                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           APRIL 2, 2010
                            No. 08-16955
                                                            JOHN LEY
                      ________________________
                                                             CLERK

                    D. C. Docket No. 07-00308-CR-4

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DONALD FLOYD BROWN,
a.k.a. Donald Brown,
ERIC THOMAS BROWN,
a.k.a. Charon Field,
a.k.a. Charon Fields,
a.k.a. Eric Brown,

                                                       Defendants-Appellants.

                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                             (April 2, 2010)

Before MARCUS, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
      In this consolidated appeal, Defendants Brown and Fields mount several

challenges to their convictions on charges relating to an attempted robbery of a

credit union. We first relate the facts and procedural background, and then discuss

the several challenges in turn.



                     I. Factual and Procedural Background

      Confidential informant Joseph Morris testified that Defendant Donald Brown

approached him about robbing drug dealers and splitting the money. Morris stated

that Brown said he wanted to do “an easy robbery,” and indicated that the

Georgetown Federal Credit Union would be “a sweet lick.” Through his brother,

an ATF informant, Morris contacted the FBI. After meeting with the FBI, Morris

testified that he met with Brown two or three more times to discuss the robbery.

Morris further testified that Brown wanted him to get a rental car, masks, and guns.

      On September 23, 2007, a Sunday, Brown and Morris drove to Georgia

Heritage Credit Union to check it out. They checked for the presence of security

guards and what getaway route they could use. When Morris pulled his van in

front of the credit union, Brown instructed him to move so the van would not be

caught on surveillance tape. Morris testified that they spent about ten minutes

sitting in the parking lot, discussing their plans. The next day, Morris picked up

                                          2
Brown and Defendant Charon Fields1 and they went again to the Georgia Heritage

Credit Union. Morris testified that Brown instructed him to get out of the car and

see if there were any security officers working at the bank; they also drove around

the apartment complexes that surround the bank to scope out a getaway route.

Morris testified that Brown mentioned robbing a specific drug house during the

meeting, and Morris’s contact at the FBI confirmed that Morris told him Brown

mentioned that during the September 24th meeting. Before he met with the

Defendants on the 24th, Morris was equipped with a recording device by the FBI,

but the recording device failed to produce anything audible from that meeting.

         On the evening of the 24th, Brown called Morris to come and pick him and

Fields up. Morris drove the Defendants to another house, and when the Defendants

came out of the house, Brown was holding a rifle and Fields was holding

something wrapped in a blanket that Morris thought was a shotgun. Afterwards,

Morris dropped both men off at Fields’ house and called his FBI contact to relay

what had happened. Early the next morning, Brown called Morris and said that

“we’ve got to go and take care of some stuff;” Morris took this to mean that the

robbery was on for that day so he met with his FBI contact and received another



         1
               Defendant Charon Fields was indicted initially under the wrong name – Eric
Brown.

                                              3
recording device. They discussed what the plan would be if the robbery was to

take place that day.

      After leaving his meeting with his FBI handler, Morris picked up Brown and

Fields in his van. The Defendants initially put the guns in the third row seat but

then they moved them to the back, where Morris had other things that he planned to

sell in a garage sale. On the recording one can hear Fields instructing “Put them all

the way in the back.” Defendants point out that the FBI did not take an inventory

of the van’s contents before the pickup. Further, they note that the agent watching

the house did not see any guns being put in the van nor did he see Fields with a

shotgun, as Morris had testified.

      The FBI and other law enforcement agencies set up a road block off of

Truman Parkway and planned to detain the van under the auspices of a traffic stop.

