                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4920



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


SHAWN ARNETTE BREEDEN,

                                              Defendant - Appellant.


                               No. 04-4925



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL ANTHONY CARPENTER,

                                              Defendant - Appellant.


Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville.   Samuel G. Wilson,
District Judge. (CR-03-13)


Submitted:   August 31, 2005            Decided:   September 23, 2005


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Janice L. Redinger, JANICE L. REDINGER, P.L.C., Charlottesville,
Virginia;   J.  Lloyd   Snook,   III,  SNOOK   &   HAUGHEY,   P.C.,
Charlottesville, Virginia, for Appellants.      John L. Brownlee,
United States Attorney, William F. Gould, Assistant United States
Attorney, Charlottesville, Virginia; Thomas E. Booth, DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

          Shawn A. Breeden and Michael A. Carpenter appeal their

conviction for conspiracy to possess with the intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) (2000), travel in

interstate commerce to commit a crime of violence to further an

unlawful activity in violation of 18 U.S.C. § 1952(a)(2) (2000),

travel in interstate commerce with intent to kill in violation of

18 U.S.C. § 2261A (2000), and three counts of use of a firearm

during each of the three above offenses in violation of 18 U.S.C.

§ 924(c)(1) (2000).   Finding no error, we affirm.

          Breeden,    Carpenter,    Kevin    Cassell,    and   Robert

Outterbridge lived near one another in Washington, D.C., where they

sold drugs.   On August 8, 2002, Breeden lost some of his girlfriend

Shelley Holland’s money while gambling and promised her he would

get the money by robbing Kevin Hester, a drug supplier from

Charlottesville,   Virginia.    Breeden,    Carpenter,   Cassell,   and

Outterbridge drove to Charlottesville and met with a friend of

Breeden’s who gave Cassell some crack cocaine to give to Breeden.

While looking for Hester, the four men robbed a man of his money

and cell phone and assaulted and robbed two people at a bank.

          Breeden arranged to meet with Hester to purchase drugs.

When Hester arrived, Breeden greeted Hester as Carpenter approached

Hester from behind.   Carpenter pointed his shotgun at Hester and,

as Hester grabbed the barrel of the gun, Carpenter shot Hester in


                                - 3 -
the leg.   Breeden then took his knife and stabbed Hester multiple

times in the neck and chest.          Hester fell to the ground and

Carpenter and Breeden told Outterbridge to shoot Hester again.

Outterbridge shot Hester twice in the head.         One of the men took

Hester’s phone and the four men then drove back to Washington, D.C.

Hester died from his injuries.

           Breeden and Carpenter claim that the district court erred

in denying their motion for a judgment of acquittal.           We review the

district   court’s   decision   to   deny   a   motion   for   judgment   of

acquittal de novo.     United States v. Gallimore, 247 F.3d 134, 136

(4th Cir. 2001).     If the motion was based on insufficiency of the

evidence, the verdict must be sustained if there is substantial

evidence, taking the view most favorable to the government, to

support it.   Glasser v. United States, 315 U.S. 60, 80 (1942).

           Breeden and Carpenter claim the Government did not have

sufficient evidence to prove that the Defendants were involved in

a conspiracy to possess cocaine with intent to distribute on the

night of Hester’s death because they only intended to rob drug

dealers.   To prove the charged conspiracy, the Government had to

establish (1) an agreement to possess cocaine with intent to

distribute between two or more persons, (2) the Defendant knew of

the conspiracy, and (3) the Defendant knowingly and voluntarily

became part of that conspiracy.      21 U.S.C. § 841; United States v.

Burgos, 94 F.3d 849, 857 (4th Cir. 1996).           “Participation in a


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criminal conspiracy need not be proved by direct evidence; a common

purpose   and    plan    may    be    inferred     from    a     ‘development      and   a

collocation of circumstances.’”                Glasser, 315 U.S. at 80.                 The

government      may   rely     on    the   existence      of    a   “tacit   or   mutual

understanding,” between the defendant and his conspirators, the

length of their association, the defendant’s conduct, and the

nature of the alleged conspiracy as circumstantial evidence of the

conspiracy.      United States v. Ellis, 121 F.3d 908, 922 (4th Cir.

1997); Burgos, 94 F.3d at 858.

           While Outterbridge testified that there was no agreement

to possess or distribute drugs, he also testified that he expected

to get “money and drugs” from robbing the drug dealers.                         While in

Charlottesville,        Cassell      received      crack       cocaine   from     one    of

Breeden’s associates.           Breeden told Hester to bring cocaine to

their meeting, and the conspirators intended to rob Hester of his

possessions including the cocaine.                  While there was no direct

evidence of an agreement between the men to steal drugs, the

Government presented sufficient circumstantial evidence to prove a

tacit understanding between the men to take drugs from the drug

dealers they intended to rob, and district court did not err in

denying Breeden and Carpenter’s motion for judgment of acquittal on

the drug conspiracy count.

