225 F.3d 753 (D.C. Cir. 2000)
United States of America, Appelleev.Abdul J. Gbemisola, Appellant
No. 99-3123
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2000Decided September 12, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 98cr00129-01)
Edward C. Sussman, appointed by the court, argued the  cause and filed the brief for appellant.
Elizabeth Carroll, Assistant United States Attorney, argued the cause for appellee.  With her on the brief were  Wilma A. Lewis, Unites States Attorney, and John R. Fisher,  Thomas J. Tourish, Jr., William J. O'Malley, Jr., and Eumi  Choi, Assistant United States Attorneys.
Before:  Sentelle, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Abdul J. Gbemisola appeals his  conviction for possession with intent to distribute over one  kilogram of heroin.  He argues that evidence obtained  through the use of an electronic tracking device should have  been suppressed because the device was installed outside the  jurisdiction of the magistrate judge who issued the warrant  for its installation.  He also argues that the evidence at trial  was insufficient to support his conviction and that he was  improperly joined for trial with two co-defendants.  We find  no merit to these arguments and affirm the conviction.


2
* On March 6, 1998, the U.S. Customs Service at the port of  entry in Memphis, Tennessee selected for examination a box  being shipped by Federal Express from Cambodia to a "Mail  Boxes Etc." location in Washington, D.C.1  The box aroused  Customs' suspicions because it came from a narcotics source  country, had atypical merchandise, and had no value listed on  the waybill.  Upon opening the box, agents found six cooking  pots that smelled of fresh paint, were unusually heavy, and  had observable "depth discrepancies"--i.e., false bottoms. Inside the false bottom of each pot was a translucent bag of  heroin.  Customs then checked for other boxes from the same  shipper and found another also addressed to Mail Boxes Etc.  in the District of Columbia, albeit at a different District  location.  This one, too, contained six pots and they, too,  contained heroin secreted in false bottoms.  Customs found a  third box, also containing six freshly-painted pots with false  bottoms filled with heroin, in a Federal Express shipment in  Indianapolis, Indiana.  The third box had been shipped from  the Philippines and was bound for yet a third Mail Boxes Etc.  location in the District of Columbia.  Each box contained  approximately 1500 grams of heroin with a very high level of purity--approximately 90%.  The heroin in each box had a  street value of approximately $1 million.


3
Customs agents repackaged the pots in their original boxes  and sent them on to Customs' Washington, D.C. area field  office at Dulles Airport in Northern Virginia.  There, agents  reopened the boxes and installed electronic tracking devices  pursuant to a warrant obtained from a federal magistrate  judge in the District of Columbia.  Each device emitted a  radio signal with the capacity to indicate when the box was  moving and to disclose when it was opened.  Agents removed  some of the pots from each box, and diluted the heroin in the  remaining pots with flour.  Telephone books were added to  the boxes to compensatefor the weight of the removed pots. The boxes were then resealed and delivered to the three Mail  Boxes Etc. addresses on the shipping labels:  1429 G Street,  N.W.;  4401 Connecticut Avenue, N.W.;  and 5505 Connecticut  Avenue, N.W.


4
Meanwhile, on March 4, 1998, around the time that the  boxes were being shipped from Southeast Asia, a person  using the name "Winston" made three telephone reservations  for travel on March 9 from O'Hare International Airport in  Chicago to Baltimore-Washington International Airport  (BWI) in Maryland.  The reservations were made in the  names of "Abdul Gevemisola [sic]," "Wahab Akanni," and  "Winston Gillsillian [sic]."  On March 9, "Winston" made new  reservations for the same three to travel on March 10.  On  that day, the tickets were purchased with cash because the  credit card with which "Winston" initially attempted to make  the purchase was reported as unverifiable.  The plane arrived  at BWI at 10:17 a.m., and a ticket for three travelers--later  found in the pocket of Gbemisola's co-defendant Wahab Akanni--was purchased for the 12:00 p.m. "Super Shuttle" from  BWI to downtown Washington, D.C.  The Shuttle ride takes  approximately one hour.


