PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-5126 JOSEPH EDMUND WILLIAMS, a/k/a

Abdullah Shabazz, a/k/a Taharqa

Abdullah Shabazz,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-04-160)

Argued: February 3, 2006

Decided: April 18, 2006

Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Traxler wrote the opinion, in which Judge Gregory and Judge

Duncan joined. 

COUNSEL

ARGUED: Geremy Charles Kamens, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Alexandria, Virginia, for Appellant. Patrick F. Stokes, Assistant

United States Attorney, Erik Russell Barnett, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr.,

Federal Public Defender, Meghan S. Skelton, Assistant Federal Public

Defender, Alexandria, Virginia, for Appellant. Paul J. McNulty,

United States Attorney, Alexandria, Virginia, for Appellee. 

OPINION

TRAXLER, Circuit Judge: 

Joseph Williams, who had previously been convicted of a felony,

was convicted of unlawful possession of a firearm and ammunition.

See 18 U.S.C.A. § 922(g)(1) (West 2000). Over Williams’s objection,

the district court permitted the government to prove Williams’s possession of a weapon through evidence linking Williams to the killing

of Gail Collins. Because of the then-uncertain status of the Sentencing

Guidelines,1 the district court submitted additional questions to the

jury after it returned the guilty verdict. The jury answered the questions and determined that the government had proven beyond a reasonable doubt that Williams killed Collins. Based on this factual

finding, the district court at sentencing cross-referenced the guideline

governing first-degree murder and imposed the life sentence required

by the Sentencing Guidelines. See U.S.S.G. § 2K2.1(c)(1)(B). 

Williams appeals, challenging his conviction and sentence. We

affirm Williams’s conviction, but we vacate his sentence and remand

for re-sentencing. 

I.

Viewed in the light most favorable to the government, the evidence

presented at trial established the following. Gail Collins was a conscientious employee of the United States Treasury Department who

lived in Alexandria, Virginia. She was at work on March 11, 2003,

1Williams’s trial took place in September 2004, after the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), but

before its decision in United States v. Booker, 543 U.S. 220 (2005). 

2 UNITED STATES v. WILLIAMS
and indicated to co-workers that she would be at work for the rest of

the week. Collins did not show up for work after March 11, nor did

she call to say that she would be absent. Friends and family eventually began worrying and contacted police on March 21, 2003. Police

entered Collins’s apartment that day and found her body in the bedroom. She had been shot through the head execution-style, while she

was kneeling and the killer was standing over her. The bullet went

through her head, out through her cheek, and lodged in her shoulder.

Collins’s car keys, ATM card, and check register were missing, but

nothing else in the apartment appeared to be disturbed, and there were

no signs of forced entry. Records from the electronically operated

front door of her apartment building showed that Collins entered the

building on the night of March 11, but the records did not show that

she entered the building after that. 

Bank records revealed that Collins’s ATM card had been used multiple times in the early morning hours of March 12. Between 2:00 and

2:30 a.m., $580 dollars in $20 bills had been withdrawn over the

course of nine transactions. Those withdrawals caused Collins’s

account to be overdrawn for the first time since she opened it. There

were other unsuccessful attempts to withdraw money a few hours

later. During one of these unsuccessful attempts, an ATM camera

took a picture of a woman identified by police officers as Kathleen

Simmons, a crack addict and prostitute. 

Simmons told police that on the night of March 11, she was standing on the street after missing the last bus, hoping that someone

would give her a ride. Williams (whom she did not know before that

evening) drove by and asked her if she knew where he could get some

crack. She told him she did and hopped in his car. He drove her back

to his apartment to smoke the little bit of crack that he had. Williams

lived in the same apartment building as Collins; his apartment was on

the 15th floor and hers was on the 11th floor. On the way up to his

apartment, Williams paused the elevator on one of the floors below

his floor, stepped out of the elevator, and looked up and down the

hall. 

After Williams and Simmons smoked Williams’s crack, they got

back in his car and he drove to a nearby ATM. He gave Simmons an

ATM card and a PIN number and asked her to withdraw $400. The

UNITED STATES v. WILLIAMS 3
ATM card belonged to Collins. When Simmons asked about the

woman’s name on the card, Williams said the card belonged to a

friend and that they were breaking up. Simmons tried to withdraw

money, but she was unsuccessful, because the account had already

been overdrawn. Simmons got back in Williams’s car and told him

that she could not get any money. Simmons then directed Williams

to a housing project in the District of Columbia where they could buy

crack. Williams gave Simmons $120 or $140 in crisp $20 bills, and

she returned with 15 "dime" bags of crack cocaine. They returned to

Williams’s apartment to smoke the crack. As Williams was getting

out of the car, Simmons saw him reach under his seat and retrieve an

object that he put inside his pants. On the way up to his apartment,

Williams again stopped the elevator on a lower floor, got out, looked

up and down the hall, and then got back inside the elevator. Once on

the 15th floor, Williams went into a trash room, where Simmons saw

him take a gun from inside his waistband and place it on top of the

air-conditioning duct. He removed ammunition from his pocket once

they were inside the apartment. 

After Williams and Simmons smoked the crack they had bought,

Williams left for work, but he returned about an hour later. He gathered up CDs, which he and Simmons sold at a music store for about

$100. Williams and Simmons then bought more crack, which they

smoked at his apartment. After the drugs were gone, Williams took

Simmons to her friend’s house. Simmons never saw Williams again.

Simmons was the government’s star witness at trial, and she testified to the facts outlined above. The defense, however, had several

grounds upon which to impeach Simmons’s credibility. First, Simmons was an admitted drug addict and prostitute. In addition, she had

been shot in the head and was left with brain damage, had auditory

and visual hallucinations, and took multiple psychiatric medications.

