PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEEANDER JEROME BLAKE,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
LEEANDER JEROME BLAKE,
Defendant-Appellant.

No. 07-4619

No. 07-4827

Appeals from the United States District Court

for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(1:06-cr-00394-WMN)
Argued: May 15, 2009
Decided: July 2, 2009
Before WILKINSON and TRAXLER, Circuit Judges,
and C. Arlen BEAM, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit,
sitting by designation.

UNITED STATES v. BLAKE

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Wilkinson and Senior Judge Beam joined.

COUNSEL
ARGUED: Kenneth Wendell Ravenell, Baltimore, Maryland,
for Appellant. John Francis Purcell, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.

OPINION
TRAXLER, Circuit Judge:
Leeander Jerome Blake raises numerous challenges to his
conviction and sentence for offenses arising out of a carjacking that caused the death of the victim. We affirm.
I.
On the evening of September 19, 2002, Blake and Terrance
Tolbert walked into a Maryland neighborhood with a gun,
looking for someone to carjack. Blake pointed out 51-year-old
Straughan Lee Griffin, who had just arrived home from work
and was in the process of unloading his Jeep Grand Cherokee
in front of his home. The men approached Griffin and shot
him in the head. They then drove away in his vehicle, running
over Griffin in the process. Griffin was transported to a
nearby hospital, where he was pronounced dead.
On October 25, 2002, Tolbert was arrested, and he made
statements implicating Blake. Tolbert told police that he was
with Blake on the night Griffin was murdered, that Blake had
a gun, and that Blake shot Griffin, took Griffins keys, and
drove his vehicle from the scene.

UNITED STATES v. BLAKE

Based on this statement, the lead Annapolis police investigator in this case, Detective Williams Johns, applied for an
arrest warrant for Blake and a search warrant for Blakes residence. Using the information in Detective Johnss application,
a Maryland state district court commissioner issued the
requested warrants, determined the offenses Blake would be
charged with, and generated a statement of charges.
At around 5:00 a.m. on October 26, a dozen officers executed the warrant at Blakes home. They entered with guns
drawn and found Blake watching television. They ordered
him to lie on the floor and then arrested and handcuffed him.
He was wearing only boxer shorts and a T-shirt. The police
forcibly took him away, giving him no time to dress or put on
his shoes.
When Blake arrived at the Annapolis Police Department,
he was brought to an intake room. Detective Johns arrived
soon after. According to Johns, he and Corporal Thomas Hannon, who was assisting Johns in the investigation, spoke to
Blake in a non-aggressive, conversational tone without discussing the possible penalties that Blake faced. Johns testified
that Blake was not given the statement of charges at that time
because it contained Tolberts version of events, and Johns
did not want Blake to be able to tailor his version of events
to Tolberts. According to Johns, Blake appeared calm and
was not wearing handcuffs. Johns read Blake his Miranda
rights and provided a waiver outlining each right. Blake
immediately requested a lawyer. As a result, Johns stopped
the interrogation. Thus, at around 5:25 a.m., Blake was transferred to a prison cell and left alone.
Thirty-five minutes later, Detective Johns returned to
Blakes cell. According to Johns, his purpose in returning was
to give Blake a copy of the statement of charges. See Maryland Rule 4-212(e) (requiring police to provide a copy of this
statement "promptly" after arrest). Johns was accompanied by
Officer Curtis Reese, who had driven the police car that trans-

UNITED STATES v. BLAKE

ported Blake to the Annapolis Police Department but who

was not involved in the investigation.
Johns gave Blake the statement, read the charges as they
were described on the first page, and told Blake, "its very
serious, this is your copy, you need to read it over." J.A. 744.
The second and third pages contained a brief description of
each charge as well as the maximum penalty for each offense.
Unbeknownst to Johns, the maximum penalty listed for the
first-degree murder charge was "DEATH." J.A. 518.
Although the death penalty is indeed the maximum penalty
that can be imposed in Maryland for first-degree murder,
Blake himself could not have received the death penalty
because he was only 17 years old on the night of the murder,
and thus statutorily ineligible for the death penalty in Maryland. See Md. Code Ann., Crim. Law 2-202(b)(2)(i) (West
2009). The application section of the statement of charges
contained the factual summary, that Johns had prepared, of
the conduct underlying the charges, including an accusation
by Tolbert that Blake was the one who shot Griffin and drove
Griffins vehicle from the scene.
As Johns turned to leave, he heard Reese say, in a loud and
confrontational voice, "I bet you want to talk now, huh?" J.A.
745-46, 819 (internal quotation marks omitted). Blake did not
respond. Detective Johns was surprised by Reeses remark,
and immediately physically guided Reese out of the cellblock.
As he did so, he loudly stated to Reese words to the effect of
"no, he doesnt want to talk to us, you cant say anything to
him, he asked for a lawyer." J.A. 747. According to Johns, he
spoke loudly to prevent Reese from saying anything more and
to avoid hearing any response that Blake might offer. Johns
reported this incident to his supervisor and included a description of it in the homicide report.
At 6:28 a.m., about one half-hour after Johns had last spoken to Blake, Johns returned to the cellblock to deliver Blake
some clothing that had been brought for him. According to

UNITED STATES v. BLAKE

Johns, Blake appeared calm. When Johns gave him the

clothes, Blake asked, "I can still talk to you?" J.A. 755 (internal quotation marks omitted). Johns replied, "Are you saying
you want to talk to me now?" J.A. 756 (internal quotation
marks omitted). Blake replied that he was. Johns told him he
would have to re-read Blake his Miranda rights before they
could talk, to which Blake agreed. Blake, fully clothed by that
time, was then walked back to the interview room, where he
was re-Mirandized. Blake never made reference to the death
penalty or to Officer Reeses remark at any time that day.
Blake proceeded to provide the following account of the
night in question. He and Tolbert were walking around
Annapolis. At one point Tolbert entered a house and emerged
with a gun; when they arrived at Cumberland Court they saw
a man holding some clothes beside a car with its hood up.
After they walked past the man, Tolbert approached him,
pulled out the gun without saying anything, and pointed it at
the mans face. Tolbert pulled the trigger once and it clicked.
Then he pulled the trigger again, the gun fired, and the man
fell. Tolbert rolled the man over and removed the car keys
from his pocket. Tolbert and Blake entered the Jeep with Tolbert in the drivers seat. Tolbert drove the Jeep from the
scene. They proceeded to Glen Burnie, where they wiped
down the Jeep and went to the home of a person that Blake
knew as "Smalls," where Tolbert and Smalls wiped off the
gun and bullets. Blake explained that, prior to Tolbert
approaching the victim, Blake and Tolbert had not been looking for someone to rob. Blake also stated, "I understand I was
wrong by being there, but I dont want to be blamed for the
murder." J.A. 1170.
At the end of the interview, Detective Johns asked if Blake
would agree to a polygraph exam, and Blake said he would.
About an hour later, Blake was transported to the Maryland
State Police barracks, where he met Corporal Ed White, the
state police polygraph examiner. White also found Blake to be
calm. After White administered the test, he told Blake that he

