                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4774


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SHIRLAND L. FITZGERALD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville. Samuel G. Wilson, District
Judge. (4:08-cr-00001-sgw-mfu-1)


Argued:   December 10, 2010                 Decided:   March 10, 2011


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory       wrote   the
opinion, in which Judge Motz and Judge Wynn joined.


ARGUED: Angela Dawn Whitley, THE WHITLEY LAW FIRM, Richmond,
Virginia, for Appellant.  Anthony Paul Giorno, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.  ON
BRIEF: Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     This is an appeal from a jury conviction for six counts of

conspiracy to commit money laundering in violation of 18 U.S.C.

§ 1956(h).       Shirland         Fitzgerald     appealed     his    conviction         and

sentence    on   seven      grounds:       (1)   the    denial      of   a    motion     to

suppress;     (2)     the    insufficiency        of    the    evidence;        (3)    the

government’s introduction of excluded evidence; (4) the grant of

the government’s motion to quash the subpoenas duces tecum; (5)

the application of the sentencing guidelines from 2001; (6) the

application      of    the    sophisticated        means      enhancement        to     his

sentence; and (7) the application of the obstruction of justice

enhancement to his sentence.              After consideration of the issues,

we conclude that Fitzgerald’s convictions and sentence should be

affirmed.



                                           I.

     On April 27, 2003, while executing a lawful search warrant

against     Robert     DeNova      in    Pittsylvania,        Virginia,        the     Drug

Enforcement      Agency      (“DEA”)      discovered       documents         related    to

several     vehicle      purchases        from    Fitzgerald        Auto      Sales      in

Danville,     Virginia       by    a    “known   drug    dealer,”        Jarett       Doss.

Fitzgerald Auto Sales is owned and operated by the defendant-

appellant, Shirland Fitzgerald.




                                            2
       On April 28, 2003, while conducting an interview with Doss’

father, DEA agents observed the arrival of Doss’ girlfriend in a

2002    GMC     Envoy   which   officers     determined   was    purchased       at

Fitzgerald Auto Sales.          The officers then seized the car as the

fruit of illegal drug activities.

       Later that day, after Fitzgerald had closed the car lot, a

police officer placed a call to Fitzgerald posing as a potential

car    buyer.       Approximately     fifteen   minutes   later,       Fitzgerald

returned to the lot and was confronted by ten to eleven police

officers.       After Fitzgerald refused to give them permission to

search the lot, Officer Robertson set out to obtain a search

warrant.

       At the suppression hearing, there was a factual dispute

about the timing of the police search of the premises.                         Two

officers, Nicholson and Robertson, testified that there was no

search upon entry into the lot.             They both stated that they only

began searching after a warrant was obtained.                   Officer Taylor

seemed to contradict this statement by stating that the search

began almost immediately after Fitzgerald arrived to open the

car    lot.      However,    Taylor   also    testified   that    there    was   a

warrant before he started searching the premises.

       It is undisputed that after determining that they needed a

warrant,      the   agents   forced    Fitzgerald   to    sit    and    wait   for

approximately an hour and a half while police secured a search


                                        3
warrant for the premises.              This first search warrant gave police

the   right      to    search    for    documents     relating         to    the    sale     of

vehicles by Jarett Doss, Jared Doss, J&D Leasing, Shawn Samuels,

Michael Henderson II, Crystal Tuck, Clarence Martin Jr., Robert

DeNova,     Michael      Farmer,       Eddie     Fielders,        and       “any    and     all

documents        consistant       [sic]     with      the        laundering         of      drug

proceeds.”       J.A. 80.       The government claims that the warrant was

issued     at    5:30    p.m.    though    there      is    no    time      stamp      on   the

document.        The    warrant     articulates       three       facts     to     support    a

finding     of    probable      cause     for   the    warrant:             the    documents

retrieved at DeNova’s trailer, Crystal Tucks’ car registration,

and Officer Robertson’s experience.

      At   7:57       p.m.,   the   police      sought      and    obtained        a     second

warrant to remove “various documents relating to the sale of

conveyances.”           J.A. 89.        On April 29, 2003, a third search

warrant was executed on Fitzgerald’s residence.                           This time, the

scope of the search was much broader and sought evidence that

Fitzgerald had been engaged in money laundering.