           Breeden and Carpenter claim that the Government did not

sufficiently prove that they traveled in interstate commerce “with


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intent to commit any crime of violence to further any unlawful

activity.”     See United States v. Gallo, 782 F.2d 1191, 1194 (4th

Cir. 1986). The Government was only required to prove that Breeden

and Carpenter intended to commit “any crime of violence,” not a

crime   of    violence    against    a   specific   person.    Cassell,

Outterbridge, and Holland all testified that the four men decided

while in Washington, D.C., to travel to Charlottesville to rob drug

dealers for money. The Government presented sufficient evidence to

prove that they entered into interstate travel to commit a crime of

violence.

             Breeden and Carpenter also claim that the Government did

not prove their intent to rob drug dealers was to further an

unlawful activity.       For purposes of § 1952, “unlawful activity

includes     any   ‘business   enterprise’    involving   narcotics   or

controlled substances.” 18 U.S.C. § 1952(b)(1) (2000). This court

has construed “business enterprise” to mean a continuous course of

conduct rather than a sporadic casual involvement in the proscribed

activity.     United States v. Corbin, 662 F.2d 1066, 1073 n.16 (4th

Cir. 1981).     Breeden and Carpenter had a history of drug dealing

and not a sporadic or casual involvement. The Government presented

sufficient evidence that Breeden and Carpenter intended to rob drug

dealers for money and drugs and that the robbery showed a pattern

of continuous drug dealing sufficient to constitute a business

enterprise.


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              Breeden     and   Carpenter      claim   the   Government      did   not

provide sufficient evidence to prove they traveled in interstate

commerce “with the intent to kill, injure, harass, or intimidate

another person, and in the course of, or as a result of, such

travel places that person in reasonable fear of the death of, or

serious bodily injury to, that person.”                      18 U.S.C. § 2261A.

Breeden and Carpenter claim the government did not present any

evidence    that     they    intended   to     harm    Hester   before    they     left

Washington, D.C.; rather, they claim the Government only proved

that they were going to rob drug dealers.                Holland testified that

Breeden told her that he was going to rob Hester and that she

begged him not to rob Hester.                Cassell testified that Breeden

wanted   to    go    to     Charlottesville      to    get   money    from   Hester.

Outterbridge testified that after Carpenter talked with Breeden,

Carpenter     told    Outterbridge      they    were    going   on    a   “mission.”1

Breeden then told Outterbridge they were going “to Virginia to rob

some people.”        Breeden armed himself with a knife and Carpenter

took a shotgun before leaving Washington, D.C.                       The Government

presented sufficient evidence that before they left Washington,

D.C., Breeden and Carpenter intended to intimidate, harass, and

injure Hester by robbing him.


     1
      Breeden and Carpenter’s        argument that Cassell, Outterbridge,
and Holland gave conflicting         or inconsistent testimony on various
matters is meritless.     In         evaluating the sufficiency of the
evidence, we do not “review           the credibility of the witnesses.”
United States v. Wilson, 118         F.3d 228, 234 (4th Cir. 1997).

                                        - 7 -
            Breeden and Carpenter also claim that they did not put

Hester into reasonable fear of death or serious bodily injury.

Hester saw Carpenter’s shotgun and had enough time to grab the

barrel.    Hester may not have known for long that he was in danger,

but his efforts to grab the barrel of a shotgun pointed directly at

him demonstrate that he had a reasonable fear of death or serious

bodily injury sufficient to satisfy the requirement of 18 U.S.C.

§ 2261A.    See United States v. Wills, 346 F.3d 476, 499 (4th Cir.

2003).     The Government presented probative evidence that Breeden

and Carpenter entered into interstate travel to harm Hester, and

the district court did not err in denying Breeden and Carpenter’s

motion for judgment of acquittal.

            Breeden claims that he was entitled to a hearing under

Kastigar v. United States, 406 U.S. 441 (1972), to determine

whether the Government made derivative use of his statement to

federal    investigators.        Whether       a   defendant’s   statement   was

voluntary    is   a   question    of    law    that    is   reviewed   de   novo.

Arizona v. Fulminante, 499 U.S. 279, 287 (1991). Breeden agreed to

speak to federal investigators about the robberies he committed

prior to Hester’s death in an attempt to persuade the Government to

not recommend the death penalty.          The Government agreed not to use

the statement against him as direct evidence, but reserved the

right to make derivative use of it.                   A Kastigar hearing to

determine if the government made derivative use of a statement is


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required where the government has violated evidentiary privileges,

but when no such violations occur a hearing is unnecessary.                            See

United States v. Squillacote, 221 F.3d 542, 549-560 (4th Cir.

2000); United States v. McHan, 101 F.3d 1027, 1035 (4th Cir. 1996).