UNITED STATES v. BLAKE

appeared to have been deceptive, and White asked Blake if he

was holding anything back. Blake then admitted that on the
day of the murder, he knew Tolbert had a gun. He also admitted that they were looking for someone to carjack, and that
Blake initially noticed Griffin and pointed him out to Tolbert.
After White informed Johns of the additional admissions,
Blake then repeated them to White and also demonstrated
how he pointed out Griffin to Tolbert.
Blake was indicted by an Anne Arundel County grand jury
for first-degree murder, second-degree murder, and manslaughter. On June 3, 2003, however, a Maryland state court
judge granted Blakes motion to suppress his post-arrest statements on the ground that after Blake invoked his right to
counsel, the statements were obtained from Blake as the result
of custodial interrogation in violation of Edwards v. Arizona,
451 U.S. 477 (1981). The Maryland Court of Special Appeals
reversed, but the Maryland Court of Appeals later reversed
the intermediate court, upholding the suppression of Blakes
statements, see Blake v. State, 849 A.2d 410 (Md. 2004). In
so doing, the Maryland Court of Appeals rejected an argument that Detective Johns cured any Edwards violation with
his loud statement that Blake had requested a lawyer and
could not be interrogated further. See id. at 422-23.
The state then petitioned the United States Supreme Court
for a writ of certiorari. The sole issue presented was:
When a police officer improperly communicates
with a suspect after invocation of the suspects right
to counsel, does Edwards v. Arizona, 451 U.S. 477
(1981), permit consideration of curative measures by
the police, or other intervening circumstances, to
conclude that a suspect later initiated communication
with the police?
Maryland v. Blake, 2005 WL 1400703, *i (Brief of the State
of Maryland). The United States Supreme Court granted cer-

UNITED STATES v. BLAKE

tiorari but subsequently dismissed the writ as "improvidently

granted." Maryland v. Blake, 546 U.S. 72, 73 (2005).
On August 31, 2006, Blake was indicted by a federal grand
jury for carjacking resulting in death ("Count One"), see 18
U.S.C.A. 2119 (West 2000), and for related firearm violations.1 The district court subsequently denied Blakes motion
to suppress his post-arrest statements. Following a trial, the
jury returned a verdict convicting Blake of the carjacking
charge and of three of the four other counts.2 Blake was sentenced to life imprisonment.
II.
Blake first maintains that the district court erred in refusing
to suppress his post-arrest statements. We disagree.
When reviewing a denial of a motion to suppress, we
review factual findings for clear error and legal conclusions
de novo. See United States v. Kimbrough, 477 F.3d 144, 147
(4th Cir. 2007).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court afforded protection to the Fifth Amendment privilege
against compelled self-incrimination "from the coercive pressures that can be brought to bear upon a suspect in the context
1

The other charges were conspiracy to possess a firearm in furtherance

of a crime of violence, see 18 U.S.C.A. 924(o) (West Supp. 2009); possession and discharge of a firearm in furtherance of a crime of violence,
see 18 U.S.C.A. 924(c) (West Supp. 2009); commission of seconddegree murder while possessing a firearm, see 18 U.S.C.A. 924(j) (West
Supp. 2009); and commission of felony murder while possessing a firearm, see 18 U.S.C.A. 924(j).
2
As per the district courts instruction, the jury, having found Blake
guilty on the charge of commission of felony murder while possessing a
firearm, did not consider whether he was also guilty of the charge of commission of second-degree murder while possessing a firearm, which the
government subsequently dismissed.

UNITED STATES v. BLAKE

of custodial interrogation." Berkemer v. McCarty, 468 U.S.

420, 428 (1984). Part of the protection afforded by Miranda
is the requirement that prior to any custodial interrogation, the
police inform the suspect that he has the right to remain silent
and the right to the presence of an attorney. See Miranda, 384
U.S. at 479. In Edwards v. Arizona, the Court held that, once
a suspect in custody has invoked his right to counsel, he "is
not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. In
Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980), the
Supreme Court defined what police questioning or conduct
constitutes "interrogation" for purposes of assessing whether
the Edwards rule has been violated. That decision warrants
close examination here.
In Innis, the defendant, who was unarmed, was arrested for
a robbery that had been committed just hours before with a
sawed-off shotgun. See Innis, 446 U.S. at 293-94. He was
given his Miranda warnings, at which time he requested a
lawyer. See id. at 294. Three officers then began transporting
him to the police station in a police car. See id. During the
ride, two of the officers discussed with each other the need to
find the shotgun since there was a school for handicapped
children near the location where the suspect was arrested and
because it would be unfortunate if one of the children found
the gun and hurt himself. See id. at 294-95. At that point, the
suspect told the officers that he would show them where the
gun was located, and he did. See id. at 295. The state supreme
court overturned his subsequent conviction for murder, holding that the gun and the testimony about how the defendant
revealed its location were improperly admitted since they
were the product of "subtle coercion" that the court deemed
equivalent to Miranda "interrogation." Id. at 296 (internal
quotation marks omitted).
The Supreme Court granted certiorari and reversed. The
Court held that the state supreme court had erred "in equating

UNITED STATES v. BLAKE

subtle compulsion with interrogation," id. at 303 (internal

quotation marks omitted), and the Court defined the boundaries of what constitutes "interrogation" in this context. The
Court explained:
[T]he Miranda safeguards come into play whenever
a person in custody is subjected to either express
questioning or its functional equivalent. That is to
say, the term "interrogation" under Miranda refers
not only to express questioning, but also to any
words or actions on the part of the police (other than
those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit
an incriminating response from the suspect. The latter portion of this definition focuses primarily upon
the perceptions of the suspect, rather than the intent
of the police. This focus reflects the fact that the
Miranda safeguards were designed to vest a suspect
in custody with an added measure of protection
against coercive police practices, without regard to
objective proof of the underlying intent of the police.
Id. at 300-01 (footnotes omitted). The Court explained that in
determining whether police conduct is the functional equivalent of interrogation, the intent of the police, although not the
focus, can be relevant to the determination. See id. at 301 n.6.
Applying that standard to the facts before it, the Court
found that the officers actions did not amount to the functional equivalent of interrogation:
There is nothing in the record to suggest that the
officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is
there anything in the record to suggest that the police
knew that the respondent was unusually disoriented
or upset at the time of his arrest.

