USA. v. Boone

• Citation: 245 F.3d 352
• Decision Date: 25 September 2000
• Docket Number: No. 98-4628,98-4628
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY DEAN BOONE, Defendant-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 352

245 F.3d 352 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY DEAN BOONE, Defendant-Appellant.

No. 98-4628

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 25, 2000

Decided: March 30, 2001

Amended April 16, 2001

Appeal from the United States District Court for the District of South Carolina, at Florence. Cameron McGowan Currie, District Judge.

(CR-97-733)

[Copyrighted Material Omitted] COUNSEL ARGUED: William Fletcher Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before WIDENER and LUTTIG, Circuit Judges, and Jackson L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Widener wrote the opinion, in which Judge Luttig concurred. Senior Judge Kiser wrote an opinion concurring in part and dissenting in part.

OPINION

WIDENER, Circuit Judge:

Gary Dean Boone (Boone) appeals the district court's failure to appoint a second lawyer to represent him under 18 U.S.C. S 3005 (2000) in his trial for violating 18 U.S.C. S 844(i) (2000), damaging or destroying a vehicle by explosive, Count II of the indictment. For the reasons that follow, we vacate his conviction under Count II and remand this case to the district court for retrial. Boone also alleges that the district court erred under the Fourth Amendment in denying his motion to suppress a rifle seized from his home and used in his trial under Count I of the indictment, in violation of 18 U.S.C. S 922(g)(1), possession of a firearm by a convicted felon. Finding no reversible error, we affirm the conviction on Count I, but remand for reconsideration of the sentence on that count.

I.

Boone and his wife, Sharon Boone, practiced an alternativelifestyle marriage, in which both had sexual relations with other people. In October 1996, Sharon Boone, with Boone's knowledge, began a relationship with Jessie Pressley (Pressley). She fell in love with Pressley, and in March or April 1997, Sharon Boone told Boone that she wanted a divorce. Boone, however, did not want a divorce. During one weekend in August 1997, Boone told Sharon Boone that he had purchased a gun and that if she left him he would kill her, write a letter to their daughter explaining why he acted this way, and commit suicide.

Sharon Boone subsequently moved out of their marital home and sought legal protection from Boone. On August 29, Sharon Boone filed a petition for a restraining order against Boone in a local family court. On September 6, Sharon Boone moved into a women's shelter and on September 10, the family court issued a restraining order against Boone.

During late August and early September, Pressley spoke with a state court judge about issuing a restraining order against Boone and informed the court of the history between himself and Boone. On September 16, Boone called Sharon Boone and read the contents of a birthday card that Sharon Boone had sent to Pressley. Sharon Boone notified Pressley, and Pressley then subsequently reported to the police that his home had been burglarized and that several birthday cards he received from Sharon Boone were missing. Deputy Sheriff Gary Deaver arrived at Pressley's home to investigate the call. Deaver advised Pressley to obtain a restraining order. On September 17, Pressley filed an application for a restraining order against Boone. This application stated that: 1) on August 5, Boone told Pressley not to see Boone's wife and that he would kill Pressley if he did; 2) in September, Boone told Pressley that Pressley's days were numbered; and 3) on September 15, Pressley believed that Boone burglarized his home. On September 18, the state court issued restraining orders against both Boone and Pressley.

On September 17, at Sharon Boone's request, an arrest warrant and mental evaluation order were issued for Boone. Law enforcement agents took Boone to a mental evaluation center in Columbia, South Carolina, and he was discharged from the hospital about a week later. Boone admitted to breaking the restraining order previously obtained by Sharon Boone.

On October 10, 1997 at around 7:15 a.m., a 1993 Chevrolet pickup truck¹ driven by Pressley exploded in Cheraw, South Carolina. A pipe bomb was hidden under the truck, and when it exploded, it killed Pressley instantly. Sharon Boone learned of Pressley's death while she was at work on October 10. Boone called Sharon Boone at work, and she accused him of the bombing. Boone either laughed, or said that she was "bullshitting" and hung up. After learning of Pressley's death on the morning of October 10, Sharon Boone called the state court judge that issued the restraining orders and demanded an investigation into Boone's whereabouts. Members of the Chesterfield County Sheriff's Department, Ronnie Huntley and C. Kenneth Welch, subsequently went to Sharon Boone's workplace. Sharon Boone told them that she had received a couple of phone calls from Boone and that she accused Boone of the bombing. Sharon Boone said that she feared for her life because Boone had threatened her. As the officers were talking with Sharon Boone, they witnessed Boone drive slowly by her workplace. The officers then followed Boone and directed him to stop.