5
Just after 1:00 p.m., an individual, later identified as Gbemisola's co-defendant Winston Gillfillian, entered the Mail  Boxes Etc. location at 1429 G Street, N.W. in downtown  Washington.  An employee testified that Gillfillian appeared to be accompanied by two other men, one of whom had a  shoulder bag, who remained waiting outside.  Although Gillfillian attempted to retrieve the Federal Express package,  which had been delivered to a box in the name of "Aldrich  Hinton," Customs had already removed it.  Gillfillian left  empty-handed.


6
A half hour later, defendant Gbemisola entered the Mail  Boxes Etc. franchise at 4401 Connecticut Avenue, N.W.,  carrying a shoulder bag.  One of the three Federal Express  boxes had been addressed to the mailbox of "Anthony Brown"  at that location.  Gbemisola presented a notice of mail for  "Anthony Brown" and retrieved the box.  Before leaving the  premises, Gbemisola renewed the rental of "Brown's" box for  another three months.


7
Gbemisola then walked out the door, and law enforcement  agents watched as he entered a taxi.  They followed in their  own car.  Almost immediately, the electronic tracking device  alerted the agents that the box had been opened.  The agents  stopped the taxi and arrested Gbemisola.  They found the  Federal Express box lying open on the floor of the taxi's back  seat.  Inside Gbemisola's shoulder bag was the pot of heroin  and the telephone books, as well as an envelope addressed to  "Anthony Brown" at 4401 Connecticut Avenue, N.W.  The  envelope contained an auto repair estimate in the name of codefendant Akanni.


8
At about the time of Gbemisola's arrest, co-defendant Akanni entered a taxi in the 4600 block of Connecticut Avenue,  N.W.  The third co-defendant, Gillfillian, was already in the  taxi.  The taxi proceeded northbound to the 5500 block of  Connecticut Avenue N.W., where Akanni exited.  The taxi  continued and, minutes later, stopped again to let Gillfillian  out.  Akanni then entered the third Mail Boxes Etc. location  at 5505 Connecticut Avenue, N.W., where he picked up the  third Federal Express box, which had been addressed to  "Cecil Dover."  Like Gbemisola, Akanni renewed the rental  on the box for another three months.  As Akanni left the  store with the box, co-defendant Gillfillian hailed a cab.  Both were then arrested.  Agents found documents related to the  two other Mail Boxes Etc. stores on Gillfillian's person.


9
A grand jury returned an indictment against the three  men.  In Count One, all three were charged with conspiracy  to distribute narcotics, in violation of 21 U.S.C. § 846.  In  Count Two, Gbemisola alone was charged with possession  with intent to distribute a kilogram or more of heroin, in  violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(I).  In Count  Three, the other two men were charged with the same crime. The three were tried together.  None of the defendants  testified, and Gbemisola did not present any witnesses.  During the trial, the government moved to dismiss the conspiracy  charge because of discrepancies in dates listed in the indictment, and the court granted the motion.  The jury found  Gbemisola guilty on his remaining count, but acquitted his co-defendants on theirs.


10
Gbemisola appeals his conviction, citing three motions that  he contends the trial court erroneously denied.  First, during  the trial a government witness testified that although the  warrant for the tracking devices had been issued by a magistrate judge sitting in Washington, D.C., the devices were  actually installed in Virginia.  Contending that this rendered  the warrant invalid, defendant moved to suppress the evidence obtained from the use of the tracking device in the box  he retrieved.  Second, after the court dismissed the conspiracy count mid-trial, Gbemisola moved to sever his case from  that of his co-defendants.  Finally, Gbemisola moved for  judgment of acquittal on the ground that the evidence was  insufficient to sustain the conviction.

II

11
Gbemisola's appeal of the denial of his motion to suppress  does not involve any factual dispute.  Both parties agree that  the warrant purporting to authorize installation of the tracking device was issued in the District of Columbia, that the  monitoring actually occurred in the District, but that the  agents installed the device in Virginia.  The only question is a  legal one--whether the evidence obtained through use of the device was unlawfully obtained.  We decide that question de  novo.  See In re Sealed Case No. 96-3167, 153 F.3d 759, 764  (D.C. Cir. 1998).


12
Section 3117(a) of Title 18 of the United States Code states  as follows:


13
If a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside the jurisdiction if the device is installed in that jurisdiction.


