United States v. Derrick Jones ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 27, 2007
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THOMAS K. KAHN
No. 06-12569
CLERK
Non-Argument Calendar
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D.C. Docket No. 04-00597-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK JONES,
a.k.a. Derrick Dwayne Jones,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 27, 2007)
Before EDMONDSON, Chief Judge, CARNES and DUBINA, Circuit Judges.
PER CURIAM:
Defendant-Appellant Derrick Jones appeals his convictions and sentences
after a jury trial for (1) possession with intent to distribute cocaine base (crack), 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) and 851, (2) possession with intent to distribute
marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(D) and 851, and (3) being a felon in
possession of a firearm, 18 U.S.C. § 922(g). No reversible error has been shown;
we affirm.
In this case, police officers, who had a warrant authorizing Jones’s arrest,
went to an Atlanta-area hotel looking for him. Officers first went to room 306,
where Jones had registered as a guest under a false name; but officers later found
Jones in room 514 and arrested him. Jones raises several issues on appeal; and we
will consider each claim in turn.
A. Admission of Lay Testimony by Officer Kevin Otts
Jones argues that the district court erred in allowing Officer Otts to testify as
a lay witness. We review the district court’s evidentiary rulings for abuse of
discretion. United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002).
Federal Rule of Evidence 701 provides that evidence offered by a lay witness is
admissible when the opinions or inferences are “(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the witness’
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testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”1
Here, Officer Otts’s testimony included (1) how the narcotics seized in this
case were packaged, (2) the street value of the seized drugs, (3) that firearms are
used for protection because the narcotics business is dangerous, and (4) that,
through his experience, Officer Otts had learned that the quantity and packaging of
narcotics can indicate whether narcotics are intended for distribution and that the
marijuana quantity seized in this case indicated that it was intended for
distribution.
We have explained that officers can testify as lay witnesses “based upon
their particularized knowledge garnered from years of experience within the
field.” Tampa Bay Shipbldg. & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213,
1223 (11th Cir. 2003) (considering officer testimony in criminal cases). And we
have permitted officers testifying as lay witnesses to “give opinion testimony
1
Federal Rule of Evidence 702 discusses expert testimony in this way:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.
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based on their perceptions and on their experience as police officers about the
meaning of code words employed by the defendants in their intercepted telephone
conversations.” United States v. Novaton, 271 F.3d 968, 1009 (11th Cir. 2001).2
For these reasons, the district court did not abuse its discretion in determining that
Officer Otts’s testimony was permitted by Fed.R.Evid. 701.3 See United States v.
Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir.), cert. denied, 126 S.Ct. 247 (2005)
(applying post-amendment version of Rule 701 and concluding that officer’s
testimony -- about (1) how a “drug point” works and (2) that heroin often is
“packed in aluminum decks” and the heroin seized was “in the shape or manner of
a deck” -- was lay testimony).
B. Admission of Physical Evidence and Statements Made by Jones
2
Rule 701 was amended in 2000 to add subsection (c). Although Novaton concerned application
of the pre-amendment version of Rule 701, we have opined that Novaton does not “require a
different finding after Rule 701’s amendment.” See Tampa Bay Shipbldg., 320 F.3d at 1223 n.17.
3
Jones’s reliance on our decisions in United States v. Garcia, 447 F.3d 1327 (11th Cir. 2006), and
United States v. Dulcio, 441 F.3d 1269 (11th Cir. 2006), is misplaced. In Garcia, we explained that
the district court did not abuse its discretion in permitting an officer to testify as an expert witness
about, among other things, “how drug trafficking operations compartmentalize certain operations
and roles”; but we did not discuss whether a police officer can testify as a lay witness. 447 F.3d at
1334-35; see Fed.R.Evid. 701 advisory committee’s note on 2000 amendment (“Certainly it is
possible for the same witness to provide both lay and expert testimony in a single case.”). And,
unlike the present case, Dulcio concerned an officer’s specialized testimony about “the modus
operandi of people involved in the drug business, tying each co-defendant’s role to that typically seen
in a narcotics importing business.” 441 F.3d at 1274-75.
