UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

GBEMISOLA, ABDUL J.


99-3123a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Abdul J. Gbemisola appeals his  conviction for
possession with intent to distribute over one  kilogram of heroin. He
argues that evidence obtained  through the use of an electronic
tracking device should have  been suppressed because the device was
installed outside the  jurisdiction of the magistrate judge who issued
the warrant  for its installation. He also argues that the evidence at
trial  was insufficient to support his conviction and that he was 
improperly joined for trial with two co-defendants. We find  no merit
to these arguments and affirm the conviction.


I


On March 6, 1998, the U.S. Customs Service at the port of  entry in
Memphis, Tennessee selected for examination a box  being shipped by
Federal Express from Cambodia to a "Mail  Boxes Etc." location in
Washington, D.C.1 The box aroused  Customs' suspicions because it came
from a narcotics source  country, had atypical merchandise, and had no
value listed on  the waybill. Upon opening the box, agents found six
cooking  pots that smelled of fresh paint, were unusually heavy, and 
had observable "depth discrepancies"--i.e., false bottoms.  Inside the
false bottom of each pot was a translucent bag of  heroin. Customs
then checked for other boxes from the same  shipper and found another
also addressed to Mail Boxes Etc.  in the District of Columbia, albeit
at a different District  location. This one, too, contained six pots
and they, too,  contained heroin secreted in false bottoms. Customs
found a  third box, also containing six freshly-painted pots with
false  bottoms filled with heroin, in a Federal Express shipment in 
Indianapolis, Indiana. The third box had been shipped from  the
Philippines and was bound for yet a third Mail Boxes Etc.  location in
the District of Columbia. Each box contained  approximately 1500 grams
of heroin with a very high level of 




__________

n 1 Mail Boxes Etc. rents mailboxes with 24-hour access at  numerous
locations in the Washington, D.C. area and worldwide.


purity--approximately 90%. The heroin in each box had a  street value
of approximately $1 million.


Customs agents repackaged the pots in their original boxes  and sent
them on to Customs' Washington, D.C. area field  office at Dulles
Airport in Northern Virginia. There, agents  reopened the boxes and
installed electronic tracking devices  pursuant to a warrant obtained
from a federal magistrate  judge in the District of Columbia. Each
device emitted a  radio signal with the capacity to indicate when the
box was  moving and to disclose when it was opened. Agents removed 
some of the pots from each box, and diluted the heroin in the 
remaining pots with flour. Telephone books were added to  the boxes to
compensate for the weight of the removed pots.  The boxes were then
resealed and delivered to the three Mail  Boxes Etc. addresses on the
shipping labels: 1429 G Street,  N.W.; 4401 Connecticut Avenue, N.W.;
and 5505 Connecticut  Avenue, N.W.


Meanwhile, on March 4, 1998, around the time that the  boxes were being
shipped from Southeast Asia, a person  using the name "Winston" made
three telephone reservations  for travel on March 9 from O'Hare
International Airport in  Chicago to Baltimore-Washington
International Airport  (BWI) in Maryland. The reservations were made
in the  names of "Abdul Gevemisola [sic]," "Wahab Akanni," and 
"Winston Gillsillian [sic]." On March 9, "Winston" made new 
reservations for the same three to travel on March 10. On  that day,
the tickets were purchased with cash because the  credit card with
which "Winston" initially attempted to make  the purchase was reported
as unverifiable. The plane arrived  at BWI at 10:17 a.m., and a ticket
for three travelers--later  found in the pocket of Gbemisola's
co-defendant Wahab Akan- ni--was purchased for the 12:00 p.m. "Super
Shuttle" from  BWI to downtown Washington, D.C. The Shuttle ride takes


Just after 1:00 p.m., an individual, later identified as Gbe- misola's
co-defendant Winston Gillfillian, entered the Mail  Boxes Etc.
location at 1429 G Street, N.W. in downtown  Washington. An employee
testified that Gillfillian appeared 


to be accompanied by two other men, one of whom had a  shoulder bag,
who remained waiting outside. Although Gill- fillian attempted to
retrieve the Federal Express package,  which had been delivered to a
box in the name of "Aldrich  Hinton," Customs had already removed it.
Gillfillian left  empty-handed.