10

UNITED STATES v. BLAKE

The case thus boils down to whether, in the context of a brief conversation, the officers should have
known that the respondent would suddenly be
moved to make a self-incriminating response. Given
the fact that the entire conversation appears to have
consisted of no more than a few off hand remarks,
we cannot say that the officers should have known
that it was reasonably likely that Innis would so
respond. This is not a case where the police carried
on a lengthy harangue in the presence of the suspect.
Nor does the record support the respondents contention that, under the circumstances, the officers comments were particularly "evocative." It is our view,
therefore, that the respondent was not subjected by
the police to words or actions that the police should
have known were reasonably likely to elicit an
incriminating response from him.
Id. at 302-03 (footnote omitted).
In the case at bar, the district court determined that the conduct at issue also did not "rise above subtle compulsion," as
it would have to do in order to constitute the functional equivalent of interrogation. J.A. 988-89. The district court found
that Officer Reeses remark was merely "a snide taunt or a
facetious jibe and it represented no more than a caustic commentary by Officer Reese on the evidence." J.A. 990. The
court determined it to be "only an isolated, offhand remark"
that "invited no reply" and noted that it "was not a lengthy
harangue in the presence of the suspect." J.A. 990. Observing
that "Officer Reese had no function as an investigating detective or officer in the Griffin murder case," the court found that
there was no evidence whatsoever to suggest that Officer
Reese had any plan to elicit an incriminating statement. J.A.
991. In fact, the court reasoned, in light of the caustic nature
of the comment, that "Officer Reese never would have anticipated that [it] would have been likely to elicit an incriminating response." J.A. 991. The court concluded that "only a very

UNITED STATES v. BLAKE

11

strained interpretation [of Officer Reeses remark] would

allow a finding of any level of coercion or compulsion." J.A.
992.
The district court further determined that Blakes desire to
waive his rights was not motivated by the offhand comment,
but rather by his concern with Tolberts accusationincluded
in the statement of chargesthat it was Blake who was the
triggerman. In this regard, the court noted Blakes statement
to Detective Johns that he understood he was wrong to be
with Tolbert but that he did not want to be blamed for his
murder. The court also reasoned that "Blakes argument that
he was intimidated by the reference in the charging documents to the appearance of death as a maximum penalty . . .
strains credulity given the total absence of any reference to
that during subsequent statements." J.A. 993. The court additionally found that Blake had been "calm throughout" the process. J.A. 995.
We find nothing in the district courts analysis that warrants reversal. Initially, we note that Detective Johns provision to Blake of the statement of charges served to inform
Blake that Tolbert had named him as the triggerman, that
Blake was being charged with first-degree murder, and that
the maximum penalty for first-degree murder was the death penalty.3 Regardless of whether a reasonable officer would suspect that giving Blake the document was likely to garner his
cooperation, no evidence suggests that Detective Johns provision of the statement of charges was anything other than an
3

Of course, as we have explained, Blake was not eligible to receive the

death penalty because he was under 18 on the date of the murder. Blake
does not contend that the statement of charges listing death as the maximum penalty for the first-degree-murder charge was so deceptive that his
post-arrest statements were not voluntary. See Moran v. Burbine, 475 U.S.
412, 421 (1986) (explaining that defendants waiver of the rights conveyed in Miranda warnings "must have been voluntary in the sense that
it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception").

12

UNITED STATES v. BLAKE

action "normally attendant to arrest and custody." Innis, 446

U.S. at 301. In fact, it was the officers legal duty to provide
Blake with the document. See Md. Rule 4-212(e) (requiring
police to provide copy of this document "promptly" after
arrest); see also State v. Conover, 537 A.2d 1167, 1171 (Md.
1988) ("We do not consider it unusual for the detectives to
have treated the Application for a Statement of Charges as a
part of the packet of charging documents."). Accordingly,
providing Blake with the statement of charges did not constitute the functional equivalent of interrogation. See Innis, 446
U.S. at 301 (excluding "any words or actions on the part of
the police [that are] normally attendant to arrest and custody"
from the scope of what is functionally equivalent to interrogation); Pennsylvania v. Muniz, 496 U.S. 582, 603 (1990) (holding that police officers limited inquiries regarding whether
suspect understood instructions officer provided for sobriety
test were not functional equivalent of interrogation in part
because these inquiries "were necessarily attendant to" legitimate police procedure); South Dakota v. Neville, 459 U.S.
553, 564 n.15 (1983) (similar holding regarding officers
request that arrestee submit to blood-alcohol test); United
States v. Benton, 996 F.2d 642, 644 (3d Cir. 1993) (holding
that officers explaining to suspect why he was arrested did
not constitute the functional equivalent of interrogation);
United States v. Crisco, 725 F.2d 1228, 1230-32 (9th Cir.
1984) (similar); Conover, 537 A.2d at 1169-72 (holding that
officers giving suspect copy of statement of charges, as law
required, did not constitute the functional equivalent of interrogation).
In contrast to Detective Johnss provision of the statement
of charges to Blake, which might have been expected to
increase the chance that Blake would cooperate, a reasonable
officer in Reeses position would not have anticipated that his
taunt would elicit an incriminating response. Indeed, had Officer Reese paused to consider the expected effect of his taunt
prior to delivering it, he very well might have predicted that
it would anger Blake, thereby reducing the chance that he

UNITED STATES v. BLAKE

13

would confess. As it is, it appears that Reese simply issued

the caustic comment without ever engaging in that calculus.4
Blake suggests that Reeses aggressive tone could reasonably have been expected to intimidate him into cooperating.
However, any such prospect was greatly minimized by the
calm demeanor that Blake exhibited and the completely isolated nature of Reeses remark.5 In fact, the isolated nature of
the taunt and the concomitant reduction in its potential to
intimidate also significantly lessened the chance that it would
be perceived by Blake as some sort of "psychological ploy."
Arizona v. Mauro, 481 U.S. 520, 527 (1987) (holding that
suspect was not subjected to the functional equivalent of
interrogation when he "was not subjected to compelling influences, psychological ploys, or direct questioning"); Muniz,
496 U.S. at 605 (holding police conduct was not the functional equivalent of interrogation when it was "not likely to be
perceived as calling for any incriminating response");
Kimbrough, 477 F.3d at 152 (holding that police action was
not functional equivalent of custodial interrogation partly
because suspect would not have felt that he was being coerced
to incriminate himself). In our view, the conversation in Innis
would have been more likely to have been perceived as a ploy
by the suspect therein.
4

The district courts finding that Reese did not intend to elicit any
incriminating response, which was not clearly erroneous, marks a significant difference between this appeal and the appeal decided in Blakes state
case, wherein the trial judge had suppressed the post-arrest statements in
part based on his factual finding that Officer Reese made his remark "for
the purpose of getting Mr. Blake to talk." Blake v. State, 849 A.2d 410,
415 (Md. 2004) (internal quotation marks omitted); see Innis, 446 U.S. at
301 & n.6 (explaining that while the intent of the police is not the primary
focus of determining whether police conduct is the functional equivalent
of interrogation, it can be relevant).
5
Blake contends that he was a terrified, shivering juvenile and thus particularly susceptible to coercion, but the district court was presented with
significant evidence at odds with that account and indeed found that Blake
was calm throughout the process.