Nonetheless, much of Simmons’s story was corroborated. The manager of the music store recognized Simmons as having sold CDs with

Williams, and the superintendent of Williams’s apartment building

saw Simmons in the building with Williams on the morning of March

12. And while there was no evidence indicating that Simmons knew

Collins, the government presented evidence showing that Williams

knew Collins. Williams had helped Collins out from time to time, and

4 UNITED STATES v. WILLIAMS
Williams brought Collins with him to his niece’s house on one occasion. 

The government also presented evidence that suggested a motive

for the killing. In the months before Collins was killed, Williams’s

drug addiction appeared to be spiraling out of control. Williams was

buying hundreds of dollars worth of crack every other day from Keith

Bartee and staying up until the wee hours of the morning smoking the

crack with Bartee and Bartee’s girlfriend. Williams was having severe

money problems around this same time. He quit making car payments

in November 2002, stopped paying rent in January 2003, and was

officially evicted in late March 2003. He cashed out vacation time at

work, asked friends and family for money, stole money from his bank

by making ATM withdrawals after making phony ATM deposits, and

stole a check from a friend, forging her signature and making it payable to him in the amount of $4,000. Williams had also been getting

money from Collins. About a week or so before she died, Collins told

her mother and her niece that she was not going to give Williams any

more money. 

In the weeks after Collins’s body was discovered, Williams made

statements that could be viewed as evidence of his guilt. After being

interviewed by the police, Williams’s niece asked him if he had killed

Collins. Williams told her that it was "none of [her] concern," J.A.

833, and that what she "[did]n’t know wouldn’t hurt" her. J.A. 852.

In addition, Keith Bartee, Williams’s main drug supplier, became

concerned about Williams’s strange and paranoid behavior. Bartee

asked Williams if he had killed someone, and Williams remained

silent. 

Although the weapon used to kill Collins was never found, Williams was charged with unlawful possession of a firearm and ammunition by a felon and user of illegal drugs. See 18 U.S.C.A.

§§ 922(g)(1) & (3). The jury found Williams guilty. 

Collins was murdered in March 2003, and the case was headed for

trial in the summer of 2004. Before the case went to trial, the

Supreme Court issued its opinion in Blakely v. Washington, 542 U.S.

296 (2004). The government, to protect its ability to sentence Williams based on his involvement in Collins’s murder, obtained a superUNITED STATES v. WILLIAMS 5
seding indictment that included allegations about the murder, and the

district court announced its intention to submit sentencing issues to

the jury. Before the trial started, however, this court issued its opinion

in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc),2

which concluded that Blakely did not apply to proceedings under the

Sentencing Guidelines. See id. at 349-50. Notwithstanding Hammoud,

the district court proceeded with its plan to submit sentencing factors

to the jury. Accordingly, immediately after the jury returned the guilty

verdict, the court sent the jurors back to answer several special interrogatories related to sentencing. The jury answered these interrogatories and concluded that the government had proved beyond a

reasonable doubt that Williams killed Collins, that he killed her with

malice, that the killing was premeditated and deliberate, and that he

killed her during the commission of or an attempt to commit robbery.

Sentencing for felon-in-possession charges is governed by section

2K2.1 of the Sentencing Guidelines. Section 2K2.1 provides that if

the defendant used or possessed any firearm in connection with

another offense that resulted in death, the most analogous guideline

for homicides should be applied, if application of the homicide guideline yields a higher offense level. See U.S.S.G. § 2K2.1(c)(1)(B). In

light of the jury’s answers to the special interrogatories, the most

analogous guideline was U.S.S.G. § 2A1.1, governing first-degree

murder. The offense level under § 2A1.1 is 43, which carries with it

a mandatory life sentence regardless of the criminal history category.

Accordingly, the district court sentenced Williams to life, noting more

than once during the sentencing proceeding that the sentence was

required by the Guidelines. The district court did not announce an

alternative sentence that it would have imposed had the Guidelines

not been mandatory. 

II.

In this appeal, Williams first contends that the district court erred

by permitting the government to present evidence of Collins’s murder. According to Williams, the evidence was unfairly prejudicial and

2After deciding Booker, the Supreme Court vacated Hammoud. See

Hammoud v. United States, 543 U.S. 1097 (2005). 

6 UNITED STATES v. WILLIAMS
should have been excluded under Rule 403 of the Federal Rules of

Evidence. We disagree. 

Rule 403 provides that "[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. There is no

doubt that the evidence of the Collins murder was prejudicial to Williams, just as all evidence suggesting guilt is prejudicial to a defendant. However, "[t]he mere fact that the evidence will damage the

defendant’s case is not enough—the evidence must be unfairly prejudicial, and the unfair prejudice must substantially outweigh the probative value of the evidence." United States v. Hammoud, 381 F.3d 316,

341 (4th Cir. 2004) (en banc) (internal quotation marks omitted),

vacated on other grounds, 543 U.S. 1097 (2005). Evidence is unfairly

prejudicial and thus should be excluded under Rule 403 "when there

is a genuine risk that the emotions of a jury will be excited to irrational behavior, and . . . this risk is disproportionate to the probative

value of the offered evidence." United States v. Aramony, 88 F.3d

1369, 1378 (4th Cir. 1996) (internal quotation marks omitted). 