A half hour later, defendant Gbemisola entered the Mail  Boxes Etc.
franchise at 4401 Connecticut Avenue, N.W.,  carrying a shoulder bag.
One of the three Federal Express  boxes had been addressed to the
mailbox of "Anthony Brown"  at that location. Gbemisola presented a
notice of mail for  "Anthony Brown" and retrieved the box. Before
leaving the  premises, Gbemisola renewed the rental of "Brown's" box
for  another three months.


Gbemisola then walked out the door, and law enforcement  agents watched
as he entered a taxi. They followed in their  own car. Almost
immediately, the electronic tracking device  alerted the agents that
the box had been opened. The agents  stopped the taxi and arrested
Gbemisola. They found the  Federal Express box lying open on the floor
of the taxi's back  seat. Inside Gbemisola's shoulder bag was the pot
of heroin  and the telephone books, as well as an envelope addressed
to  "Anthony Brown" at 4401 Connecticut Avenue, N.W. The  envelope
contained an auto repair estimate in the name of co- defendant


At about the time of Gbemisola's arrest, co-defendant Ak- anni entered
a taxi in the 4600 block of Connecticut Avenue,  N.W. The third
co-defendant, Gillfillian, was already in the  taxi. The taxi
proceeded northbound to the 5500 block of  Connecticut Avenue N.W.,
where Akanni exited. The taxi  continued and, minutes later, stopped
again to let Gillfillian  out. Akanni then entered the third Mail
Boxes Etc. location  at 5505 Connecticut Avenue, N.W., where he picked
up the  third Federal Express box, which had been addressed to  "Cecil
Dover." Like Gbemisola, Akanni renewed the rental  on the box for
another three months. As Akanni left the  store with the box,
co-defendant Gillfillian hailed a cab. Both 


were then arrested. Agents found documents related to the  two other
Mail Boxes Etc. stores on Gillfillian's person.


A grand jury returned an indictment against the three  men. In Count
One, all three were charged with conspiracy  to distribute narcotics,
in violation of 21 U.S.C. s 846. In  Count Two, Gbemisola alone was
charged with possession  with intent to distribute a kilogram or more
of heroin, in  violation of 21 U.S.C. s 841(a)(1), (b)(1)(A)(I). In
Count  Three, the other two men were charged with the same crime.  The
three were tried together. None of the defendants  testified, and
Gbemisola did not present any witnesses. Dur- ing the trial, the
government moved to dismiss the conspiracy  charge because of
discrepancies in dates listed in the indict- ment, and the court
granted the motion. The jury found  Gbemisola guilty on his remaining
count, but acquitted his co- defendants on theirs.


Gbemisola appeals his conviction, citing three motions that  he
contends the trial court erroneously denied. First, during  the trial
a government witness testified that although the  warrant for the
tracking devices had been issued by a magis- trate judge sitting in
Washington, D.C., the devices were  actually installed in Virginia.
Contending that this rendered  the warrant invalid, defendant moved to
suppress the evi- dence obtained from the use of the tracking device
in the box  he retrieved. Second, after the court dismissed the
conspira- cy count mid-trial, Gbemisola moved to sever his case from 
that of his co-defendants. Finally, Gbemisola moved for  judgment of
acquittal on the ground that the evidence was  insufficient to sustain


II


Gbemisola's appeal of the denial of his motion to suppress  does not
involve any factual dispute. Both parties agree that  the warrant
purporting to authorize installation of the track- ing device was
issued in the District of Columbia, that the  monitoring actually
occurred in the District, but that the  agents installed the device in
Virginia. The only question is a  legal one--whether the evidence
obtained through use of the 


device was unlawfully obtained. We decide that question de  novo. See
In re Sealed Case No. 96-3167, 153 F.3d 759, 764  (D.C. Cir. 1998).


Section 3117(a) of Title 18 of the United States Code states  as
follows:


If a court is empowered to issue a warrant or other order  for the
installation of a mobile tracking device, such  order may authorize
the use of that device within the  jurisdiction of the court, and
outside the jurisdiction if  the device is installed in that


18 U.S.C. s 3117(a). Defendant contends that this statute  does not
empower a court to authorize the installation of a  tracking device
outside its jurisdiction. Although we are  inclined to agree,2 and
although at oral argument the govern-




