925 F2d 1457 United States v. Encarnacion

925 F.2d 1457
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Malcolm Eugene ENCARNACION, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Courtney Lodian FULLER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Angernette Barnes DANIELS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Leslie Lee THOMAS, Defendant-Appellant.

Nos. 89-5768 to 89-5770, 90-5450.

United States Court of Appeals, Fourth Circuit.

Feb. 20, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CR-89-14-4)

Douglas Everette Kingsbery, Raleigh, N.C., Rudolph Alexander Ashton, III, New Bern, N.C., Richard Luby Cannon, III, Greenville, N.C. (Argued), for appellants; Edwin C. Walker, Assistant Federal Public Defender, Raleigh, N.C., on brief.

Sean Connelly, United States Department of Justice, Washington, D.C., (Argued), for appellee; Margaret P. Currin, United States Attorney, Robert E. Skiver, Assistant United States Attorney, Raleigh, N.C., on brief.

E.D.N.C.

AFFIRMED.

Before DONALD RUSSELL and K.K. HALL, Circuit Judges, and FREDERICK P. STAMP, Jr., United States District Judge for the Northern District of West Virginia, sitting by designation.

PER CURIAM:


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1

Courtney Fuller, Malcolm Encarnacion, Leslie Thomas, and Angernette Daniels appeal various aspects of their convictions for possession of cocaine and marijuana with the intent to distribute, conspiracy to possess with intent to distribute and using a firearm during a drug trafficking crime. In addition, Fuller appeals his conviction for maintaining a place for the purpose of manufacturing and distributing cocaine, and Encarnacion appeals the district court's addition of two offense levels for obstruction of justice. Finding no error, we affirm.

I.

2

The investigation leading to the convictions began when Greenville, North Carolina police officers received a detailed tip from a citizen informant, who had just been in room 46 of the Econo Lodge Motel in Greenville and had seen two bags of a white rocky substance he believed to be crack cocaine. The informant reported that the room was occupied by two black males whom he believed to be Jamaican. On the basis of this information, police secured a search warrant and executed it on the unoccupied room. The police found cocaine, cocaine base and a locked suit bag. Upon completion of the search, police set up surveillance of room 46.

3

Thomas soon arrived, entered room 46 with a key, and immediately left. Police arrested and searched him and obtained a key to the suit bag. Upon opening the suit bag, the officers discovered marijuana, rice, sandwich bags, and a phone number to a house on 1302 West Sixth Street, from which Thomas said he had just come. Thomas told police that he was sharing the hotel room with two other men, who would be arriving shortly. He described the appearance of one of the men and indicated that he spoke with a Jamaican accent. Thomas also told police that he had seen cocaine being sold outside the house at 1302 West Sixth Street. After police transported Thomas to the police station, they returned to room 46 with another search warrant and seized another suit bag, which bore Encarnacion's name. Police then continued their surveillance.

4

Soon thereafter, Encarnacion and Fuller arrived at the motel in a car driven by Fuller. The police observed Fuller and Encarnacion unsuccessfully attempt to look into and enter room 46 and heard them call out someone's name in what police recognized as "West Indies-type" accents. Police arrested them and seized Fuller's car keys and a key marked "105 Arborgate Inn." A search of Fuller produced a social security card and a bank card in the name of Daniels, and rental and utility receipts for the house at 1302 West Sixth Street. From Encarnacion, the police seized $699, folded in $100 increments. Encarnacion told police that he had seen crack sales outside the house at 1302 West Sixth Street. Police secured Fuller's car in the motel parking lot, transported Fuller and Encarnacion to the police station, and obtained a warrant to search Fuller's car. The resulting search uncovered a loaded .38 caliber pistol and 200 vials of crack cocaine.

5

After confirming that room 105 of the Arborgate Inn was registered to Fuller, the police obtained a search warrant to search it. This search revealed $21,000, folded in $100 increments, crack cocaine, marijuana, a loaded .357 magnum revolver, a small cooking pot with cocaine-based residue, an electric buffet range, baking soda, razor blades, plastic ziplock bags, an electric balance digital scale, and drug ledger sheets. Police also found a woman's personal items and a picture of Daniels.

6

Finally, police obtained a search warrant for the house on 1302 West Sixth Street. When police executed the warrant, they arrested Daniels and discovered .3 grams of crack cocaine, the charred remains of what appeared to be marijuana cigarettes, and $641 in cash, folded in $100 increments.

7

Thomas and Encarnacion moved to suppress the evidence found in the search of room 46, alleging that the application for the search warrant did not establish probable cause. The district court found that, based on the totality of the circumstances, there was a fair probability that contraband would be found in room 46 and that the application established probable cause for the issuance of the warrant. In addition, the district court concluded that, even if the application did not establish probable cause, the officers' reliance on the warrant was reasonable under the circumstances.