However, as the would-be robbers were traveling, Brown instructed Morris not to

pull onto Truman Parkway because he noticed police around. At that point Morris

is heard on the recording stating that his child had a free account at another credit

union and that they could go there. Morris states on the recording that he could

check it out. Immediately afterwards the party stopped at an Advanced Auto Parts

store, ostensibly to repair something on the van. Morris went to the restroom and

called his FBI contact, telling him that the target of the robbery would now be the

                                           4
Memorial Health Credit Union.

      Five minutes later, the party got back in the van and proceeded towards

Memorial Health Credit Union. The recording has a lot of inaudible portions to it,

but except as noted below the conversation appears to be of a general nature and

not about the impending robbery. However, it recorded Brown telling Morris “if it

looks good, then it’s on” and Fields’ statements that they should just go in and

come on out, and he intended to rob “the shit” out of that “motherfucker.” Morris

pulled the van in front of the Memorial Health Credit Union and, leaving the other

two in the van, went inside to talk to a teller about his child’s account. While

Morris was out of the van, law enforcement officers arrested the Defendants. They

found matching camouflage ski masks in both Defendants’ pockets, and Fields had

a pistol and shotgun shells; a shotgun shell also fell out of Fields’ lap as he was

removed from the van. In the back of the van the agents found two shotguns, one

of which had been sawed down. No prints were found on either shotgun.

      After he was given his Miranda warnings, Brown was interviewed by the

police. He gave a fake name and birth date for himself as well as a fake name and

address for Fields. He said that Morris was just giving them a ride across town and

denied knowledge of the shotguns, the gun in Fields’ waistband, or Fields’

matching camouflage mask.

                                           5
         Several days after the arrest, police officers executed a search warrant on

Fields’ house. They found miscellaneous writing that referred to gangs and

committing crimes with guns. They also seized Fields’ computer and forensics

performed on it revealed that on the morning of the arrest, someone had searched

local credit unions’ locations, hours, and personnel. The police found a box of

shotgun shells that matched many of the shells found on Fields and in the van.

         The Defendants were indicted for conspiracy, attempted bank robbery, and

possession of an unregistered short-barreled shotgun. Brown was indicted for

being a felon in possession of a firearm. Fields filed a motion to suppress, arguing

that the search warrant and search were overbroad; the magistrate judge rejected his

argument after a hearing. A jury found both Defendants guilty of all the charges

against them and the court sentenced Brown to 150 months’ imprisonment and

Fields to 97 months’ imprisonment.



                                      II. Discussion

         A. Brown’s argument that the first paragraph of 18 U.S.C. § 2113(a)

requires actual force and violence or intimidation in an attempt to rob the credit

union.

         The first paragraph of § 2113(a) provides that

                                            6
      Whoever, by force and violence, or by intimidation, takes, or attempts
      to take, from the person or presence of another, or obtains or attempts
      to obtain by extortion any property or money or any other thing of
      value belonging to, or in the care, custody, control, management, or
      possession of, any bank, credit union, or any savings and loan
      association; . . .

is guilty of the crime of bank robbery. 18 U.S.C. § 2113(a). Brown points to a

Fifth Circuit case where, even in the context of an attempt charge, the court held

that the government must show that the defendant used actual force and violence or

intimidation to convict under that provision. See United States v. Bellew, 369 F.3d

450 (5th Cir. 2004). Because the Government here did neither, he argues, his

conviction is invalid under that provision.

      Brown did not raise this issue below. Therefore, we review this issue for

plain error. Under plain error review, there must be (1) an error, (2) that is plain,

(3) that affects the defendant’s substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)). “We

have held that an error cannot meet the ‘plain’ requirement of the plain error rule

unless it is ‘clear under current law.’” United States v. Humphrey, 164 F.3d 585,

587 (11th Cir. 1999) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct.

1770, 1777, 123 L.Ed.2d 508 (1993)). Where neither the Supreme Court nor this



                                            7
Court has ever resolved an issue, and other circuits are split on it, there can be no

plain error in regard to that issue. Id. at 588.

      This is an issue of first impression in our circuit and the Supreme Court has

not addressed it. Further, there is a circuit split on this issue. See United States v.

Wesley, 417 F.3d 612, 618 (6th Cir. 2005) (recognizing creation of split by

Bellew). Therefore, there is no plain error.