            Breeden claims his proffer was involuntary because it was

based on a misunderstanding by his counsel, but a confession that

is a result of factors unrelated to government misconduct is not

involuntary      within     the    meaning      of     the    Due    Process      Clause.

Colorado    v.   Connelly,        479    U.S.   157,    167     (1986).         Breeden’s

statements were not used against him as direct evidence. The

proffer    agreement      gave    the    Government      the    right     to    use    that

statement derivatively. As the Government was permitted to use the

statements derivatively and the Government did not violate the

proffer    agreement      or    any     evidentiary     privileges,        no   Kastigar

hearing was required because it was not necessary to determine if

the Government could use the statements derivatively. The district

court did not err when it denied Breeden a Kastigar hearing.

            Carpenter claims violations of his Fifth Amendment and

Due Process Clause rights because his pretrial confession was

involuntary.     We review the voluntariness of a confession de novo.

Fulminante,      499   at      287.     Carpenter      waived       his   rights      under

Miranda v. Arizona, 384 U.S. 436 (1966), and initially denied any

role in the murder.         In order to induce Carpenter to confess, the

agents misrepresented the strength of their case against Carpenter


                                          - 9 -
by   saying    that   one    of   the    robbery   victims    was   a   government

informant, that they had surveillance video of Carpenter at a gas

station, and that Breeden and Outterbridge had implicated Carpenter

in Hester’s killing.

              The agents also told Carpenter that they would subpoena

members of his family to appear before the federal grand jury, his

family would have to pay their own expenses, and if they failed to

appear or committed perjury they would be sent to jail.                  Carpenter

continued to deny any role in the murder.             Finally, the agents told

Carpenter that Cassell had confessed, and they gave Carpenter

specific details of the offense that only someone who had witnessed

the murder could know.            Carpenter thereupon admitted that he and

Breeden had killed Hester.

              At trial, the Government did not introduce Carpenter’s

statement     into    evidence     and    Carpenter     did   not   testify.     In

Chavez v. Martinez, 538 U.S. 760, 767 (2003), the plurality of the

Supreme     Court     held   that       “[s]tatements    compelled      by   police

interrogations of course may not be used against a defendant at

trial, but it is not until their use in a criminal case that a

violation of the Self-Incrimination Clause occurs.”                  The Martinez

plurality found that the mere use of compulsive questioning,

without more, did not violate the Fifth Amendment.                  Martinez, 538

U.S. at 767.        Carpenter did not suffer a violation of his Fifth




                                         - 10 -
Amendment rights because the Government did not introduce his

statement into evidence.

            Carpenter also claims the Government violated his Due

Process Clause rights by coercing his confession.                 “The test for

determining whether a statement is voluntary under the Due Process

Clause ‘is whether the confession was extracted by any sort of

threats   or    violence,    [or]   obtained   by    any    direct    or   implied

promises, however slight, [or] by the exertion of any improper

influence.’” United States v. Braxton, 112 F.3d 777, 780 (4th Cir.

1997).    The mere existence of coercive police activity does not

render a confession involuntary. The police officers’ conduct must

be such that the defendant’s will is “‘overborne’ or his ‘capacity

for self-determination is critically impaired.’”                     Id. at 780.

“[C]ourts      must    consider   ‘the   totality    of     the   circumstances,

including the characteristics of the defendant, the setting of the

interview, and the details of the interrogation.’” Id. at 781.

            While law enforcement officers’ deception is relevant in

determining      the    voluntariness    of    a    confession,      it    is    not

determinative.        See Frazier v. Cupp, 394 U.S. 731, 739 (1969).             The

federal   agents’       misrepresentations     did    not    make    Carpenter’s

confession involuntary because he repeatedly denied any role in the

murder of Hester after each of those misrepresentations.                        Only

after federal agents gave Carpenter true details from Cassell’s

statement did Carpenter finally confess.                   The federal agents’


                                    - 11 -
misrepresentations did not hinder Carpenter’s capacity for self-

determination and they did not affect the voluntariness of his

confession.

           Carpenter finally claims his confession was involuntary

because   the   federal    agents   threatened    to     arrest   his   family;

however, the federal agents did not threaten to arrest Carpenter’s

family members.    The agents told Carpenter that if he did not tell

the truth, they would subpoena members of his family to appear

before the federal grand jury, and if they failed to appear or

committed perjury they would be sent to jail. These statements are

true and do not threaten to do anything illegal to Carpenter’s

family.   Although the federal agents did say Carpenter’s family

would have to bear their expenses to appear before the grand jury,

we conclude that under the totality of the circumstances this

misrepresentation    did    not   coerce     Carpenter    to   confess.     The

district court did not err when it denied Carpenter’s motion to

suppress his confession because no Fifth Amendment or Due Process

Clause violation occurred.

           Accordingly,      we     affirm     Breeden     and    Carpenter’s

convictions.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                                        AFFIRMED




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