14
18 U.S.C. § 3117(a).  Defendant contends that this statute  does not empower a court to authorize the installation of a  tracking device outside its jurisdiction.  Although we are  inclined to agree,2 and although atoral argument the government indicated its agreement as well, that agreement does  not resolve the suppression issue.


15
As is apparent on its face, section 3117 provides a basis for  authorizing the use of a mobile tracking device.  But by  contrast to statutes governing other kinds of electronic surveillance devices, section 3117 does not prohibit the use of a  tracking device in the absence of conformity with the section. Cf. 18 U.S.C. § 3121(a) ("Except as provided in this section,  no person may install or use a pen register or a trap and  trace device without first obtaining a court order....  ");  id.  § 2511(1) ("Except as otherwise provided in this chapter any  person who--(a) intentionally intercepts ... any wire, oral, or  electronic communication ... shall be punished....  ").  Nor  does it bar the use of evidence acquired without a section  3117 order.  Cf. id. § 2515 (barring use as evidence of wire or  oral communications intercepted in violation of statute).  Indeed, the statute that bars the interception of any "electronic  communication" except in conformity with its provisions expressly excludes section 3117 tracking devices from the definition of "electronic communication."  See id. § 2510(12)(c).Similarly, the legislative history of section 3117 makes clear  Congress' understanding that, under the Supreme Court's  decisions in United States v. Karo, 468 U.S. 705 (1984), and  United States v. Knotts, 460 U.S. 276 (1983), warrants are not  always required for either the installation or use of mobile  tracking devices.  See H.R. Rep. No. 99-647, at 60 (1986)  (noting that Karo held a warrant was "not required where the  owner consents to installation," and that Knotts held the  warrantless "installation of a beeper on a container to follow  on a public roadway does not violate the Fourth Amendment").  Accordingly, the question at issue in this case is whether Customs needed an authorizing warrant in the first  place--or instead whether the warrant that issued, although  perhaps invalid, was superfluous.


16
We conclude that the government did not require a warrant  to authorize its conduct in this case.  Defendant concedes  that no warrant was required for the initial opening of the  box, as it arrived at the border via international mail.  See  United States v. Ramsey, 431 U.S. 606, 619 (1977) (holding  that neither warrant nor probable cause is required for  search of letters sent through international mail).  As defendant further concedes, installing the tracking device did not  require any additional intrusion into anyone's reasonable  expectation of privacy.  Without such an intrusion, there can  be no Fourth Amendment violation.  See Karo, 468 U.S. at  712-13 (holding that placement of beeper does not violate  Fourth Amendment unless reasonable expectation of privacy  is infringed);  Illinois v. Andreas, 463 U.S. 765, 771 (1983)  ("No protected privacy interest remains in contraband in a  container once government officers lawfully have opened that  container and identified its contents as illegal.").3


17
The remaining question is whether a warrant was required  for the continuing use of the device--that is, for the electronic  reports it made concerning the location and reopening of the  box.  In Karo, the Supreme Court held that a warrant was  required to monitor the location of a tracking device in a  private home because of the legitimate expectation of privacy  within a home.  See 468 U.S. at 714-18.  However, the Court  also held thatno warrant was required for monitoring the  device during the time it was en route to the house in a truck  on a public road.  See id. at 721.  Reaffirming its previous  decision in Knotts, the Court declared that "the warrantless  monitoring of an electronic tracking device ..  [does] not violate the Fourth Amendment when it reveal[s] no information that could not have been obtained through visual surveillance."  Id. at 707.


18
The same analysis applies here.  As Gbemisola left the  Mail Boxes Etc. building, entered a taxi, and drove away, he  was followed by a team of surveillance agents.  Although the  tracking device reported the location of the box, so too did the  agents' visual surveillance.  With respect to location, the  device added nothing to what the agents could see with their  eyes.  That surveillance did not violate the Fourth Amendment, as Gbemisola "ha[d] no reasonable expectation of privacy" with respect to his travels on the public street.  Knotts,  460 U.S. at 281.  "[S]ince the movements of the automobile  and ... of the [object] containing the beeper ... could have  been observed by the naked eye, no Fourth Amendment  violation was committed.... "  Karo, 468 U.S. at 713-714.