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Jones challenges the admission of evidence seized from the hotel where he
was arrested as well as statements made to federal agent Joel Sheppard. “As
rulings on motions to suppress involve mixed questions of fact and law, the
district court’s factual findings are reviewed under the clearly erroneous standard,
while that court’s application of the law is subject to de novo review.” United
States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994). And we construe all facts
in the light most favorable to the prevailing party, in this case the government.
United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).
1. Contraband Found in Room 514
When officers found Jones in room 514, he was lying face down on the
floor behind a couch with his hands underneath him. Jones struggled as officers
pulled out his hands. An officer sat on Jones’s back and handcuffed him. Officers
saw a black translucent bag underneath Jones where his hands had been
positioned. Officers brought Jones up so that he was kneeling; and the black bag
remained on the floor in front of him. Officers opened the black bag, which
contained a substance broken into chunks later determined to be crack cocaine, a
handgun, and marijuana that was divided into smaller baggies. The district court
determined that the search of the bag was permissible as a search incident to an
arrest.
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Jones argues that the search of the black bag was not a valid search incident
to his arrest because the circumstances of his arrest -- including that he was
handcuffed and walking to another part of the hotel room when the bag was
searched and that several officers were present -- indicate that he likely could not
have obtained the bag’s contents.
“It is well settled that a search incident to a lawful arrest is a traditional
exception to the warrant requirement of the Fourth Amendment.” United States v.
Robinson, 94 S.Ct. 467, 471 (1973). This exception provides that officers may
search “the arrestee’s person and the area within his immediate control.” Chimel
v. California, 89 S.Ct. 2034, 2040 (1969) (explaining that a “gun on a table or in a
drawer” in front of the arrestee can be dangerous to the arresting officer). “Such
searches have long been considered valid because of the need ‘to remove any
weapons that the arrestee might seek to use in order to resist arrest or effect his
escape’ and the need to prevent the concealment or destruction of evidence.” New
York v. Belton, 101 S.Ct. 2860, 2862 (1981) (quoting Chimel, 89 S.Ct. at 2040).
Here, officers searched the black bag -- on which Jones was laying --
pursuant to a lawful search incident to an arrest. Jones was still in the hotel room
when the officers secured the bag; and the person who opened the door to room
514 for the police was standing just outside of the room. Jones has not pointed us
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to controlling authority indicating that officers could not search the black bag
because Jones was restrained; instead, Jones concedes that some courts have
supported a search incident to arrest under similar circumstances. See, e.g., United
States v. Romero, 452 F.3d 610, 619-20 (6th Cir. 2006) (explaining that search of
nightstand was permissible because nightstand would have been within
handcuffed defendant’s reach had he not been handcuffed); United States v.
Queen, 847 F.2d 346, 349, 353-54 (7th Cir. 1988) (permitting search where
arrestee was handcuffed behind his back and guarded by two armed officers before
search of closet three feet away). The district court did not err in denying Jones’s
motion to suppress evidence seized from the black bag in room 514.4
2. Jones’s Statements to Agent Sheppard
Agent Sheppard drove Jones from a local jail to the federal building in
Atlanta. During the drive, Agent Sheppard read Jones his Miranda rights and then
4
Before officers found Jones in room 514, officers searched room 306 with the permission of
Jones’s girlfriend, Quarletta Morris. After officers determined that Jones was not in room 306,
Morris insisted repeatedly that she needed to use the bathroom. Before letting Morris use the
bathroom, an officer, who testified he had been involved with cases where suspects had hidden
weapons in toilet tanks, searched the toilet tank of room 306’s bathroom and discovered a plastic bag
containing marijuana. On appeal, Jones argues that the search of the toilet tank exceeded the scope
of intrusion allowed by the Fourth Amendment. The seizure of marijuana in room 514 during
Jones’s arrest was not unlawful; and even if we were to assume that the search of the toilet tank
violated the Fourth Amendment, such error “does not necessarily result in an automatic reversal of
the conviction.” See United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990) (explaining that
“the harmless error doctrine applies to a fourth amendment violation”). Here, the jury could consider
that officers lawfully seized the marijuana possessed by Jones in room 514.
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asked Jones if Jones was willing to be questioned. Jones replied that he had
questions about the charges brought against him. Agent Sheppard told Jones that
Jones faced federal charges resulting from the discovery of crack cocaine, a
firearm, and marijuana on the day of his arrest at the hotel. Jones then told Agent
Sheppard that the crack cocaine belonged to “Tae” and that he never possessed a
firearm.
