UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4409

VERNON RAY, a/k/a Donnie Blue,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4422

DARRELL ANTONIO BURRELL, a/k/a

Silly Rabbit,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4800

ANDRE ALBERT ADDISON, a/k/a Oofa,

a/k/a Poobie,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, Senior District Judge.

(CR-98-210)

Argued: December 4, 2002

Decided: March 19, 2003
Before GREGORY, Circuit Judge, Joseph R. GOODWIN,

United States District Judge for the Southern District of West

Virginia, sitting by designation, and

James H. MICHAEL, Jr., Senior United States District Judge

for the Western District of Virginia, sitting by designation.

Affirmed in part, reversed in part, vacated in part, and remanded by

unpublished opinion. Judge Goodwin wrote the opinion, in which

Judge Gregory and Senior Judge Michael joined. 

COUNSEL

ARGUED: Jennifer Marie O’Connor, WILMER, CUTLER & PICKERING, Washington, D.C., for Appellant Ray; Michael Daniel Montemarano, Baltimore, Maryland, for Appellant Burrell; Noell Peter

Tin, Charlotte, North Carolina, for Appellant Addison. Jamie M. Bennett, Assistant United States Attorney, Baltimore, Maryland, for

Appellee. ON BRIEF: Paul F. Enzinna, Rebecca H. Ewing, BAKER

BOTTS, L.L.P., Washington, D.C., for Appellant Ray; Rebecca Tin,

Charlotte, North Carolina, for Appellant Addison. Thomas M.

DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

GOODWIN, District Judge: 

Vernon Ray, Darrell Burrell and Andre Addison, along with other

co-defendants, were charged in a ten-count indictment with various

crimes related to a cocaine distribution conspiracy. Following a

month-long trial, Ray, Burrell and Addison were each convicted of

2 UNITED STATES v. RAY
conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 & 841(a)(1), and of killing while engaging

in a narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A).

Addison was additionally convicted of possession with intent to distribute cocaine, also in violation of § 841(a)(1). Ray, Burrell and

Addison appeal their convictions on a number of grounds, the precise

nature of which are more fully explained below. 

For the reasons that follow, we conclude that the government presented insufficient evidence from which a reasonable jury could conclude, beyond a reasonable doubt, that Ray knowingly furthered the

objectives of the cocaine distribution conspiracy. Because both of

Ray’s counts of conviction depend on proof of this intent, we reverse

his conviction on both counts. We also conclude, as the government

concedes, that Burrell was denied his statutory right to two counsel.

We therefore vacate his conviction for killing while engaging in a

drug conspiracy. We also vacate his sentence and remand for resentencing on the cocaine distribution conspiracy count alone. We find

the remaining objections without merit, and affirm Burrell’s conviction on the cocaine distribution conspiracy count and Addison’s conviction on all counts. 

I.

This case involves a Baltimore, Maryland-based cocaine distribution conspiracy, a related drug turf war between rival gangs, the

"Chapel Hill Gang" and the "Jefferson Street Boys," and a series of

shootings arising out of that turf war. The evidence presented at trial

showed that the Chapel Hill Gang controlled various streets in the

vicinity of Johns Hopkins University, operating a narcoticsdistribution ring that included the sale of vast amounts of cocaine.

The Chapel Hill Gang’s dominance was not absolute; the rival Jefferson Street Boys had also staked a claim in the area’s drug market. To

eliminate competition and corner drug territory, the gangs mounted an

ongoing war that involved fistfights, drive-by shootings, and murders

ordered by gang superiors. What had begun as a cross-town squabble

over sandlot basketball games had escalated into urban guerilla warfare. 

The government’s evidence demonstrated that Andre Addison was

the leader of the Chapel Hill Gang. Over a period of years, Addison

UNITED STATES v. RAY 3
purchased large amounts of cocaine, heroin and marijuana in New

York City. He and other gang members transported the drugs to Baltimore and then sold them, primarily on Ashland Street and Madeira

Street. Kelly McLeod oversaw the gang’s day-to-day operations and

finances as its "lieutenant," while Darrell Burrell strong-armed foes

as its primary "enforcer." Marcel Brown, Tavon Dixon, George Brandon, Morgan Kelly, Lloyd Taylor, Keith Cook and Adrian Boone also

worked for the gang at various times, primarily roaming the streets as

drug dealers. Many of these individuals, including McLeod, Brown

and Dixon, cooperated with the government pursuant to plea agreements and offered testimony related to the gang’s organization and

operations. Officer Deron Garrity, who investigated the gang for the

Baltimore City Police Department, also testified at length concerning

the drug operation. 

In the summer of 1996, Addison asserted drug distribution dominance over a section of Jefferson Street that traditionally had been

controlled by the Jefferson Street Boys. Addison’s actions fueled a

battle over territory, triggering a string of shootings. Because the specific facts underlying these various shootings are important to the

issues on appeal, we will present this evidence in some detail. 

The testimony showed that the rivalry between the Chapel Hill

Gang and the Jefferson Street Boys long predated the drug territory

dispute. According to Kelly McLeod, it began "when we was younger," starting with "neighborhood fist fights" over playground problems and basketball games, not drugs. Similarly, Mayo Bennett

testified that the "bad blood" existed when they were as young as ten

or eleven years old. Drugs and drug-related shootings entered the picture sometime prior to 1994. 

As part of the drug turf war, Silvester Snider, a member of the Jefferson Street Boys, attempted to shoot Addison on more than one

occasion. In retaliation, the Chapel Hill Gang killed Snider, also

known as "Monk," on May 25, 1996. Chapel Hill Gang member Marcel Brown, as well as others, testified that Addison had ordered the

killing and that Burrell had carried it out at his command. Prior to the

Snider murder, Brown overheard Addison and Burrell talking about

Snider: "Andre was saying to Burrell that that punk Monk [Snider]

can’t keep running down here shooting." Once Burrell became aware

4 UNITED STATES v. RAY
of Brown’s presence, "Burrell stopped [Addison] and said, hey, man,

don’t be talking to me about no shit like that around these whores like

that." At other times prior to the killing of Snider, Brown heard Addison say that "they [the Jefferson Street Boys] gonna die, . . . they’re

going to stop coming down here shooting and shit." Brown testified

that Addison "told us to just stay around the block and keep doing

what we doing [i.e., dealing drugs], and he got everything taken care

of. He already got Darryl on top of that." By Darryl, "I’m talking

about Mr. Burrell." Pressed further, Brown clarified that Addison said

"I got Darryl on top of them. He gonna handle that. Them boys ain’t

going keep coming here shooting. You see that bitch Monk and that

bitch Antwan [Greer], them whores know what’s up." At some point

after these conversations, Brown heard from Addison that "Monk shot

at Darryl’s car," and then "Darryl turned around and came back and

shot [Snider]." George Brandon similarly testified that Addison "told

me he said to do it [the Snider killing]," and the person he sent was

"Silly Rabbit," an alias for Burrell. 

Weeks later, on June 12, 1996, Addison was again the target of a

Jefferson Street Boys shooting. This time, he was seriously wounded

while helping a neighbor install a basketball hoop. In retaliation, Burrell killed Jefferson Street Boy Antwan Greer later that day. McLeod

testified that following Addison’s shooting, "Burrell hopped on the

bike and proceeded through the projects, knowing that they [Antwan

Greer and others] would get caught at the light on Orleans Street."

McLeod heard gunshots, and later "Addison let me know that Burrell

killed him [Greer]." Testimony from George Brandon also linked

Burrell to the Greer murder.

According to Brown, after Burrell had been incarcerated for the

Snider and Greer killings, Addison stated that "he had already taken

care of the lawyer fees [for Burrell] as far as the murders and stuff"

and that he had "giv[en] to his baby[’s] mother money." Despite the

fact that Burrell was not involved in the drug distribution, McLeod

provided Burrell with money from drug proceeds at least "five to six

times," always at the request of Addison. 