This court has upheld over a Rule 403 objection the use of evidence of a shooting in order to prove weapons charges made against

the defendant. For example, in United States v. Grimmond, 137 F.3d

823 (4th Cir. 1998), we rejected an argument that Rule 403 barred

introduction of evidence of two shootings (one fatal) in a case where

the defendant was charged with multiple counts of drug and weapons

possession. The defendant shot and killed the first of his victims

because the victim had been "giving him looks that made him feel

unsafe," id. at 826, and then shot the second victim because he knew

too much about the first shooting. Id. We noted that the evidence of

the shootings directly established one of the elements of the § 922(g)

charge—possession of a firearm—and thus was highly probative. As

to the question of unfair prejudice, we stated:

Perhaps Grimmond’s case was damaged when the jury

heard evidence that he shot two individuals. However, damage to a defendant’s case is not a basis for excluding probative evidence. And for good reason. Evidence that is highly

UNITED STATES v. WILLIAMS 7
probative invariably will be prejudicial to the defense. It is

worth remembering that the touchstone for excluding evidence under Rule 403 is not prejudice, but "unfair" prejudice. Moreover, unfair prejudice must "substantially"

outweigh the probative value of the evidence. We have no

difficulty in concluding that it was not unfairly prejudicial

for the Government to introduce evidence that Grimmond

shot Feaster and Kinney. 

Id. at 833 (citations omitted). 

Similarly, in United States v. Myers, 280 F.3d 407 (4th Cir. 2002),

we found no error in the admission in a trial on drug and weapons

charges evidence that the defendant killed a drug customer:

The district court did not abuse its discretion [by admitting evidence of the murder]. Given the testimony of the

state police firearms expert that Myers’ firearm was the one

used to kill Shilot, the court correctly found that evidence

regarding the shooting of Shilot had substantial probative

value. It was directly relevant to whether Myers was a felon

in possession of a firearm . . ., whether he possessed and

used a firearm in furtherance of drug trafficking. . ., and

whether he knowingly possessed a firearm with an obliterated serial number. . . . 

In addition, the district court did not abuse its discretion

in determining that the probative value of the shooting was

not "substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. This evidence was certainly damaging to Myers and possibly prejudicial as well. But it was

not unfairly prejudicial. 

Id. at 413-14; see also United States v. Higgs, 353 F.3d 281, 311-12

(4th Cir. 2003) (in murder case where no gun was recovered, finding

evidence of earlier uncharged shooting to be admissible because bullets in uncharged shooting matched bullets recovered from the murder

victims); United States v. Melton, 970 F.2d 1328, 1336 (4th Cir.

1992) (affirming district court’s decision to admit evidence that the

defendant charged with drug-related offenses killed an informant). 

8 UNITED STATES v. WILLIAMS
Williams, however, contends that these cases are distinguishable

because the evidence in them more clearly and directly tied the defendants to the shootings. Williams contends that the evidence connecting him to the Collins murder is purely circumstantial and too

speculative to justify its admission, because this court has countenanced the admission of evidence of an uncharged murder only when

the evidence linking the defendant to the murder is overwhelming.

We disagree. 

Preliminarily, we note that while some (but certainly not all) of the

evidence connecting Williams to Collins’s murder may be circumstantial, circumstantial evidence is not inherently less valuable or less

probative than direct evidence. See Holland v. United States, 348 U.S.

121, 140 (1954) ("Circumstantial evidence . . . is intrinsically no different from testimonial evidence."); United States v. Espaillet, 380

F.3d 713, 719 (2d Cir. 2004) (explaining that circumstantial evidence

"is of no less intrinsic worth than direct evidence and, indeed, circumstantial evidence alone may support a guilty verdict"). Thus, the presence of circumstantial evidence provides no basis to distinguish this

case from the cases where similar evidence was admitted. 

More importantly, however, there is simply no basis in the language of Rule 403 or our cases applying Rule 403 that would permit

a heightened standard to be applied when the evidence sought to be

excluded involves an uncharged murder. Nor does the rule operate

differently when the evidence sought to be excluded is circumstantial

rather than direct. To be sure, both factors—that the evidence is circumstantial and involves an uncharged murder—will be included in

the Rule 403 calculus of determining whether the probative value of

the evidence is substantially outweighed by the danger of unfair prejudice. Thus, in a case where the evidence sought to be excluded is circumstantial evidence that is only weakly probative of a minor point,

a defendant might have an easier time convincing the district court

that the danger of unfair prejudice substantially outweighs the minimal probative value of the evidence. Similarly, the danger of unfair

prejudice is more likely to be present in a case where the challenged

evidence is a type that is highly likely to inflame the passions of the

jurors, and the district court will consider the increased likelihood of

unfair prejudice when determining whether the evidence should be

admitted. Nonetheless, the Rule 403 inquiry—determining whether

UNITED STATES v. WILLIAMS 9
the danger of unfair prejudice substantially outweighs the probative

value of the evidence—remains the same in all cases, regardless of

the nature or type of the challenged evidence. 

While Williams suggests that the district court erred as a matter of

law in admitting the evidence of the Collins murder because the evidence connecting him to the murder was not overwhelming, what

Williams is really arguing is that the district court incorrectly struck

the Rule 403 balance. The weighing of the evidence and balancing of

the Rule 403 scale, however, is a discretionary task vested with the

district court. "Because the evidence sought to be excluded under

Rule 403 is concededly probative, the balance under Rule 403 should

be struck in favor of admissibility, and evidence should be excluded

only sparingly." Aramony, 88 F.3d at 1378. A district court’s decision

to admit evidence over a Rule 403 objection will not be overturned

"except under the most extraordinary of circumstances, where that

discretion has been plainly abused." United States v. Simpson, 910

F.2d 154, 157 (4th Cir. 1990) (internal quotation marks omitted).

"Such an abuse occurs only when it can be said that the trial court

acted arbitrarily or irrationally in admitting evidence." Id. (internal

quotation marks omitted). 