__________

n 2 In fact, the statute does not appear to authorize installation  of
a tracking device at all. On its face, the statute is addressed to a 
court already "empowered" by some other authority to issue an  order
for the installation of such a device. The statute merely  permits
such an otherwise-empowered court to authorize the use of  that device
both inside the jurisdiction and outside the jurisdiction if  the
installation is made inside. See also Sen. Rep. No. 99-541, at  33-34
(1986). Before section 3117 was enacted in 1986, courts  relied on
Federal Rule of Criminal Procedure 41 for the power to  issue search
warrants authorizing the installation and use of track- ing devices.
See In re Application of the United States ("White  Truck"), 155
F.R.D. 401, 402-03 (D. Mass. 1994) (discussing histori- cal practice);
cf. United States v. New York Tel. Co., 434 U.S. 159,  169-70 (1977)
(holding Rule 41 broad enough to authorize installa- tion and use of
pen registers). At the time, however, Rule 41 only  authorized
warrants issued by "a federal magistrate ... within the  district
wherein the property or person sought is located," thus  rendering
uncertain a court's power to issue a warrant permitting  the continued
use of a mobile tracking device after it (and the  container in which
it had been placed) left the district. Fed. R. Crim.  P. 41(a) (1986);
see Clifford Fishman, Electronic Tracking Devices  and The Fourth
Amendment: Knotts, Karo, and the Questions  Still Unanswered, 34 Cath.
U. L. Rev. 277, 375 (1985). Section 3117  resolved that uncertainty by
providing the necessary authority. See  White Truck, 155 F.R.D. at


ment indicated its agreement as well, that agreement does  not resolve
the suppression issue.


As is apparent on its face, section 3117 provides a basis for 
authorizing the use of a mobile tracking device. But by  contrast to
statutes governing other kinds of electronic sur- veillance devices,
section 3117 does not prohibit the use of a  tracking device in the
absence of conformity with the section.  Cf. 18 U.S.C. s 3121(a)
("Except as provided in this section,  no person may install or use a
pen register or a trap and  trace device without first obtaining a
court order.... "); id.  s 2511(1) ("Except as otherwise provided in
this chapter any  person who--(a) intentionally intercepts ... any
wire, oral, or  electronic communication ... shall be punished.... ").
Nor  does it bar the use of evidence acquired without a section  3117
order. Cf. id. s 2515 (barring use as evidence of wire or  oral
communications intercepted in violation of statute). In- deed, the
statute that bars the interception of any "electronic  communication"
except in conformity with its provisions ex- pressly excludes section
3117 tracking devices from the defi- nition of "electronic
communication." See id. s 2510(12)(c).  Similarly, the legislative
history of section 3117 makes clear  Congress' understanding that,
under the Supreme Court's  decisions in United States v. Karo, 468
U.S. 705 (1984), and  United States v. Knotts, 460 U.S. 276 (1983),
warrants are not  always required for either the installation or use
of mobile  tracking devices. See H.R. Rep. No. 99-647, at 60 (1986) 
(noting that Karo held a warrant was "not required where the  owner
consents to installation," and that Knotts held the  warrantless
"installation of a beeper on a container to follow  on a public
roadway does not violate the Fourth Amend- ment"). Accordingly, the




__________

n amended to permit a magistrate to issue a search warrant not only 
for property within the judicial district, but also for property
"either  within or outside the district if the property ... is within
the  district when the warrant is sought but might move outside the 
district before the warrant is executed." Fed. R. Crim. P. 41(a); see 
also id. Advisory Committee's note on 1990 amendment (suggesting  that
amendment provides authority for issuance of warrant to follow  beeper
across state lines).


whether Customs needed an authorizing warrant in the first  place--or
instead whether the warrant that issued, although  perhaps invalid,
was superfluous.


We conclude that the government did not require a warrant  to authorize
its conduct in this case. Defendant concedes  that no warrant was
required for the initial opening of the  box, as it arrived at the
border via international mail. See  United States v. Ramsey, 431 U.S.
606, 619 (1977) (holding  that neither warrant nor probable cause is
required for  search of letters sent through international mail). As
defen- dant further concedes, installing the tracking device did not 
require any additional intrusion into anyone's reasonable  expectation
of privacy. Without such an intrusion, there can  be no Fourth
Amendment violation. See Karo, 468 U.S. at  712-13 (holding that
placement of beeper does not violate  Fourth Amendment unless
reasonable expectation of privacy  is infringed); Illinois v. Andreas,
463 U.S. 765, 771 (1983)  ("No protected privacy interest remains in
contraband in a  container once government officers lawfully have
opened that  container and identified its contents as illegal.").3


