m not going to fool around. We have citizens

being brought in here who have legitimate concerns.

As far as I’m concerned, the odds are that I’m going

to ultimately rule that the jury should be anonymous.

Based on these concerns, and what the court described as the

"incredibly intrusive" nature of the questions, the district

court determined that the juror questionnaire would be sent in

a form that protected juror anonymity. 

The jury questionnaire that ultimately was approved did not

9The district court’s inquiry apparently was prompted by a question

from the jury commissioner, who asked whether the personal information

of the venire members should be withheld from counsel in the present

case, because such information had been withheld in an unrelated capital

murder trial, United States v. Byers, 603 F. Supp. 2d 826 (D. Md. 2009),

that was simultaneously proceeding in federal district court in Maryland.

UNITED STATES v. DINKINS 17
provide counsel with the names of the venire members or the

names of their employers. In lieu of providing the full

addresses of the venire members, the questionnaire included

the neighborhood, county, and "zip code" in which they

resided. The questionnaire also did not provide the names of

the spouses of the venire members, or identify their spouses’

employers. 

Counsel for Gilbert asked that the district court instruct the

jurors ultimately chosen that any anonymous status was

intended to protect them from unwanted media attention. The

district court and the government agreed that such an instruction would be appropriate if an anonymous jury were empaneled. 

About two months after that pre-trial hearing, on the day

voir dire began, the district court addressed the issue whether

the jury would remain anonymous. The district court decided

that it would continue to limit the information provided to the

parties "because of a finding that to give more information

may jeopardize the life or safety of those persons."10

To date, counsel for the government and for the defendants

do not know the names of the jurors, or their addresses. Also,

counsel do not know the names of the jurors’ spouses, or the

employers of either the jurors or their spouses. 

10Counsel for Dinkins stated at this time that while he thought the

record was "abundantly clear," he wanted to preserve his objection to the

district court’s decision to withhold the names and addresses of the venire

members. The district court responded, "Absolutely. Absolutely you have

an exception." The record therefore refutes the government’s contention,

repeated at oral argument, that after the initial pre-trial conference, "[n]o

further objection was raised by the defendants to the anonymity of the

jury." 

18 UNITED STATES v. DINKINS
B.

In deciding the appropriate standard of review, we begin by

observing that every federal appeals court to have considered

this issue has held that a district court’s decision to empanel

an anonymous jury is reviewed under a deferential abuse-ofdiscretion standard. United States v. DeLuca, 137 F.3d 24, 31

(1st Cir. 1998); United States v. Stewart, 590 F.3d 93, 124 (2d

Cir. 2009); United States v. Thornton, 1 F.3d 149, 154 (3d

Cir. 1993); United States v. Brown, 303 F.3d 582, 601 (5th

Cir. 2002); United States v. Lawson, 535 F.3d 434, 439 (6th

Cir. 2008); United States v. Benabe, 654 F.3d 753, 760 (7th

Cir. 2011); United States v. Darden, 70 F.3d 1507, 1532 (8th

Cir. 1995); United States v. Shryock, 342 F.3d 948, 970 (9th

Cir. 2003); United States v. Ross, 33 F.3d 1507, 1519 (11th

Cir. 1994); United States v. Moore, 651 F.3d 30, 48 (D.C. Cir.

2011). We conclude that use of this standard is appropriate,

because the decision to empanel an anonymous jury requires

a fact-based assessment of the likely course of trial proceedings, the environment surrounding the trial, and the question

whether publicity or security concerns could jeopardize the

jury’s ability to discharge its duty. See United States v. Childress, 53 F.3d 693, 702 (D.C. Cir. 1995). Thus, we join our

sister circuits in holding that a district court’s decision

whether to empanel an anonymous jury is reviewable for

abuse of discretion.

C.

We turn now to address the standards governing a district

court’s decision whether to empanel an anonymous jury in

capital and non-capital cases. We also discuss the type of

information that a court may rely upon in reaching this decision.

The term "anonymous jury" does not have one fixed meaning. A jury generally is considered to be "anonymous" when

a trial court has withheld certain biographical information

UNITED STATES v. DINKINS 19
about the jurors either from the public, or the parties, or both.

See United States v. Branch, 91 F.3d 699, 723 (5th Cir. 1996).

A lesser degree of anonymity may entail disclosing to the parties the names of the venire members, but identifying them

only by number in open court. Greater degrees of anonymity

may involve withholding from the parties the names,

addresses, employers, and certain other biographical information about the venire members or their spouses. See United

States v. Honken, 378 F. Supp. 2d 880, 919-21 (N.D. Iowa

2004). A district court’s decision to empanel an anonymous

jury should reflect the court’s consideration of the various

types of information that warrant being withheld. 

A federal district court may empanel an anonymous jury in

any non-capital case in which "the interests of justice so

require." 28 U.S.C. § 1863(b)(7); see also United States v.

Ochoa-Vasquez, 428 F.3d 1015, 1033 n.24 (11th Cir. 2005)

(citing Section 1863(b)(7) as statutory authority for decision

to empanel an anonymous jury, in a non-capital case); United

States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998)

(same). Although not defined in Section 1863(b)(7), the "interests of justice" standard "contemplates a peculiarly contextspecific inquiry," Martel v. Clair, 132 S. Ct. 1276, 1287

(2012). By contrast, in capital cases, the district court may

only empanel an anonymous jury after determining, "by a preponderance of the evidence that providing the list [of the

members of the venire and their places of abode] may jeopardize the life or safety of any person." 18 U.S.C. § 3432 (Section 3432). 

We draw upon persuasive precedent from our sister circuits, which already have developed principles guiding the

empanelment of anonymous juries, in our resolution of this

context-specific inquiry. The decision to empanel an anonymous jury and to withhold from the parties biographical information about the venire members is, in any case, "an unusual

measure," Shryock, 342 F.3d at 971, which must be plainly

warranted by the particular situation presented. See United

20 UNITED STATES v. DINKINS
States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991). An anonymous jury is warranted only when there is strong reason to

conclude that the jury needs protection from interference or

harm, or that the integrity of the jury’s function will be compromised if the jury does not remain anonymous. See

Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at 31). 

Even when such exceptional circumstances are present, the

decision to empanel an anonymous jury nevertheless may

affect a defendant’s constitutional right to a presumption of

innocence by raising in the minds of the jurors a suggestion

that "the defendant is a dangerous person from whom the

jurors must be protected." Ross, 33 F.3d at 1519; see also

Lawson, 535 F.3d at 441 (there may be instances when

empaneling an anonymous jury may "jeopardize constitutional rights - such as the right to a presumption of innocence"). Further, a court’s action withholding certain

biographical information from the parties may affect a defendant’s constitutional right to trial by an impartial jury, by hindering the defendant’s ability to conduct an informed voir dire

examination and to challenge effectively the seating of individual jurors. Benabe, 654 F.3d at 760 (citing United States

v. Mansoori, 304 F.3d 635, 650 (7th Cir. 2002)). Accordingly,

we hold that a district court may empanel an anonymous jury

only in rare circumstances when two conditions are met: (1)

there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the

jury’s function will be compromised absent anonymity; and

(2) reasonable safeguards have been adopted to minimize the

risk that the rights of the accused will be infringed. See

Ochoa-Vasquez, 428 F.3d at 1034 (citing Ross, 33 F.3d at

1520); Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at

31); see also Mansoori, 304 F.3d at 650 (a court deciding

whether to empanel an anonymous jury must balance the

defendant’s rights against the jurors’ interest in their security

and the public interest in an impartial jury). 