In this case, we simply cannot conclude that the district court acted

irrationally or arbitrarily when determining that the probative value of

the Collins evidence was not substantially outweighed by the danger

of unfair prejudice. The evidence surrounding Collins’s murder was

clearly relevant to the § 922(g) charges. A determination that Williams shot Collins obviously would demonstrate that Williams possessed a firearm, and the evidence of the Collins murder would also

establish that the firearm that Williams possessed was operable and

thus satisfied the statutory definition of "firearm." See 18 U.S.C.A.

§ 921(a)(3) (West 2000) ("The term ‘firearm’ means (A) any weapon

(including a starter gun) which will or is designed to or may readily

be converted to expel a projectile by the action of an explosive; (B)

the frame or receiver of any such weapon; (C) any firearm muffler or

firearm silencer; or (D) any destructive device. Such term does not

include an antique firearm.").3 A firearms expert testified that the bul3Although § 921(a)(3) does not require that the firearm be operable

when the defendant possessed it, see United States v. Adams, 137 F.3d

1298, 1300 (11th Cir. 1998) (per curiam); United States v. Willis, 992

F.2d 489, 491 n.2 (4th Cir. 1993), an operable firearm certainly meets the

statutory definition. 

10 UNITED STATES v. WILLIAMS
let recovered from Collins was not manufactured in Virginia and that

none of the guns that the bullet fit were manufactured in Virginia, testimony which established the interstate commerce requirement of section 922(g). The evidence was thus highly probative of the charges

against Williams. And contrary to Williams’s contention, the presence

of some circumstantial evidence did not render the evidence speculative or otherwise reduce its probative value. 

The evidence presented by the government directly and quite compellingly tied Williams to the murder of Gail Collins. The government

established through direct evidence (the testimony of Williams’s

niece and Collins’s mother and niece) that Williams knew Collins,

that Williams had received money from Collins, and that shortly

before her death Collins had declared that she would not give any

more money to Williams. The government presented direct evidence

establishing that Williams had a serious and very expensive drug

habit, as well as evidence of Williams’s mounting financial problems.

The government tied its evidence together with direct evidence (the

testimony of Kathleen Simmons) that Williams had Collins’s ATM

card and PIN number in the early morning hours after the last night

that Collins was known to be alive and very strong circumstantial evidence pointing to Williams as Gail Collins’s murderer. For example,

the government’s circumstantial evidence showed that on the night

Williams had Collins’s ATM card and PIN number, multiple earlymorning ATM transactions ended up overdrawing Collins’s checking

account for the first time since she opened the account and that Williams behaved very strangely in the apartment building the night that

he gave Collins’s ATM card to Simmons, stopping the elevator on a

floor below his apartment and stepping out to look up and down the

hallway. 

To be sure, the evidence of the Collins murder was prejudicial to

Williams, as is all evidence tending to show a defendant’s guilt. See

Grimmond, 137 F.3d at 833 ("Evidence that is highly probative

invariably will be prejudicial to the defense."). Whether or not the

evidence overwhelmingly linked Williams to Collins’s murder, it was

strong evidence of Williams’s involvement in the murder. And while

evidence of an uncharged murder certainly carries with it some risk

that it will incite the emotions of the jurors, the evidence was also

highly probative of the weapons-possession charge against Williams,

UNITED STATES v. WILLIAMS 11
and the district court instructed the jury to consider the evidence only

for the limited purpose of showing that Williams had possessed a firearm in violation of § 922(g). Under these circumstances, we cannot

say that the district court acted arbitrarily or irrationally when concluding that the risk of unfair prejudice did not substantially outweigh

the probative value of the evidence. See Aramony, 88 F.3d at 1378;

see also Grimmond, 137 F.3d at 833; Myers, 280 F.3d 413-14; Higgs,

353 F.3d at 311-12. 

III.

Williams also contends that the district court erred by refusing to

strike from the indictment allegations about the Collins murder. See

Fed. R. Crim. P. 7(c)(1) ("The indictment or information must be a

plain, concise, and definite written statement of the essential facts

constituting the offense charged and must be signed by an attorney for

the government."); Fed. R. Crim. P. 7(d) ("Upon the defendant’s

motion, the court may strike surplusage from the indictment or information."). Williams argues that including the allegations in the indictment might have been proper after Blakely, but that they were

improper after the opinions in Hammoud and Booker were issued,

because those cases made it clear that the jury had no role in the sentencing process.

"The purpose of Rule 7(d) is to protect a defendant against prejudicial allegations that are neither relevant nor material to the charges

made in an indictment, or not essential to the charge, or unnecessary,

or inflammatory." United States v. Poore, 594 F.2d 39, 41 (4th Cir.

1979) (citations omitted). A district court’s ruling on a motion to

strike is reviewed for abuse of discretion. Id.

"[A] motion to strike surplusage from the indictment should be

granted only if it is clear that the allegations are not relevant to the

charge and are inflammatory and prejudicial." United States v. Rezaq,

134 F.3d 1121, 1134 (D.C. Cir. 1998) (internal alteration and quotations marks omitted); see also United States v. Hedgepeth, 434 F.3d

609, 612 (3d Cir. 2006) ("[I]nformation that is prejudicial, yet relevant to the indictment, must be included for any future conviction to

stand and information that is irrelevant need not be struck if there is

no evidence that the defendant was prejudiced by its inclusion.").