The remaining question is whether a warrant was required  for the
continuing use of the device--that is, for the electronic  reports it
made concerning the location and reopening of the  box. In Karo, the
Supreme Court held that a warrant was  required to monitor the
location of a tracking device in a  private home because of the
legitimate expectation of privacy  within a home. See 468 U.S. at
714-18. However, the Court  also held that no warrant was required for
monitoring the  device during the time it was en route to the house in
a truck  on a public road. See id. at 721. Reaffirming its previous 
decision in Knotts, the Court declared that "the warrantless 
monitoring of an electronic tracking device .. [does] not 




__________

n 3 Moreover, under the theory suggested by defense counsel in  closing
argument--that Gbemisola was merely picking up the box  for a
friend--Gbemisola would not have had the necessary expecta- tion of
privacy in the first place. See Rakas v. Illinois, 439 U.S.  128, 143
(1978); United States v. Magnum, 100 F.3d 164, 170 (D.C.  Cir.


violate the Fourth Amendment when it reveal[s] no informa- tion that
could not have been obtained through visual surveil- lance." Id. at
707.


The same analysis applies here. As Gbemisola left the  Mail Boxes Etc.
building, entered a taxi, and drove away, he  was followed by a team
of surveillance agents. Although the  tracking device reported the
location of the box, so too did the  agents' visual surveillance. With
respect to location, the  device added nothing to what the agents
could see with their  eyes. That surveillance did not violate the
Fourth Amend- ment, as Gbemisola "ha[d] no reasonable expectation of
priva- cy" with respect to his travels on the public street. Knotts, 
460 U.S. at 281. "[S]ince the movements of the automobile  and ... of
the [object] containing the beeper ... could have  been observed by
the naked eye, no Fourth Amendment  violation was committed.... "
Karo, 468 U.S. at 713-714.


But, Gbemisola argues, the device also reported when the  box was
opened--an event that the officers did not see. The  decisive issue,
however, is not what the officers saw but what  they could have seen.
See id.; Knotts, 460 U.S. at 282, 285.  At any time, the surveillance
vehicle could have pulled along- side of the taxi and the officers
could have watched Gbemisola  through its window. Indeed, the taxi
driver himself could  have seen the event simply by looking in his
rear-view mirror  or turning around. As one cannot have a reasonable
expecta- tion of privacy concerning an act performed within the visual
 range of a complete stranger, the Fourth Amendment's war- rant
requirement was not implicated. See Katz v. United  States, 389 U.S.
347, 351 (1967) ( "What a person knowingly  exposes to the public ...
is not a subject of Fourth Amend- ment protection.").


In sum, because no warrant was required for either the  installation or
use of the mobile tracking device, the fruits of  that use were
admissible at trial regardless of the validity of  the warrant
obtained by the government. See, e.g., United  States v. Martinez, 78
F.3d 399, 401 (8th Cir. 1998) (upholding  search of car under
automobile exception regardless of validi- ty of warrant).


III


Defendant's remaining two arguments, relating to the suffi- ciency of
the evidence to sustain the verdict and to the  propriety of a joint
trial, merit only brief discussion.


We must affirm a jury's verdict if " 'any rational trier of  fact could
have found the essential elements of the crime  beyond a reasonable
doubt.' " United States v. Lucas, 67  F.3d 956, 959 (D.C. Cir. 1995)
(quoting Jackson v. Virginia,  443 U.S. 307, 319 (1979)). In making
that determination, "the  prosecution's evidence is to be viewed in
the light most  favorable to the government, drawing no distinction
between  direct and circumstantial evidence, and giving full play to
the  right of the jury to determine credibility, weigh the evidence 
and draw justifiable inferences of fact." United States v.  Foster,
783 F.2d 1087, 1088 (D.C. Cir. 1986) (internal quota- tion omitted).