14

UNITED STATES v. BLAKE

Moreover, unlike the officers conversation in Innis, which

informed the suspect that his silence regarding the guns location could result in serious harm to handicapped children,
Officer Reeses remark provided Blake with no substantive
information. The primary message that the taunt conveyed
was simply that the information in the statement of charges
showed Blake to be in a very difficult spot, a proposition that
was obvious from a reading of that document. The taunt at
most contained an implicit suggestion that Blake would be
wise to cooperate in light of the information contained in the
statement of charges. In the absence of any explanation of
why cooperating, rather than conferring with a lawyer, would
be the best choice for Blake, Reese could not have reasonably
anticipated that his taunt would convince Blake to change his
mind. Thus, we conclude that any marginal coercive effect
that Reese reasonably would have expected the remark to
have was even more subtle than that of the conversation at
issue in Innis.
Officer Reeses statement is analogous to the statements at
issue in United States v. Payne, 954 F.2d 199 (4th Cir. 1992),
and United States v. Jackson, 863 F.2d 1168 (4th Cir. 1989),
which we held not to be the functional equivalent of interrogation. In Payne, the defendant was arrested for selling
cocaine in violation of the conditions of his release pending
incarceration for a prior federal conviction. See Payne, 954
F.2d at 200-01. Upon his arrest, he invoked his right to counsel. See id. at 201. He was later transported by car to Baltimore to be turned over to the United States Marshals Service.
See id. During the ride, an FBI agent received information
that execution of a search warrant at the defendants residence
had turned up a handgun. Sometime later, the agent said to
Payne, "They found a gun at your house," to which Payne
responded, "I just had it for my protection." Id. (internal quotation marks omitted). The defendant was later charged with
drug and weapons offenses and unsuccessfully moved to suppress his statement before trial as resulting from custodial
interrogation after he had invoked his right to counsel. See id.

UNITED STATES v. BLAKE

15

We affirmed the ruling on appeal. See id. at 204. In so doing,

we noted that "the Innis definition of interrogation is not so
broad as to capture within Mirandas reach all declaratory
statements by police officers concerning the nature of the
charges against the suspect and the evidence relating to those
charges." Id. at 202. We emphasized that the statement had
not been intended to prompt a response, that it was isolated,
and that it was not part of a psychological ploy. See id. at 203.
In Jackson, the defendant and several other men conspired
to transport cocaine. See Jackson, 863 F.2d at 1170. When the
defendant was arrested, he was informed of his Miranda
rights and of the statutory violations that had prompted his
arrest. See id. at 1171. When he stated that he did not know
anything about cocaine, an agent stated, "Just think about
Harry Payne," who was one of the defendants coconspirators.
Id. (internal quotation marks omitted). The defendant denied
knowing a Harry Payne, and this false statement was subsequently introduced at his trial. See id. We affirmed the admission of the statement on appeal, emphasizing that the
statement "was in the form of a declaration, not a question,"
that it "came only in response in a conversation [that the
defendant] himself initiated," and that "it should not be construed as an attempt to solicit information from [the defendant]." Id. at 1172.
Payne and Jackson reflect the proposition that "in the
absence of some police interference with the exercise of the
right to counsel of the accused, the Edwards rule is to be
strictly and narrowly applied." Plazinich v. Lynaugh, 843 F.2d
836, 838-39 (5th Cir. 1988) (holding that statement to suspect
about other suspects attempted suicide was not the functional
equivalent of interrogation). Although neither statement was
designed to elicit an incriminating response, both might be
understood as having "tightened the screws" on the suspects
such that they might have been persuaded to cooperate. We
nevertheless found both statements to amount to no more than
the "subtle coercion" that Innis explains is not the functional

16

UNITED STATES v. BLAKE

equivalent of interrogation. Innis, 446 U.S. at 296. Reeses

taunt here not only provided less information than the statements in Payne and Jackson, it was delivered in a tone less
conducive to obtaining the suspects cooperation. Concluding
as we do, that it had relatively little potential to intimidate
Blake (especially in comparison to the knowledge that he was
alleged to be the triggerman in a murder at which he knew he
had been present), we hold that the remark, like those in
Payne and Jackson, was not the functional equivalent of interrogation. We therefore affirm the denial of the suppression
motion.
III.
On June 12, 2007, after the jury had been empanelled and
sworn (and more than nine months after Blake had been
indicted) Blake moved to dismiss the indictment for lack of
subject-matter jurisdiction. He argued that the court did not
possess jurisdiction since he was only 17 and a juvenile on the
date of the murder, and because the government did not comply with the certification requirements of 18 U.S.C.A. 5032
(West 2000) of the federal Juvenile Delinquency Act
("JDA"). The district court denied the motion for two reasons.
First, the court found that it did not comply with Federal Rule
of Criminal Procedure 12(b)(3)(A), which requires that "a
motion alleging a defect in instituting the prosecution" "must
be raised before trial." The district court found that Blakes
motion should have been made before trial since the motion
essentially asserted that the prosecution failed to take a
required procedural actionobtaining a JDA certificationprior to indicting its case. The district court also concluded that Blakes motion failed on its merits because no
certification was required since Blake was 21 and no federal
juvenile proceedings had been pursued against him previously. Blake then sought leave to file an interlocutory appeal,
which the district court denied.6
6

Despite the denial, Blake filed a notice of appeal. The district court
nevertheless proceeded with the trial, ruling that it retained jurisdiction