      B. Did the district court amend the indictment when it instructed the jury?

      Brown argues that the district court’s instructions to the jury amended the

indictment, making the crime with which he was charged broader and thus

violating his Fifth Amendment rights. The indictment charged Brown with

knowingly and willfully attempting to take, by force and violence and by

intimidation. However, Brown argues that the jury instructions failed to require the

government to prove that the defendant used actual force and violence or

intimidation. Instead, the court instructed that Brown could be found guilty if he

intended to commit the crime and took steps towards doing it, without instructing

that the Government had to show that Brown attempted to take money by force and

violence or intimidation. Additionally, Brown asserts, the indictment’s

requirement that the Government show that Brown used force, violence and

                                            8
intimidation was omitted from the instructions which required only force or

violence or intimidation.

       Brown’s first argument is merely the same as his argument that the statute

requires a showing of actual violence or intimidation. Like that argument, Brown

did not raise it below. And like that argument, because that is not the law in this

circuit, there is no plain error.

       Turning to Brown’s second claim, there is no error because “the law is well-

established that where an indictment charges in the conjunctive several means of

the violating a statute, a conviction may be obtained on proof of only one of the

means, and accordingly the jury instruction may properly be framed in the

disjunctive.” United States v. Simpson, 228 F.3d 1294 (11th Cir. 2000).



       C. Did the Government fail to allege all of the essential elements in Count

II?

       Brown argues his conviction cannot stand because the Government did not

allege that he took money from a person or in the presence of a person, as required

by § 2113(a). Because Brown never objected to the indictment below, he is

required to show that the indictment is “so defective that it does not, by any

reasonable construction, charge an offense for which the defendant is convicted.”

                                          9
United States v. Hooshmand, 931 F.2d 725, 734-35 (11th Cir. 1991) (internal

quotations omitted). Indeed, “practical, rather than technical, considerations

govern the validity of an indictment. Minor deficiencies that do not prejudice the

defendant will not prompt this court to reverse a conviction.” United States v.

Chilcote, 724 F.2d 1498, 1505 (11th Cir 1984). “Moreover, when the indictment

specifically refers to the statute on which the charge was based, the statutory

language may be used to determine whether the defendant received adequate

notice.” Id. Here, the indictment referred to the statute; therefore, Brown cannot

show that it is defective and we reject his argument.



      D. Was there sufficient evidence to convict the Defendants of attempted

bank robbery?

      1. Brown

      Brown argues that the evidence was insufficient to convict him of bank

robbery because Morris was not a credible witness and there was no evidence that

the credit union was the Defendants’ target. Brown points to Morris’s inability to

produce audible tape recordings and Morris’s admission that he was a felon

seeking money for cooperating as an informant. Brown also points out that Morris

initially reported that Brown wanted to rob a drug house but that the FBI was not

                                          10
interested because it was not within their jurisdiction. He argues that although

Fields’ computer revealed that searches about credit unions had been performed the

day of the arrest, there was no evidence that he was involved in those searches.

Further, the audio tapes, he asserts, do not support the conviction because although

there was some talk that suggested guns were loaded in the van, there was no

discussion about where to park a getaway car, who would drive it, or whether other

participants had been recruited. He asserts that once he saw the police, Morris

could not continue that way and because Morris wanted to get paid, he came up

with the idea of checking out an account for his child at the other credit union.

Brown points out that he was in the backseat of the van, seatbelted, when arrested.

The guns were not out, his mask was in his pocket and neither he nor Fields was

making any preparations to run into the credit union. Therefore, he argues, the

evidence falls short of the substantial evidence required to sustain the guilty

verdict.

      In order to convict a defendant of the crime of attempt, the government must

prove “(1) the defendant was acting with the kind of culpability otherwise required

for the commission of the crime for which he is charged with attempting, and (2)

the defendant was engaged in conduct that constitutes a substantial step toward the

commission of the crime.” United States v. Root, 296 F.3d 1222, 1227-28 (11th

                                          11
Cir. 2002) (quotation marks omitted). In order to show a substantial step was

taken, “‘the defendant’s objective acts, without reliance on the accompanying mens

rea, must mark the defendant’s conduct as criminal.’” Id. at 1228 (quoting United

States v. Carothers, 121 F.3d 659, 662 (11th Cir. 1997)).