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8

At trial, the police officers testified about the relationships between drug trafficking and such things as weapons, crack houses, specially folded money, pagers, razors, cooking pots, sifters, and ledgers.

9

At the sentencing hearing, the court increased Encarnacion's offense level by two levels for obstruction of justice, because Encarnacion had used an alias throughout trial and did not reveal his true identity to the court.1

II.

10

Appellants allege errors in the indictment, trial and sentencing. In particular, Encarnacion and Thomas challenge the validity of the search warrant used to search room 46 of the Econo Lodge Motel, and Fuller challenges his warrantless arrest and the admission of evidence gathered subsequent to that arrest.

A.

11

All four appellants contest the admission of testimony by investigating police officers concerning the cocaine trafficking business. Appellants contend that the officers were unqualified to give expert opinions, and that their testimony was irrelevant, inflammatory, prejudicial, misleading, and lacking a proper foundation. Finally, appellants contend that the testimony resulted in a manifest miscarriage of justice and plain error, because the officers' opinions were calculated to depict the appellants as part of a worldwide Jamaican drug ring that had invaded eastern North Carolina. We will discuss each contention in turn.

12

First, appellants attack the qualifications of the police officers to testify as expert witnesses on the subject of cocaine trafficking. Appellants assert that the government failed to establish that the officers had sufficient specialized knowledge to render expert opinions and assert that the poorly drafted search warrants were examples of their lack of experience. Appellants' assertions notwithstanding, they fail to specify how the officers were unqualified. The three officers who testified in this case as expert witnesses all had several years experience in the police force and had specialized in narcotics for at least three years. The qualification of expert witnesses is within the sound discretion of the trial judge and will not be overturned in the absence of clear abuse. Martin v. Fleissner GMBH, 741 F.2d 61, 64 (4th Cir.1984). We find no abuse of discretion in qualifying the officers as experts.

13

Appellants' argument that the probative value of the officers' expert testimony was outweighed by the danger of unfair prejudice and the risk of misleading the jury is also without merit. Though appellants' argument is unclear, they appear to assert that a serious risk of undue prejudice exists because the officers were investigative agents rather that unaffiliated experts. Appellants rely on United States v. Alvarez, 837 F.2d 1024 (11th Cir.1988), for the proposition that a serious risk of undue prejudice exists when a government law enforcement agent testifies on behalf of the prosecution as an expert witness. This court has expressly upheld the admissibility of expert testimony by the "investigative agents" who discovered the drugs in question. United States v. Monu, 782 F.2d 1209, 1210 (4th Cir.1986). The practical experience of law enforcement agents renders them particularly well suited to provide expert testimony in the area of narcotics operations.

14

Next, appellants rely on United States v. Arenal, 768 F.2d 263 (8th Cir.1985), to argue that the officers' testimony invaded the province of the jury. Arenal does not control because the officers' testimony in the instant case describing the use of the cooking pot, rice, and other tools of the drug trade clearly satisfies the helpfulness standard of Rule 702 of the Federal Rules of Evidence.2 The testimony found objectionable in Arenal went beyond helpfulness by concluding that cocaine with a common cut was from a "common source," and thereby establishing a link between the coconspirators and the seized drugs.

15

Finally, appellants rely on United States v. Doe, 903 F.2d 16 (D.C.Cir.1990), to contest the admissibility of evidence concerning Jamaican drug rings. Doe is easily distinguishable on its facts. In Doe, the prosecutor made inappropriate comments in his jury summation which associated the defendants, strictly on their Jamaican nationality, with the Jamaican takeover of the local drug trade. In the instant case, the one reference made to the drug trade of Jamaicans was made in passing and came in response to a question by counsel for Daniels on recross examination and over the objection of the government.3 Defense counsel did not move or strike the answer. We find no error in the admission of this testimony.

B.

16

Appellants Thomas and Encarnacion challenge the search of room 46 of the Econo Lodge Motel. They allege that the warrant application did not establish probable cause because it was based on uncorroborated, conclusory statements received from an unidentified tipster. However, the constitutional sufficiency of affidavits underlying search warrants depend upon the "totality of the circumstances" rather than rigid rules regarding probable cause. Illinois v. Gates, 462 U.S. 213, 230-31, 238 (1983). The standard for reviewing a magistrate judge's finding of probable cause is deferential, and a reviewing court should only determine whether "the magistrate had substantial basis for ... concluding that a search would uncover evidence of wrongdoing." Id. at 236.

17

In the instant case, it is clear from the record that the informant was a citizen who was known to the police but who wished to remain unidentified. The information was not vague or sketchy, but specific and based on personal observation, and there was no reason to doubt the veracity of the informant. Under such circumstances, it is unnecessary to establish both the "basis of knowledge" and the "reliability" of the informant. Id. at 233-34. Based on the totality of the circumstances, we conclude that the magistrate judge had a substantial basis for determining that a search would uncover evidence of wrongdoing. We find no error.