12 UNITED STATES v. WILLIAMS
Given our conclusion that the evidence of the Collins murder was not

unfairly prejudicial, we fail to see how Williams could have been

prejudiced by the inclusion of those allegations in the indictment, particularly since the indictment was not given to the jury and the district

court specifically instructed the jury that the indictment was not evidence. The district court, therefore, did not abuse its discretion by

denying the motion to strike. See United States v. Hartsell, 127 F.3d

343, 353 (4th Cir. 1997) (finding no abuse of discretion in denial of

motion to strike alleged surplusage from indictment where defendant

was not prejudiced by the allegations at issue). 

IV.

During the presentation of its case, the government called as a witness Keith Bartee, Williams’s main drug supplier. Bartee testified that

he asked Williams whether he had killed someone but Williams did

not respond. On appeal, Williams contends that his silence in

response to Bartee’s question was inadmissible hearsay. In a related

argument, Williams contends that the government’s reference in closing argument to Bartee’s testimony amounted to an improper comment on Williams’s silence. 

A.

Bartee testified about Williams’s strange behavior around the time

of Collins’s murder. Bartee testified that sometime in March, Williams suddenly stopped showing up at the hotel where Bartee sold

crack. Bartee finally called Williams and asked him what was wrong.

According to Bartee, Williams "told me that something was, you

know, something was wrong and he didn’t want us to be involved

with it. I don’t know, I guess it was something he had done, and he

didn’t want me to be involved with the police." J.A. 947. 

About a week after that telephone conversation, Bartee called Williams again to see if he would give him a ride to a laundromat. Bartee

and Williams ended up smoking crack in several different locations,

and Williams behaved strangely the entire time. Bartee testified that

Williams "wasn’t himself," J.A. 949, and that Williams "kept saying

the police w[ere] following him." J.A. 951-52. Bartee found this

behavior puzzling, because Williams "was always calm and cool."

UNITED STATES v. WILLIAMS 13
J.A. 952. Williams and Bartee eventually decided to go to Williams’s

apartment to smoke more crack. While in the apartment, Williams

continued to behave strangely. Bartee asked him what was wrong, but

Williams did not respond. After about 40 minutes, the crack was

gone, and Bartee and Williams left the apartment. On the elevator ride

down, Bartee asked Williams if he was seeing any women in the

building. Williams said that "there was a lady downstairs," but that he

did not have any "sexual contact" with her. J.A. 952. Bartee testified

that Williams mentioned something about "some guys that went down

there," but that Williams never said "what happened." J.A. 952-53.

The exchange about which Williams complains on appeal then took

place. While still in the elevator, Bartee again "asked him what was

wrong. I asked him, did he, you know, did he kill somebody or what?

You know, like I say, he didn’t say anything. He was blank. He didn’t

say . . . . Like I say, I never knew what was wrong." J.A. 953. 

B.

Williams contends that the district court treated his failure to

answer Bartee’s question as an adoptive or tacit admission. Williams

argues that the exchange does not qualify as an adoptive admission

and that the district court therefore erred by admitting it. 

Generally speaking, statements made by a party opponent are

excluded from the definition of hearsay and are admissible in court.

See Fed. R. Evid. 801(d)(2)(A). A statement made by someone else

may be treated as a statement of the party if the party adopts that

statement. See Fed. R. Evid. 801(d)(2)(B) (defining as not hearsay a

"statement of which the party has manifested an adoption or belief in

its truth"). "A party may manifest adoption of a statement in any number of ways, including through words, conduct, or silence." United

States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (internal alteration omitted).

When a statement is offered as an adoptive admission, the

primary inquiry is whether the statement was such that,

under the circumstances, an innocent defendant would normally be induced to respond, and whether there are sufficient foundational facts from which the jury could infer that

14 UNITED STATES v. WILLIAMS
the defendant heard, understood, and acquiesced in the statement.

Id. (quoting United States v. Jinadu, 98 F.3d 239, 244 (6th Cir.

1996)). 

Williams argues that his silence when Bartee asked if he had killed

someone does not qualify as an adoptive admission. He contends that

Bartee’s question did not accuse him of committing a crime. Because

the question was not accusatory, Williams argues that his failure to

respond cannot be treated as a tacit or adoptive admission. We agree.

The adoptive-admission doctrine permits statements of others to be

treated by the jury as statements of the party—it is as if the party himself made the statement. If someone says in the defendant’s presence

that "this is the money the defendant got when he robbed the bank,"

it is logical for the jury to conclude that the defendant would have

spoken up if he in fact had not robbed the bank. Thus, a jury would

be entitled to treat the robbed-the-bank statement as if it had been

made by the defendant himself. Cf. United States v. Ward, 377 F.3d

671, 675-76 (7th Cir. 2004). 

If the defendant remains silent in the face of a question, however,

the adoptive admissions analysis is not always appropriate. If the

question is highly accusatory (for example, "Why did you rob the

bank?"), the adoptive admissions would be proper, because a jury

could reasonably view the failure to answer as an adoption of the

accusatory statement that is the premise of the question—that the

defendant robbed the bank. Cf. Folston v. Allsbrook, 691 F.2d 184,

187 (4th Cir. 1982) (finding no error in the admission of evidence that

defendant failed to respond when a cellmate "asked [the defendant]

why did he shoot the man"); see also John Strong, McCormick on

Evidence § 161 (explaining that for silence to be admitted as a tacit

admission, there must be "preliminary proof . . . of an accusatory

statement" (emphasis added). The question in this case is not so accusatory. Bartee did not accuse Williams of killing someone and ask

him to explain it, but instead simply asked if Williams had killed

someone. Because there is no accusatory statement implicit in the

question, there is no statement that Williams could have adopted by

remaining silent. We therefore agree with Williams that the exchange

UNITED STATES v. WILLIAMS 15
with Bartee is not admissible as an adoptive admission under Rule

801(d)(2)(B). 