      After       the     suppression          hearing,      the        district          court

determined that Fitzgerald had been unlawfully seized while the

police     sought       the     warrant.        However,         the     district         court

ultimately concluded that since no illegally obtained evidence

was used to procure the search warrants, the evidence obtained




                                            4
from the search warrants was “sufficiently distinguishable to be

purged from the unlawful detention.”                         J.A. 263.

       At    trial,        the       government              introduced          evidence          that

Fitzgerald      attempted        to       conceal        his       crime    after         the   search

warrants      were    executed.                For       example,      on       May       19,     2003,

Fitzgerald      participated              in   a     conversation           with      Bobby       Doss,

Jarett      Doss’    father,         in    which        he    agreed       to    sell       two    cars

belonging to Jarett and give the proceeds to Bobby.                                       Also, after

Fred   Rogers       was   arrested          in     connection         with      the       conspiracy,

Theresa Tyler, his sister, visited Fitzgerald to tell him to

stick to the “story” that the car was purchased by Tyler not

Rogers.        Finally,         an    audiotape           was      played       at    trial       which

revealed     conversations           between           Fitzgerald      and       co-conspirators

about ensuring that they all tell the same story.

       On    September      10,       2008,        the       government         filed       a   Second

Superseding     indictment           naming          Fitzgerald       that       included         seven

counts against him for conspiracy to launder money in violation

of 18 U.S.C. § 1956(a)(1)(B) and 18 U.S.C. § 1956(h).

       On   October       20,    2008,         the     government          filed      a    notice   of

404(b)      evidence,       announcing             that       it     planned         to     introduce

evidence     that    Fitzgerald            had     participated            in   narcotics         deals

with Clarence Martin, Sr. to prove that he knew the source of

the funds used to purchase cars.                       Fitzgerald objected.




                                                   5
       On April 6, 2009, less than a month before trial was set to

start,      Fitzgerald        filed    subpoenas    duces    tecum     seeking,      among

other           things,      documentation        from    various      Danville         car

dealerships about their sales practices over several years.                             The

government objected to the issuance of the subpoenas because

they were not timely 1 and there was no showing of relevancy,

admissibility, and specificity of the evidence sought.                          On April

9,    2009,       the     district    court   partially     granted    the     motion   to

quash based on the government’s objections.

       Trial commenced on May 4, 2009.                   During the trial, Quentin

Pinchback          testified      that    Fitzgerald      was   involved        in   drug

dealing.          Fitzgerald’s attorney moved for a mistrial based on

the prejudicial nature of the testimony.                     The motion was denied

and the court gave a curative instruction to the jury –- telling

them       to    ignore     the   impermissible     evidence.         Later,    Clarence

Trent testified about Fitzgerald’s alleged drug dealing past and

the court again instructed the jury to disregard it.

       At trial, Fitzgerald testified that he did not know that

the cars were being sold to drug dealers.                    He believed that Doss

was leasing the cars he bought and/or selling them with a mark

up.     There was also testimony that Rhonda Carter, Fitzgerald’s

girlfriend, would gamble with Doss and some of his associates

       1
           The deadline for completing discovery was November 2008.




                                              6
after the lot was closed.                    They would play dice and cards.

Fitzgerald testified that he did not participate in the games,

did not like that they occurred, but did not feel that he could

interfere since Doss was a customer.

       Fitzgerald was convicted of six of the seven counts against

him and sentenced to 140 months in prison on August 11, 2009.



                                             II.

                               A. Motion to Suppress

       On appeal from a motion to suppress, this Court reviews the

factual      findings     of    a    district       court    for    clear    error,   and

reviews      legal   determinations            de    novo.          United   States    v.

Wardrick, 350 F.3d 446, 451 (4th Cir. 2003).                            Probable cause

determinations       by   a     trial       court   are     given    great   deference.

United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006).

       We adopt the district court’s reasoning with respect to the

motion to suppress.             In its opinion, the district court found

that   (1)    Fitzgerald        was    illegally      detained;       (2)    the   search

warrant   was    valid;        and    (3)    the    search    warrant    was   obtained

without any fruits from the illegal detention.