C.

18

Fuller asserts several points of error. First, Fuller argues that the district court erred by denying his motion to suppress the evidence found on his person, in his car, and in room 105 of the Arborgate Inn. Second, Fuller argues that the court erred by entering judgment against him on count 9, which alleged that he knowingly, willfully and unlawfully maintained a place for the purpose of manufacturing and distributing cocaine.4 He argues that, although the language of the count tracked the statutory language of the offense, it is constitutionally deficient because it did not specify the place of the alleged unlawful activity. Furthermore, Fuller argues that, in light of the deficiency of count 9, the court erred by giving only a general rather than a specific unanimity instruction. We discuss each argument in turn.

19

First, he argues that the police did not possess sufficient probable cause to justify his warrantless arrest, because they had no knowledge at the time of his arrest that he was an occupant of room 46 or that he was connected in any way with the illegal drugs found there. Fuller asserts that he was arrested merely because he was present with Encarnacion outside room 46.

20

Fuller is correct that merely being present or associating with a known or suspected criminal does not constitute probable cause for a warrantless arrest. United States v. Garcia, 848 F.2d 58 (4th Cir.), cert. denied, 109 S.Ct. 395 (1988). However, Fuller was not merely present or associating with a suspected criminal. Fuller was attempting to enter room 46, where drugs had already been found, and police had information which linked him to the room itself.5 In short, based upon a practical assessment of the totality of the circumstances, the police had probable cause to arrest Fuller without a warrant.6 Id. at 60.

21

Second, Fuller contends that count 9 was legally deficient because, by failing to specify the place where he was manufacturing drugs, it failed to apprise him of the facts necessary for him to prepare his defense. Though count 9 did not specify the place, paragraph three of the section entitled Overt Acts in the indictment stated that a motel room was used and occupied by Fuller and Daniels for the purpose of manufacturing drugs. Fuller could have relied on this paragraph to prepare his defense or could have sought a bill of particulars to supply the details. United States v. American Waste Fibers Co., 809 F.2d 1044, 1047 (4th Cir.1987).7

22

Next, Fuller argues that the court committed plain error because it failed to instruct the jury that it must unanimously agree on the particular place that Fuller maintained for manufacturing cocaine.8 A general unanimity instruction is sufficient in "the routine case," United States v. Beros, 833 F.2d 455, 461 (3d Cir.1987). In this case, appellant did not inform the court that this case was not routine and, therefore, he waived the objection. United States v. Peterson, 768 F.2d 64, 68 (2d Cir.), cert. denied, 474 U.S. 923 (1985). We find no error in the several issues raised by Fuller.

D.

23

Appellant Encarnacion asserts two errors. First, he argues that the district court erred in refusing to allow him to cross-examine about exculpatory statements he made contemporaneously with his other statements that were admitted on direct examination through Officer Evans. Second, he argues that the district court erred by adding two levels to his offense level for obstruction of justice for using an alias throughout trial without the court's knowledge. We discuss each argument in turn.

24

Encarnacion asserts that the district court should have allowed admission of exculpatory statements on cross-examination of Officer Evans because the additional statements were relevant and given at the same time as the statements introduced. The Rule on Completeness applies only where necessary "to ensure that any admitted portion ... is placed in its proper context" and only where the remaining portions "explain or clearly pertain to the limited portions [the proponent] sought to introduce." United States v. Ricks, 882 F.2d 885, 893 (4th Cir.1989).

25

Introduced on direct examination was Encarnacion's explanation of why he was in North Carolina and his acknowledgement that the house where he was staying appeared to be a crack house. The additional statements Encarnacion sought to introduce were denials that he knew of drugs at the Econo Lodge or that he dealt drugs. These additional statements were exculpatory and unnecessary to place in context or to explain the admitted statements. Introduction of the excluded statements would merely have put unrelated statements before the jury without any opportunity to cross examine on them. Judged by an abuse of discretion standard, United States v. Castro, 813 F.2d 571 (2d Cir.), cert. denied, 484 U.S. 844 (1987), we find no error.

26

Regarding the district court's increase of two offense levels, Encarnacion argues that his use of an alias did not actually obstruct justice, that the use of an alias does not fall within the categories in Sec. 3C1.19 of the Guidelines, and that in any event, he admitted his name upon arrest.