Courts have identified five factors, occasionally referred to

as "the Ross factors," which we find helpful in determining

UNITED STATES v. DINKINS 21
whether there are strong reasons supporting the empaneling of

an anonymous jury. Ross, 33 F.3d at 1520. Those factors are:

(1) the defendant’s involvement in organized crime,

(2) the defendant’s participation in a group with the

capacity to harm jurors, (3) the defendant’s past

attempts to interfere with the judicial process, (4) the

potential that, if convicted, the defendant will suffer

a lengthy incarceration and substantial monetary

penalties, and (5) extensive publicity that could

enhance the possibility that jurors’ names would

become public and expose them to intimidation or

harassment.

Id.; see also Moore, 651 F.3d at 48 (same); Ochoa-Vasquez,

428 F.3d at 1034 (same); Shryock, 342 F.3d at 971 (same);

DeLuca, 137 F.3d at 31-32 (same). However, this list of factors is not exhaustive, nor does the presence of any one factor

or set of factors automatically compel a court to empanel an

anonymous jury. While we view the Ross factors as instructive in our analysis because they are drawn from significant

judicial experience addressing the propriety of decisions

whether to order anonymous juries, we emphasize that a district court must always engage in a context-specific inquiry

based upon the facts of the particular case before the court.

See Martel, 132 S. Ct. at 1287. 

An anonymous jury only may be ordered in capital cases in

a narrower set of circumstances permitted by statute. Under

Section 3432,

[a] person charged with treason or other capital

offense shall at least three entire days before commencement of trial . . . be furnished with a copy of

the indictment and a list of the veniremen, and of the

witnesses to be produced on the trial for proving the

indictment, stating the place of abode of each venireman and witness, except that such list of the venire22 UNITED STATES v. DINKINS
men and witnesses need not be furnished if the court

finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any

person.

(Emphasis added). 

In conducting our review, we observe that the Ross factors

are relevant to cases involving capital, as well as non-capital,

offenses to the extent that those factors shed light on the issue

whether an anonymous jury is required to protect "the life or

safety of any person."11 18 U.S.C. § 3432. In a capital case,

however, such as the trial involving Dinkins and Gilbert, the

record must support a finding "by a preponderance of the evidence that providing the list [of the venire members and their

places of abode] may [have] jeopardize[d] the life or safety of

any person." Id. (emphasis added). Thus, the plain language

of Section 3432 requires that a district court base its decision

to empanel an anonymous jury on evidence that was in the

record at the time of the district court’s ruling. 

A district court may not rely solely on the indictment to

support its decision to empanel an anonymous jury under Section 3432, because an indictment is not evidence. See United

States v. Udeozor, 515 F.3d 260, 272 (4th Cir. 2008) (citing

Taylor v. Kentucky, 436 U.S. 478 (1978)). Although an indictment may inform a district court’s understanding of the case,

the language of Section 3432 requires that a decision to

empanel an anonymous jury be supported by a preponderance

of the evidence. Thus, a decision to empanel an anonymous

11The parties do not contest the proposition that a district court’s decision to empanel an anonymous jury in a capital case may be justified with

reference to the non-exhaustive factors identified in Ross, provided that

the requirements of Section 3432 are met. With regard to defendants

charged only with non-capital offenses, we do not apply the standard

stated in Section 3432 because, by its plain terms, that section applies only

to capital cases. 

UNITED STATES v. DINKINS 23
jury in a capital case without evidence meeting this standard

constitutes an abuse of discretion.12

By contrast, in non-capital cases, the district court’s decision need not have been based on evidence already in the

record at the time the decision was made, and may be upheld

on appeal in light of the evidence ultimately presented at trial.

See Shryock, 342 F.3d at 971-72 (considering "all relevant

evidence introduced at trial"); United States v. Krout, 66 F.3d

1420, 1427-28 (5th Cir. 1995) (stating, in non-capital case,

that "the use of anonymous juries will be upheld where evidence at trial supports the conclusion that anonymity was

warranted"). However, a district court’s decision to empanel

an anonymous jury in a non-capital case, when made, must

rest on something more than speculation or inferences of

potential risk. See Krout, 66 F.3d at 1427. 

Neither Section 3432 nor any other statute requires that a

district court conduct an evidentiary hearing before deciding

to empanel an anonymous jury, provided that the court’s decision is supported by compelling evidence of record. See

United States v. Eufrasio, 935 F.2d 553, 574 (3d Cir. 1991)

("[a] trial court has discretion to permit an anonymous jury

without holding an evidentiary hearing on juror safety"). Nevertheless, it is advisable for a district court deciding to

empanel an anonymous jury to support its conclusion with

express findings based on evidence of record, because a

court’s failure to state a basis for its decision sufficient to permit appellate review may constitute an abuse of discretion.

See United States v. Morales, 655 F.3d 608, 621 (7th Cir.

2011).

12We note that courts have held that even when a district court has committed an abuse of discretion in empaneling an anonymous jury, the error

was subject to harmless error review. See e.g., Mansoori, 304 F.3d at 649-

52; United States v. Sanchez, 74 F.3d 562, 565 (5th Cir. 1996). In those

cases, the appeals courts in their harmless error review considered all evidence in the record, including evidence later introduced at trial. Id.

24 UNITED STATES v. DINKINS
D.

We turn now to address the defendants’ arguments regarding the district court’s decision to empanel an anonymous

jury. According to the defendants, the evidence failed to show

that they had the present or future capacity, either personally

or through their associates, to harm jurors, and that such

action was likely. The defendants assert that the murders in

this case all occurred years before the trial, and that all members of the alleged conspiracy had been incarcerated for a

long time when the district court rendered its decision. The

defendants additionally contend that the district court’s decision deprived them of their right to a presumption of innocence and to an impartial jury. 

i.

With regard to defendants Dinkins and Gilbert, who were

charged with capital offenses, we consider whether the district

court abused its discretion in finding that disclosure of the

names and addresses of the venire members could have jeopardized their life or safety.13 As discussed above, the district

court’s decision concerning the trial of these defendants must

be supported by evidence that was in the record at the time of

the court’s ruling. See 18 U.S.C. § 3432. We conclude that the

district court’s finding was supported by sufficient evidence

of record.

We begin by addressing the first three Ross factors, and

consider whether the record showed that Dinkins and Gilbert

participated in organized criminal activity, involving persons

who had the capacity to harm jurors and had interfered with

the judicial process in the past. See Ross, 33 F.3d at 1520. The

13We consider the arguments of Dinkins and Gilbert separately from

those of Goods, based on the different standard of review mandated by 18

U.S.C. § 3432 specific to capital cases rather than that standard provided

by 28 U.S.C. § 1863(b)(7). 

