                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 18-2372
                                    ____________

                           UNITED STATES OF AMERICA

                                           v.

                                  ANTHONY VETRI,
                                             Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 2-15-cr-00157-002)
                     District Judge: Honorable Gerald J. Pappert
                                    ____________

                                 Argued: March 3, 2020

      Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

                                 (Filed: April 23, 2020)

Peter Goldberger [Argued]
Pamela A. Wilk
50 Rittenhouse Place
Ardmore, PA 19003
       Attorneys for Appellant
Bernadette A. McKeon [Argued]
Jonathan B. Ortiz
David E. Troyer
William M. McSwain
Robert A. Zauzmer
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Attorneys for Appellee


                                       ____________

                                        OPINION*
                                       ___________


HARDIMAN, Circuit Judge.

       Throughout the late 2000s, licensed pharmacist Mitesh Patel illegally supplied

several men with oxycodone to sell on the streets. Two of those men included Patel’s

business partner, Gbolahan Olabode, and Appellant Anthony Vetri. This scheme began to

unravel in 2010 when Patel, faced with dwindling supply, distributed most of his pills to

Olabode. Vetri responded by asking one of his customers, Michael Vandergrift, to

murder Olabode in exchange for more oxycodone pills. Vandergrift and Michael




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.


                                             2
Mangold gunned Olabode down in his driveway on January 4, 2012, while accomplice

Allen Carter waited in the getaway car.

       A jury convicted Vetri of murder in violation of 18 U.S.C. § 924(j)(1) and

conspiracy to distribute oxycodone in violation of 21 U.S.C. § 846. The District Court

sentenced Vetri to life in prison for the murder and a consecutive term of 240 months’

imprisonment for the drug conspiracy. He filed this timely appeal raising five issues we

will address in turn.

                                             I1

       Vetri first claims the District Court erred when it admitted into evidence a video in

which Vetri jokes with his three-year-old daughter about Olabode’s murder. The

Government found the video when, pursuant to a warrant, it searched Vetri’s cell phone

and found it embedded in a text Vetri sent to Vandergrift. Vetri claims the evidence was

obtained in violation of his Fourth Amendment rights because the search warrant was

overbroad. According to Vetri, the affidavit supporting the warrant did not establish




       1
        The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “In reviewing a motion
to suppress, we review a district court’s factual finding for clear error, and we exercise de
novo review over its application of the law to those factual findings.” United States v.
Goldstein, 914 F.3d 200, 203 n.15 (3d Cir. 2019) (internal quotation marks and citation
omitted).


                                              3
probable cause to search his cell phones. He also claims that even if the warrant was

valid, the Government had no right to view the video.

                                             A

       The body of the Government’s affidavit of probable cause mentioned electronic

devices but did not mention cell phones. However, “Attachment B” to the affidavit

requested the seizure of “[c]ellular telephones (including searching the memory thereof).”

App. 437. According to the affidavit, drug traffickers often use “electronic equipment

such as computers, telex machines . . . and pagers to generate, transfer, count, record,

and/or store” information. App. 462 ¶ 60(c) (emphasis added). The Government also

requested authority to “seize evidence and instrumentalities of the schemes . . . whether

maintained in paper, electronic or magnetic form and all computer systems required to

retrieve such evidence and instrumentalities.” Id. at ¶ 61. The Magistrate Judge

incorporated part of this affidavit when issuing the search warrant, finding probable cause

for the search and seizure of the items listed in “Attachment B.” App. 433.

       Vetri claims the affidavit’s failure to specifically mention cell phones in its body

precludes their seizure. He argues the affidavit supported probable cause that evidence of

criminal activity might be found in “other kinds of electronic equipment” but “was less

than ‘bare bones’ when it came to cell phones.” Vetri Br. 19 (quoting United States v.

Leon, 468 U.S. 897, 915, 923 n. 24 (1984)). Vetri also notes that none of the supporting

confidential sources stated he owned or used cell phones. So, he concludes, the affidavit




                                             4
did not provide probable cause to issue a search warrant to search his cell phones, and

thus was overbroad.