      Unless testimony is incredible as a matter of law, we must accept that

determination. United States v. Hewitt, 663 F.2d 1381, 1386 (11th Cir. 1981). As

that court stated, “judgment of acquittal . . is not required because the

government’s case includes testimony by “an array of scoundrels, liars and

brigands.” Id. at 1385.

      Here, the evidence was sufficient to sustain the convictions. Morris’s

testimony, corroborated by the physical evidence and the post-arrest interview with

Brown, provided a sufficient basis for the verdict. The jury clearly credited

Morris’s testimony and that testimony was buttressed by evidence of Brown

loading of guns into the van, Brown’s request to Morris to drive to Memorial

Health Credit Union, the mask found on Brown, and Brown’s post-arrest denials

that were strikingly similar to denials he gave when last arrested in a robbery.

      Morris testified, with some corroboration and in great detail, clearly

establishing that the Defendants intended to rob the initial targeted credit union.

Then when Brown saw police, Morris testified that the Defendants agreed to abort

                                          12
their effort to rob that one, and instead agreed to rob the Memorial Health Credit

Union. Morris’s testimony in this regard was corroborated by the recorded

discussion before stopping at the auto parts store about checking out the Memorial

Health Credit Union, by Morris’s report to his FBI handler when they stopped at

the auto parts store, and by the recording on the way from the auto parts store to the

new target. With respect to the latter, Brown is heard saying “if it looks good, then

it’s on;” Fields is heard saying he intended to “rob the shit” out of it. Also,

contrary to Brown’s argument, there is evidence of conduct constituting a

substantial step toward completion of the crime. The Defendants drove to the

Memorial Health Credit Union fully armed with ski masks in their pockets, parked

the vehicle and waited in it while Morris entered the credit union to check it out.



      2. Fields

      Fields argues that the Government failed to show that he took a substantial

step toward committing the robbery. He argues that Morris was the one who chose

the destination, the one who drove, and the one who got out of the van once they

got to their destination. Fields also points to Morris’s testimony that he went into

the bank to “get away” from the Defendants.

      The Government responds with two unpublished cases in which the facts

                                          13
were fairly similar to this one and we held the evidence sufficient to convict. In

one case, the defendant was stopped with all of the paraphernalia needed to rob a

bank. In the other, the defendant armed himself and drove to the warehouse where

the robbery was to take place. In this case, Fields searched the internet for

information about local credit unions, armed himself, had a mask, and had himself

driven to the credit union. As indicated above, there was sufficient evidence of a

substantial step.2



       E. Did the Government prove that Brown knew that the shotgun was sawed

off?

       Brown argues that there was insufficient evidence to convict him of violating

26 U.S.C. § 5861(d) because there was no evidence he knew that the shotgun had

been sawed off or that he possessed it. Although the standard for constructive

possession is whether the defendant had the “intent and power to exercise

dominion and control over” the firearm, mere presence near the firearm is not

enough. United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).

       Brown cites an unpublished opinion to support his argument that he did not


       2
              Fields also challenges the sufficiency of the evidence because much of it was from
Morris, whom he claims was impeached. However, the jury clearly believed him and, as
discussed above, we will not upend that determination without good cause.

                                               14
possess the shotgun. In that case, the defendant was a passenger in a car on its way

to rob a drug-dealer. During the ride, a co-conspirator showed the defendant the

gun that the defendant would be using during the robbery. This court reversed the

felon in possession conviction because although there was evidence that the

defendant knew that the gun was in the car and he had the intent to exercise

dominion over it later, there was no evidence that the defendant ever had the power

to exercise dominion or control over the weapon prior to his arrest. The court

noted that the defendant was not the leader.