Additional shootings transpired in September of 1997, and it is

here that Vernon Ray first appears in the story. Before detailing this

next round of shootings, we pause to provide some background about

UNITED STATES v. RAY 5
Ray. Ray grew up in Baltimore, and he and Addison were childhood

friends. Ray’s brother, Paul Ray, was a member of the Chapel Hill

Gang at least as early as 1994 or 1995. Several of the government’s

witnesses who were members of the Chapel Hill Gang listed the individuals engaged in the drug conspiracy, including descriptions of each

person’s role. Not one of these witnesses, each of whom had extensive knowledge of the Chapel Hill Gang’s cocaine distribution operation, identified Ray as a participant in the drug conspiracy. Gang

"lieutenant" Kelly McLeod testified that while Ray’s brother Paul was

an active participant in the operation, Ray "wasn’t really into the drug

business with us." When describing the Chapel Hill Gang’s drug

organization hierarchy, McLeod made no mention of Ray. According

to McLeod, "Vernon Ray wouldn’t be with us every day. He really

wasn’t with us." 

Tavon Dixon also testified to the drug operations of the Chapel Hill

Gang, explicitly naming those individuals involved in the conspiracy.

Like McLeod, Dixon made no mention of Ray being involved with

the drug operations. Indeed, despite Ray’s intimate personal connections with these gang members, the government’s witnesses indicated

that he had never been a member of the Chapel Hill Gang. According

to McLeod, in 1994 or 1995 Ray was not "working with [the Chapel

Hill Gang] . . . drug organization." Rather, "he was . . . freelancing

with the Jefferson Street Boys," and "was neutral" as between the

rival gangs. 

Although Ray was not a member of either gang, the Jefferson

Street Boys "thought he was trading on them," i.e., working with the

rival Chapel Hill Gang, so members of the Jefferson Street Boys shot

Ray sometime in 1994 or 1995. Following Ray’s shooting, two of his

friends — McLeod and Addison — attempted to retaliate. The

attempt failed when McLeod’s gun jammed, prompting a retreat by

McLeod and Addison in the face of return fire. McLeod testified that

he and Addison took action against the Jefferson Street Boys because

"[b]eing as though Mr. Ray had got shot, and Mr. Ray is a close

friend of mine, [we acted out of] retaliation." The government then

asked McLeod to further "explain why it was that you were retaliating

for the shooting of Mr. Ray who was with the Jefferson Street Boys."

(Emphasis added.) McLeod responded that "[Vernon Ray’s] brother

Paul Ray was with us, [and] . . . I went to school with Mr. Vernon

6 UNITED STATES v. RAY
Ray . . . and like I said before, I took him as a real close friend of

mine. And where we came from, we still all stuck together. One, he

was hurt, so our chain of thought was to hurt one of them who hurt

him." After Ray’s shooting, McLeod testified that Ray "was no longer

up on Jefferson Street. He had come down with us, but he wasn’t

really into the drug business with us. He was still freelancing at this

time."1

Ray’s involvement with the drug conspiracy, according to the government, began (and ended) on September 7, 1997. This brings us

back to our ongoing description of the turf war shootings. On September 7, a member of the Jefferson Street Boys came to the Ashland and

Madeira Street vicinity and shot Morgan Kelly, a friend of Ray’s and

a member of the Chapel Hill Gang. In response, McLeod and others

decided to "[g]o return fire as usual." McLeod described their plan:

[McLeod, his brother], Chad Brown, Lloyd Taylor, Keith

Cook, [and] Vernon Ray . . . came out with a plan to go up

to Jefferson Street and shoot whoever was out there. . . . The

plan was to drive a car down the one way of Collington . . .

and that was to flush them out, and then my brother [and]

Vernon Ray and Keith Cook would be on . . . McElderry

and Collington. So we would flush him out and make him

run toward them. 

McLeod, Brown and Taylor drove in one car and McLeod’s brother,

Ray and Cook were in another. All of the participants had guns,

1McLeod’s testimony paints the picture that Ray had always remained

an independent "freelancer" and had never joined either gang, even after

members of the Jefferson Street Boys had shot him due to their assumption that he was working with the Chapel Hill Gang. The government

witnesses did not elaborate on the precise nature of Ray’s "freelancing."

Indeed, the jury was left to speculate, without any clarification from the

government or its witnesses, as to the meaning of "freelancing." The only

evidence of Ray’s involvement with drug dealing was testimony from

Marcel Brown implicating Ray in a marijuana dealing operation on

Eager and Chester Streets. This operation was not linked to the Chapel

Hill Gang cocaine conspiracy. It is possible that this marijuana distribution was the "freelancing" referred to by McLeod. 

UNITED STATES v. RAY 7
which they had "checked . . . before [they] left" to "make sure they

had ammunition." They carried out the plan, essentially as described

above, although shots were fired by both sides. Ray, among others,

was shot in the shoulder. Bernard Miller, a member of the Jefferson

Street Boys, was shot and killed. 

Ray, Burrell and Addison were indicted along with Marcel Brown,

Morgan Kelly, Kelly McLeod and Adrian Boone. Brown, Kelly and

McLeod plead guilty and testified at trial.2 The jury convicted Ray,

Burrell and Addison of conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846 & 841(a)(1), and

of killing while engaging in a drug conspiracy, in violation of 21

U.S.C. § 848(e)(1)(A). The jury also convicted Addison of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). Addison and

Burrell were given life sentences, and Ray was sentenced to 262

months of imprisonment. 

II.

The defendants raise numerous challenges to their convictions.

Specifically, the defendants (either singly or in groups) raise claims

based on the sufficiency of the evidence; the statutory right to two

counsel for death-eligible offenses; violations of Brady v. Maryland,

373 U.S. 83 (1963); the knowing use of false testimony against them;

errors in the jury instructions related to the elements of conspiracy;

errors in the indictment, jury instructions, and closing argument

related to the necessary connection between the killings and the drug

conspiracy; flaws in the search warrant; errors in the court’s refusal

to sever, to provide limiting jury instructions, or to provide a multiple

conspiracy instruction; and errors in the court’s admission of evidence

related to the Snider killing, refusal to instruct on self-defense related

to that killing, and improper comments by the prosecution in closing

argument. We will address these contentions in turn. We begin with

the claims related to the sufficiency of the evidence. 

2The remaining defendant, Boone, was a fugitive of justice at the time

of trial. The district court’s docket sheet indicates that Boone eventually

was arrested in Texas and initially appeared before the court on October

30, 2001. 

8 UNITED STATES v. RAY
A.

Both Ray and Burrell challenge the sufficiency of the evidence to

sustain their convictions. According to the evidence presented by the

government, neither Ray nor Burrell actually dealt drugs or supervised the drug distribution operation for the gang. Rather, the government contends that both served as "enforcers" for the gang — that is,

performed acts of violence and intimidation in furtherance of the drug

conspiracy’s ongoing attempt to secure and expand its distribution

territory. Although both defendants were convicted of conspiracy to

distribute cocaine as well as killing while engaging in a drug conspiracy, their alleged participation in the drug conspiracy stems solely

from their participation in the killings.3 Accordingly, in both cases the

two counts stand or fall together. 

In reviewing a conviction for sufficiency of the evidence, the court,

"constru[ing] the evidence in the light most favorable to the government," asks "whether any rational trier of facts could have found the

essential elements of the crime beyond a reasonable doubt." United

States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991) (internal quotations and citation omitted). "To prove a drug conspiracy, the Government must prove the following: (1) an agreement with another person

to violate the [drug] law, (2) knowledge of the essential objectives of

the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators." United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001) (internal quotations and

citation omitted). This court has explained that "the Government must

prove the existence of a conspiracy beyond a reasonable doubt, but

upon establishing the conspiracy, only a slight connection need be

made linking a defendant to the conspiracy to support a conspiracy

conviction, although this connection also must be proved beyond a

reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc). A defendant’s "slight connection" to the conspiracy

may be proven by direct or circumstantial evidence, but "the Govern3Ray was indicted for the shooting of Bernard Miller. Burrell was

indicted for the shooting of Silvester Snider and Antwan Greer. The

Snider shooting was only alleged as an overt act in the conspiracy, not

as an independent violation of § 848(e) (killing while engaged in the conspiracy). 