Jones contends that he did not voluntarily waive his rights to remain silent
and to have a lawyer present because Agent Sheppard suggested that he would not
tell Jones about Jones’s charges unless Jones waived his Miranda rights. Jones
does not dispute that he received Miranda warnings from Agent Sheppard before
he made the statements in question. After a careful review of the record, we
conclude that Jones was informed of his Miranda rights and voluntarily waived his
rights in speaking to Agent Sheppard without a lawyer.
C. Sufficiency of the Evidence
“Sufficiency of the evidence is a question of law we review de novo.”
United States v. Quinn, 123 F.3d 1415, 1426 (11th Cir. 1997). “[W]e view the
evidence in the light most favorable to the government and draw all reasonable
inferences and credibility choices in favor of the jury’s verdict.” Id.
1. Possession of Contraband from Room 514
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Jones contends that the government did not present sufficient evidence that
he possessed the contraband found in the black bag during his arrest in room 514.
Possession “can be demonstrated by proof of either actual or constructive
possession. To establish constructive possession, the government must show
ownership, dominion, or control over” the possessed item. United States v.
Glover, 431 F.3d 744, 748 (11th Cir. 2005) (internal quotation and citation
omitted). Although a witness testified that she saw Jones enter room 514 with
only a pack of cigarettes, several officers testified that Jones was laying face down
on top of a black bag -- with his hands on or near the bag -- when he was arrested.
Viewing this evidence in the light most favorable to the government, we conclude
that a reasonable jury could find Jones had constructive possession of the gun and
narcotics found in the black bag.5
2. Possession of Crack Cocaine
Jones next asserts that the evidence presented at trial was insufficient to
establish that the substance seized in the black bag was crack cocaine. He argues
that, because the evidence did not support a finding that he possessed crack
5
We need not address Jones’s argument about whether he possessed the marijuana found in room
306 because evidence of possession of that marijuana is not necessary to uphold Jones’s conviction.
And to the extent that Jones argues that the government did not offer sufficient evidence showing
that he intended to distribute narcotics, Jones has abandoned this argument because he did not raise
it until his reply brief. See United States v. Britt, 437 F.3d 1103, 1104 (11th Cir. 2006) (we decline
to consider issues raised for the first time in reply brief).
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cocaine, he should have been sentenced only for possession of cocaine
hydrochloride. We disagree.
The Sentencing Guidelines define “cocaine base” as “crack” cocaine.
U.S.S.G. § 2D 1.1(c) n.D. “‘Crack’ is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium bicarbonate,
and usually appearing in a lumpy, rocklike form.” Id. At Jones’s trial, Shenika
Linen, a forensic chemist with the Georgia Bureau of Investigation, testified that
she performed an infrared spectroscopy test on the “off-colored chunks” found in
the black bag; and the substance tested positive for cocaine base. Linen also
testified that the substance weighed about 10 grams. Linen’s testimony provided
sufficient evidence from which the jury could determine that Jones possessed
crack cocaine; and the district court did not err in calculating Jones’s advisory
Guidelines range based on his possession of crack cocaine.
3. Nexus Between Firearm and Interstate Commerce
Jones argues that, although the evidence showed that the firearm in this case
had been manufactured in California and was seized in Georgia, the government
did not prove that the firearm sufficiently impacted on interstate commerce.6 He
6
“To obtain a conviction for being a felon in possession of a firearm [under 18 U.S.C. § 922(g)],
the prosecution must prove beyond a reasonable doubt that the defendant was (1) in knowing
possession of a firearm, (2) a convicted felon, and (3) that the firearm affected interstate commerce.”
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asserts that we should revisit our prior decisions that explain section 922(g)
requires only a minimal nexus to interstate commerce. Because “[o]nly a decision
by this court sitting en banc or by the United States Supreme Court can overrule a
prior panel decision,” United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.
1986), and because the evidence here was sufficient to show that the firearm
affected interstate commerce, we reject Jones’s argument.
AFFIRMED.
Glover, 431 F.3d at 748 (internal quotation omitted).
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