UNITED STATES v. DINKINS 25
indictment alleged that Gilbert directed the operations of

"Special," a drug-trafficking organization in Baltimore, and

that Dinkins and Goods were members of Special. The record

contained evidentiary proffers from counsel at the April 2008

hearing regarding certain hearsay statements of John Dowery,

the government informant allegedly shot by Dinkins in 2005

and killed by Gilbert and Goods in 2006. At that hearing,

counsel for Goods proffered that the Dowery hearsay statements contained "extensive information" about "the DinkinsGilbert drug organization in that [Baltimore] neighborhood."14

Thus, at the time the district court ruled on the anonymous

jury issue, the record supported a conclusion that the defendants, by virtue of their association with Special, belonged to

a group involved in organized criminal activity. Id.

At the time of the district court’s decision, the record also

showed that the defendants, as members of Special, belonged

to an organization that had the capacity to harm jurors. See id.

A material aspect of this consideration was the fact that the

other members of the group, who were not in jail, remained

capable of interfering with the judicial process even though

the defendants were incarcerated. See Morales, 655 F.3d at

622 (decision to empanel anonymous jury was supported by

the fact that several gang members remained unindicted, and

at least one indicted person was still a fugitive). Moreover, the

record before the district court overwhelmingly supported a

finding that the defendants previously had engaged in

attempts to interfere with the judicial process. Ross, 33 F.3d

at 1520. In fact, the district court based its decision to

empanel an anonymous jury on this consideration alone. 

14In the next section, we address Dinkins’ and Gilbert’s contention that

admission of the Dowery hearsay statements into evidence violated the

Federal Rules of Evidence, and their rights under the Confrontation

Clause. In view of our conclusion that this evidence was admissible, we

need not consider the separate issue whether evidence must be admissible

under the Federal Rules of Evidence before it may be considered as supporting a court’s decision to empanel an anonymous jury. 

26 UNITED STATES v. DINKINS
The indictment alleged that Gilbert "operated" Special, and

that Dinkins and others were its "enforcers," who "committed

acts of violence to protect the reputation and dominant position of the organization." The indictment charged Dinkins and

Gilbert with murdering Shannon Jemmison "in order to prevent Jemmison from cooperating or continuing to cooperate

with law enforcement authorities" in the prosecution of

another narcotics trafficking organization in Baltimore.

Regarding the unsuccessful first attempt on Dowery’s life, the

indictment alleged that Dinkins shot Dowery multiple times

in October 2005. The indictment also charged Gilbert and

Goods with killing Dowery in November 2006, whom they

knew to be "cooperating with law enforcement authorities in

the federal investigation and prosecution of members of the

conspiracy." 

Consistent with the indictment’s allegations that Dinkins

shot Dowery in 2005, and that Gilbert and Goods killed Dowery because he was a government informant, the record before

the district court contained evidence supporting those allegations. In their motion to strike the government’s notice of

intent to seek the death penalty and requesting an evidentiary

hearing, counsel for Dinkins and Gilbert summarized evidence of an expected government witness, Frank Batts, who

had testified before the grand jury in this case, and also had

testified in other cases. In their motion, counsel for Dinkins

and Gilbert cited Batts’ testimony that:

(1) he frequently bought heroin from Mr. Gilbert; (2)

that Mr. Batts allegedly was asked by Mr. Gilbert to

aid in arranging the murder of Shannon Jemmison,

and that Mr. Gilbert selected Mr. Dinkins to carry

out the murder; (3) that Mr. Batts drove Mr. Dinkins

to and from the murder scene, and made payment to

him; (4) that he testified before the grand jury in this

matter; and (5) that Mr. Batts supplied the gun for

the Jemmison homicide.

UNITED STATES v. DINKINS 27
At the April 2008 hearing, counsel for Goods also made a

proffer concerning certain hearsay statements made by Dowery in testimony given at a trial in a state court involving other

members of Special, Tamall Parker and Tracy Love, who

were being tried on first-degree murder charges.15 The government proffered that Dowery’s testimony from the state trial

would show that Love had contacted Dowery by telephone

from jail, and had threatened him in an apparent attempt to

prevent his testimony. And, counsel for Goods also proffered

that in later hearsay statements, Dowery discussed the attempt

on his life in 2006, and "he name[d] Mr. Dinkins and one

other individual as the shooters." Accordingly, the nature of

the present prosecution, in which the defendants were charged

with murdering government informants and witnesses, as well

as evidence of similar uncharged conduct, weighed heavily in

favor of the district court’s decision to empanel an anonymous jury. See e.g., United States v. Thai, 29 F.3d 785, 801

(2d Cir. 1994) (upholding use of anonymous jury when the

record supported a charge that several defendants conspired to

threaten, and later to kill, a witness in order to subvert a prosecution of fellow gang members). 

We also examine the fourth Ross factor, and consider

whether the defendants all faced the possibility of severe punishments if convicted. Ross, 33 F.3d at 1520. Dinkins and Gilbert each faced a potential death sentence or a term of life

imprisonment. These potential punishments lend support to a

conclusion that Dinkins and Gilbert had an incentive to resort

to "extreme measures in any effort to influence the outcome

of their trial." DeLuca, 137 F.3d at 32 (citing Ross, 33 F.3d

1520). 

Because the record does not indicate whether the trial

resulted in extensive publicity, we do not address the fifth

15As previously explained, Parker and Love also were charged as coconspirators in the indictment in this case. They each entered guilty pleas

in October 2008. 

28 UNITED STATES v. DINKINS
Ross factor in considering whether an anonymous jury was warranted.16 Accordingly, with regard to defendants Dinkins and

Gilbert, we conclude that when the district court rendered its

decision to empanel an anonymous jury, the record established by a preponderance of the evidence that the lives or

safety of the venire members may have been jeopardized if

their names, addresses, and places of employment, or such

information pertaining to their spouses, had been provided to

the parties. See 18 U.S.C. § 3432. 

ii.

With regard to defendant Goods, we consider whether the

district court abused its discretion in finding that there was

strong reason to conclude that the jury needed protection from

interference or harm. See Shryock, 342 F.3d at 971 (citing

DeLuca, 137 F.3d at 31). As we have stated, Section 3432

does not apply to Goods, because he was not charged with a

capital offense. Instead, the broader "interests of justice" standard provided by Section 1863(b)(7) ultimately governs our

review of the district court’s decision.

Evidence that supports a finding under the more restrictive

Section 3432 standard, that disclosure of identifying information about the venire members may jeopardize their lives or

safety, necessarily will also support a finding under the

broader standard in Section 1863(b)(7) that the "interests of

justice" support anonymity of the venire. Although we have

already found that the district court’s decision to empanel an

anonymous jury for capital defendants Dinkins and Gilbert

satisfied Section 3432, we separately consider the issue with

respect to the non-capital defendant Goods, because much of

the evidence discussed above did not address Goods’ role in

Special or its criminal activities. And, in this inquiry under

16Further, even if the fifth Ross factor weighed against the district

court’s decision to empanel an anonymous jury, we conclude that the factors, on balance, support the court’s decision. 