UNITED STATES v. RAY 9
ment nevertheless must establish proof of each element of a conspiracy beyond a reasonable doubt." Id. at 858. With these principals in

mind, we first consider the evidence related to Ray’s conviction and

then the evidence related to Burrell’s conviction. 

1.

As should be clear from the statement of facts, the government

presented ample evidence of proof of the first element of conspiracy

— "an agreement with another person to violate the law," Stewart,

256 F.3d at 250, as among the active members of the Chapel Hill

Gang. In order to establish Ray’s participation in that drug conspiracy, the government relies on evidence that, it claims, proves (1) that

Ray knew of the Chapel Hill Gang drug distribution conspiracy, and

(2) that he knowingly participated in the Bernard Miller shooting.

Based on these two facts, the government argues, a reasonable jury

could have concluded, beyond a reasonable doubt, that Ray knowingly joined the drug conspiracy when he participated in the Miller

shooting. Throughout all of the events described above leading up to

the Miller shooting — from the early days of the neighborhood

rivalry, to the introduction of drug dealing by members of the rival

gangs, to Ray’s own shooting by the Jefferson Street Boys — the

government concedes that there is no suggestion that Ray was ever a

member of the Chapel Hill Gang drug distribution conspiracy. Even

after Ray’s shooting in 1994 or 1995, nothing in the evidence suggests that he became a member of the drug conspiracy — in fact, the

evidence affirmatively shows the opposite — that he was "freelancing" at this time. Not until September 7, 1997, does the government

contend that Ray suddenly took action in an effort to join the drug

distribution conspiracy and to further its objectives. On the government’s theory of the case, Ray’s only connection to the drug conspiracy was his participation in the Miller shooting on September 7, 1997.

Of course, "a defendant properly may be convicted of conspiracy

. . . ‘even though he had not participated before and even though he

played only a minor part.’" Burgos, 94 F.3d at 858 (quoting United

States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989)). While a defendant may be convicted of a conspiracy even if he performed only one

act as part of that conspiracy, the government must prove that "‘he

join[ed] the conspiracy with an understanding of the unlawful nature

10 UNITED STATES v. RAY
thereof and willfully join[ed] in the plan on one occasion.’" Id. We

first consider whether the government presented evidence from which

a reasonable jury could conclude that Ray knew of the existence of

the drug conspiracy. 

McLeod’s testimony about Ray’s "freelancing" is the only testimony presented at the month-long trial that even arguably suggests

that Ray knew about the existence of the ongoing drug-related turf

war between the two gangs. McLeod’s testimony makes it clear that

Ray was aware of the neighborhood rivalry — indeed, Ray was shot

by members of the Jefferson Street Boys because they thought he was

associating with the Chapel Hill Gang. But as McLeod explained, the

neighborhood rivalry long predated the drug territory dispute. It began

"when we was younger," as a neighborhood rivalry that started with

"neighborhood fist fights." 

Accordingly, the government relies heavily on inferences drawn

from the term "freelancing" to establish that Ray knew about the

ongoing drug distribution conspiracy. Specifically, the government

argues that the jury could reasonably infer that the term "freelancing"

meant that Ray was dealing drugs, albeit independently, in the same

territory as the Jefferson Street Boys and the Chapel Hill Gang. The

government did not ask any of its witnesses to clarify the meaning of

"freelancing," which perhaps would have buttressed their position that

Ray himself was dealing drugs in this area. McLeod’s testimony is

equivocal at best. He stated that Ray "wasn’t really into the drug business with us. He was still freelancing at this time." One could read

this statement to imply that "freelancing" means something other than

drug dealing, as the statement that Ray was "still freelancing" immediately followed the statement that "he wasn’t really into the drug

business." Alternately, one could read this statement with emphasis

on "with us" — that is, that Ray wasn’t into the drug business with

us, but was freelancing, meaning dealing drugs independently of the

Chapel Hill Gang. Because we review a conviction for sufficiency of

the evidence by drawing all reasonable inferences in favor of the government, we conclude that McLeod’s testimony was sufficient for a

reasonable jury to find, beyond a reasonable doubt, that Ray was himself dealing drugs in the area and therefore knew of the ongoing drugrelated turf war between the rival gangs.4

 This satisfies the second ele4The government argues that the jury could also infer Ray’s knowledge of the drug conspiracy based on (1) the fact that his brother was a

UNITED STATES v. RAY 11
ment from Stewart — that a defendant must have "knowledge of the

essential objectives of the conspiracy." Stewart, 256 F.3d at 250. 

This brings us to the third element of conspiracy, "knowing and

voluntary involvement." Id. Here, the government contends that Ray’s

"knowing and voluntary involvement" in the conspiracy consists of

his participation in the Miller shooting. For Ray’s participation in that

shooting to constitute knowing involvement in the conspiracy, the

government must prove that Ray knowingly acted "in furtherance of

the objective of the conspiracy." United States v. Brown, 943 F.2d

1246, 1250 (10th Cir. 1991). See also United States v. Gee, 226 F.3d

885, 893 (7th Cir. 2000) ("The government must prove that a defendant knowingly and intentionally joined the charged conspiracy,

knowing the conspiracy’s aims and intending to achieve them."

(emphasis added)). 

The government concedes that it presented no direct evidence of

Ray’s intentions when he participated in the Miller shooting. Of

course, "a conspiracy generally is proved by circumstantial evidence

and the context in which the circumstantial evidence is adduced."

Burgos, 94 F.3d at 857. Here, the government argues that given Ray’s

knowledge of the drug conspiracy and his participation in the Miller

shooting, the jury could infer, beyond a reasonable doubt, that Ray

member of the Chapel Hill Gang, and (2) the general knowledge in the

community about the ongoing drug turf war. As for the former point, "it

is well-settled that a conspiracy cannot be proven solely by family relationship or other types of close association." United States v. White, 569

F.2d 263, 268 (5th Cir. 1978). See also United States v. Dozie, 27 F.3d

95, 98 (4th Cir. 1994) (refusing to infer knowledge or intent to further

conspiracy based on husband-wife relationship). We are also uncomfortable with the suggestion that one of the important elements of a conspiracy offense — knowledge of the conspiracy — can be established merely

by the defendant’s residence in a bad neighborhood. Without specifically

establishing how a defendant’s residence in a neighborhood translates

into his knowledge of criminal activity, this strikes us as an impermissible attempt to infer guilt by association. See United States v. Robel, 389

U.S. 258, 265 (1967). We decline to evaluate this evidence in this case,

as we conclude above that Ray’s knowledge of the conspiracy could be

inferred from McLeod’s testimony. 

12 UNITED STATES v. RAY
participated in the shooting in order to further the drug conspiracy.

This court has explained that "[c]ircumstantial evidence sufficient to

support a conspiracy conviction need not exclude every reasonable

hypothesis of innocence, provided the summation of the evidence permits a conclusion of guilt beyond a reasonable doubt." Id. at 858.

Many courts have recognized the difficulty in determining, on the

particular facts of a given case, when a jury’s verdict "crosses the line

from permissible inference to improper speculation." United States v.

Teffera, 985 F.2d 1082, 1088 (D.C. Cir. 1993). See also Goldhirsh

Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997) ("The line

between permissible inference and impermissible speculation is not

always easy to discern. . . . At some point, the link between the facts

and the conclusion becomes so tenuous that we call it ‘speculation.’

When that point is reached is, frankly, a matter of judgment."). 