      Brown’s unpublished case is distinguishable. The gun there was being held

by a co-conspirator; here, the gun was in the back of the van and Brown helped put

it in there. Therefore, he had the power to possess the gun. Moreover, the jury in

this case could reasonably conclude that Brown was the leader of the venture.

      Testimony at the trial established that the shotgun was wrapped in a blanket;

therefore, it is certainly conceivable that Brown did not know what it looked like.

However, the jury could have reasonably believed that because the Defendants

retrieved the guns from the house together, and loaded them into the van, Brown

had the opportunity to see the shotgun. Although the guns were wrapped when the

CI saw the two defendants bring the guns out of the house, they may not have been

wrapped before bringing them out. There is an even stronger inference that Brown

                                         15
saw the shotgun on the morning of the attempt: when the CI picked up both

Defendants, who were in Fields’ house together, the CI saw Fields loading one of

the guns. A reasonable jury could infer that both guns were loaded that morning,

that Brown was present when the guns were loaded, and that Brown would have

seen that the gun was short.



      F. Did the district court err when it failed to apply the three point reduction

for attempt or conspiracy?

      Brown argues that he should have received the three-level reduction under

U.S.S.G. § 2X1.1(b)(1) and (2) because he was not about to complete all of the

necessary acts for robbery before being arrested. Brown asserts that as in this

Court’s precedent, he had not and did not believe that he had taken “crucial steps”

to commit the robbery because he would have chosen a less conspicuous vehicle,

established a get-away route, obtained another escape vehicle, and recruited

another conspirator to drive the get-away vehicle before actualizing the conspiracy.

      This Court reviews “the district court’s factual findings for clear error” and

its interpretation and application of the Sentencing Guidelines de novo. United

States v. Miles, 290 F.3d 1341, 1346 (11th Cir. 2002). Contrary to the

Government’s contention, this Court should in this instance review de novo, and

                                         16
not for clear error, because Brown challenges the district court’s application of

U.S.S.G. § 2X1.1(b) and not the court’s factual findings.

      Section 2X1.1(b) of the Guidelines provides a three-level reduction in the

base offense level for attempt, conspiracy, and solicitation unless certain

circumstances have occurred. For attempt and conspiracy, the reduction does not

apply if “the defendant [or a co-conspirator] completed all the acts the defendant

believed necessary for successful completion of the substantive offense or . . . was

about to complete all such acts but for apprehension or interruption by some similar

event beyond the defendant’s control.” U.S.S.G. § 2X1.1(b)(1). Section

2X1.1(b)(1) addresses attempts, and § 2X1.1(b)(2) addresses conspiracies in the

same language (as indicated by the brackets inserted in the foregoing quote).

Furthermore, the background section of § 2X1.1 explains that:

      In most prosecutions for conspiracies or attempts, the substantive
      offense was substantially completed or was interrupted or prevented
      on the verge of completion by the intercession of law enforcement
      authorities or the victim. In such cases, no reduction of the offense is
      warranted. Sometimes, however, the arrest occurs well before the
      defendant or any co-conspirator has completed the acts necessary for
      the substantive offense. Under such circumstances, [the reduction is
      appropriate].

U.S.S.G. § 2X1.1, comment. (background). In this case, because Brown did not

complete the substantive offense, the second part of § 2X1.1(b)(1) – the part



                                          17
quoted above – is relevant to the analysis.

      In United States v. Khawaja, this Court addressed the application of

§ 2X1.1(b)(2) and held that where the conspirators “had not taken crucial steps” to

commit the substantive offense and did not believe that they had completed all the

acts necessary on their part nor were they about to compete them, the reduction

under § 2X1.1(b)(2) should apply. 118 F.3d 1454, 1458 (11th Cir. 1997). The

Court in Khawaja noted that although the defendants intended to launder a total of

$2 million, they were only liable for $570,566, the actual amount laundered at the

time of arrest, because the government could not demonstrate that they had taken

crucial steps in arranging for specific transactions for the remaining funds to occur

in the future, such as preparing falsified documentation, securing cashier’s checks,

or arranging meetings for the exchange. Id.