       Fitzgerald was illegally seized while he waited for the

police to obtain the first search warrant.                           A seizure occurs

when “taking into account all of the circumstances surrounding

the encounter, the police conduct would have communicated to a


                                              7
reasonable      person     that       he   was       not    at    liberty      to    ignore     the

police presence and go about his business.”                             Kaupp v. Texas, 538

U.S.    626,       629    (2003)       (internal            quotations         and    citations

omitted).          The   district      court         concluded         that    Fitzgerald       was

illegally seized based on several facts including that he was

“lured” to the lot on false pretenses; he was confronted by ten

to eleven officers with visible weapons; and he was forced to

sit in a chair while he waited for the warrant to be obtained.

       The search warrant was valid on its face.                              In their warrant

application the police relied on three facts:                                   the documents

retrieved at DeNova’s trailer, Crystal Tucks’ car registration,

and    the     officer’s        experience.                 We    find     that      the    facts

articulated in the warrant are sufficient to form the basis for

a probable cause determination and to believe that the fruits of

a crime are contained within the parking garage.

       The search warrant was not tainted by the illegal seizure.

To determine whether evidence is inadmissible as a result of an

illegal seizure, the court asks “whether the search pursuant to

warrant      was    in   fact     a    genuinely           independent         source      of   the

information and tangible evidence at issue here.”                                     Murray v.

United States, 487 U.S. 533, 542 (1988).                              Evidence obtained by a

search warrant is not admissible if the “decision to seek the

warrant was prompted by what [the police] had seen during [an]

initial      [unconstitutional]            entry,          or    if    information      obtained


                                                 8
during        [an     unconstitutional]                 entry     was     presented      to   the

Magistrate          and    affected         his    decision       to    issue   the     warrant.”

Id.; see also United States v. Mowatt, 513 F.3d 395, 405 (4th

Cir. 2008) (where an illegal search or seizure has occurred, the

government must show that “the decision to seek the warrant--and

thus involve the magistrate--was not prompted by the original

illegal search.”).

       Here,        there       is     no    evidence       that        the   illegal     seizure

influenced the magistrate’s decision to grant a search warrant.

In determining that the seizure was not tainted, the district

court        relied       on     the      testimony       of     Officers       Robertson     and

Nicholson who said that they did not search the premises until

they obtained a search warrant. 2                        We find that this reliance was

appropriate.

                               B. Sufficiency of the Evidence

        In    determining            whether       the    evidence        was   sufficient    to

support a conviction, a reviewing court must determine whether

“any       rational       trier      of     fact   could        have    found   the     essential


       2
       Fitzgerald claims that Officer Taylor testified that the
premises were searched before then, but Taylor’s testimony is
that the search only happened after Fitzgerald had been handed a
search warrant.   Furthermore, in Fitzgerald’s own testimony at
the suppression hearing, he testified that the premises were not
searched until the search warrant was obtained.    In any event,
the district court concluded that no improper search took place,
and we find this determination to be reasonable.




                                                    9
elements of the crime beyond a reasonable doubt.”                                United States

v.     Madrigal-Valadez,             561    F.3d        370,   374        (4th     Cir.     2009)

(quotation omitted).             Issues of law are reviewed de novo.                      Id.

       Fitzgerald         argues     that     the      government        failed     to    present

sufficient evidence to show that he had the requisite intent to

show a conspiratorial agreement.                         The district court gave the

jury a ‘willful blindness’ instruction which stated that “[t]he

law says that if there is something obvious that anyone would

see, anyone would recognize, you can’t bury your head in the

sand and expect to get out that easy.”                            J.A. 1524. Fitzgerald

argues that this is essentially reading a negligence standard

into the count and that this confused the jury where there was

not sufficient evidence to convict. 3

       In    an        effort   to    prove       that    there      was    not     sufficient

conspiratorial           intent,     Fitzgerald          points     out    that     he    charged

Doss       the     regular       rates      for        cars,   did        not    conceal        the

transactions,            and    reported      his       profits     on     his     income    tax

documents.

       The       government      contends      that      there      is    more     than    enough

evidence          of     conspiratorial           intent       to        justify     upholding

Fitzgerald’s           conviction.          The     government       articulates          several

       3
       Fitzgerald did point out that the court also instructed
the jury that this is a higher standard than “more likely than
not.”