We now turn to evaluate the reasonableness of the government’s

proposed inference in light of the particular facts and circumstances

of this case. We note that this claim does not involve, as do many sufficiency of the evidence challenges, questions of witness credibility

or of resolving conflicting evidence. Such matters "‘are within the

sole province of the [fact finder] and are not susceptible to judicial

review.’" Burgos, 94 F.3d at 863 (quoting United States v. Lowe, 65

F.3d 1137, 1142 (4th Cir. 1995)). In this case, Ray presented no testimony or evidence at all, so there are no conflicting evidentiary questions to be resolved. We also note that, as is evident from the

statement of facts, there was clearly evidence sufficient to establish

Ray’s guilt of a state homicide offense in the shooting of Bernard Miller.5

But that is not the issue in this case. Rather, the question is whether

the evidence presented by the government is sufficient to permit a

reasonable jury to infer, beyond a reasonable doubt, that Ray participated in the Miller shooting with the intent to further the drug conspiracy. 

5We do not speculate as to what specific homicide offense Ray might

be guilty of. The evidence suggested that Ray did fire shots, as he had

gunpowder residue on this hands, but that he probably did not fire the

shot that killed Bernard Miller. We simply note that the evidence likely

establishes Ray’s guilt of some type of state homicide offense. 

UNITED STATES v. RAY 13
In Burgos, this court explained that "[c]ircumstantial evidence

tending to prove a conspiracy may consist of a defendant’s ‘relationship with other members of the conspiracy, the length of this association, [the defendant’s] attitude [and] conduct, and the nature of the

conspiracy.’" Burgos, 94 F.3d at 858 (quoting United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)). Usually, the closer and

longer the relationship between the defendant and the conspiracy

members, the more reasonable the inference that the defendant was

a member of the conspiracy. But here, the government’s witnesses

made clear that Ray had not become a member of the drug conspiracy

in spite of his close connection with members of the conspiracy over

the years. This makes it less reasonable to infer that Ray’s participation in this shooting was in furtherance of the drug conspiracy. 

Additionally, the testimony indicates that while much of the violence in the neighborhood was drug-related, some of it was simply an

artifact of a long-running neighborhood rivalry that predated, and was

unrelated to, any drug dealing. McLeod’s and Addison’s attempt to

retaliate for Ray’s shooting is one example of violent actions that

appear unrelated to the drug conspiracy. The government’s own questioning, as well as McLeod’s response, indicate that their actions were

not related to the drug conspiracy. When asked why he and Addison,

members of the Chapel Hill Gang, would retaliate for the shooting of

Ray, then associated with the Jefferson Street Boys, McLeod

explained that their motivation was personal: "I went to school with

Mr. Vernon Ray . . . and like I said before, I took him as a real close

friend of mine. And where we came from, we still all stuck together.

One, he was hurt, so our chain of thought was to hurt one of them

who hurt him." It is clear from these circumstances that McLeod’s

and Addison’s attempt to retaliate for Ray’s shooting was not drugrelated — indeed, their retaliation did not make sense when considered solely in the context of the drug war. Instead, as McLeod clearly

explained, they attempted to retaliate for Ray’s shooting because he

was a childhood friend, and in their neighborhood, friends stuck

together. 

Ray’s involvement in the Miller shooting appears to be similar in

nature: Ray joined his friends in retaliation for the shooting of their

long-time personal friend, Morgan Kelly. As with the actions following his own shooting years earlier, Ray’s participation in the Miller

14 UNITED STATES v. RAY
shooting can more plausibly be described as an act of personal

revenge than as an act to further the drug conspiracy — a conspiracy

that according to the government’s witnesses he had never joined.

The government argued at trial that Ray participated in the Miller

shooting in order to join the Chapel Hill Gang drug conspiracy and

thereby receive protection from that gang against the Jefferson Street

Boys, who had shot him years earlier. But had Ray intended to join

the Chapel Hill Gang’s drug conspiracy to obtain protection, he presumably would have done so soon after his shooting. According to

McLeod’s testimony, after Ray’s shooting Ray left the Jefferson

Street Boys’ territory and spent time in the Chapel Hill Gang’s turf.

Nonetheless, Ray kept his distance from, and did not join, the Chapel

Hill Gang’s drug distribution conspiracy. 

"Circumstantial evidence sufficient to support a conspiracy conviction need not exclude every reasonable hypothesis of innocence."

Burgos, 94 F.3d at 858 (emphasis added). The evidence must, however, "permit[ ] a conclusion of guilt beyond a reasonable doubt." Id.

(emphasis added). Thus, the fact that the evidence would permit a

jury to find that Ray might have participated in the shooting with the

intent to further the drug conspiracy, or even that he probably did so,

is not adequate to sustain his conviction. The evidence must permit

a conclusion beyond a reasonable doubt. As the D.C. Circuit stated

in Teffera, "[w]hile we recognize that the government’s proof need

not be so certain as to exclude all inferences of innocence, in a case

where the government’s overall evidence of guilt is so thin, the alternate hypotheses consistent with innocence become sufficiently strong

that they must be deemed to instill a reasonable doubt in our hypothetical reasonable juror." Teffera, 985 F.2d at 1088.6

See also United

States v. Atehortva, 17 F.3d 546, 552 (2d Cir. 1994) (reversing conspiracy conviction based in part on the fact that "[t]his is not a case

in which there is no other plausible explanation for the appellant’s

actions."). 

6Of course, Ray’s conduct can in no way be described as "innocent."

There is ample evidence of Ray’s guilt of a state law homicide offense.

See supra note 5. In this case the question is whether there are alternative

hypotheses for Ray’s participation in the murder that would indicate that

he did not act with the intent to further the drug conspiracy, and if so,

whether those alternative hypotheses are sufficiently strong as to instill

a reasonable doubt in the mind of a reasonable juror. 

UNITED STATES v. RAY 15
As explained above, there are plausible alternative hypotheses for

Ray’s participation in the murder — namely, personal revenge for the

shooting of his friend, much like the personal revenge that motivated

McLeod’s and Addison’s response to his own shooting years earlier.

Ray might also have acted, at least in part, in response to his own

shooting at the hands of the Jefferson Street Boys years earlier. The

testimony elicited by the government from its own witnesses provided

strong evidence that over the life of this conspiracy, Ray was never

a member of the drug distribution scheme. This despite the fact that

he had the time and opportunity, by proximity and association, to join

the conspiracy in the pursuit of money or any of the other purposes

for which one might engage in such criminality. Not once did the

government ask its witnesses whether Ray had ever been hired or

served as an enforcer for the gang. Not once did it ask whether he had

ever been paid (or promised) a dime for his services. Not once did it

ask whether Ray had said anything about why he was joining them

in their September 7, 1997 attack on the Jefferson Street Boys. 

Nevertheless, the government asks us to conclude that a reasonable

jury could find, beyond a reasonable doubt, that Ray, who resisted

joining the conspiracy for many years, suddenly decided that he

wanted to ensure the success of that drug distribution operation. They

ask us to conclude this even in the face of evidence of alternative

plausible motivations for his act, namely avenging the shooting of a

long-time friend and/or his own shooting. In light of the specific facts

and circumstances of this case, the defense theory of Ray’s participation in the Miller shooting is far more plausible than the government’s

theory. This is a case where "the alternate hypotheses [regarding

Ray’s intent are] . . . sufficiently strong that they must be deemed to

instill a reasonable doubt in our hypothetical reasonable juror." Teffera, 985 F.2d at 1088. The government’s proposed evidentiary leap

"crosses the line from permissible inference to improper speculation."

Id. We conclude, given the alternative plausible explanations for

Ray’s participation in the murder, that the government failed to present evidence from which a reasonable jury could conclude, beyond

a reasonable doubt, that Ray participated in the shooting in order to

further the drug conspiracy. 

In so holding, we are not placing insurmountable evidentiary burdens on the government. We are aware that "[b]y its very nature, a

16 UNITED STATES v. RAY
conspiracy is clandestine and covert, thereby frequently resulting in

little direct evidence of such an agreement," such that "a conspiracy

generally is proved by circumstantial evidence and the context in

which the circumstantial evidence is adduced." Burgos, 94 F.3d at

857. If the circumstantial evidence permitted the inference, beyond a

reasonable doubt, that Ray participated in the Miller shooting in order

to further the drug conspiracy, we would not hesitate to affirm his

conviction despite the lack of more direct evidence of his intent. Furthermore, the course of the testimony at trial makes it clear that the

government had many opportunities that it failed to pursue that could

have shed more light on Ray’s intent when participating in the murder. A number of gang members, including McLeod, who participated

in the Miller shooting, testified at length at trial. The government easily could have pressed these witnesses for further details regarding

Ray’s participation in the Miller shooting, in particular regarding his

participation, if any, in discussions during the planning of that shooting. Instead, as the government conceded at Ray’s sentencing, the evidence demonstrated that Ray "wasn’t involved in earlier excursions

to try to retaliate on the Jefferson boys that occurred on that day, and

he was not involved in the planning of [the Miller shooting]." 