UNITED STATES v. DINKINS 29
Section 1863(b)(7), we are permitted to consider all the evidence in the record in determining whether the district court

abused its discretion in ordering that Goods be tried by an

anonymous jury. See Shryock, 342 F.3d at 971-72; Krout, 66

F.3d at 1427-28. 

We conclude that evidence in the record well supported the

district court’s finding. With regard to the first three Ross factors, the record supported a finding that Goods participated in

organized criminal activity involving persons who had the

capacity to harm jurors and had interfered with the judicial

process in the past. See Ross, 33 F.3d at 1520. Goods, like

Dinkins and Gilbert, was alleged to be a member of Special.

Detective Michael Baier testified at trial that on multiple

occasions, he witnessed Goods and associates of Gilbert participating in suspected narcotics transactions. Further, Randy

McLean, a member of Special, testified about the "close-knit"

nature of narcotics dealers in that neighborhood, and stated

that Goods sold narcotics on the same streets as McLean and

Gilbert. 

As discussed above, the record also showed that Special

was an organization that continued to have the capacity to

harm jurors. Id. Notably, Detective Baier testified that Dowery had identified several additional persons who were

involved in narcotics trafficking for Special and were not codefendants in this case. At least one of Gilbert’s former associates evidently was not in custody, because Baier testified

that this associate was observed attending the trial in the present case. 

The evidence concerning past attempts to interfere with the

judicial process weighs heavily in favor of the district court’s

decision. See id. The evidence at trial revealed that the defendants and their associates all knew that Dowery was a government informant, and that members of Special habitually

targeted "snitches." The present indictment charged Goods, a

member of Special, with murdering Dowery. The evidence at

30 UNITED STATES v. DINKINS
trial supported the district court’s conclusion regarding this

effort by Gilbert and Goods, and earlier efforts by Goods’

associates, to interfere with the judicial process. 

The fourth Ross factor also supports a finding that juror

anonymity was warranted. Even though Goods was not subject to the death penalty, Goods faced the possibility of life

imprisonment. Finally, as explained above, because the record

contains no indication that there was extensive publicity in

this case, we do not address the fifth Ross factor. Therefore,

based on the record before us with respect to defendant

Goods, we conclude that the record supported the district

court’s conclusion that an anonymous jury was warranted in

this case because the jury needed protection from potential

interference or harm that could be caused by Goods’ fellow

gang members. 

iii.

This determination, however, does not conclude our

inquiry. In our review of a district court’s decision to empanel

an anonymous jury, we also must consider whether the district

court took reasonable precautions to minimize the risk that the

defendants’ rights could be infringed. Shryock, 342 F.3d at

971 (citing DeLuca, 137 F.3d at 31). The defendants do not

identify any particular prejudice that resulted from the

employment of an anonymous jury in their case but, instead,

allege generally that their right to a presumption of innocence

and right to a fair and impartial jury were infringed. 

In order to protect a defendant tried by an anonymous jury

from having the jury conclude that the defendant is a dangerous person from whom the jurors must be protected, Ross, 33

F.3d at 1519, courts customarily provide the jury a nonprejudicial reason for their anonymity. See e.g., Shryock, 342

F.3d at 972 (juror anonymity was intended "to protect their

privacy from curiosity-seekers"); Darden, 70 F.3d at 1532

(juror anonymity was intended to avoid juror harassment by

UNITED STATES v. DINKINS 31
the media). The decision regarding the precautions that are

reasonably necessary to safeguard the rights of a defendant is

necessarily a fact-specific inquiry. 

In the present case, as stated above, defense counsel

requested at the pre-trial hearing a jury instruction stating that

the reason for juror anonymity was to protect the jurors from

unwanted media publicity. Although the district court indicated that it was willing to instruct the jury on this point, an

instruction of this nature was not given at the trial. However,

the record also reveals that defense counsel failed to request

such an instruction at any point during the trial. Therefore, on

appeal, in the absence of compelling evidence, we will not

consider the defendants’ complaint that their presumption of

innocence was adversely affected in this regard. See Mansoori, 304 F.3d at 652 (when the district court was willing to

give a curative instruction on juror anonymity, but the defendants did not remind the court to do so, the defendants could

not contest that omission on appeal). 

We are unable to discern in the present case any adverse

effect on the presumption of the defendants’ innocence resulting from the measures taken by the district court to preserve

the anonymity of the jury. The venire members and those later

selected as jurors never were informed that any of their biographical information was being withheld from the parties.

And, significantly, nothing in the juror questionnaire or the

instructions given by the district court reasonably suggested

that the district court had taken measures to protect the jurors

from potential harm caused by the defendants or their associates. Therefore, we conclude that the district court’s communications to the venire members, and ultimately to the

jurors, properly followed "the generally accepted practice for

minimizing prejudice, which is to downplay (not accentuate)

the significance of the juror anonymity procedure." OchoaVasquez, 428 F.3d at 1037. Additionally, we observe that any

remote possibility of harm was mitigated further because the

32 UNITED STATES v. DINKINS
district court properly instructed the jury on the presumption

of innocence. 

We next consider whether the district court took reasonable

measures to ensure that the defendants’ right to trial by an

impartial jury was not infringed by the decision to empanel an

anonymous jury. As explained above, the withholding of biographical information from counsel may hinder the parties’

ability to conduct a thorough voir dire examination and to

exercise their peremptory challenges. Benabe, 654 F.3d at

760; Mansoori, 304 F.3d at 650.

Our review of the record reveals that the district court took

appropriate measures to safeguard the defendants’ right to

trial by an impartial jury. Counsel for all parties collaboratively drafted the extensive juror questionnaire that was sent

to prospective jurors. While the names and addresses of the

venire members, and of their spouses, were withheld from

counsel, any possibility of prejudice stemming from this

omission was lessened significantly because counsel were

provided the zip codes, the county, and the neighborhoods in

which the prospective jurors resided. The juror questionnaire

also included many questions concerning the employment of

the venire members and of their spouses. Individual voir dire

of the prospective jurors was conducted over the course of

four days, and the defendants have not identified any specific

aspect of this jury selection process that allegedly was inadequate or resulted in prejudice to them. Therefore, based on the

above considerations, we conclude that the defendants’ right

to an impartial jury was not infringed by the district court’s

decision retaining juror anonymity.

In conclusion, we hold that evidence in the record supported the district court’s findings that an anonymous jury

was necessary, and that the district court took reasonable precautions to safeguard the defendants’ rights. See 18 U.S.C.

§ 3432; 28 U.S.C. § 1863(b)(7). Accordingly, we further hold

UNITED STATES v. DINKINS 33
that the district court did not abuse its discretion in deciding

to empanel an anonymous jury.

V.