       We hold the warrant was not overbroad. Probable cause existed because the

totality of the circumstances suggested “there [was] a fair probability that contraband or

evidence of a crime [would] be found” in Vetri’s cell phones. Illinois v. Gates, 462 U.S.

213, 238 (1983). While it is perplexing that the body of the affidavit did not mention cell

phones, the qualifier “such as” shows the list was merely illustrative of the kinds of

electronic equipment drug traffickers might use. See Bragdon v. Abbott, 524 U.S. 624,

639 (1998). Cell phones are plainly among that broader category of electronic equipment.

And Attachment B specifically mentioned them, so the warrant authorized the search and

seizure of Vetri’s cell phones.

                                             B

       Vetri next argues that even if the warrant authorized the seizure of his cell phones,

the District Court still should have suppressed the video because it was not in plain view.

The relevant precedent on this point is United States v. Stabile, 633 F.3d 219 (3d Cir.

2011). In that case, a magistrate judge issued a warrant to search computer hard drives for

evidence of financial crimes and agents found child pornography. We held there was no

Fourth Amendment violation because the “incriminating character of the” child

pornography file names was “immediately apparent.” Id. at 242. Vetri distinguishes

Stabile by noting that here the video’s thumbnail is an innocuous picture of his daughter.




                                             5
Therefore, Vetri argues, the agents were not permitted to play the video to learn of the

incriminating content.

       We are unpersuaded by this argument. As we have recognized, law enforcement

can perform a cursory review of all electronic files because “criminals can easily alter file

names and file extensions to conceal contraband.” Id. at 239. Here, the agent played the

video “to view its contents because a thorough . . . search requires a broad examination of

files on the [phone] to ensure that file[s] . . . have not been manipulated to conceal their

contents.” Id. at 241. On Vetri’s view, a criminal could insulate incriminating videos

from search by presenting them as innocuous images. Here, the agent did not

“unreasonably expand the scope of his search . . . viewing [the video’s] contents.” Id. The

agent seeking evidence of financial and drug trafficking crimes had cause to believe Vetri

conspired with Michael Vandergrift to distribute oxycodone. While performing a targeted

search of Vetri and Vandergrift’s conversations, the agent uncovered the video. Here, the

video was sent between coconspirators, so there was “no practical substitute for actually

looking in many (perhaps all) folders and sometimes at the documents contained within

those folders . . . .” Id. at 239 (quoting United States v. Burgess, 576 F.3d 1078, 1094

(10th Cir. 2009)). Therefore, we hold the District Court did not err when it denied Vetri’s

motion to suppress evidence.

                                              II

       Vetri next claims the evidence at trial was insufficient to support his conviction of

murder under 18 U.S.C. § 924(j)(1). The District Court instructed the jury that both Vetri



                                              6
and Vandergrift could commit murder by personally committing the offense; by aiding

and abetting another person in committing the offense; or as co-conspirators under

Pinkerton v. United States, 328 U.S. 640 (1946). To prove Pinkerton liability, the

Government had to show Vandergrift’s use of a firearm to commit murder was

reasonably foreseeable to Vetri and within the scope and in furtherance of the drug

conspiracy. Id. at 647–48 (1946); United States v. Casiano, 113 F.3d 420, 427 (3d Cir.

1996).

         The Government adduced evidence showing Vetri knew Michael Mangold would

be participating in the murder and would be using a gun. Vetri had warned Vandergrift

that Olabode was a bodybuilder who carried a gun. Vetri also knew Vandergrift had

access to guns because Vandergrift had bought guns during a trip to Kansas. And Vetri

expressed no surprise that Vandergrift and Mangold had used firearms and asked the men

what they had done with the guns the day after the murder. Viewing the evidence in the

light most favorable to the Government, “we conclude that the jury’s verdict did not ‘fall

below the threshold of bare rationality.’” United States v. Caraballo-Rodriguez, 726 F.3d

418, 432–33 (3d Cir. 2013) (quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)). A

reasonable juror considering these pieces of evidence in their totality could find that Vetri

foresaw that Vandergrift would use a gun to murder Olabode.