As the Seventh Circuit has explained, "[a] person who is indifferent

to the goals of an ongoing conspiracy does not become a party to this

conspiracy merely because that person knows that his or her actions

might somehow be furthering that conspiracy." United States v. Collins, 966 F.2d 1214, 1219-20 (7th Cir. 1992). Similarly, the First Circuit has stated that "even with knowledge that a conspiracy exists, one

who allegedly ‘joins’ only by furnishing some peripheral service can

hardly be deemed to have ‘agreed’ to conspire through his conduct

unless he has the aim to forward or assist the conspiracy." United

States v. Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002) (citation omitted). That is to say, a defendant’s knowledge of an ongoing conspiracy combined with actions which, at least in part, further that

conspiracy, do not always establish the defendant’s guilt of the conspiracy. There may well be cases in which these two factors —

knowledge of an ongoing conspiracy and actions which further that

conspiracy — are sufficient standing alone to support a reasonable

inference that the defendant sought to further the conspiracy. But the

facts of this case imply the contrary — namely, that Ray’s participation in the shooting was personal in nature, not in furtherance of the

UNITED STATES v. RAY 17
drug conspiracy. Accordingly, we reverse Ray’s conviction on both

counts, as the government presented insufficient evidence from which

a reasonable jury could infer, beyond a reasonable doubt, that Ray

ever acted with the intent to further the drug distribution conspiracy.7

2.

We now turn to consider whether the evidence presented was sufficient to support Burrell’s conviction. We are not entirely clear of the

precise nature of Burrell’s argument in this regard, as he simply incorporates Ray’s argument in the joint brief for the appellants. Ray’s

argument was based very heavily on the specific facts of his case and

on the details surrounding his participation in the Miller murder. Burrell was not involved in the Miller murder, but was convicted based

on evidence tying him to the killings of Silvester Snider and Antwan

Greer. Accordingly, it is difficult to know how Burrell intends to

adopt Ray’s argument. 

Under Rule 28(a)(9)(A) of the Federal Rules of Appellate Procedure, an appellant’s brief "must contain . . . the argument, [including]

appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies." By

incorporating Ray’s argument, Burrell can perhaps be said to have

cited certain legal authorities — those related generally to sufficiency

of the evidence — on which he would rely. But unsurprisingly, as the

two alleged murders are entirely separate incidents, Ray’s argument

contains no discussion of the factual basis of Burrell’s claim. Burrell

thus has utterly failed to supply the factual reasons for his claim or

any citations to those parts of the record on which his claim relies.

Appellate courts generally decline to review an "asserted but unanalyzed . . . claim," because "appellate courts do not sit as self-directed

boards of legal inquiry and research, but [rather] . . . as arbiters of

legal questions presented and argued by the parties before them."

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, Circuit Judge). See also Nat’l Metalcrafters, Div. of Keystone Consol.

Indus. v. McNeil, 784 F.2d 817, 825 (7th Cir. 1986) ("[T]he appellant

7Ray raises a number of additional challenges to his conviction.

Because we reverse his conviction, we need not address any of these

additional claims. 

18 UNITED STATES v. RAY
ha[s] raised [a ground for reversal] but . . . presented [it] in so perfunctory and underdeveloped a manner in his brief that we shall not

consider it." (quotations and citations omitted)). Given Burrell’s failure to articulate the basis for his claim, we would be fully justified

in refusing to review it altogether. Nevertheless, out of an abundance

of caution and because Burrell’s ineffective assistance claim is not

difficult to reject on the merits, we will address it.8

As should be clear from our recitation of the facts, there was ample

testimony from which the jury could conclude that Addison had

instructed Burrell to protect Addison’s drug distribution operation by

killing Greer and Snider, who had been shooting at Chapel Hill Gang

members in the area and disrupting his drug operation. Addison reassured his drug dealers that they need not worry about these shootings,

as he had Burrell "on top of it." There is testimony that Burrell then

shot Snider and Greer, and after the shootings was provided money

from the drug distribution proceeds. Thus, there is more than sufficient evidence for a jury to conclude, beyond a reasonable doubt, that

Burrell committed the Snider and Greer shootings, and that he did so

at the request of Addison with the intent to further Addison’s drug

distribution operation and to benefit himself by receiving proceeds of

that drug operation. Accordingly, Burrell’s argument that the government presented insufficient evidence to support his conviction is without merit. 

B.

Both Addison and Burrell were indicted on death-eligible offenses,

namely violations of 21 U.S.C. § 848. Under the provisions of 18

U.S.C. § 3005, each was entitled to two attorneys upon request. In

February of 1999, the Department of Justice determined that it would

not seek the death penalty against either defendant. Addison requested

that he be permitted to retain two lawyers, and this request was

approved. Burrell also requested two attorneys, but this request was

8We emphasize that our review of Burrell’s inadequately presented

claim is entirely a matter of our discretion. Litigants who present unanalyzed claims run the great risk that this court will refuse to review them

at all. 

UNITED STATES v. RAY 19
denied.9

 Accordingly, Burrell was only represented by one lawyer at

trial. 

The government concedes that Burrell requested two attorneys and

that, in light of this court’s decision in United States v. Boone, 245

F.3d 352 (4th Cir. 2001), his conviction for the death-eligible offense,

killing while engaging in a drug conspiracy, must be vacated. The

only issue debated between the parties is the impact of this on Burrell’s other count of conviction, namely conspiracy to distribute

cocaine. The government argues that we should simply vacate Burrell’s sentence (as Burrell received a single sentence based on both

counts taken together) and remand for resentencing on the drug conspiracy count alone. Burrell, in contrast, argues that the denial of two

counsel infects his entire trial and that both counts of conviction must

be vacated and remanded for retrial. The parties have not cited, and

we have not found, any caselaw directly addressing this particular

scenario, so this issue is one of first impression. 

The defense contends that affirming Burrell’s conviction on the

non-death-eligible count would in effect constitute an ex post facto

severance. We think that this overstates matters. It is frequently the

case that an error at trial infects only one of multiple counts of conviction, and courts routinely affirm the unaffected counts without concern that doing so creates an impermissible ex post facto severance of

the counts or any other legal problem. See, e.g., United States v. Silvers, 90 F.3d 95, 98-99 (4th Cir. 1996); United States v. Meriwether,

486 F.2d 498, 504 (5th Cir. 1973). In this case, the statutory purpose

of § 3005, which is to provide two counsel to defendants facing a

death-eligible count, is adequately served by vacating Burrell’s conviction on the death-eligible count. It is true that a defendant receiving

two attorneys under § 3005 is entitled to have those attorneys work

on all of the charges for which he has been indicted. But we are not

persuaded that this incidental benefit should be treated as an entitlement warranting reversal on all counts. Accordingly, we reject Burrell’s argument that both of his counts of conviction must be vacated.10

9

It is not clear (nor relevant) why Addison’s request for two attorneys

was granted while Burrell’s was denied. 

10The government claims in its brief that Burrell’s ultimate sentence

will not be affected by our vacatur of his killing while engaging in a con20 UNITED STATES v. RAY
C.