We next consider the defendants’ contention that the district court erred in rejecting their Batson challenge. The

defendants challenge the striking of prospective juror Number

6, who is an African-American female. The defendants argue

that the government’s purportedly race-neutral reasons for

striking prospective juror Number 6 were based on her

responses that were nearly identical to those of Caucasian

venire members who ultimately were permitted to serve on

the jury. Therefore, the defendants argue, the government’s

proffered race-neutral reasons were pretextual. We disagree

with the defendants’ argument.

We accord great deference to the district court’s determination whether a peremptory challenge was exercised for a

racially-discriminatory reason. Jones v. Plaster, 57 F.3d 417,

421 (4th Cir. 1995). The outcome of a typical Batson challenge turns largely on an evaluation of credibility and whether

counsel’s race-neutral explanation for a particular challenge is

believed. Hernandez v. New York, 500 U.S. 352, 365 (1991)

(plurality opinion). The district court is especially well suited

to make this assessment because the court "has observed with

its own eyes the very act in dispute." Jones, 57 F.3d at 421.

Thus, we review the district court’s determination for clear

error. United States v. Farrior, 535 F.3d 210, 220 (4th Cir.

2008).

The burden-shifting framework for proving a Batson violation is firmly established. First, the defendant must make a

prima facie showing that the government exercised a peremptory challenge on the basis of race. Second, once the defendant has made such a prima facie showing, the burden shifts

to the government to provide a non-discriminatory reason for

its use of the peremptory challenge. Third, the defendant next

34 UNITED STATES v. DINKINS
must establish that the government’s proffered reasons were

pretextual, and that the government engaged in intentional

discrimination. See United States v. Barnette, 644 F.3d 192,

203-04 (4th Cir. 2011) (citing Johnson v. California, 545 U.S.

162, 168 (2005) (other citations omitted)); Farrior, 535 F.3d

at 220-21 (same).

Here, we proceed directly to the second step of the Batson

analysis.17 The second step only requires that the government

provide a race-neutral reason for the exercise of its peremptory challenge. The government need not provide "an explanation that is persuasive, or even plausible," so long as

discriminatory intent is not inherent in the explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995). 

We consider four race-neutral reasons proffered by the government in support of its decision to strike prospective juror

Number 6.18 The government argues that it exercised its

peremptory challenge because: (1) prospective juror Number

6’s husband had been charged with assault; (2) she had two

friends who had been murdered; (3) her mother and father

used drugs during her "whole childhood"; and (4) she had

four children who were each between five and ten years of

age. 

We conclude that the above reasons are facially race17We assume, without deciding, that the defendants met their burden of

establishing a prima facie case of discrimination at step one, because the

government articulated the reasons for its peremptory challenge. See

United States v. McMillon, 14 F.3d 948, 952 (4th Cir. 1994) ("we will not

examine whether the defendant has met his burden in establishing a prima

facie case where the prosecutor articulates reasons for its strikes"). 

18We do not address whether prospective juror Number 6’s views on the

death penalty supported the government’s peremptory challenge, because

the government did not advance that justification on appeal. United States

v. Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011) (holding that the government abandoned arguments raised below by not presenting them in the

government’s appellate brief). 

UNITED STATES v. DINKINS 35
neutral and support the government’s exercise of this peremptory challenge. See e.g., United States v. Bynum, 3 F.3d 769,

772 (4th Cir. 1993) (relative’s drug use deemed race-neutral

explanation for peremptory strike); United States v. Hart, 544

F.3d 911, 915 (8th Cir. 2008) (prosecution of close family

member deemed race-neutral explanation); Greene v. Upton,

644 F.3d 1145, 1156 (11th Cir. 2011) (childcare considerations deemed race-neutral explanation). Therefore, the government satisfied its burden at the second step of the Batson

inquiry.

At the third step of this inquiry, the defendants must show

that the government’s proffered race-neutral reasons were

"merely pretextual," and that the government exercised the

particular peremptory challenge on the basis of race. McMillon, 14 F.3d at 953. If the purportedly race-neutral reason

offered by the government for striking an African-American

member of the venire applies equally to other members of the

venire who are otherwise similarly-situated, but who are not

African-American, that is evidence tending to prove purposeful discrimination. Miller-El v. Dretke, 545 U.S. 231, 241

(2005). The ultimate burden always rests with the party challenging the peremptory strike to prove purposeful discrimination, Farrior, 535 F.3d at 221 (citing Howard v. Moore, 131

F.3d 399, 407 (4th Cir. 1997) (en banc)), by comparative juror

analysis or by other proof. See Golphin v. Branker, 519 F.3d

168, 179-80 (4th Cir. 2008).

In this case, the defendants compare the voir dire and questionnaire responses of prospective juror Number 6 with those

of other venire members not challenged by the government,

as evidence that the government’s reasons for striking prospective juror Number 6 were pretextual. The defendants

repeatedly compare prospective juror Number 6 with prospective juror Number 190, a Caucasian female ultimately seated

on the jury. While we agree that prospective jurors Number

6 and Number 190 present the closest comparison for Batson

purposes, we conclude that the defendants have not estab36 UNITED STATES v. DINKINS
lished that the government engaged in purposeful discrimination. 

The government proffered that it struck prospective juror

Number 6 in part because she had four young children, all

between the ages of five and ten. During voir dire, prospective

juror Number 6 had expressed concern that she would have

trouble arranging for childcare, although she stated that "[i]t

would somehow be workable." The government argued that

it was entitled to consider the fact that serving on the jury

could pose a measure of hardship for prospective juror Number 6, and that childcare considerations could be a significant

distraction to her during the trial. In contrast, prospective

juror Number 190 had one son in his twenties, and the defendants have not identified another similarly-situated venire

member who expressed concerns about arranging care for

young children. 

Additionally, the government advanced another reason to

the district court to explain why prospective juror Number

190 was not similarly situated to prospective juror Number 6.

Prospective juror number 190 had been married for 25 years

to a deputy sheriff, and the government concluded on this

basis that prospective juror Number 190 was "going to be

much more favorable" to the government. 

The government was entitled to consider this employment

in determining who might be a favorable juror, irrespective

whether other factors distinguished one venire member from

another. Cf. Smulls v. Roper, 535 F.3d 853, 867 (8th Cir.

2008) (venire member’s occupation deemed race-neutral).

Further, we observe that although this consideration could

not, of itself, resolve conclusively whether the government

struck prospective juror Number 6 for race-neutral reasons,

that additional factor nonetheless is relevant as a race-neutral

comparative factor distinguishing the two prospective jurors.

See Golphin, 519 F.3d at 179-80. Based on this record, we

conclude that the defendants did not meet their burden at step

UNITED STATES v. DINKINS 37
three of the Batson inquiry to prove that the government

engaged in purposeful discrimination, or that the race-neutral

reasons offered by the government for striking prospective

juror Number 6 were pretextual. Accordingly, we hold that

the defendants have failed to show clear error in the district

court’s denial of their Batson challenge. 

VI.