19
But, Gbemisola argues, the device also reported when the  box was opened--an event that the officers did not see.  The  decisive issue, however, is not what the officers saw but what  they could have seen.  See id.;  Knotts, 460 U.S. at 282, 285.At any time, the surveillance vehicle could have pulled alongside of the taxi and the officers could have watched Gbemisola  through its window.  Indeed, the taxi driver himself could  have seen the event simply by looking in his rear-view mirror  or turning around.  As one cannot have a reasonable expectation of privacy concerning an act performed within the visual  range of a complete stranger, the Fourth Amendment's warrant requirement was not implicated.  See Katz v. United  States, 389 U.S. 347, 351 (1967) ( "What a person knowingly  exposes to the public ... is not a subject of Fourth Amendment protection.").


20
In sum, because no warrant was required for either the  installation or use of the mobile tracking device, the fruits of  that use were admissible at trial regardless of the validity of  the warrant obtained by the government.  See, e.g., United  States v. Martinez, 78 F.3d 399, 401 (8th Cir. 1998) (upholding  search of car under automobile exception regardless of validity of warrant).

III

21
Defendant's remaining two arguments, relating to the sufficiency of the evidence to sustain the verdict and to the  propriety of a joint trial, merit only brief discussion.


22
We must affirm a jury's verdict if " 'any rational trier of  fact could have found the essential elements of the crime  beyond a reasonable doubt.' "  United States v. Lucas, 67  F.3d 956, 959 (D.C. Cir. 1995) (quoting Jackson v. Virginia,  443 U.S. 307, 319 (1979)).  In making that determination, "the  prosecution's evidence is to be viewed in the light most  favorable to the government, drawing no distinction between  direct and circumstantial evidence, and giving full play to the  right of the jury to determine credibility, weigh the evidence  and draw justifiable inferences of fact."  United States v.  Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986) (internal quotation omitted).


23
In the district court, defendant contended there was insufficient evidence to show anything more than that he "was  picking up a box for a friend," a box the contents of which he  did not know.  See Trial Tr. at 1699 (closing argument).  But  the evidence recounted in Part I above--including travel to a  distant city, the suspicious manner in which the three men  fanned out to retrieve the three packages, the use of false  names on the mailboxes at all three locations, the defendant's  renewal of the mailbox account in a false name, and the  defendant's removal of the contents from the package--was  more than sufficient for a reasonable jury to conclude that  Gbemisola knew he was picking up a box of contraband.  On  appeal, defendant contends that all of this could be explained  if Gbemisola had been involved in an illegal scheme to import  cultural artifacts, and that it need not necessarily mean he  knew the artifacts contained narcotics.  Not only was this  theory not offered at trial, it does not "explain" what happened in this case.  The Southeast Asian shippers placed  heroin in the false bottoms of the pots--in an amount (and  value) the jury could reasonably have doubted they would  have entrusted to recipients who thought they were merely  importing artifacts, and in a location that would have been particularly risky if an "innocent" recipient had decided to use  the cooking pots for their apparent purpose.  See United  States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997)  (holding that reasonable jury could infer from quantity of  drugs in false bottom of suitcase "that a 'prudent smuggler' is  not likely to entrust such valuable cargo to an innocent  person without that person's knowledge");  United States v.  Herrera, 931 F.2d 761, 763 (11th Cir. 1991) (holding that to  sustain conviction it "is not necessary that the evidence  exclude every" innocent explanation for lack of knowledge of  drugs in false suitcase compartment);  see also United States  v. Brown, 33 F.3d 1014, 1015-16 (8th Cir. 1994) (sustaining  conviction where defendant used false name to pick up United  Parcel Service package containing hidden narcotics).


24
Gbemisola fares no better with his attack on his joint trial. First, defendant argues that once the court dismissed the  conspiracy count, there was misjoinder under Federal Rule of  Criminal Procedure 8(b), which provides that:


25
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.  Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.