UNITED STATES v. BLAKE

17

Blake now argues that the district court erred both in denying his motion to dismiss the indictment and in denying him
leave to file an interlocutory appeal. We disagree.
The primary purpose of the JDA is "to remove juveniles
from the ordinary criminal process in order to avoid the
stigma of a prior criminal conviction and to encourage treatment and rehabilitation." United States v. Juvenile Male, 554
F.3d 456, 460 (4th Cir. 2009) (internal quotation marks omitted). The Act provides several procedures for the handling
and disposition of juveniles in the federal system. See id. Pursuant to 5032,
A juvenile alleged to have committed an act of
juvenile delinquency, other than a violation of law
committed within the special maritime and territorial
jurisdiction of the United States for which the maximum authorized term of imprisonment does not
exceed six months, shall not be proceeded against in
any court of the United States unless the Attorney
General, after investigation, certifies to the appropriate district court of the United States that (1) the
juvenile court or other appropriate court of a State
does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such
alleged act of juvenile delinquency, (2) the State
does not have available programs and services adequate for the needs of juveniles, or (3) the offense
charged is a crime of violence that is a felony . . .
and that there is a substantial Federal interest in the
case or the offense to warrant the exercise of Federal
jurisdiction.
over the case under the doctrine of "dual jurisdiction" on the basis that
Blakes motion to dismiss was frivolous. See United States v. Montgomery, 262 F.3d 233, 240 (4th Cir. 2001). Blake eventually filed another
notice of appeal after final judgment was issued against him. We later consolidated the two appeals.

18

UNITED STATES v. BLAKE

18 U.S.C.A. 5032. Section 5031 states:

For the purposes of this chapter, a "juvenile" is a
person who has not attained his eighteenth birthday,
or for the purpose of proceedings and disposition
under this chapter for an alleged act of juvenile
delinquency, a person who has not attained his
twenty-first birthday, and "juvenile delinquency" is
the violation of a law of the United States committed
by a person prior to his eighteenth birthday which
would have been a crime if committed by an adult or
a violation by such a person of section 922(x).
18 U.S.C.A. 5031 (West 2000).
Blake was born on June 1, 1985, and, consequently, was 17
on September 19, 2002, the date of the carjacking. Blake
therefore clearly committed an act of "juvenile delinquency"
as that term is defined in 5301 because he violated a federal
law before he turned 18 that would have been a crime if committed by an adult. He turned 21 on June 1, 2006, and was
indicted almost three months later, on August 31, 2006. The
primary question here is whether Blake was a "juvenile" as
that term is defined in 5301. The district court correctly concluded that he was not.
Blake certainly was neither a person who "has not attained
his eighteenth birthday" nor a person who "has not attained
his twenty-first birthday" at any time during the proceedings
in this case. Thus, for us to conclude that Blake qualified as
a "juvenile," we would have to read "a person who has not
attained his eighteenth birthday" in 5301 to mean a person
who had not attained his eighteenth birthday at the time he
allegedly violated the law in question. That simply is not what
the statute says. See United States v. Wright, 540 F.3d 833,
838-39 (8th Cir. 2008) (holding that JDA did not apply
because defendant "was indicted when he was 28 years old,
and was thus no longer a juvenile"), cert. denied, Wright v.

UNITED STATES v. BLAKE

19

United States, 2009 WL 1361579 (U.S. May 18, 2009);

United States v. Hoo, 825 F.2d 667, 669-70 (2d Cir. 1987)
(holding that JDA does not apply to persons who are over the
age of 21 when charged); In re Martin, 788 F.2d 696, 697-98
(11th Cir. 1986) (per curiam) (holding that JDA did not apply
to defendant who committed alleged acts when he was seventeen but was not indicted until he was 24); United States v.
Araiza-Valdez, 713 F.2d 430, 433 (9th Cir. 1980) (per curiam)
(holding that "an information alleging acts of delinquency
occurring prior to the accuseds 18th birthday but filed after
his or her 21st year is too late to establish JDA jurisdiction").7
Blake advances two arguments against the district courts
interpretation that merit discussion.
First, Blake asserts that unless 5031 is construed to mean
that any person who had not attained his eighteenth birthday
at the time he allegedly violated the law in question is a "juvenile," it will render surplusage the portion of the statutory definition of "juvenile" referring to "a person who has not
attained his eighteenth birthday" because anyone who is
younger than 18 would necessarily also be younger than 21 at
that time. Even if Blake is correct on this point, because the
construction that Blake suggests would avoid the surplusage
is not plausible for the reason we have already explained, the
surplusage argument is of no help to him. See Chickasaw
Nation v. United States, 534 U.S. 84, 89 (2001) (adopting
construction that leads to surplusage because there is "no
other reasonable reading of the statute").8
7

Blake relies on United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir.
2003), but that case is of little assistance. Although the Ceja-Prado court
concluded that the defendant therein was a juvenile for 5301 purposes
if he was younger than 18 at the time he committed his crime, see id. at
1048, 1051, the court did not give any reason for that reading of the statute. Moreover, the defendant there was indicted before he turned 21.
8
The surplusage simply appears to be the result of a poorly drafted 1974
amendment. Prior to the amendment, 18 U.S.C. 5031 stated: "For the
purposes of this chapter, a juvenile is a person who has not attained his
eighteenth birthday, and juvenile delinquency is the violation of a law of
the United States committed by a juvenile and not punishable by death or
life imprisonment." 18 U.S.C. 5031 (1970).

20

UNITED STATES v. BLAKE

Blake also contends that the district courts construction is

illogical because it would allow a prosecutor to intentionally
deprive a defendant of his rights under the Act by delaying
initiating a prosecution against himperhaps for many
yearsuntil he turned 21. But prosecutors in our legal system
are granted great discretion to make many important decisions, including whom to charge and what offense to charge.
See, e.g., Ball v. United States, 470 U.S. 856, 859 (1985);
Hoo, 825 F.2d at 670-71. They certainly could wreak great
havoc under all sorts of scenarios if they chose to abuse the
vast authority given to them. See Hoo, 825 F.2d at 671. Thus,
we do not believe that the possibility that the district courts
construction would allow unscrupulous prosecutors to cause
unfair results strongly indicates that Congress did not intend
the statutes words to be given their plain meaning.9
Because the district court correctly denied the motion to
dismiss the indictment, any error in denying Blakes request
for leave to file an interlocutory appeal was harmless. See
Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.").
IV.
Blake next contends that the district court abused its discretion in denying his motion for a mistrial based on conduct of
the prosecutor during opening statements. Blake complains
that the government included too much argument in its opening statement and that an overhead projection sheet employed
the phrase "predatory conduct" in relation to Blake. Blake
9

Moreover, statutes of limitations could thwart unfair delays, as perhaps

could the Constitution, cf. United States v. Marion, 404 U.S. 307, 322-24
(1971) (noting governments concession that Due Process Clause requires
the dismissal of an indictment because of a pre-indictment delay when the
delay caused "substantial prejudice" to the defendants rights to a fair trial
and the delay was an "intentional device to gain tactical advantage over
the accused").