27

The district court found that Encarnacion's use of an alias throughout his trial was intended to deceive the court and obstruct justice. Although Officer Evans testified that Encarnacion had told him that he previously used the name of William Graham, Encarnacion did not admit that it was his true name. Instead, he thereafter failed to correct the use of the name Encarnacion by the participants in the trial. A question on appeal concerning the scope or applicability of a Guideline provision is reviewed de novo. See 18 U.S.C. Sec. 3742(e); United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir.1990). Fact findings concerning conduct of the accused or the actual effect of such conduct are subject to review under the clearly erroneous standard. 18 U.S.C. Sec. 3742(e). The trial court must make at least an implicit finding of materiality in order for the use of an alias to constitute a violation of Sec. 3C1.1. Saintil, 910 F.2d at 1233. Here, the government made a proffer of materiality, stating among other things that Encarnacion could have been indicted on an additional charge if his true identity had been made known to the government. The district judge then stated that:

28

the obstruction of justice enhancement is appropriately attributed to his use of a false name in a circumstance where it was intended to deceive and to obstruct justice....

29

* * *

30

* * *

31

... And my reasons are that where he was involved in seeking to hold himself out as Malcolm Encarnacion during this trial and the proceedings in this trial, it was a conscious use of that false name in order to continue to disguise and avoid detection of his real identity and the consequences of his real identity.

32

J.A. 611-12. While the trial court's statements did not explicitly include a finding of materiality, they would seem to be closer to such a finding than the statement by the trial court in Saintil, which was held to constitute an implicit finding of materiality. See id at. 1233 ("[w]ell, this admitted conduct certainly violates Section 3C-1.1."). Therefore, we affirm.

E.

33

Finally, defendant Daniels argues that the district court erred in denying her request for a jury instruction on the lesser-included offense of simple possession of a controlled substance. Daniels argues that the jury could have found her guilty of simple possession because of the testimony of Investigator Wicks that suggested that the small amount of cocaine base (.3 gram) she possessed could be for personal use. In order for appellant to prevail, evidence must have been presented at trial on which a reasonable jury could conclude that the defendant is innocent of the greater charge but guilty of the lesser-included offense. Keeble v. United States, 412 U.S. ?? (1973); United States v. Johnson, 637 F.2d 1224 (9th Cir.1980).

34

At trial, appellant failed to create a factual dispute as to a material element required for the greater offense, but not required for the lesser offense, such that a jury could rationally conclude that the defendant was innocent of the greater crime, but guilty of the lesser. United States v. Echeverri-Jaramillo, 777 F.2d 933, 935 (4th Cir.1985), cert. denied, 475 U.S. 1031 (1986). Daniels' argument is based on out-of-context statements of the investigator that simply do not present a dispute sufficient to warrant a lesser-included instruction. "The decision of whether there is enough evidence to justify a lesser included offense charge rests within the sound discretion of the trial judge." United States v. Chapman, 615 F.2d 1294, 1298 (10th Cir.), cert. denied, 446 U.S. 967 (1980). We find no error.

35

AFFIRMED.

1

The government did not discover until after trial and one month before sentencing that Malcolm Encarnacion was an alias for William Theoplous Graham

2

For example, Officer Wicks testified that rice was significant, because it is commonly used as a desiccant for cocaine

3

The testimony at issue came in response to the question whether crack cocaine could "sell for just $10 sometimes?" Officer White responded that "people that sell it, especially the Jamaicans, they purchase their crack for about $2 a vial, bring it to Greenville and other cities in North Carolina and sell it anywhere from $20 to as much as $50 a vial."

4

Fuller failed to move the district court to dismiss this count. He requests redress under Rule 52(b) of the Federal Rules of Criminal Procedure and argues that the unfairness inherent in proceeding to trial on such a vague specification provides justification for relief as plain error

5

Police knew from hotel records and hotel personnel, as well as the post-arrest admissions of co-defendant Thomas, that room 46 was occupied by as many as 3 males with Jamaican accents

6

Because we affirm the warrantless arrest of Fuller, we need not tarry long on his assertions that the search of his automobile and room were illegal. Fuller asserts that the warrant issued to search his automobile was invalid because the supporting affidavit lacked sufficient factual allegations to support probable cause. The magistrate judge agreed and recommended suppression. The district court ruled the evidence admissible, because the officers actually had sufficient information to constitute probable cause but simply failed to put it all into the application for the warrant. We need not decide whether the affidavit was sufficient or not, however, because we affirm the district court's finding of probable cause. In light of the foregoing, Fuller's attack on the search of room 105 of the Arborgate Inn is also without merit

7

Fuller's reliance on Russel v. United States, 369 U.S. 749 (1962), is misplaced. In Russel, the indictments failed to specify the nature of the accusations; here, the indictment lacked only an evidentiary detail regarding a purely factual issue

8

Fuller again argues plain error, because he failed to request a specific unanimity instruction or object to the charge

9

Sec. 3C1.1. Obstructing or Impeding the Administration of Justice

If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.