The defendants also raise a claim under Brady v. Maryland, 373

U.S. 83 (1963), that the government failed to turn over material exculpatory evidence prior to trial. In particular, the defendants argue that

the government failed to disclose, until the trial was underway, a

number of statements by various witnesses. The defendants also argue

that the prosecution has never disclosed certain other pieces of information. To establish a due process violation based on the prosecution’s failure to disclose information, a defendant must show that: "(1)

the evidence at issue must be favorable to the defendant, whether

directly exculpatory or of impeachment value; (2) it must have been

suppressed by the state, whether willfully or inadvertently; and (3) it

must be material." Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555

(4th Cir. 1999). Evidence is deemed material if "there is a reasonable

probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different." United States v.

Bagley, 473 U.S. 667, 682 (1985). The materiality of "suppressed evidence [must be] considered collectively, not item by item." Kyles v.

Whitley, 514 U.S. 419, 436 (1995). 

We first consider two pretrial statements by eyewitnesses to the

Greer shooting who testified at trial. The first is a statement by

Sharon Gordon, then a student at Johns Hopkins, who was sitting in

her car at a red light several cars behind Greer when he was shot.

Although she witnessed the shooting, she did not get a good look at

the shooter and her description of him at trial was very vague. She

never identified Burrell (or anybody else) as the shooter, either to the

police or at trial. The defendants object to the prosecution’s failure to

disclose, prior to trial, Gordon’s pretrial statement. However, Gordon

did not identify Burrell at trial, and the defendants do not suggest that

spiracy count. It states that upon re-sentencing on the drug conspiracy

count, the district court presumably will find that Burrell committed a

murder in furtherance of the conspiracy, a sentencing factor which will

result in him receiving the same sentence — life — that he is currently

facing for both counts combined. We draw no conclusions regarding the

accuracy of the government’s presumptions about Burrell’s resentencing.

We also note that our decision is entirely unaffected by whatever sentence Burrell may ultimately face. 

UNITED STATES v. RAY 21
she identified some other person in this pretrial statement. We conclude that the defendants have not identified anything in Gordon’s

pretrial statement rendering that statement exculpatory. Moreover,

Gordon’s pretrial statement was disclosed to defense counsel, albeit

at trial rather than beforehand. 

The second witness statement is by Darren Frazier, a security guard

at Johns Hopkins who also witnessed the Greer shooting. The defendants complain that the government did not disclose until midway

through the trial some notes taken by an investigator during an interview with Frazier. According to these notes, Frazier identified the

shooter as a black male aged 33-34 who was 6’3" and weighed 225

pounds. Burrell, in contrast, is around 5’10" and has an average build.

Like Gordon, Frazier did not make an in-court identification of Burrell as the shooter. If Frazier had changed his story at trial — either

by omitting these details, which tend to exculpate Burrell, or by modifying them so as to match Burrell’s description — then his prior

inconsistent description would certainly have been Brady material

that the government was obliged to disclose. However, at trial Frazier

testified on direct examination by the prosecutor that the shooter was

a black male, "approximately six two, six three in height, he weighed

about maybe 220, 230 pounds." Thus, his testimony at trial exactly

matched his pretrial statement. The defendants have not explained

how their earlier knowledge of this information, which was introduced at trial, could possibly have aided their case. 

Third, the defendants point out that the government failed to turn

over, until voir dire, a statement by Rashida Teombe. Teombe’s statement included the comment that "Hymie [Tony Allen] is right hand

man of Poopy [Addison], [so Hymie] may have shot Antwan." The

defendants argue that they could have investigated this alternate possibility if the government had provided this statement earlier in the

proceedings. We do not find this persuasive. The government correctly observes that this statement is sheer speculation — Teombe

was not a member of the drug conspiracy herself, and her statement

provides no details suggesting some concrete factual basis for this

conjecture. Nor has the defense suggested that any subsequent investigation into this supposed "alternate theory" has yielded any relevant

information. 

22 UNITED STATES v. RAY
Fourth, the prosecution provided only redacted copies of statements by a number of other witnesses.11 The defense has never been

provided unredacted copies of these statements, but asserts that the

unredacted areas might contain exculpatory information. Essentially,

this argument amounts to saying that Brady requires the prosecution

to hand over everything in its possession, either to the court or to

defense counsel, for an independent determination of whether it is

exculpatory and material. This runs directly contrary to the holding

in Brady, which "clearly place[s] responsibility on the prosecutor,

rather than the trial judge [or defense counsel], to determine" what

material is exculpatory and must be produced under Brady. United

States v. Garrett, 238 F.3d 293, 303 n.4 (5th Cir. 2000). 

Fifth, the defendants point to the prosecution’s failure to provide

the statement of Billy Ray Kirk until the second week of trial. The

government had listed Kirk as a witness, but in the end did not call

him. According to the defendants, Kirk’s statement indicates that the

Snider killing was in self-defense — that Snider shot at Burrell first.

Defense counsel’s theory of the Snider killing was that it was simply

an act of self-defense and was unrelated to the conspiracy. The prosecution, on the other hand, presented the Snider murder as another

overt act in furtherance of the conspiracy. Defense counsel did present other evidence that the murder was in self-defense. Several bullet

holes had been fired into the car that Burrell was driving at the time,

and other witnesses testified that Snider shot first. Accordingly, the

Kirk statement is cumulative of other evidence at trial. Moreover,

proving that Burrell returned fire after being shot at first by Snider

does not, as defense counsel seems to assume, prove unequivocally

that the Snider killing was not in furtherance of the drug conspiracy.

Evidence that Burrell was returning fire might weaken the inference

that he shot Snider to further the conspiracy, but countervailing evidence — such as testimony that Addison had ordered Burrell to kill

Snider — still permitted a reasonable jury to find that Burrell was

intent on shooting Snider as part of the ongoing drug war, regardless

of who had initiated the shooting. 

11Specifically, these witnesses are Bruce Snider, Charles Adock, Mary

Washington, Sharon Calloway, George Jones and an unknown witness.

UNITED STATES v. RAY 23
Finally, the defendants argue that the government should have

turned over the identity of a confidential informant who provided

information for search warrants for properties used by Addison and

other gang members. In response, the government cites "the well settled principle that the government is permitted to withhold the identity

of a confidential informant when the informant was used only for the

limited purpose of obtaining a search warrant." United States v. Gray,

47 F.3d 1359, 1365 (4th Cir. 1995) (quotations omitted). Because the

confidential informant was used solely to obtain a search warrant and

not at trial, the government had no duty to disclose his identity. 

Considering all of these allegations together, we conclude that the

delay in the disclosure of the evidence by the prosecution was not

material to the outcome of the case. As noted above, only one statement — that of Rashida Teombe — might have required some investigation by the defendants. That statement was unfounded speculation,

and the defendants have not presented any relevant evidence revealed

by this statement. The remaining statements are descriptions that do

not precisely identify Burrell and testimony that is cumulative of

other evidence presented. Defense counsel had ample opportunity to

introduce these statements at trial, and the defendants have not demonstrated how earlier access to these materials would have meaningfully improved their defense. As to the non-disclosed materials, the

defendants have not shown that the prosecution had any duty to turn

over these materials. In sum, the defendants have fallen far short of

establishing that if this material had been disclosed earlier in the proceedings, "there is a reasonable probability that . . . the result of the

proceeding would have been different." Bagley, 473 U.S. at 682. 

D.

Both Addison and Burrell argue that their convictions must be

overturned because the government knowingly offered false testimony against them. We reject this contention, because both alleged

instances of false testimony simply involve inconsistencies in the testimony of government witnesses. As we have stated before, "[m]ere

inconsistencies in testimony by government witnesses do not establish

the government’s knowing use of false testimony." United States v.

Griley, 814 F.2d 967, 971 (4th Cir. 1987) (citation omitted). 

24 UNITED STATES v. RAY
The first allegedly false statement involves testimony by Brandon

relating to the Greer and Snider murders. As set out in the statement

of facts, Brandon testified that Addison had told him that he (Addison) had ordered the Greer and Snider murders. On direct, Brandon

testified that Addison had told him of the Greer and Snider killing

prior to Brandon’s incarceration in April of 1996. On crossexamination, defense counsel brought out that the murders in question

happened in May and June of 1996. This, of course, is inconsistent

with Brandon’s testimony that Addison told him about the murders

prior to April of that year.12 When confronted with this inconsistency,

Brandon explained that he was still in contact with Addison after he

got out of jail and that Addison must have told him about the murders

then. Clearly this testimony is somewhat inconsistent — Brandon

revised his timetable to make sense of his testimony. The record illustrates that defense counsel effectively brought out this inconsistency

on cross-examination and made hay of it in closing argument. This is

a far cry from establishing that Brandon’s testimony was in fact false

or that the government knew that the testimony was false. 