The officers approached Boone with guns drawn, ordered Boone to exit from his truck, frisked him for firearms, and read the Miranda rights to him. The primary purpose in stopping Boone was to ascertain whether he possessed any weapons or explosive devices. Deputy Huntley handcuffed Boone, and the officers notified the South Carolina Law Enforcement Division (SLED) of Boone's whereabouts. SLED agents asked Huntley to detain Boone until they could arrive. Boone told the agents that he heard about the bombing and that he hoped he was not a suspect. Boone agreed to stay and talk with the SLED agents when they arrived. Boone was never told he could leave, but he was cooperative. About 1 to 1-1/2 hours after Boone was stopped, SLED agents Billy Joe Abercrombie and William Poole arrived with a bomb-sniffing dog. Boone signed a consent to search form for a search of his truck. Agent Poole and a bomb-sniffing dog searched the truck. The dog alerted on the glove compartment, resulting in the discovery of some shells. After the search of the truck, Deputy Huntley removed the handcuffs from Boone.

The agents then asked Boone to consent to a search of his house. Boone signed a consent to search form for his residence, which limited the search to explosives only. Boone and the agents then drove to Boone's house. During the search for explosives, Agent Poole observed a Marlin 30/30 caliber rifle and some bullets in a closet in the bedroom. Agent Poole did not seize the rifle. Boone then accompanied the SLED agents to a local jail, where Boone admitted to an agent that he had purchased the rifle that was in his house. Later that day, the state officers briefed Bureau of Alcohol, Tobacco and Firearms (BATF) agent David Lazar about the search of Boone's residence. After learning that Boone was a convicted felon, BATF agents Lazar and Raymond Glover applied to a federal magistrate judge for a search warrant of Boone's house for firearms, explosives, and computers.²

The magistrate judge issued the warrant. Agents then executed the warrant and seized the rifle from the master bedroom. Sharon Boone consented to a search of the truck and a storage shed next to Boone's house in which six rounds of 30/30 ammunition and other ammunition from Boone's truck were seized. Various pieces of pipe, metal, wires, tape and electrical components were also seized from his residence and workplace. Agents then arrested Boone for possession of a firearm by a convicted felon.

As stated, Boone was charged in a two-count indictment. Count I charged Boone with violating 18 U.S.C. S 922(g)(1) (2000) because he was a felon in possession of a firearm.³ Count II charged Boone with bombing the truck in violation of 18 U.S.C.S 844(i) (2000).⁴ Boone was tried separately for each offense.⁵ Boone filed a motion to suppress the introduction of the items seized from his home. The district court denied the motion because it found that the state agents had a "reasonable basis" to stop Boone based on their knowledge of the bombing, the history between Pressley and Boone, the information learned from Sharon Boone, and Boone's slow drive-by of Sharon Boone's workplace. The district court found that the handcuffing of Boone was reasonable until the danger to the officers was dispelled by the bomb-sniffing dog, that Boone voluntarily consented to the searches of his truck and home, and that Boone voluntarily admitted that the firearm belonged to him. The court ruled that Agent Poole saw the rifle in plain view and that the agents' later discovery that Boone was a felon justified issuing a search warrant for the rifle. The district court's holding as legally ineffective Boone's limiting to explosives his consent to search his home is of no moment because the rifle was in plain view and was seen during the voluntary search. Also, along the same line, of no moment is the district court's additional holding that the inevitable discovery rule would support the search unless supported for the reasons given, which it was. Boone was found guilty on Count I, possession of the rifle, on January 8, 1998 and was sentenced to ten years' imprisonment.

Boone's trial on Count II commenced on June 15, 1998. Prior to its commencement, on February 11, 1998, Boone filed a pro se letter to the district court stating, "Finally, the penalty for count II of the indictment is death,...