UNITED STATES v. BLAKE

21

also complains that the prosecutor stated, "if someone were to

call you up and say, hey, your brother was just killed because
somebody took his car for a ride, for a 20 minute ride, thats
just ridiculous," and noted that Blake left his "part of town"
in search of a victim. J.A. 1038, 1048. Blake argues that
"[t]his was a clear suggestion that [Blake], an African American youth, did not belong in the affluent neighborhood of the
Caucasian victim." Appellants br. at 61-62. We conclude that
these actions and statements were not nearly sufficient to warrant a mistrial, let alone a holding that the district court
abused its discretion in denying a mistrial. See United States
v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997) (stating standard of review).
V.
Blake further argues that the district court erred in allowing
the government to present evidence relating to his polygraph.
We review a district courts decision concerning admissibility
of evidence for an abuse of discretion, which we will not find
unless the decision was "arbitrary and irrational." United
States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002). We find
no abuse of discretion here.
Polygraph results are generally inadmissible. See United
States v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984). However, "testimony concerning a polygraph examination is
admissible where it is not offered to prove the truth of the
polygraph result, but instead is offered for a limited purpose
such as rebutting a defendants assertion that his confession
was coerced." United States v. Allard, 464 F.3d 529, 534 (5th
Cir. 2006) (collecting cases); cf. United States v. Mohr, 318
F.3d 613, 626 (4th Cir. 2003) (holding that district court was
within its discretion in permitting witness to explain, on redirect examination, that it was his concern over an impending
polygraph that caused him to make a written statement when
defendant had opened the door for such testimony by suggesting, on cross-examination, other possible, improper motives).

22

UNITED STATES v. BLAKE

As we have explained, Blake made some of his October 26

admissions to Corporal White as part of a polygraph examination. Before taking the polygraph, Blake had claimed that he
had merely been with Tolbert on the night of the carjacking
and did not know he was going to rob anyone. Following the
examination, White told Blake he appeared to have been
deceptive and asked Blake if he was withholding any information. Only then did Blake admit that he had known Tolbert
had a gun, that he and Tolbert had been searching for someone to carjack, and that it was Blake who first saw Griffin and
pointed him out to Tolbert.
Before trial, the government had stated that it did not intend
to make any reference to the polygraph. The government
nonetheless filed a motion in limine requesting that the district
court rule that if Blake argued to the jury that the fact that
White interviewed Blake one-on-one indicated that the resulting statements were coerced, the government could introduce
evidence of the polygraph to explain why Corporal White
interviewed Blake by himself. The court denied the motion.
In the governments opening statement, the prosecutor
mentioned that White conducted a one-on-one interrogation
of Blake:
Mr. Blake agrees, as does his mother, agrees to be
interviewed by the Maryland State Police, by a
detective, corporal who basically specializes in oneon-one interviews. And the idea is to make the witness comfortable or the person they interview comfortable and just ask him what happened which, by
the way, is all Detective Johns asked him.
J.A. 1062. In Blakes opening, defense counsel then strongly
suggested that the reason for the one-on-one interrogation was
to coerce Blake:
They dont get a lawyer for him. They dont call the
Public Defenders office, they have an on-duty per-

UNITED STATES v. BLAKE

son. You want to talk to this young man before we

speak to him? They do what they want. They now
interview him.
They dont call his mother, who is a mile and a
half away, and say, we have a juvenile, your son,
here. Do you mind coming in and being with us
while we interrogate your son? They dont want his
mother there. They dont want a lawyer there. They
want a statement from a scared kid, and they get one.
And when they get one, its not enough. Mr. Blake
says, I was there but I didnt do anything. Mr. Tolbert shot this man, Mr. Tolbert drove over his body,
Mr. Tolbert had this gun. They dont have enough.
And then you hear about [from the prosecutor]
that they decide to do this special one-on-one interrogation with a different detective. I like that term.
[The prosecutor] said this detective who specializes
in one-on-one interrogation.
Well, see, earlier, interrogation was Detective
Johns and Detective Hannon. You had two, which is
how the police normally do it. But here, were going
to get you one-on-one with this special detective,
who specializes in one-on-one interrogation.
Lo and behold, after this one-on-one interrogation,
they now have Mr. Blake saying, I pointed him out,
I pointed the man out, and I knew we were going to
rob someone, after the special one-on-one interrogation.
You begin to ask yourself, and through trial you
will hear the evidence, you start deliberating, thats
what you find to be a statement you want to rely
upon.

23

24

UNITED STATES v. BLAKE

See, its not just the fact that they have a statement.
You, the jury, decide whether you rely on that statement and what validity, what weight you give it, if
any.
This is not just about getting a conviction. The
government may think that but thats not what its
about. Its about you reviewing the evidence and
deciding whether this evidence proves to you that
Mr. Blake is guilty and that you can rely on this
statement, this draconian way of getting it.
J.A. 1078-80.
The government subsequently alerted the court that Blake
had argued, in precisely the manner that its motion in limine
had anticipated, that Whites one-on-one interview was coercive. The court agreed that defense counsel had opened the
door to evidence about the polygraph and thus the court left
"it to the government to make the determination as to how
[the issue was] going to be presented." J.A. 1451. Thus, on
direct examination, Detective Johns testified that White had
administered a polygraph and that afterwards Blake told him
that he had admitted to Corporal White that it was he (Blake)
who had identified Griffin and pointed him out to Tolbert and
that Blake and Tolbert had been looking for a car to steal on
the day of the crime. Prior to defense counsels crossexamination of Detective Johns, the court instructed the jury
that it could not speculate regarding the test results and could
consider evidence of the polygraph examination only for the
purpose of considering the circumstances under which Blake
made his statements.
In examining Corporal White about the polygraph, the
prosecutor stated to White, in front of the jury, "Now, you
understand in no fashion are we to talk about the results of
the" polygraph. J.A. 1910. The prosecutor then asked a few
questions about what questions White asked during the test.