As for the second allegedly false statement, McLeod testified that

Addison approached him at the Chapel Hill Gang’s Spendthrift Circle

apartment on the day after Greer’s murder and asked for money so

that Burrell could "lay low." Defense counsel confronted McLeod

with the facts that (1) Addison was hospitalized in critical condition

on the day that Greer was killed, and (2) the lease on the apartment

in question had run out in May of 1996 (the Greer killing was in

June). McLeod then changed his story and testified that Addison must

have approached him about the earlier Snider murder. Again, the government made much of this inconsistency on cross-examination and

in closing argument. But this inconsistency does not prove that the

government knew that McLeod’s testimony was false. See, e.g.,

United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (witness

statements that an officer was carrying a wooden rather than metal

baton was not knowingly false even though the government had a

report signed by the witness indicating that the officer was carrying

metal baton). Because the defendants have failed to establish that the

12The testimony was that Addison claimed responsibility for past murders, not future murders. 

UNITED STATES v. RAY 25
testimony presented by the government was false, let alone that the

government knew it was false, this claim is without merit. 

E.

Burrell next argues that the district court committed plain error by

failing to properly instruct the jury on all elements of conspiracy. He

concedes that he failed to object to the court’s instruction on this

ground at trial, and thus we review the court’s instructions for plain

error. Under the plain error standard set out in United States v. Olano,

507 U.S. 725, 732-36 (1993), the defendant must demonstrate "(1)

there is an error (2) that is plain and (3) that affects substantial rights."

United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002). "‘If all three

[of these] conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’" Id. (quoting Johnson v. United States, 520 U.S. 461, 467

(1997) (quotations omitted)). 

Burrell emphasizes the difference between the district court’s

instructions, which made reference to two elements of conspiracy,

and the standard from United States v. Stewart, 256 F.3d 231 (4th Cir.

2001), which lists four elements of conspiracy. This court in Stewart

stated that: "To prove a drug conspiracy, the Government must prove

the following: (1) an agreement with another person to violate the

law, (2) knowledge of the essential objectives of the conspiracy, (3)

knowing and voluntary involvement, and (4) interdependence among

the alleged conspirators." Id. at 250 (quotations and citation omitted).

The district court began its instructions by explaining that to establish

a conspiracy, the government must prove "two elements beyond a reasonable doubt. First, that the alleged conspiracy existed. Second, that

the charged defendant knowingly and intentionally became a member

of the conspiracy." 

On their face, these instructions do not precisely mimic the four

elements articulated in Stewart.

13 Still, there are at least two funda13It is worth noting that this case was tried in the spring of 2000, while

Stewart, the first case in which this court used this particular fourelement standard for conspiracy, was decided in 2001. It would therefore

have been quite an act of prescience on the part of the district court to

have precisely anticipated the formulation used in Stewart. 

26 UNITED STATES v. RAY
mental flaws in Burrell’s argument. First, while Stewart is certainly

one correct statement of the elements of conspiracy, it is by no means

the only formulation that captures those essential elements. Other

cases have articulated a three-prong test for conspiracy. For example,

in Burgos, this court explained that "[t]o prove conspiracy to possess

cocaine base with intent to distribute, the Government must establish

that: (1) an agreement to possess cocaine with intent to distribute

existed between two or more persons; (2) the defendant knew of the

conspiracy; and (3) the defendant knowingly and voluntarily became

a part of this conspiracy." Burgos, 94 F.3d at 857 (citation omitted).

Stewart is not inconsistent with Burgos because the former articulates

the elements of conspiracy using four prongs while the latter does so

with three prongs.14 They are simply two equally correct formulations

of the same basic elements of conspiracy. Accordingly, the discrepancy between the reference to the "two elements" of conspiracy in the

jury instructions and the four elements listed in Stewart does not

mean that the instructions were inadequate. 

Second, and more importantly, the jury instructions given here

explain the meaning of these "two elements" in a manner that adequately covers all of the requirements set forth in Stewart. The district

court defined conspiracy as "a combination, or a mutual agreement by

two or more persons, to disobey or disregard the law." The court then

explained that if the jury concluded that a conspiracy existed, "you

should next determine whether or not the defendant whom you are

considering willfully became a member of the conspiracy." In deciding this,

[Y]ou should consider whether . . . the defendant knowingly

and willfully joined the conspiracy. Did he participate in it

with knowledge of its unlawful purpose with specific intention of furthering its business or objective as an associate or

as a worker? In that regard, it has been said that in order for

a defendant to be deemed a participant in a conspiracy, that

he must have had a stake in the venture or its outcome. . . .

[I]n sum, a defendant with an understanding of the unlawful

character of the conspiracy must have intentionally engaged

14In fact, both opinions were authored by the same judge, Judge Williams. 

UNITED STATES v. RAY 27
or advised or assisted in for the purpose of furthering the

illegal undertaking, and he thereby becomes a knowing and

willing participant in the unlawful agreement; that is to say,

a conspirator. 

(Emphasis added.) These detailed instructions make clear that the second "element" — that the defendant knowingly and intentionally

became a member of the conspiracy — requires a finding that the

defendant knowingly assisted the conspiracy with the intent to further

its illegal goals. All in all, we conclude that the district court adequately instructed the jury on all of the essential elements of conspiracy. We find no error in the instructions, let alone plain error. 

F.

The defendants next argue that both the indictment and the jury

instructions were flawed, as neither clarified that a "substantial connection" must be established between the conspiracy and the alleged

murders. The defendants also argue that the prosecution exacerbated

this error by making improper comments in closing argument. We

first consider the indictment. Counts Two and Three of the indictment

charge killings "while engaging in" a drug conspiracy, in violation of

21 U.S.C. § 848(e). The phrase "while engaging in" is taken directly

from the statute. Nonetheless, as the defendants correctly point out,

this phrase on its own fails to adequately convey the elements of a

§ 848(e) offense. The phrase "while engaging in" could be read to

require no more than a temporal connection between a killing and

participation in a drug conspiracy. Thus, this court, like others, has

made clear that under § 848(e), "a substantive connection [between

the killing and the underlying offense] must be implied as an essential

element of § 848(e)." United States v. Tipton, 90 F.3d 861, 887 n.13

(4th Cir. 1996) (citing United States v. Chandler, 996 F.2d 1073,

1097 (11th Cir. 1993)). In this case, Counts Two and Three simply

allege that the defendants, "while engaging in . . . conspiracy to distribute . . . cocaine, . . . intentionally killed" Antwan Greer (Count

Two) and Bernard Miller (Count Three). 

In response, the government points out that both Counts Two and

Three incorporate by reference all allegations from Count One. In

Count One, the drug conspiracy count, the government specifically

28 UNITED STATES v. RAY
alleges that (1) the defendants "acted as enforcers who would retaliate

against persons who threatened the group’s territory or who injured

or threatened members of the group[;]" (2) "in connection with his

role as an enforcer, Darrell Antonio Burrell . . . murdered Silvester

Snider[;]" (3) Burrell "murdered Antwan Greer on June 12, 1996, in

retaliation for the shooting of Andre Addison[;]" and (4) "in connection with their roles as enforcers, [Ray and another man] participated

in the murder of Bernard Miller . . . in retaliation for an attack by

members of the Jefferson Street Boys." The government argues that

this language more than adequately alleges, by way of particular facts,

a substantial connection between the killings in Counts Two and

Three and the drug conspiracy. We agree. The government need not

use magic words to convey the required connection between the drug

conspiracy and the killings. As in Chandler, "any reasonable reading

of the indictment makes it clear that the government was charging

[the defendants] with a murder in connection with, and not just contemporaneous to, the ongoing" conspiracy. Chandler, 996 F.2d at

1097. We conclude that the indictment adequately alleged a substantial connection between the killings and the drug conspiracy. 