26
In Schaffer v. United States, however, the Supreme Court  held that if a conspiracy count makes initial joinder of defendants permissible, the mid-trial dismissal of that count does  not render joinder improper under Rule 8(b).  362 U.S. 511,  514-16 (1960);  see United States v. Clarke, 24 F.3d 257, 262  (D.C. Cir. 1994).  Indeed, even if there had never been a  conspiracy count in this case, joinder of the remaining counts  was proper because the government "presented evidence that  [defendants'] offenses arose out of their participation in the  same drug distribution scheme."  United States v. Halliman,  923 F.2d 873, 883 (D.C. Cir. 1991);  see United States v.  Perry, 731 F.2d 985, 990 (D.C. Cir. 1984).  Contrary to  defendant's contention, the charges in Counts Two and Three did not refer to "two discrete events which ... were separated by time, location and their participants."  Def. Br. at 14.Rather, everything from the identical nature of the three  boxes and their contents, to the co-defendants' joint travel, to  their possession of documents in each other's names, makes  clear that defendants were involved in a common scheme.


27
As joinder was proper under Rule 8(b), the remaining  question is whether the district court should nonetheless have  severed the defendants to avoid prejudice, as permitted by  Federal Rule of Criminal Procedure 14.  See Schaffer, 362  U.S. at 514-15;  Clarke, 24 F.3d at 262.4  We review the  court's refusalto do so only for abuse of discretion, see  United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989),  and we find no abuse here.  All of the evidence admitted at  the joint trial could properly have been admitted at a separate trial to show the nature of the drug distribution scheme  in which Gbemisola was an active participant.  Hence, no  prejudice arose from the joinder, and the court did not err in  trying the defendants together.  See Schaffer, 362 U.S. at  514-15;  United States v. White, 116 F.3d 903, 916-18 (D.C.  Cir. 1997);  United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir.  1990).

IV

28
The judgment of the district court is affirmed.



Notes:


1
  Mail Boxes Etc. rents mailboxes with 24-hour access at  numerous locations in the Washington, D.C. area and worldwide.


2
   In fact, the statute does not appear to authorize installation  of a tracking device at all.  On its face, the statute is addressed to a  court already "empowered" by some other authority to issue an  order for the installation of such a device.  The statute merely  permits such an otherwise-empowered court to authorize the use of  that device both inside the jurisdiction and outside the jurisdiction if  the installation is made inside.  See also Sen. Rep. No. 99-541, at  33-34 (1986).  Before section 3117 was enacted in 1986, courts  relied on Federal Rule of Criminal Procedure 41 for the power to  issue search warrants authorizing the installation and use of tracking devices.  See In re Application of the United States ("White  Truck"), 155 F.R.D. 401, 402-03 (D. Mass. 1994) (discussing historical practice);  cf. United States v. New York Tel. Co., 434 U.S. 159,  169-70 (1977) (holding Rule 41 broad enough to authorize installation and use of pen registers).  At the time, however, Rule 41 only  authorized warrants issued by "a federal magistrate ... within the  district wherein the property or person sought is located," thus  rendering uncertain a court's power to issue a warrant permitting  the continued use of a mobile tracking device after it (and the  container in which it had been placed) left the district. Fed. R. Crim.  P. 41(a) (1986);  see Clifford Fishman, Electronic Tracking Devices  and The Fourth Amendment:  Knotts, Karo, and the Questions  Still Unanswered, 34 Cath. U. L. Rev. 277, 375 (1985).  Section 3117  resolved that uncertainty by providing the necessary authority.  See  White Truck, 155 F.R.D. at 403.  In 1990, Rule 41 itself was  amended to permit a magistrate to issue a search warrant not only  for property within the judicial district, but also for property "either  within or outside the district if the property ... is within the  district when the warrant is sought but might move outside the  district before the warrant is executed."  Fed. R. Crim. P. 41(a);  see  also id. Advisory Committee's note on 1990 amendment (suggesting  that amendment provides authority for issuance of warrant to follow  beeper across state lines).


3
  Moreover, under the theory suggested by defense counsel in  closing argument--that Gbemisola was merely picking up the box  for a friend--Gbemisola would not have had the necessary expectation of privacy in the first place.  See Rakas v. Illinois, 439 U.S.  128, 143 (1978);  United States v. Magnum, 100 F.3d 164, 170 (D.C.  Cir. 1996).


4
  Rule 14 states in relevant part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Fed. R. Crim. P. 14.