UNITED STATES v. BLAKE

25

Defense counsel objected and, during a side bar, argued that

the governments questions were beyond the scope allowed.
The court sustained that objection "to any further questions
with respect to the specifics of the polygraph." J.A. 1911.
Defense counsel also argued that the governments statement
to White that he should not discuss the polygraph results was
improper and prejudicial in that it would cause the jury to
conclude that Blake failed the polygraph. Defense counsel
reasserted its earlier request for a mistrial. The court denied
the motion, concluding the jury had not heard enough to
determine that Blake failed the polygraph.
Blake contends that the district court erred in ruling that he
opened the door to testimony concerning the polygraph and
argues that even if he did open the door, the polygraph evidence should have been excluded under Rule 403 because "its
probative value [was] substantially outweighed by the danger
of unfair prejudice." Fed. R. Evid. 403. We find no error.
First, we hold that the courts initial ruling that defense
counsel opened the door to questioning about the polygraph
was clearly within the district courts discretion. Defense
counsel unmistakably advanced the argument that the one-onone nature of Cpl. Whites interrogation was a coercive police
tactic that should undermine confidence in the truth of
Blakes statement. To allow such an attack to go unanswered
would have been unfair. See Allard, 464 F.3d at 534. Blake
argues that it was the government that first mentioned the fact
that the interrogation was one-on-one and that defense counsels argument was merely a response to that argument. But
whether the government mentioned the one-on-one nature of
the interrogation is of no moment because there was no reason
that defense counsel needed to comment on that fact. It was,
of course, only defense counsel who suggested that the interrogation was coercive. The district court therefore properly
ruled that defense counsel opened the door to questioning
about whether the one-on-one interrogation was in the context
of a polygraph.

26

UNITED STATES v. BLAKE

As for whether the evidences probative value was substantially outweighed by the danger of unfair prejudice, the district court was within its discretion in ruling that it was not.
The evidence had substantial probative value, for the reason
we have discussed. Any danger of unfair prejudice was
greatly minimized by the courts instructions. And, in any
event, even if the evidence was prejudicial, the prejudice to
Blake was hardly "unfair" as it was Blake himself who essentially forced the court to admit the evidence.
VI.
Blake next claims that the district court erred in allowing
the government to call a witness, Kenyah Carroll, without
allowing a delay to later in the trial, as Blake had requested.
We disagree.
Carroll was a former girlfriend of Blakes to whom Blake
admitted, among other things, that on the day of his crime, he
and Tolbert had intended to commit a carjacking and that it
was Blake who initially saw Griffin and pointed him out to
Tolbert. Defense counsel had received and reviewed the transcript of Carrolls grand jury testimony at least five days
before the trial began.10
At the beginning of the trial day on June 14, 2007, the government informed the defense that it intended to call Carroll
in addition to the other witnesses about whom it had notified
the defense the day before. The government represented that
she was young and scared and it had decided to call her in
order to end her ordeal as quickly as possible. Defense counsel responded that he was not prepared to cross-examine Carroll and requested that the court prohibit her from being called
at that time. The government represented that it had attempted
to notify defense counsel the night before that Carroll would
10

The government maintained that it had produced the transcript to

Blake at least three weeks prior to trial.

UNITED STATES v. BLAKE

27

be called. It also provided the court with a proffer of her

expected testimony and informed the court that direct examination would likely not exceed one hour. Defense counsel
requested that at the very least, Carroll be called after lunch
so that he could have at least the lunch break to prepare. The
court overruled defense counsels objection, however, and
allowed Carroll to be called immediately.
Federal Rule of Evidence 611(a) provides that "[t]he court
shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1)
make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment." The rule gives the trial judge broad discretion, and accordingly, "in applying the rule, a judges ruling
will not be the basis for reversal of a criminal conviction
unless a defendants substantial rights are affected." United
States v. Maddox, 944 F.2d 1223, 1230 (6th Cir. 1991) (internal quotation marks omitted).
The district court acted within its discretion. The subjectmatter of Carrolls testimony was not complex, and, notwithstanding Blakes claim that he was not prepared to crossexamine Carroll, the record reflects that his cross-examination
was quite effective. He elicited testimony that she was unclear
about when Blake made the statement to her, that she did not
tell the government about Blakes statement until after she
and Blake had a bad breakup, that she had earlier stated that
Blake told her that "they" rather than "he" first saw the victim,
J.A. 1483-84, and that Blake told her that Tolbert shot the victim. Counsel also elicited testimony that Blake told Carroll
that he was not aware that Tolbert had a gun, that Blake told
her that Tolbert took the keys out of the victims pocket, that
Blake told her Tolbert drove the victims vehicle, that Blake
did not frequent Elvaton (where Blake and Tolbert went after
the shooting), and that she had never seen Blake with a gun.
Blake has not begun to show how his substantial rights were

28

UNITED STATES v. BLAKE

affected. In fact, he has not suggested anything that counsel

would have done differently had he been given more time to
prepare.
VII.
Blake next argues that the district court abused its discretion in excluding a particular hearsay statement from evidence. We disagree.
During the trial, Blake sought to call a witness named Steven Queen. In an interview conducted in December 2003,
Queen had stated that during his incarceration with Tolbert,
he overheard Tolbert speaking to a person that Queen did not
know. Queen stated that Tolbert said Tolbert and Blake followed the victim home to rob him of his car, that Tolbert
approached the man and pointed a gun at him, demanding his
wallet and keys, and that the victim complied. According to
Queen, Tolbert stated that he (Tolbert) then got into the victims car, as did Blake, and that the victim then asked Tolbert
not to take his truck, at which time Tolbert got out of the vehicle and shot the victim. Queen stated that Tolbert said he then
got back into the cars passenger seat, pointed the gun at
Blake, and ordered Blake to drive, threatening to shoot him if
he refused.
Blake sought to admit Queens testimony pursuant to Rule
804(b)(3), which provides, in pertinent part:
(b) Hearsay exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
....
(3) Statement against interest. A statement
which was at the time of its making so far contrary
to the declarants pecuniary or proprietary interest,

UNITED STATES v. BLAKE

29

or so far tended to subject the declarant to civil or

criminal liability . . . that a reasonable person in the
declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
Fed. R. Evid. 804(b)(3) (third emphasis added).
The government moved in limine to exclude the testimony
on the basis that it did not satisfy the requirement that there
be corroborating circumstances clearly indicating the trustworthiness of the statement. The district court excluded the
statement, finding that it had an "inherent lack of reliability
for the truth of it" and that it was "a typical jailhouse type of
an exchange and it does lack sufficient corroboration to warrant its admission." J.A. 2053. Blake now challenges the ruling on appeal.
Rule 804(b)(3) places a "formidable burden" on those seeking to offer evidence pursuant to that rule. United States v.
MacDonald, 688 F.2d 224, 233 (4th Cir. 1982). The district
courts findings regarding the guarantees of trustworthiness of
a statement offered pursuant to Rule 804(b)(3) are reviewed
for clear error. See United States v. Workman, 860 F.2d 140,
144 (4th Cir. 1988). We review the courts decision to admit
or exclude the evidence for abuse of discretion. See United
States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995).
The exclusion of Queens statement was well within the
district courts discretion. As the district court concluded,
other than Queens account, there was no evidence corroborating even the fact that Tolbert made the statement, much
less any evidence that Tolberts statement was trustworthy.
Not only did Blake not produce evidence of any other
instance of Tolbert admitting to be the triggerman, evidence