We now turn to the defendants’ analogous argument directed at the

jury instructions. In this regard, any contention that the instructions

failed to require the jury to find a "substantial connection" can easily

be rebutted by simply quoting from the instructions. The judge

instructed, in pertinent part, that:

The government must prove that such killing occurred while

the defendant engaged in the conspiracy charged in count

one. The term "while engaging in" means more than coincidence in time with the conspiracy. . . . [It] requires not only

that the crime occur during the time period covered by the

conspiracy, but also that each individual defendant’s participation be related to the conspiracy. You may find that the

killing was related to the conspiracy if you find that there

was a substantive connection between the individual defendant’s role in the killing and his participation in the conspiracy. 

This instruction adequately conveys the necessary nexus between the

killing and the conspiracy and eliminates any danger that "a defendant

UNITED STATES v. RAY 29
could be found guilty simply on the basis of a temporal coincidence

of a murder with a [conspiracy]." Tipton, 90 F.3d at 887. The defendants’ contention in this regard is without merit. 

Finally, we address certain comments by the prosecutor in closing

argument. These comments, the defendants contend, led the jury to

believe that the connection between the killings and the drug conspiracy was unimportant. In closing, the prosecutor highlighted the

defense argument "that somehow this is not a federal case." The prosecutor then stated:

I don’t know what that means, this is not a federal case. . . .

All I know is that this is a case that involves interstate commerce of kilos of cocaine, that there are killings, that there

are guns, that there are drugs, and that there are murders. . . .

You tell the mothers of Antwan Greer and Bernard Miller

that this is not a federal case. If this is not a federal case,

ladies and gentlemen, I don’t know what is. I don’t know

what is. 

By these statements, the prosecution appears to be suggesting that any

case that involves guns, drugs, and killings is necessarily a federal

case, i.e., a violation of federal law. This is quite obviously incorrect.

As should be clear from our discussion of Ray’s conviction in part

II.A.1, the question of whether Ray is guilty of a federal crime or only

a state crime, which the prosecution here paints as an irrelevant technicality, is the central issue for Ray. 

In addition, the prosecutor’s comment regarding the murder victims’ mothers is particularly inappropriate. It suggests that determining whether certain conduct gives rise to "a federal case" depends on

the severity of the crime or the suffering of the victim’s families. It

also implies that a state murder conviction would somehow inadequately capture the seriousness of the defendants’ conduct. Nothing

could be further from the truth. It is a "truism that our federal system

entrusts the States with primary responsibility in the criminal area,"

Giles v. Maryland, 386 U.S. 66, 81 (1967), and any suggestion that

the States are inadequate to the task is unfounded and irresponsible.

The government concedes, as it should, that this argument was inappropriate. 

30 UNITED STATES v. RAY
Nonetheless, while the remarks were improper, "[t]he issue . . . is

whether those remarks materially affected the verdict." United States

v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997). Materiality depends on

"first, whether the comments misled the jury and prejudiced the

appellant; second, were they isolated or extensive; third, absent the

remarks, what was the weight of the evidence against the accused;

and fourth, were the prosecutor’s remarks deliberate." Id. (citations

omitted). In this case, the prosecutor’s remarks were isolated in the

course of a month-long trial. The evidence connecting Addison’s and

Burrell’s participation in the Greer and Snider killings to the drug

conspiracy was quite strong. Given the district court’s clear jury

instructions, it is unlikely that these isolated comments misled the

jury. We conclude that the improper remarks did not materially affect

the jury’s verdict against Burrell or Addison. We reject all of the

defendants’ contentions related to the "substantial connection"

between the killings and the drug conspiracy. 

G.

The defendants next object to the admission of evidence resulting

from a search warrant. The copies of the warrant and affidavit introduced to the district court at the suppression hearing were not signed

by a magistrate or by the affiant, respectively. The brief submitted by

defense counsel on appeal does not make clear whether the defendants claim that the search warrants were never actually signed, or

whether they merely claim that the failure to introduce signed copies

of the search warrants at the suppression hearing was reversible error.

Addison requested permission from this court to file a supplemental

pro se brief on this issue, which we granted. In his pro se brief, Addison contends that the warrants in question had never been signed by

any magistrate. The government responded to the initial defendants’

brief but did not respond to Addison’s pro se brief. The government

stated that "[t]he fact that the search warrant and affidavit were

unsigned is not relevant" to the Fourth Amendment probable cause

inquiry. In its brief, the government never expressly stated that the

original warrant and affidavit had actually been signed, nor did they

proffer copies of the original, signed warrant and affidavit.15

15This is perhaps because the defendants’ brief did not clearly allege

that the originals had never been signed. But Addison’s pro se brief,

UNITED STATES v. RAY 31
When pressed at oral argument, the government represented that

the original warrant and affidavit had in fact been signed. After a specific request by the court, the government provided copies of the original signed warrant and affidavit. Addison has not responded or

attempted to draw into question the authenticity of those documents,

and we reject his contention that the search warrant and affidavit were

never in fact presented to a magistrate or signed. 

Given the fact that the search warrant and affidavit had in fact been

signed, we also reject the defendants’ lesser contention that the evidence must be suppressed because unsigned copies of the warrant and

affidavit were introduced at the suppression hearing. In United States

v. Lipford, 203 F.3d 259 (4th Cir. 2000), this court held that the fact

that a police officer had provided a defendant with an unsigned copy

of a search warrant, when the original had in fact been signed, did not

require suppression of the evidence obtained in that search. Id. at 269-

70. We explained that "this was, at most, a technical violation of Federal Rule of Criminal Procedure 41(d), and not a violation of the

Fourth Amendment. Absent a demonstration of prejudice or bad faith

— neither of which is present here — suppression of evidence is not

the proper remedy . . . ." Id. at 270. The same rule applies here.

Because a magistrate actually issued the search warrant, the fact that

an unsigned copy was introduced at the suppression hearing is, as in

Lipford, a technicality that does not call for suppression of the evidence. 

H.

The defendants also argue that the district court erred by refusing

to sever the trials, by refusing to instruct the jury on the limited

admissibility of a co-conspirator’s statements, and by refusing to provide a requested multiple conspiracy instruction. We have reviewed

these claims and conclude that the district court did not abuse its discretion in any of these matters. See United States v. Akinkoye, 185

which we permitted him to file, does make this more serious allegation.

We are troubled by the government’s failure to make any response to this

serious allegation, particularly given the simplicity of Addison’s claim

and the ease of presenting the proof required to rebut it — namely, copies of the original signed documents. 

32 UNITED STATES v. RAY
F.3d 192, 197 (4th Cir. 1999) (refusal to sever); United States v.

Mancuso, 42 F.3d 836, 843 (4th Cir. 1994) (refusal to provide instructions). Additionally, the defendants raise various challenges related to

the Snider killing. Specifically, the defendants argue that the district

court committed error in admitting evidence of this unindicted killing,

in refusing to instruct on self-defense, and in permitting improper

closing argument related to this killing. We have reviewed these contentions and conclude that they lack merit. 

III.

In sum, we conclude that the vast majority of the defendants’

claims on appeal lack merit. We do conclude, however, that the government failed to present sufficient evidence from which a jury could

find, beyond a reasonable doubt, that Ray participated in the Miller

shooting in order to further the drug conspiracy. We therefore reverse

his conviction on both counts. We also conclude that Burrell was

denied his statutory right to two attorneys for his death-eligible

offense and that his conviction for killing while engaging in a drug

conspiracy must therefore be vacated. This error does not affect his

conviction for conspiracy to distribute cocaine, however, and we

affirm that conviction. We vacate his sentence and remand for resentencing on that count alone. We affirm Addison’s conviction in all

respects.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, AND REMANDED

UNITED STATES v. RAY 33