Dinkins and Gilbert next argue that the district court erred

by admitting Dowery’s hearsay statements into evidence, in

violation of Rule 804(b)(6) of the Federal Rules of Evidence

and the Confrontation Clause. Dinkins and Gilbert also contend that under the holding of Giles v. California, 554 U.S.

353 (2008), the forfeiture-by-wrongdoing exception to the

hearsay rule was inapplicable because there was no proof that

Dowery was murdered to prevent him from testifying. 

In response, the government asserts that the evidence was

admissible under Rule 804(b)(6). Additionally, the government relies on the common law hearsay exception of

forfeiture-by-wrongdoing, the historical antecedent of Rule

804(b)(6), contending that admission of the challenged evidence did not violate the Confrontation Clause or run contrary

to the holding in Giles, because the defendants all engaged in,

or acquiesced in, intentional wrongdoing that accomplished

the goal of rendering Dowery unavailable as a witness. 

A.

The Dowery hearsay statements were highly relevant to the

government’s theory of the case. As stated above, at issue

here are three discrete sets of statements made by Dowery to

police officers before he was killed in 2006. Most of these

statements were made to Detective Baier, who investigated

the murder of James Wise, a drug dealer who had stolen narcotics and firearms in 2004 from members of Special before

he was killed. 

38 UNITED STATES v. DINKINS
The first challenged hearsay statements were Dowery’s

statements to Detective Baier concerning narcotics Dowery

purchased from Special group members operating in Bartlett.

Dowery had told Baier that Gilbert "ran the group," and that

Love, Parker, and McLean were Gilbert’s "lieutenants." Dowery also had identified several others who worked with Gilbert, including Dowery’s son, Cecil Dowery. In the second

challenged hearsay statement, Dowery had identified Dinkins

from a photo array as one of the men who had shot him. 

Dowery also had informed Detective Baier that he had

received a message from Gilbert, through Dowery’s son

Cecil. The message, which was the third challenged hearsay

statement presented at trial, was: "I know where you are at.

I know where you walk your girl to the bus stop. I can get you

out there. Don’t come around here." 

The government argued at trial that the above hearsay statements were admissible against the defendants based on Rule

804(b)(6) and the hearsay exception of forfeiture by wrongdoing. The district court admitted the statements through the testimony of Baltimore City Police Department Detective Gary

Niedermeier and Detective Baier. 

B.

We review the district court’s evidentiary rulings for abuse

of discretion, and the court’s legal conclusions regarding constitutional claims de novo. United States v. Abu Ali, 528 F.3d

210, 253 (4th Cir. 2008). The Confrontation Clause of the

Sixth Amendment provides 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. The

Confrontation Clause requires that an accused be given the

opportunity to confront any witness who gives testimony

against him, unless a well-established common law exception

would permit the admission of the evidence. See Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). The common law

UNITED STATES v. DINKINS 39
doctrine of forfeiture by wrongdoing is such an exception,

which allows testimonial statements to be admitted when the

defendant’s own misconduct caused the declarant to be

unavailable at trial. Davis v. Washington, 547 U.S. 813, 833

(2006).

In Reynolds v. United States, 98 U.S. 145 (1878), the

Supreme Court first addressed this exception, explaining that

while the Confrontation Clause provides a defendant the right

to be confronted with the witnesses against him, "if a witness

is absent by [the defendant’s] own wrongful procurement, he

cannot complain if competent evidence is admitted to supply

the place of that which he has kept away." Id. at 158. In

Davis, over a century later, the Supreme Court again emphasized that "one who obtains the absence of a witness by

wrongdoing forfeits the constitutional right to confrontation."

Davis, 547 U.S. at 833.

Rule 804(b)(6) of the Federal Rules of Evidence adopted

this well-established common law exception to the hearsay

rule. Davis, 547 U.S. at 833. Rule 804(b)(6) provides, in relevant part: 

The following are not excluded by the rule against

hearsay if the declarant is unavailable as a witness

. . . (6) Statement Offered Against a Party That

Wrongfully Caused the Declarant’s Unavailability.

A statement offered against a party that wrongfully

caused — or acquiesced in wrongfully causing —

the declarant’s unavailability as a witness, and did so

intending that result. 

Before applying the forfeiture-by-wrongdoing exception, a

trial court must find, by a preponderance of the evidence, that

"(1) the defendant engaged or acquiesced in wrongdoing (2)

that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable

as a witness." United States v. Gray, 405 F.3d 227, 241 (4th

40 UNITED STATES v. DINKINS
Cir. 2005). And, in Giles, the Supreme Court clarified that the

forfeiture-by-wrongdoing exception applies "only when the

defendant engaged in conduct designed to prevent the witness

from testifying." 554 U.S. at 359 (emphasis in original). 

The purpose of the forfeiture-by-wrongdoing exception is

to prevent "abhorrent behavior which strikes at the heart of

the system of justice itself." Fed. R. Evid. 804(b)(6) advisory

committee note (citation and internal quotation marks omitted). To effectuate this purpose, federal courts have broadly

construed the elements of the forfeiture-by-wrongdoing

exception. Gray, 405 F.3d at 241-42.

The Giles decision did not materially alter application of

the forfeiture-by-wrongdoing exception by requiring the government to prove that the defendant’s actions were undertaken

for the purpose of preventing the witness from testifying. See

id. 554 U.S. at 367-68. Instead, the plain language of Rule

804(b)(6) imposes this evidentiary requirement. Moreover, we

have upheld the admission of evidence under a theory of forfeiture by wrongdoing only when the government has shown

by a preponderance of the evidence that the defendant’s

wrongdoing "was intended to render the declarant unavailable

as a witness." Gray, 405 F.3d at 241. Therefore, we continue

to apply our precedent on the doctrine of forfeiture by wrongdoing, as reaffirmed by the Supreme Court’s decision in

Giles. 

C.

We turn to address Dinkins’ contention that the forfeitureby-wrongdoing exception did not apply to Dowery’s statements regarding Dinkins’ acts, because Dinkins did not participate in any wrongdoing that caused Dowery’s death.

Dinkins argues that by the time that Dowery was killed in

November 2006, Dinkins had been in jail for about a year,

and no evidence was presented to show that he participated in

the murder. 

UNITED STATES v. DINKINS 41
The government, however, argues that the statements were

admissible under principles of conspiratorial liability articulated in Pinkerton v. United States, 328 U.S. 640 (1946). The

government contends that the fact Dinkins was incarcerated

when his co-conspirators in Special successfully eliminated

Dowery as a witness, a task Dinkins initiated when he originally shot Dowery in 2005, did not entitle Dinkins to escape

responsibility for Dinkins’ acts of attempting to prevent Dowery from testifying. 

We have not yet considered the question whether hearsay

statements may be admitted under the forfeiture-bywrongdoing exception pursuant to a conspiracy theory of liability, when a defendant’s co-conspirators engaged in the

wrongdoing that ultimately rendered the declarant unavailable

as a witness. We now conclude that traditional principles of

conspiracy liability are applicable within the forfeiture-bywrongdoing analysis. 