      On the other hand, in United States v. Lee, this Court held that the three-

level reduction under § 2X1.1(b)(2) was inapplicable because the defendants had

completed all the steps that they believed were necessary for the offense and were

only prevented from doing so by the potential victims’ refusal to honor fraudulent

checks. 427 F.3d 881, 894 (11th Cir. 2005). Specifically, the Court in Lee held

that the record demonstrated that the defendants had “completed all the acts

necessary to commit mail fraud,” such as writing checks drawn from closed bank

                                         18
accounts and providing misleading information to potential victims to ensure that

the bad checks would be honored. Id.

      This case is more analogous to Lee than Khawaja because Brown had

completed all the crucial steps and was about to commit the underlying offense of

robbery but for intervention by the police. Specifically, Brown arrived at the

targeted credit union with two accomplices, two loaded shotguns in the back of the

van, and a ski mask in his pocket. Unlike the previous reconnaissance trips, Brown

brought firearms this time. Brown also stated on the way to the credit union that

“if it looks good, then it’s on.” Moreover, internet search history on the computer

belonging to Fields, a co-conspirator who was arrested in the same van as Brown,

showed that someone had researched details of and directions to credit unions the

day of the attempted robbery. Lastly, consistent with the background commentary

of § 2X1.1(b), this case falls under the majority of “prosecutions for conspiracies or

attempts,” where the three-level reduction is inapplicable because the substantive

offense was prevented “on the verge of completion” by law enforcement, instead of

the minority category where the “arrest occurs well before” any defendant has

completed the acts necessary for the substantive offense. § 2X1.1, comment.

(background). Therefore, the district court did not err in choosing not to apply the

three-level reduction under § 2X1.1(b)(1) or (2).

                                         19
      Brown’s argument that the “crucial steps” of robbing a credit union required

him to drive a “less conspicuous vehicle,” establish a “get-away route,” and obtain

another “escape vehicle” and also its driver, is without merit. Brown’s argument

adds an artificial requirement to § 2X1.1(b)(1) and (2) by forcing the government

to prove the completion of crucial steps to a perfectly executed plan, rather than

completion of only the crucial steps, as delineated in Khawaja. The record shows

that Brown could have robbed the credit union without the preparations listed

above because while such preparations potentially could have improved his

chances of success, they were not vital to the completion of the conspiracy.

      Furthermore, contrary to Brown’s contention, Khawaja is distinguishable

from this case. This Court in Khawaja held that the three-level reduction was

applicable because even though the defendants intended to launder $2 million, they

had not “arranged for specific transactions to occur in the future” to facilitate the

laundering of the full amount. Khawaja, 118 F.3d at 1458. In this case, unlike the

defendants in Khawaja whose future acts of laundering were distant and

speculative at best, Brown and his co-conspirators were arrested outside of the

credit union with loaded shotguns. Therefore, we conclude that the district court

did not err when it declined to award the three-level reduction to Brown.




                                          20
       G. Did the district court err when it denied Fields’ motion to suppress?

       Fields argues that the district court erred when it did not suppress the

evidence found during the search of his residence pursuant to an overbroad search

and warrant. He asserts that the language of the warrant, permitting the officers to

search for “any fruits of the crime of armed robbery and any writings and/or

pictures that depict the offenses as described above, or any other criminal offense,”

was unconstitutionally broad. Because he never accomplished the crime of armed

robbery, there could be no fruits of it. Next, he points to the items seized by the

police and argues that they demonstrate that the search was too broadly defined.

       Warrants are constitutionally required to specify what is to be searched, and

the things to be seized, but “‘elaborate specificity in a warrant is unnecessary.’”