That the adoptive admissions analysis is inappropriate, however,

does not mean that the district court erred by admitting the testimony.4

Evidence of Bartee’s question helped establish that Williams was

behaving quite strangely around the time of Collins’s murder—so

strangely that a good friend felt compelled to ask him if he had committed a crime. The question was thus not offered to prove the truth

of the matter asserted and was not hearsay. See Fed. R. Evid. 801(c)

(defining "hearsay" as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted").5 Similarly, Williams’s failure to answer was not hearsay but was additional relevant evidence

of his strange behavior, and it was for the jury to decide what inference should be drawn from Williams’s silence in the face of Bartee’s

non-accusatory question. See Fed. R. Evid. 401 ("‘Relevant evidence’

means evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.");

see also United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003)

("[R]elevance typically presents a low barrier to admissibility. Indeed,

to be admissible, evidence need only be worth consideration by the

jury, or have a plus value." (citation and internal quotation marks

omitted)). 

Even if we were to conclude that evidence of Williams’s failure to

answer Bartee’s question was improperly admitted, the error would be

harmless, because the evidence was cumulative to other unobjected-to

evidence. See United States v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993)

(holding that the admission of cumulative testimony was harmless).

4We note that the district court did not rely on the adoptive admissions

analysis when admitting the evidence. The court simply overruled, with

little explanation, Williams’s hearsay objection. 

5Even if the question could be viewed as hearsay, it demonstrated

Bartee’s state of mind when he asked the question and thus would be

admissible as an exception to the prohibition against hearsay. See Fed.

R. Evid. 803(3). 

16 UNITED STATES v. WILLIAMS
Williams’s niece Julia was a reluctant witness for the government.

After police talked to her about Collins’s murder, she asked Williams

if he had killed Collins. Williams responded that "[i]t was none of

[her] concern," J.A. 833, and that "what you don’t know won’t hurt

you." J.A. 852. The inference of guilt to be drawn from these statements is much stronger than any inference that would be drawn from

Williams’s failure to answer Bartee’s question, as these responses

quite clearly suggest that Williams in fact killed Collins. Accordingly,

even if we were to conclude that the Bartee exchange should not have

been admitted, it was cumulative to the properly admitted testimony

of Williams’s niece, and any error was thus harmless.6

C.

During closing argument, the prosecutor when discussing Bartee’s

testimony argued that:

You also know that the defendant killed Gail Collins

because he as much as said so to friends and family. You

heard from Keith Bartee. He was with the defendant, and the

defendant mentioned that something bad happened to a

woman. And he later told Keith Bartee . . . when he was in

his building that something bad happened to a woman

downstairs, and Keith asked him and said, "Did you kill

somebody?" And the defendant didn’t say anything. Is

silence what an innocent man does? Does an innocent man

not protest when somebody asks? 

J.A. 1103-04. Williams contends that Bartee never accused Williams

of killing anyone and that only the government has ever accused Williams of killing Collins. Williams thus claims that by arguing to the

jury that an "innocent man" would protest when being accused of kill6

In his reply brief, Williams argues in passing that his niece’s testimony was likewise inadmissible as an adoptive admission. See Reply

Brief at 12. Because Williams did not object to Julia’s testimony at trial

and did not challenge the issue in his original brief, this argument comes

far too late in the day. See, e.g., United States v. Al-Hamdi, 356 F.3d 564,

571 n.8 (4th Cir. 2004) (declining to consider issue first raised in reply

brief). 

UNITED STATES v. WILLIAMS 17
ing someone, the government’s argument must be viewed as a comment on Williams’s failure to testify at trial. This argument is without

merit. 

To determine whether argument constitutes an improper comment

on the defendant’s right to refuse to testify, the question is whether

"the language used manifestly [was] intended to be, or was it of such

character that the jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify." United States v.

Francis, 82 F.3d 77, 78 (4th Cir. 1996) (internal quotation marks

omitted). The government argued that an innocent man would protest

when asked if he had killed someone. In context, it is abundantly clear

that these comments were in reference to Williams’s failure to answer

Bartee’s question and were not improper comments on Williams’s

refusal to testify at trial.7 Whether or not Bartee’s question was sufficiently accusatory to trigger the adoptive admissions analysis simply

cannot transform the government’s statement into an improper comment on the failure to testify. Because the jury would not naturally or

necessarily have taken the government’s closing argument to be a

comment on Williams’s right to refuse to testify, the closing argument

was proper. 

V.

Williams contends that the district court erred by denying his

motion for a continuance. Before we address this issue, an explanation of the procedural background is in order. 

7

In the course of this argument, Williams mentions that the government misrepresented Bartee’s testimony in its closing argument, because

Williams never told Bartee that something bad had happened to the

woman in his building. See Brief of Appellant at 30, n.4. Although

Bartee testified that Williams told him something had happened, Bartee

did not testify that Williams told him that something bad had happened

to the woman in his apartment building. Nonetheless, Williams did not

object to the closing argument on the grounds that it misstated the evidence, and Williams does not argue on appeal that the misstatement entitles him to any relief. 

18 UNITED STATES v. WILLIAMS
A.

The discovery order entered by the district court required the government to provide Williams with Brady and Giglio material one

week before trial.8 Consistent with that order, the government one

week before trial informed Williams that Kathleen Simmons, the government’s star witness, had been treated for years for schizophrenia

and suffered from visual and auditory hallucinations. Williams sought

a continuance to give him time to investigate her problems. The district court held a hearing on that and other pending motions on

Wednesday, September 15, with trial scheduled to begin on Monday,

September 20. The court ordered the government to find Simmons’s

medical records and submit them to the court for review. The court

explained that schizophrenia was a common diagnosis, and that with

the names of Simmons’s medications that the defense had been given,

there was time for the defense to research the issue and conduct an

effective cross-examination. The court thus denied the continuance

motion, but noted that the decision could change if there was something unusual in the medical records. 