                                              III

         Vetri next argues the District Court abused its discretion when it allowed the

Government to offer evidence of Vandergrift and Carter’s straw purchase of firearms



                                               7
unrelated to the murder to establish knowledge and foreseeability. See FED. R. EVID.

404(b).

       Vetri argues that the straw purchase was not relevant, so its probative value was

substantially outweighed by the risk of unfair prejudice. Id. “Evidence is relevant if: (a) it

has any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID.

401. If Vetri knew Vandergrift had easy access to firearms, it is more probable that he

would foresee Vandergrift using a firearm to carry out the murder. Here, Carter testified

that he and Vandergrift purchased four firearms in Kansas, including a Baby Desert Eagle

firearm specifically for Vetri. App. 1387. Eric Maratea, another Vetri acquaintance,

testified that Vetri referred to Vandergrift, Mangold and Carter as “his guys and that they

work for him. They . . . buy guns for him,” specifically Baby Desert Eagles. App.

1651. This evidence tends to show that Vetri knew Vandergrift had access to firearms for

the murder because Vandergrift was supplying Vetri with a specific type of firearm.

       The probative value is high because this evidence was essential to prove the

knowledge element of Pinkerton liability, because no witness testified that Vetri knew

that Vandergrift would use a gun to murder Olabode. And while there is the risk of some

prejudice, as the District Court found, “[t]he Kansas trip [did] not involve any violent acts

that may [have] weigh[ed] heavily in the jurors’ minds.” App. 18. We therefore hold that

the District Court’s finding that the risk of prejudice did not substantially outweigh the




                                              8
probative value of the evidence is not “clearly contrary to reason.” United States v. Butch,

256 F.3d 171, 175 (3d Cir. 2001).

                                            IV

       Vetri next contends that the District Court should not have admitted Vandergrift’s

statements to a cellmate that implicated Vetri in the murder of Olabode. He claims

Vandergrift’s out-of-court statements that he had murdered Olabode for Vetri in

exchange for pills were not admissible under Rule 804(b)(3) as statements against

Vandergrift’s penal interest because they were not self-inculpatory.

       Our review of the record leads us to conclude that the District Court did not abuse

its discretion when it admitted the statements because they inculpated both Vandergrift

and Vetri. Vandergrift’s statements to his cellmate did not try to “shift blame or curry

favor,” and the Government corroborated those statements through additional evidence

and testimony. Williamson v. United States, 512 U.S. 594, 603, 605 (1994). Nor were the

statements separate and severable, because they described Vetri’s role in the murder plot,

including Vandergrift’s motive, how he located Olabode, and how he carried out the

murder.

                                             V

       Finally, Vetri argues that the District Court erred by treating the Sentencing

Guidelines as presumptively reasonable. Because Vetri did not object in the District

Court, we review this issue for plain error. United States v. Flores-Mejia, 759 F.3d 253,

254 (3d Cir. 2014) (en banc).



                                             9
       Vetri has failed to carry his high burden. We are unpersuaded that the Court

clearly erred or that, “but for the error, the outcome of the proceeding would have been

different.” United States v. Azcona-Polanco, 865 F.3d 148, 151 (3d Cir. 2017) (internal

quotation marks and citations omitted). While the Court used the words “presumptively

reasonable” to describe the guidelines, App. 2137, the record shows that it considered the

Guidelines to be only one factor in fashioning a reasonable sentence. After hearing

argument from both parties, the Court considered: the serious nature of Vetri’s crime, his

history and characteristics, the need for a life sentence to promote respect for the law and

to protect the public from Vetri, whether another sentence would be appropriate, and

Vetri’s utter lack of remorse. Only after considering “the law and the facts and the

sentencing guidelines and the statutory [Section 3553(a)] factors” did the Court impose a

sentence of life imprisonment plus 240 months. App. 2140. The District Court did not

commit error, plain or otherwise, in sentencing Vetri.

                                      *      *      *

       For the reasons stated, we will affirm the District Court’s judgment of sentence.




                                             10