United States v. Peagler, 847 F.2d 756, 757 (11th Cir. 1988)). Here, the warrant

read

       ANY AND ALL EVIDENCE RELATED TO THE CRIME OF
       ARMED ROBBERY; ANY FIREARMS, FIREARM
       AMMUNITION, FIREARM PARTS, FIREARM
       PARAPHERNALIA; ANY ARTICLES AND/OR PICTURES
       DEPICTING OR SHOWING FIREARMS; ANY CLOTHING
       OR ARTICLES USE [sic] TO CONCEAL ONE'S IDENTITY;
       ANY PICTURES AND OR WRITINGS DEPICTING
       FIANCIAL [sic] INSTITUTIONS, OR OTHER COMMON
       TARGETS OF THE CRIME OF ROBBERY; ANY FRUITS OF
       THE CRIME OF ARMED ROBBERY ANY WRITINGS
       AND/OR PICTUES [sic] THAT DEPICT THE OFFENSES AS

                                          21
      DESCRIBED ABOVE, OR ANY OTHER CRIMINAL
      OFFENSE.

The magistrate judge noted that while the language at the end of the warrant was

“undoubtably unfortunately phrased,” it did not provide unfettered discretion to the

officers for several reasons. First, the magistrate judge observed that the offending

clause – “any other criminal offense” – modified the last phrase of the items to be

seized clause, which permitted the search and seizure of writings and pictures.

This, the court found, was fairly narrow. Second, none of the items seized were

taken because of the offending language. Third, the “good faith” exception would

apply because the detective executing the search acted in reliance upon its validity.

      We agree with the magistrate judge that the language of the warrant, while

not a paragon of well-tailored language, was sufficiently narrow in scope. The vast

majority of the language is narrowly tailored to armed robbery. And, although

writings fell under the broadly worded portion of the warrant, the seized writing

pertained to guns, which relates them to armed robbery. The remedy for overbreath

in a warrant is severance but because none of the things seized were a result of that

language, severance is not warranted. The pill bottles were apparently seized

because they were in plain view and the other items seized appear to be within the

narrower portions of the warrant.



                                         22
      The magistrate judge also correctly rejected Fields’ argument that the

computer was improperly searched. The Supreme Court has stated that “a warrant

that authorizes an officer to search a home for illegal weapons also provides the

authority to open closets, chests, drawers, and containers in which the weapon may

be found.” United States v. Ross, 456 U.S. 798, 821, 102 S.Ct. 2157, 2171 (1982).

Here, all that the detective did was see the computer, which was on, and look at the

search history for Google, the site to which it was opened. This was not invasive

or beyond the scope of the search. Therefore we reject Fields’ challenge to the

warrant.



      H. Should the district court have suppressed Fields’ writings because their

admission violated his First Amendment rights and Fed.R.Evid. 404(b)?

      Fields argues that the admission of his writings, which referenced gangs,

violated his First Amendment rights because they merely showed his abstract

beliefs and were not related to this case. Similarly, he asserts that the admission

violated Rule 404(b) because it put his character on trial.

      The case upon which Fields relies for his First Amendment argument is

Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093 (1992), where the defendant’s

membership in a racist group was introduced at trial, despite the fact that the victim

                                          23
was of the same race. The Court held this prejudicial because there was no

relationship between crime for which he was being tried and mere membership in

the group. As the Court noted, the government had but did not put on evidence

about the violent and murderous nature of the group to which the defendant in

Dawson belonged; had the government introduced that evidence, they would have

had “a much different case” before them. Id. at 165, 112 S. Ct. at 1097.

      Here, the writings were introduced because they contained references to

shotguns, which rebutted Fields’ defense that the weapons were Morris’s. The

Government points out that it did not seek to introduce all of the gang-related

writing but only those that mentioned firearms and specifically the type of shotgun

found in the van. Because the writings were introduced to show knowledge of the

firearms, their introduction did not violate either the First Amendment or Rule

404(b); the evidence was not introduced to impugn Fields but rather to show his

knowledge. Therefore, this case is more like the “different case” that the Supreme

Court acknowledged could exist and approved.

      For the reasons stated above, the convictions and sentences of the

Defendants are

AFFIRMED.




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