The government submitted Simmons’s medical records to the district court on Thursday. The records revealed that Simmons reported

seeing ghosts and hearing voices even while on her medication; that

she had been shot in the head in 1998 and suffered organic brain damage, which exacerbated her delusions; and that she complained in

2003 of having difficulty seeing. The court ordered the government

to provide the medical records to Williams by 1:00 p.m. Friday. The

court ordered counsel for Williams to keep the records under seal and

to request permission from the court before using the information

contained in the records. 

At trial, counsel for Williams was able to use the information

learned through the medical records to impeach Simmons during

cross-examination. Counsel for Williams had tried unsuccessfully to

8

See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring the government to furnish the defendant with all exculpatory evidence that is material to guilt or punishment); Giglio v. United States, 405 U.S. 150, 154-

55 (1972) (requiring the government to furnish the defendant with material evidence affecting the credibility of government witnesses). 

UNITED STATES v. WILLIAMS 19
locate the intern who had performed a psychological evaluation of

Simmons, and the district court refused to admit a report of that evaluation prepared by the intern. However, counsel was able to call as

a witness Dr. Rachna Varia, the clinical psychologist who supervised

the intern and reviewed the report prepared after the evaluation.

Although the district court refused to admit the report through Dr.

Varia, counsel for Williams was able to elicit a substantial amount of

information from Dr. Varia. Dr. Varia testified that Simmons had "periods of impaired reality testing," which meant that Simmons might

"experience auditory hallucinations, visual hallucinations, have

impaired judgment, and have problems deciphering what is real and

what is not." J.A. 1046. Dr. Varia also testified that Simmons had

memory problems, explaining that Simmons "showed problems in

recall, and so after an immediate and delayed time, she has difficulty

remembering all the information that she might have seen." J.A. 1047.

Dr. Varia testified about the general effects of crack cocaine—that it

can impair judgment, observation, and visual and auditory memory.

Dr. Varia also testified that someone with Simmons’s cognitive

impairments and memory problems who had been smoking crack

cocaine for several hours with another person could two weeks later

have a significantly impaired ability to identify that person. 

B.

On appeal, Williams contends that the government’s last-minute

disclosure of Simmons’s problems required the district court to grant

his motion for a continuance. If a continuance had been granted, Williams contends that he could have located the intern who evaluated

Simmons, called her as a witness, and introduced her report of the

evaluation. Williams argues that without that evidence, he was unable

to effectively test Simmons’s credibility. Thus, Williams argues that

the denial of a continuance violated his Sixth Amendment right to

effectively confront the witnesses against him. 

"[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right

to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12

(1983) (internal quotation marks omitted). "[A] trial court’s denial of

a continuance is . . . reviewed for abuse of discretion; even if such an

20 UNITED STATES v. WILLIAMS
abuse is found, the defendant must show that the error specifically

prejudiced her case in order to prevail." United States v. Hedgepeth,

418 F.3d 411, 419 (4th Cir. 2005). We find no abuse of discretion in

this case. 

Although Williams insists that the government’s disclosure of Simmons’s psychological problems was "tardy," the government disclosed Simmons’s problems to Williams a week before trial, in

accordance with the deadlines set out in the discovery order.9 The district court concluded that a week was sufficient time for counsel to

prepare to cross-examine Simmons about her psychiatric problems.

While a defense attorney can always make good use of additional

time to prepare for trial, the thoroughness of Williams’s crossexamination of Simmons and presentation of evidence through Dr.

Varia confirms that the district court was correct in its assessment of

the time needed to prepare. 

The government elicited many details from Simmons about her

psychological problems, including the fact that she saw ghosts or spirits and heard voices. Counsel for Williams was able to cross-examine

Simmons about her psychiatric problems, and Simmons admitted that

she has hallucinations even when taking her medication. Counsel was

also able to make effective use of Simmons’s status as a crack addict

and prostitute. Simmons admitted on cross-examination that she had

smoked crack three days in the week before trial and that she was

undergoing detoxification during trial. Simmons also admitted that in

the week before trial, she had engaged in acts of prostitution three

times to order to get the money she needed to buy crack. In addition

to cross-examining Simmons on the many areas that called her credibility into doubt, counsel for Williams was able to bring in an expert

witness who testified in detail about the nature of Simmons’s psychological problems and the effects that Simmons’s medical problems

and illicit drug use had on her memory and her ability to perceive

reality. Because Williams was able to throughly explore before the

jury the many issues that called Simmons’s credibility into question,

we cannot conclude that the district court abused its discretion in

9The government represented to the court that it had learned of Simmons’s problems on Saturday, two days before it disclosed the information to Williams. 

UNITED STATES v. WILLIAMS 21
denying Williams’s request for a continuance. See, e.g., United States

v. Lawrence, 161 F.3d 250, 254 (4th Cir. 1998) ("A district court is

entitled to broad discretion with respect to a decision to deny a continuance. Furthermore, absent a presumption of prejudice, specific errors

must be shown which undermine confidence in the outcome of the

trial to constitute reversible error." (citation and internal quotation

marks omitted)); cf. United States v. Cole, 293 F.3d 153, 163 (4th Cir.