                                                  10
facts from the record which support his conviction, including

that he received almost $1,000,000 in proceeds from known drug

dealers; he used straw purchasers; and he was careful to record

transactions     in    increments     under    $10,000      so    as     not    to    be

required   to   report    it.     Additionally,       at    least      one     witness,

Michael    Henderson,     testified    at     trial   that       the   organization

openly bought cars to launder money; that Fitzgerald had lent

out cars to members of the drug cartel who left drugs in the car

and were reprimanded because Fitzgerald said it could get him in

trouble; and that Fitzgerald was present during discussions of

the drug selling business on several occasions.

     We find that there is sufficient evidence on the record to

support    a   conviction   for   conspiracy      involving        the    Doss       drug

cartel and Fitzgerald.

                          C. Motion for a Mistrial

     A denial of a motion for a mistrial is reviewed for abuse

of discretion.        United States v. Dorsey, 45 F.3d 809, 817 (4th

Cir. 1992).

     Fitzgerald argues that the district court erred in failing

to grant a mistrial where evidence of past crimes was presented

to the jury despite the court’s instructions to the government

otherwise.       During     the   government’s        direct      examination          of

Quentin Pinchback, Mr. Pinchback indicated that Fitzgerald was a

known   drug    dealer.     The   district      court      concluded      that    this


                                       11
evidence was inadmissible under the Fed. R. Evid. 403 and gave a

curative instruction to the jury.                  Despite this, the government

elicited similar statements from Clarence Trent, and went on to

ask that witness specifically whether he had any contact with

Fitzgerald regarding drug transactions.                      The court admonished

the government and took Fitzgerald’s contemporaneous motion for

a mistrial under advisement.                The district court later concluded

that its curative instruction was sufficient to mitigate the

prejudice.

      The    government        contends     that     these   statements     were    not

sufficient to declare a mistrial and that the district court

properly denied the motion for a mistrial.

      While we are troubled by the actions of the government with

respect     to    this      matter,    we   cannot    find   that    a   mistrial    is

appropriate for two reasons.                First, despite their questionable

efficacy, curative instructions are presumed to be effective.

United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009).

Therefore, the alleged prejudice was mitigated when the district

court instructed the jury to disregard the testimony.                           Second,

the   overwhelming          evidence    against      Fitzgerald     in   this   matter

outweighs        any   of    the   potential     prejudice     stemming    from     the

statements made by the witnesses in this case.




                                            12
                              D. Motion to Quash

       The district court’s grant of a motion to quash is reviewed

for abuse of discretion.         United States v. Bennett, 675 F.2d 596

(4th Cir. 1982).

       Fitzgerald argues that the district court erred in granting

the    government’s     motion   to   quash    the    subpoenas   duces   tecum.

Fitzgerald argues that the government lacked standing to quash

the    subpoenas     duces    tecum   since     it     had   no   privilege    or

proprietary interest in the information sought by subpoena.

       The government argues that Fitzgerald failed to make an

adequate showing of the required relevancy, admissibility, and

specificity.        United States v. Fowler, 932 F.2d 306, 311 (4th

Cir. 1991) (citation omitted).

       We find that the trial court did not abuse its discretion

in quashing Fitzgerald’s subpoenas.             We do not reach the merits

of Fitzgerald’s argument that the government lacked standing to

bring a motion to quash. For a valid subpoena, a party must show

that   the   material    subpoenaed     meets    the    requirements   of     “(1)

relevancy;     (2) admissibility;      [and]    (3)    specificity.”      United

States v. Nixon, 418 U.S. 683, 700 (1974) (cited with approval

in United States v. Richardson, 607 F.3d 357, 368 (4th Cir.

2010)).      Subpoenas duces tecum must be “made in good faith and

[must] not [be] intended as a general ‘fishing expedition.’”

Id.    The   only    reason   given    in   Fitzgerald’s      motion   for    the


                                       13
subpoenas    was    “for     the    defendant        to      raise       his     defense    of

innocence,     as   well     as    cast     doubt       on    the       evidence     of    the

government.”        J.A.    292.         While    its    true      that    the     defendant

provided more details in the hearing, ultimately the trial court

concluded    and    we     agree    that        defendant         failed    to     make    the

necessary    showing.         Additionally,          it      should       be     noted    that

requests     for    the    subpoenas       came     nearly         five     months       after

discovery had been closed.