30

UNITED STATES v. BLAKE

was presented that Tolbert had repeatedly denied being the

triggerman. Moreover, other aspects of the statement itself
also reduced its trustworthiness. For example, Queen claimed
that Tolbert said that Tolbert and Blake had followed that victim home, but Blake conceded at trial that they had not done
so. Also, Queen claimed that Tolbert took the victims wallet,
when in fact the wallet was found on the victims person. The
circumstances of the statement as described by Queen further
support the district courts finding of unreliability. The statements were said to have been made in a prison yard to a person whose relationship to Tolbert is unknown. Certainly,
prisoners, for many reasons, often tend to exaggerate, boast,
or posture in their day-to-day interactions. See United States
v. Seabolt, 958 F.2d 231, 233 (8th Cir. 1992) (per curiam).
There is no reason not to believe that this was simply one of
those occasions.
VIII.
Blake also maintains that the district court erred in instructing the jury regarding the death element of the carjacking
offense. We find no reversible error.
"When confronted by a claim of an erroneous jury instruction, we do not conduct a search for technical error. Rather,
our inquiry is whether, taken as a whole, the instruction fairly
states the controlling law." United States v. Cobb, 905 F.2d
784, 788-89 (4th Cir. 1990).
The statute provides, in relevant part:
Whoever, with the intent to cause death or serious
bodily harm takes a motor vehicle that has been
transported, shipped, or received in interstate or foreign commerce from the person or presence of
another by force and violence or by intimidation, or
attempts to do so, shall

UNITED STATES v. BLAKE

31

(1) be fined under this title or imprisoned not

more than 15 years, or both,
....
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or
both, or sentenced to death.
18 U.S.C.A. 2119.
To obtain a conviction under 2119(1), the government
must prove that the defendant "(1) with intent to cause death
or serious bodily harm (2) took a motor vehicle (3) that had
been transported, shipped or received in interstate or foreign
commerce (4) from the person or presence of another (5) by
force and violence or intimidation." United States v. Foster,
507 F.3d 233, 246 (4th Cir. 2007) (internal quotation marks
omitted). To establish guilt under 2119(3), the government
must also prove the additional element that "death result[ed]"
from the defendants taking or attempted taking of the vehicle. 18 U.S.C.A. 2119(3); Jones v. United States, 526 U.S.
227, 251-52 (1999) (holding that provisions of 2119 setting
higher penalties when the offense involves serious injury or
death establish elements of separate offenses, not mere sentencing factors).
The relevant instruction was as follows:
If you find that the government has proved the
four elements of the charged carjacking crime that I
have just described beyond a reasonable doubt, you
will be asked to record on your verdict form whether
you find beyond a reasonable doubt that the death of
Straughan Lee Griffin resulted from the carjacking.
The government does not have to prove that the
death occurred during the actual carjacking. Its suf-

32

UNITED STATES v. BLAKE

ficient if the government proves the defendant

caused the death of Straughan Lee Griffin at any
time during the carjacking or the defendants retention of the vehicle.
J.A. 2311 (emphasis added).
Blake contends that the district court was required to
instruct the jury both that it must determine whether the government proved beyond a reasonable doubt that Blakes
actions caused the victims death and that that fact is an element of the crime of carjacking resulting in death. Blake
argues that the instruction was deficient in two ways. First, it
stated that the jury need only find that death resulted from the
carjacking (as opposed to finding that Blakes actions caused
the death). Second, although the instruction conveyed that the
jury had to determine whether the government proved that
fact beyond a reasonable doubt, it did not convey that that fact
was an element of the offense of carjacking resulting in death
(as opposed to a sentencing factor or some other type of fact).
We conclude that the district courts instruction fairly conveyed the controlling law. The instruction properly reflected
that a defendant commits a 2119(3) offense whenever death
results from his violation of 2119(1). It also properly conveyed that, in order to obtain a conviction, the government
must prove that death resulted from the carjacking beyond a
reasonable doubt. The fact that the death element is an
offense element rather than simply a factor that would affect
Blakes sentence was a mere technicality that was of no concern to the jury and that had no effect on its deliberations.
Thus, it is not a basis for reversal.11
11
Blake also contends that the district court failed to observe the
requirements of Rule 30, which provides that "[o]pportunity shall be given
to make the objection [to the charge] out of the hearing of the jury and,
on request, out of the jurys presence." Fed. R. Crim. P. 30. However, as
Blake concedes, violation of that rule is not grounds for a new trial if it
affirmatively appears that no prejudice resulted. See United States v. Buie,
538 F.2d 545, 546 (4th Cir. 1976). Here, because the charge correctly
instructed the jury regarding the issue it was required to resolve, no prejudice resulted from any violation, and Blake is not entitled to relief.

UNITED STATES v. BLAKE

33

IX.
Blake finally challenges his sentence. He argues that his
sentence was procedurally unreasonable because the district
court erred in determining his advisory sentencing guidelines
range. Specifically, he maintains that the court erred in refusing to grant him a two- or four-level offense-level reduction
for being a minor or minimal participant, see U.S.S.G.
3B1.2, when the evidence demonstrated that Tolbert controlled the gun, pulled the trigger, and drove the vehicle away.
We find no clear error.12 See United States v. Sayles, 296 F.3d
219, 224 (4th Cir. 2002) (stating standard of review).
The commentary to 3B1.2 explains that role adjustments
are for defendants who are "substantially less culpable than
the average participant." U.S.S.G. 3B1.2 (cmt. (n.3(A)). In
determining whether the adjustment applies, we consider not
only "the defendants conduct relative to the other defendants,
but also . . . his or her conduct relative to the elements of conviction." United States v. Akinkoye, 185 F.3d 192, 202 (4th
Cir. 1999). In so doing, we consider "whether the defendants
conduct is material or essential to committing the offense." Id.
(internal quotation marks omitted).
Regardless of whether Blake actually controlled the gun,
pulled the trigger, or drove the car, he comprised one half of
an armed two-person carjacking team. Indeed, he was the person who pointed Griffin out and suggested to Tolbert that they
rob him. In light of these facts, the district court certainly did
not clearly err in declining to reduce Blakes offense level for
being a minor or minimal participant.
12

Blake also maintains that the district court did not adequately and
properly consider the 3553(a) sentencing factors. However, the district
court in fact explicitly considered the 3553(a) factors.

34

UNITED STATES v. BLAKE

X.
In sum, for the foregoing reasons, we affirm Blakes conviction and sentence.
AFFIRMED