2002) (rejecting defendant’s claim that government breached its

Brady obligations by waiting until a weekend break in trial after the

close of its case to disclose that key witness suffered from psychiatric

problems; since court permitted defendant to recall witness to crossexamine him about his psychiatric problems, "counsel did receive

enough information about [the witness’s] disorders in time for its

effective use at trial" (internal quotation marks omitted)). 

We recognize, of course, that the denial of a motion for continuance could, under certain circumstances, implicate a defendant’s right

to present a defense or to confront the witnesses against him. See,

e.g., United States v. Garman, 748 F.2d 218, 221-22 (4th Cir. 1984);

United States v. Jordan, 466 F.2d 99, 101 (4th Cir. 1972). Although

Williams was unable to locate and call as a witness the intern who

performed the psychological evaluation of Simmons and was unable

to introduce into evidence the report of the evaluation, no avenue of

cross-examination was foreclosed to Williams by the district court’s

denial of the requested continuance. Williams was able to crossexamine Simmons about her psychiatric problems, and he was also

able to present his own expert witness who testified about the nature

of the problems suffered by Simmons. Given the degree to which

Simmons was already impeached and the specific medical information that was presented to the jury by Dr. Varia, the denial of a continuance at most prevented Williams from presenting some additional

information to the jury about the nature and scope of Simmons’s

problems. Because Williams was able to adequately explore this issue

on cross-examination of Simmons and through the testimony of his

expert witness, we simply cannot conclude that Williams’s inability

to impeach Simmons to a somewhat greater degree can be viewed as

a violation of his constitutional rights. See Garman, 748 F.2d at 223

(concluding that denial of continuance sought to obtain testimony of

two witnesses did not deprive defendant of his right to present a

defense because "[t]here is nothing new in what defendant sought to

22 UNITED STATES v. WILLIAMS
present through the two witnesses"); Jordan, 466 F.2d at 101-02 (concluding that denial of a continuance to a defendant who had not been

given the names of the witnesses who would testify for the prosecution until the day of trial did not violate the defendant’s Sixth Amendment confrontation rights because the defendant was able to impeach

the credibility of the witnesses and any further impeachment "would

have been cumulative"); see also United States v. Garcia, 854 F.2d

1280, 1284 (11th Cir. 1988) (finding no abuse of discretion in denial

of continuance where denial merely prevented defendant from presenting cumulative evidence). 

VI.

Section 922(g) makes it unlawful for people in specified categories

"to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. § 922(g). Williams contends

that the government failed to present sufficient evidence of the interstate commerce element. This argument is without merit. 

The requisite connection to interstate commerce can be satisfied

through proof that the firearm or ammunition is manufactured in one

state and possessed in another. See United States v. Gallimore, 247

F.3d 134, 138 (4th Cir. 2001) ("[T]he Government may establish the

requisite interstate commerce nexus by showing that a firearm was

manufactured outside the state where the defendant possessed it.").

The government presented expert testimony indicating that the 9-mm

bullet that was retrieved from Collins’s body was not homemade and

was manufactured outside of Virginia and that no 9-mm guns are

manufactured in Virginia. Because Collins was murdered in Virginia,

that evidence was sufficient to satisfy the interstate commerce

requirement of section 922(g). 

VII.

Finally, Williams argues that his sentence was imposed in violation

of the principles set out in United States v. Booker, 543 U.S. 220

(2005), and that he is therefore entitled to a remand for re-sentencing.

UNITED STATES v. WILLIAMS 23
The government agrees with Williams’s position on this point, as do

we. 

Broadly speaking, there are two types of Booker sentencing errors.

The first kind of error—the Sixth Amendment or constitutional error

—occurs if a sentencing court "enhances a sentence beyond the maximum authorized by facts found by a jury beyond a reasonable doubt

or admitted by the defendant." United States v. Rodriguez, 433 F.3d

411, 414 (4th Cir. 2006). The second kind of error—sometimes called

a statutory Booker error—occurs if the sentencing court "treats the

Guidelines as mandatory, rather than as advisory." Id.

In this case, the jury’s findings with regard to the Collins murder

may well eliminate the Sixth Amendment error arising from the application of the murder cross-reference. Nonetheless, a statutory Booker

error occurred because the district court treated the Guidelines as

mandatory. Williams made a timely Blakely objection below, and that

objection was sufficient to preserve for appeal the district court’s statutory error in treating the Guidelines as mandatory. Thus, we review

the sentencing error for harmlessness. See Rodriguez, 433 F.3d at 415

("Rodriguez properly preserved his claim of statutory Booker error by

raising a timely Blakely objection at sentencing. We are therefore

obliged to review his preserved claim of statutory Booker error for

harmless error."). 

Under harmless error review, the burden is on the government to

prove that the district court would not have imposed a lesser sentence

if it had known that the Guidelines were not mandatory. See id. at

416. Because the record is devoid of any such indication, a remand

for re-sentencing is required. See id. ("[T]he court offered no indication of whether it might have imposed a different sentence had it considered the § 3553(a) factors under an advisory Guidelines regime.

. . . The prejudice burden therefore falls on the Government, and the

sentencing court’s silence must be interpreted in favor of Rodriguez.

Accordingly, we must conclude that Rodriguez was prejudiced when

the court treated the Guidelines as mandatory. We are thus obliged to

vacate Rodriguez’s sentence and remand for further proceedings."). 

VIII.

Accordingly, for the foregoing reasons, we hereby affirm Williams’s conviction. However, because the district court erred by treat24 UNITED STATES v. WILLIAMS
ing the Guidelines as mandatory and there is no indication in the

record that the court would have imposed the same sentence under an

advisory system, we vacate Williams’s sentence and remand for resentencing. 

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

UNITED STATES v. WILLIAMS 25