                          E. Ex Post Facto Sentencing

     Fitzgerald argues that the district court erred in applying

sentencing guidelines from 2001 when the activity took place two

years before that date.

     The    government      argues       that    there       is    no    error    since     the

conspiracy    spanned      from    1999     to    2004    and      therefore       the     2001

guidelines     were       appropriately          applied.               Furthermore,        the

government points out that Fitzgerald failed to object                               at the

time of sentencing and thus, this issue is reviewed for plain

error.

     The Fourth Circuit has previously held that “[c]onspiracy

is a continuing offense,” and a district court may validly apply

sentencing    guidelines          from    any     time       during      the     conspiracy.

United States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990).

Since this was true when the guidelines were mandatory, this




                                            14
Court can find no reason to overturn this precedent, now that

the guidelines are merely advisory.

                            F. Sophisticated Means

     Fitzgerald argues that the district court erred in applying

a sophisticated means enhancement since there is no evidence

that he utilized the type of tools imagined by the guidelines in

§ 2S1.1(b)(3), n.5(A). Furthermore, Fitzgerald argues that his

lack of a high school education should preclude him from being

described as sophisticated.             Fitzgerald argues that this case

should be remanded for resentencing.

        The   government    argues     that    Fitzgerald       devised    a    multi-

layered scheme to conceal the sources of the cash and identities

of those paying for the cars and that this is sufficient to find

sophisticated means were used to carry out these crimes.

     We       find   that   the   sophisticated         means    enhancement         was

appropriately        applied.     Courts      have   found   that   sophisticated

means    were    used   when    individuals      used   other     people       to   hide

assets, United States v. Middlemiss, 217 F.3d 112, 124 (2d Cir.

2000);    and    structured     cash   deals    to   avoid      reporting,      United

States v. Gricco, 277 F.3d 339 (3d Cir. 2002); United States v.

Guidry, 199 F.3d 1150, 1158-59 (10th Cir. 1999). The Seventh

Circuit has explained that the “essence of the definition [of

sophisticated means] is merely deliberate steps taken to make

the offense difficult to detect.”               United States v. Kontny, 238


                                        15
F.3d 815, 821 (7th Cir. 2001) (ellipses and quotations omitted).

Here, Fitzgerald used many straw purchasers 4 to hide assets and

avoided transactions under $10,000 to evade detection.                 We also

consider   that   over    $1,000,000     worth     of     transactions       were

attributed to this scheme.      Additionally, we see no reason that

Fitzgerald’s lack of formal education would preclude him from

employing sophisticated means in this matter.                  Therefore, we

find that there is sufficient evidence to apply a sophisticated

means enhancement.

                     G. Obstruction of Justice

     Fitzgerald argues that the district court erred in applying

the obstruction of justice enhancement since the basis for the

enhancement happened before he was indicted or investigated for

the crimes for which he has been found guilty.

     The   obstruction    of   justice     enhancement         was   based    on

evidence that Fitzgerald attempted to sell Jarett Doss’ cars,

which   were   evidence   of   crimes,     after        Doss   was   arrested.

Additionally, a tape recording reveals that Fitzgerald attempted

to keep stories consistent amongst co-conspirators in order to

deceive the police about the nature of the conspiracy.


    4
       Straw purchasers refers to individuals and companies who
are named or listed as “purchasers” for paperwork purposes in
order to disguise the actual buyer and source of the money in a
transaction.




                                  16
       The    government   argues     that    this    evidence     is    enough    to

warrant an obstruction of justice enhancement.                     We agree and

find   that    the   district   court   was    correct     in   concluding      that

Fitzgerald was aware of the investigation before he attempted to

dispose      of   evidence      and   conceal        the   crime        with   other

conspirators.          Therefore,     the     sentencing        enhancement       was

appropriately applied.



                                      III.

       For the foregoing reasons, we affirm the judgment of the

district court.

                                                                           AFFIRMED




                                        17