The principles of conspiratorial liability articulated in Pinkerton provide that a person is "liable for substantive offenses

committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy."

United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010).

Thus, Pinkerton liability encompasses a person who, while

not directly committing an offense, has "participat[ed] in a

conspiracy that leads a confederate to engage in that conduct."

Ashley, 606 F.3d at 143. The principle underlying the Pinkerton doctrine is that "conspirators are each other’s agents; and

a principal is bound by the acts of his agents within the scope

of the agency." United States v. Aramony, 88 F.3d 1369, 1379

(4th Cir. 1996) (quoting United States v. Manzella, 791 F.2d

1263, 1267 (7th Cir. 1986)).

The language of Rule 804(b)(6) supports the application of

Pinkerton principles of conspiratorial liability in the

forfeiture-by-wrongdoing context, by requiring that the defendant either have "wrongfully caused — or acquiesced in

42 UNITED STATES v. DINKINS
wrongfully causing — the declarant’s unavailability." Fed. R.

Evid. 804(b)(6) (emphasis added). The term "acquiesce,"

within the meaning of Rule 804(b)(6), encompasses wrongdoing that, while not directly caused by a defendant coconspirator, is nevertheless attributable to that defendant

because he accepted or tacitly approved the wrongdoing. See

United States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002)

(in the context of Rule 804(b)(6), defining "acquiesce" as "to

accept or comply tacitly or passively," and noting that "acquiescence itself is an act" that can result in application of the

forfeiture-by-wrongdoing exception). 

Our conclusion is supported by decisions of our sister circuits applying principles of conspiratorial liability in this context. We relied on the Tenth Circuit’s decision in United

States v. Cherry in our decision in Gray. We cited the holding

in Cherry that a "declarant’s statements may be admitted

against a person who participated in a conspiracy to silence

the declarant even if that person did not himself engage in

witness intimidation or other wrongdoing." Gray, 405 F.3d at

242 (citing Cherry, 217 F.3d 811, 820 (10th Cir. 2000)). 

In Cherry, the court reasoned that the balancing of a defendant’s rights under the Confrontation Clause against the interest of courts in preventing witness tampering warranted

application of Pinkerton principles in the forfeiture-bywrongdoing context. The court explained:

Failure to consider Pinkerton conspiratorial responsibility affords too much weight to Confrontation

Clause values in balancing those values against the

importance of preventing witness tampering. By recognizing the applicability of agency concepts and

permitting admission of the testimony of an unavailable witness against a co-conspirator involved in, but

not necessarily responsible for, procuring that witness’s unavailability, a Pinkerton theory strikes a

UNITED STATES v. DINKINS 43
better balance between the conflicting principles at

stake.

217 F.3d at 820 (internal citations omitted).

We are persuaded by this reasoning that application of principles of conspiratorial liability in the forfeiture-bywrongdoing context strikes the appropriate balance between

the competing interests involved. See Thompson, 286 F.3d at

963-64 (adopting the Cherry analysis). Mere participation in

a conspiracy will not trigger the admission of testimonial

statements under a forfeiture-by-wrongdoing theory. Instead,

a defendant in such circumstances would only waive his Confrontation Clause rights when (1) the defendant participated

directly in planning or procuring the declarant’s unavailability

through wrongdoing; or (2) the wrongful procurement was in

furtherance, within the scope, and reasonably foreseeable as

a necessary or natural consequence of an ongoing conspiracy.

Cherry, 217 F.3d at 820. While we think that proper application of Pinkerton liability standards in the forfeiture-bywrongdoing context generally will be coextensive with the

scope of forfeiture by wrongdoing as articulated in Giles, a

court’s decision under the second prong in Cherry must be

supported by evidence that the defendant "engaged in conduct

designed to prevent the witness from testifying." Giles, 554

U.S. at 359 (emphasis in original).

In the present case, the evidence showed that the murder of

Dowery in November 2006 was in furtherance, within the

scope, and reasonably foreseeable as a natural consequence of

an ongoing conspiracy of which Dinkins was a member. The

allegation that Dinkins, Gilbert, and Goods were members of

Special, a narcotics trafficking organization in Baltimore, was

well supported by the record. 

Dowery was a government informant who had testified

against Parker and Love, who were also members of Special,

at their trial on charges of murdering Wise. Because Dowery

44 UNITED STATES v. DINKINS
had substantial knowledge about the operations of Special,

which he was willing to provide to law enforcement officers,

he posed a continuing liability to members of Special. Also,

the evidence showed that it was common knowledge that

Dowery was a government informant, and that Dinkins and

other members of Special "targeted" government informants.

Included in this evidence was the fact that Dinkins killed Jemmison because he was cooperating in a government investigation. 

After Dowery provided various information to law enforcement officers, Dinkins and co-conspirator Damien West

attempted to murder Dowery in October 2005, and succeeded

in shooting him several times. When Dinkins learned that

Dowery had not died as a result of his wounds, Dinkins stated

that he and West had "to go to the hospital to finish him off."

These actions substantiate the ongoing nature of Special’s

scheme to murder Dowery. 

Although Dinkins was incarcerated shortly after the murder

attempt, threats of violence against Dowery continued to be

made by members of Special. Gilbert, the leader of Special,

was able to communicate a threat to Dowery even after he and

his family were relocated for their safety. Finally, evidence

showed that Gilbert and Goods shot Dowery, in what can only

be considered a targeted killing, immediately upon Dowery’s

return to the Bartlett area in November 2006. 

Dowery’s murder certainly was reasonably foreseeable to

Dinkins, in view of the fact that he and co-conspirator West

nearly had succeeded in murdering Dowery the year before,

and had manifested the intent to "finish the job." And, in view

of other evidence in the record establishing a pattern of intimidation and violence with respect to government informants

by members of Special, we consider that Dowery’s ultimate

murder was a natural consequence of the ongoing conspiracy.

See Cherry, 217 F.3d at 820. Lastly, the record is clear that

Dinkins’ acts of wrongdoing, as well as those of his coUNITED STATES v. DINKINS 45
conspirators, were intended to prevent, and in fact did prevent, Dowery from testifying. See Giles, 554 U.S. at 359.

Therefore, we conclude that the district court properly admitted the Dowery hearsay statements against Dinkins under the

forfeiture-by-wrongdoing exception to the Confrontation

Clause pursuant to Pinkerton principles of conspiratorial liability. See Fed. R. Evid. 804(b)(6); Cherry, 217 F.3d at 820-

821.

D.

We also reject Gilbert’s challenge to the admission of certain Dowery hearsay statements against Gilbert, namely,

Dowery’s discussion of the structure and operations of Special, and the threat conveyed by Gilbert to Dowery through

Dowery’s son Cecil.19 On appeal, Gilbert contends that the

circumstances of Dowery’s death "support[ ] the reasonable

possibility that his demise was due to a desire by many others

in this crime-ridden neighborhood to harm persons known" to

be government informants. However, as we already have

observed, the record is clear that Gilbert and his coconspirators engaged in acts of wrongdoing by shooting Dowery on two occasions to prevent Dowery from testifying,

because he was a "snitch." The record also is clear that Gilbert

and Goods shot and killed Dowery on Thanksgiving Day in

2006, finally succeeding in the prolonged effort to render him

unavailable as a witness. Therefore, the record is more than

adequate to uphold the district court’s admission of Dowery

hearsay statements against Gilbert under the forfeiture-bywrongdoing exception to the Confrontation Clause. See Fed.