In the district court, defendant contended there was insuffi- cient
evidence to show anything more than that he "was  picking up a box for
a friend," a box the contents of which he  did not know. See Trial Tr.
at 1699 (closing argument). But  the evidence recounted in Part I
above--including travel to a  distant city, the suspicious manner in
which the three men  fanned out to retrieve the three packages, the
use of false  names on the mailboxes at all three locations, the
defendant's  renewal of the mailbox account in a false name, and the 
defendant's removal of the contents from the package--was  more than
sufficient for a reasonable jury to conclude that  Gbemisola knew he
was picking up a box of contraband. On  appeal, defendant contends
that all of this could be explained  if Gbemisola had been involved in
an illegal scheme to import  cultural artifacts, and that it need not
necessarily mean he  knew the artifacts contained narcotics. Not only
was this  theory not offered at trial, it does not "explain" what hap-
pened in this case. The Southeast Asian shippers placed  heroin in the
false bottoms of the pots--in an amount (and  value) the jury could
reasonably have doubted they would  have entrusted to recipients who
thought they were merely  importing artifacts, and in a location that


particularly risky if an "innocent" recipient had decided to use  the
cooking pots for their apparent purpose. See United  States v.
Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997)  (holding that
reasonable jury could infer from quantity of  drugs in false bottom of
suitcase "that a 'prudent smuggler' is  not likely to entrust such
valuable cargo to an innocent  person without that person's
knowledge"); United States v.  Herrera, 931 F.2d 761, 763 (11th Cir.
1991) (holding that to  sustain conviction it "is not necessary that
the evidence  exclude every" innocent explanation for lack of
knowledge of  drugs in false suitcase compartment); see also United
States  v. Brown, 33 F.3d 1014, 1015-16 (8th Cir. 1994) (sustaining 
conviction where defendant used false name to pick up United  Parcel
Service package containing hidden narcotics).


Gbemisola fares no better with his attack on his joint trial.  First,
defendant argues that once the court dismissed the  conspiracy count,
there was misjoinder under Federal Rule of  Criminal Procedure 8(b),
which provides that:


Two or more defendants may be charged in the same  indictment or
information if they are alleged to have  participated in the same act
or transaction or in the same  series of acts or transactions
constituting an offense or  offenses. Such defendants may be charged
in one or  more counts together or separately and all of the defen-
dants need not be charged in each count.


In Schaffer v. United States, however, the Supreme Court  held that if
a conspiracy count makes initial joinder of defen- dants permissible,
the mid-trial dismissal of that count does  not render joinder
improper under Rule 8(b). 362 U.S. 511,  514-16 (1960); see United
States v. Clarke, 24 F.3d 257, 262  (D.C. Cir. 1994). Indeed, even if
there had never been a  conspiracy count in this case, joinder of the
remaining counts  was proper because the government "presented
evidence that  [defendants'] offenses arose out of their participation
in the  same drug distribution scheme." United States v. Halliman, 
923 F.2d 873, 883 (D.C. Cir. 1991); see United States v.  Perry, 731
F.2d 985, 990 (D.C. Cir. 1984). Contrary to  defendant's contention,
the charges in Counts Two and Three 


did not refer to "two discrete events which ... were separat- ed by
time, location and their participants." Def. Br. at 14.  Rather,
everything from the identical nature of the three  boxes and their
contents, to the co-defendants' joint travel, to  their possession of
documents in each other's names, makes  clear that defendants were
involved in a common scheme.


As joinder was proper under Rule 8(b), the remaining  question is
whether the district court should nonetheless have  severed the
defendants to avoid prejudice, as permitted by  Federal Rule of
Criminal Procedure 14. See Schaffer, 362  U.S. at 514-15; Clarke, 24
F.3d at 262.4 We review the  court's refusal to do so only for abuse
of discretion, see  United States v. Manner, 887 F.2d 317, 324 (D.C.
Cir. 1989),  and we find no abuse here. All of the evidence admitted
at  the joint trial could properly have been admitted at a sepa- rate
trial to show the nature of the drug distribution scheme  in which
Gbemisola was an active participant. Hence, no  prejudice arose from
the joinder, and the court did not err in  trying the defendants
together. See Schaffer, 362 U.S. at  514-15; United States v. White,
116 F.3d 903, 916-18 (D.C.  Cir. 1997); United States v. Gibbs, 904


IV


The judgment of the district court is affirmed.




__________

n 4 Rule 14 states in relevant part:


If it appears that a defendant or the government is preju- diced by a
joinder of offenses or of defendants in an indict- ment or information
or by such joinder for trial together, the  court may order an
election or separate trials of counts,  grant a severance of
defendants or provide whatever other  relief justice requires.


Fed. R. Crim. P. 14.