R. Evid. 804(b)(6); Gray, 405 F.3d at 241. 

19Goods does not separately challenge the introduction of Dowery hearsay statements in the defendants’ briefs to this Court, and, in fact, Goods

argued in favor of the admission of such evidence before the district court.

Therefore, Goods has waived any challenge to the admission of the Dowery hearsay statements. Even if Goods did preserve this argument for

appeal, it would fail for the same reasons we reject Gilbert’s challenge to

the Dowery hearsay statements. 

46 UNITED STATES v. DINKINS
VII.

Finally, Goods argues that the district court erred in denying his Rule 29 motion for judgment of acquittal on his counts

of conviction.20 Goods contends that the weight of the evidence introduced at trial showed that Gilbert, the first shooter,

instantly killed Dowery when Gilbert fired three shots at

Dowery’s head. Goods argues that even if the government had

proved that he was the second shooter, the government did

not prove that he murdered Dowery because the evidence

failed to establish that Dowery was alive when Goods fired

the shots. We disagree, because Goods’ argument is not supported by the present record. 

We review de novo the denial of a Rule 29 motion for judgment of acquittal. United States v. Penniegraft, 641 F.3d 566,

571 (4th Cir. 2011). When we review the sufficiency of the

evidence after a conviction, we consider the evidence and all

reasonable inferences drawn from the evidence in the light

most favorable to the government. United States v. Lomax,

293 F.3d 701, 705 (4th Cir. 2002). We will sustain the jury

verdict if "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Penniegraft, 641 F.3d at 571-72 (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)) (emphasis in Jackson). In our

review of a Rule 29 motion, we remain cognizant that it is the

jury’s province to weigh the credibility of the witnesses, and

to resolve any conflicts in the evidence. United States v.

Alerre, 430 F.3d 681, 693 (4th Cir. 2005).

20As previously stated, Goods was convicted of several counts related

to the murder of Dowery: murder with intent to prevent the attendance and

testimony of a person in an official proceeding, and to prevent the communication of information regarding a federal offense to law enforcement;

use of a firearm in furtherance of a drug-trafficking crime; and willfully

causing the death of a person by using a firearm in furtherance of a drugtrafficking crime. 

UNITED STATES v. DINKINS 47
At trial, Anthony Parker testified that he was working as a

bartender at Kozy Korner on November 23, 2006, which was

Thanksgiving Day. Parker testified that at about 9:00 p.m.,

only he, his daughter Tonielle Parker, and Dowery, who was

Tonielle’s boyfriend, were inside the bar. Dowery and Tonielle sat on barstools one seat apart from each other. 

Parker testified that a man wearing a hood pulled tightly

around his face entered the bar, shot Dowery in the head three

times, and departed. Parker testified that when he attempted

to close the door behind the shooter seconds later, another

person entered the bar and shot Dowery in the head three

more times. The second shooter also wore a hood that was

pulled tightly around his face. Parker testified that when he

saw Dowery, "it looked like he was dead," but Parker did not

state whether he reached this conclusion before or after the

second person shot Dowery. 

Randy McLean, a member of Special, testified that on

Thanksgiving Day in 2006, he was at his grandmother’s house

across the street from Kozy Korner. McLean stated that he

spent a significant portion of Thanksgiving Day with Gilbert

and Goods, and that he ate dinner with Gilbert. As a result,

McLean stated that he "knew" the clothes worn by Gilbert and

Goods that day. 

McLean testified that on Thanksgiving evening, from his

grandmother’s house, he saw Goods standing outside Kozy

Korner wearing a familiar "hoodie." McLean soon observed

Gilbert, who also was wearing a familiar hoodie, run into the

bar. McLean heard gunshots, saw Gilbert run out of Kozy

Korner and, immediately thereafter, observed Goods enter the

bar. McLean heard more shots being fired inside the bar, after

which he saw Goods run out of the bar. 

The government also introduced expert testimony from Dr.

Donna M. Vincenti, a medical examiner employed by the

48 UNITED STATES v. DINKINS
Maryland Office of the Chief Medical Examiner.21 Dr. Vincenti testified that Dowery had been shot six times, and that

he died as a result of "[m]ultiple gunshot wounds." According

to Dr. Vincenti, two of the gunshot wounds, one to Dowery’s

head and the other to his neck and spinal cord, had a possibility of being "rapidly fatal." Dr. Vincenti testified that the

other four gunshot wounds, which struck or grazed Dowery’s

skull, back, and neck, were not likely to have been "rapidly

fatal." Dr. Vincenti was careful to clarify, however, that

"when I say not rapidly fatal, that doesn’t mean that a wound

in and of itself wouldn’t be fatal, [it] just probably wouldn’t

be within second[s] or minutes." 

Based on this record, we conclude that the government

presented substantial evidence that Gilbert and Goods shot

Dowery a total of six times, and that Dowery died as a result

of those wounds. A rational trier of fact could have found that

the shots fired by Goods, in connection with the shots previously fired by Gilbert, jointly caused Dowery’s death. Evidence was presented that Gilbert and Goods shot Dowery in

rapid succession, within "seconds" of each other. While Dr.

Vincenti testified that one of Dowery’s head wounds likely

was "rapidly fatal," Parker testified that he had witnessed both

Gilbert and Goods fire shots at Dowery’s head. Significantly,

the evidence presented did not show that any individual

wound that likely caused Dowery’s immediate death was

traceable to either Gilbert or Goods. In sum, Goods’ argument

is not supported by the record, because a rational finder of

fact would be entitled to base a verdict on substantial evidence that Dowery died as a result of multiple gunshot

wounds inflicted by Gilbert and Goods.

21Dr. Vincenti did not perform the post-mortem examination of Dowery, which was conducted by Dr. Tasha Greenberg. However, Dr. Vincenti

reviewed the post mortem examination materials, and was accepted by the

district court without objection as being qualified to offer expert testimony

on this issue. 

UNITED STATES v. DINKINS 49
VIII.

In conclusion, we hold that the district court did not abuse

its discretion by empaneling an anonymous jury. The district

court’s finding that anonymity was necessary to protect the

venire members and the jurors was supported amply by the

record. The district court also took reasonable measures to

safeguard the defendants’ rights in light of this protective

measure. Also, the challenged hearsay statements of John

Dowery properly were admitted under the forfeiture-bywrongdoing exception to the hearsay rule and the Confrontation Clause. After due consideration, we reject the defendants’

other asserted grounds for appeal. Accordingly, we affirm the

district court’s judgment. 

AFFIRMED

50 UNITED STATES v. DINKINS