United States v. Grady , 645 F. App'x 1 ( 2016 )

15-1401
United States v. Grady
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of March, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-1401
16
17 SHAEEM GRADY,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: MELISSA A. TUOHEY, Assistant
22 Federal Public Defender (James
23 P. Egan, on the brief), for Lisa
24 A. Peebles, Federal Public
25 Defender, Syracuse, New York.
26
27 FOR APPELLEE: PARKER A. RIDER-LONGMAID, United
28 States Department of Justice,
1
1 Washington, D.C. (Geoffrey J.L.
2 Brown, Assistant United States
3 Attorney, on the brief), for
4 Richard S. Hartunian, United
5 States Attorney for the Northern
6 District of New York, Syracuse,
7 New York.
8
9 Appeal from a judgment of the United States District
10 Court for the Northern District of New York (Scullin, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Shaeem Grady appeals his conviction, after jury trial
17 in the United States District Court for the Northern
18 District of New York (Scullin, J.), for possession of
19 cocaine base with the intent to distribute in violation of
20 21 U.S.C. § 841(a)(1) and (b)(1)(c); possession of a firearm
21 in furtherance of a drug-trafficking crime in violation of
22 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a
23 felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
24 Grady challenges the denial of his pre-trial motion to
25 suppress evidence, and the admittance of certain expert
26 testimony at trial. We assume the parties’ familiarity with
27 the underlying facts, the procedural history, and the issues
28 presented for review.
29
30 1. Two officers of the Syracuse Police Department
31 approached a parked vehicle at night; upon arriving at the
32 passenger-side door with his flashlight, one officer
33 observed a sandwich bag containing crack cocaine on Grady’s
34 lap, in plain view. Grady challenges the officers’ initial
35 approach of the car as a Fourth Amendment violation. At the
36 suppression hearing, the officers testified and exhibits
37 were entered into evidence. Grady’s suppression motion was
38 denied by written decision.1
39
40 The district court concluded that there was no Fourth
41 Amendment violation, because (1) the officers’ initial
1
We accept the district court’s findings of fact,
which were not clearly erroneous, and review de novo its
conclusions of law. See United States v. Diaz, 802 F.3d
234, 238 (2d Cir. 2015).
2
1 encounter with the occupants of the vehicle was consensual;
2 and (2) the officers had reasonable suspicion to believe
3 that the vehicle was parked in violation of a Syracuse
4 parking ordinance. We need not decide whether the officers’
5 initial approach of the vehicle constituted a seizure;
6 assuming arguendo that it did amount to an investigative
7 Terry stop, see Terry v. Ohio, 392 U.S. 1, 30-31 (1968), we
8 affirm because the officers had the requisite reasonable
9 suspicion of a parking violation.2
10
11 The City of Syracuse’s odd/even parking ordinance
12 requires cars in designated areas to park on the odd-address
13 side of the street from 6 p.m. on an odd day to 6 p.m. on
14 the next (even) day; and on the even-address side of the
15 street from 6 p.m. on an even day to 6 p.m. on the next
16 (odd) day. A vehicle is defined as “parked” when stopped
17 even if occupied; however, it is not “parked” if only
18 temporarily stopped “for the purpose of and while actually
19 engaged in loading or unloading merchandise or passengers.”
20 N.Y. Veh. & Traf. Law § 1200(c); Syracuse, N.Y., Charter,
21 Gen. Ordinances pt. M., ch. 15, art. I, 15-1(19). The
22 Syracuse Police Department is authorized to ticket or tow
23 for violation of the even/odd parking rules.
24
25 While on patrol in a marked police car at approximately
26 11:00 p.m. on an even day, Officers Decker and Ettinger made
27 a left turn onto Catawba Street, and observed a white Impala
28 stopped on the odd side of the street. They pulled their
29 patrol car over and parked in front of and facing the
30 Impala. They approached the Impala with flashlights in
31 hand. Officer Decker walked to the driver’s side, intending
32 to tell the occupants that the vehicle was parked on the
33 wrong side of the street and should be moved; and Officer
34 Ettinger walked to the passenger’s side. At no time did the
35 officers observe anyone getting into or out of the vehicle,
2
Reasonable suspicion of a civil traffic violation
provides a sufficient basis for law enforcement officers to
make an investigative stop. United States v. Stewart, 551
F.3d 187, 193 (2d Cir. 2009). All “circuits that have
considered the question whether a parking violation
justifies a Terry stop have found no legally meaningful
distinction between a parking and a moving violation.”
United States v. Spinner, 475 F.3d 356, 358 (D.C. Cir. 2007)
(citing cases). Grady does not contest that traffic
violations include parking infractions.
3
1 or loading or unloading items from it. These objective,
2 particularized facts provided reasonable suspicion to
3 believe that the Impala was parked in violation of the
4 odd/even parking ordinance. See United States v. Diaz, 802
5 F.3d 234, 239 (2d Cir. 2015).
6
7 Grady argues that the officers’ observation was for too
8 short a time to have determined whether the Impala was
9 actively loading or unloading. But as found by the district
10 court, the officers observed no loading or unloading in the
11 span of time that they turned onto Catawba Street, noticed
12 the Impala, pulled over, stopped the police vehicle, exited
13 the police vehicle, and approached the Impala--a sufficient
14 period in which to suspect that the vehicle was parked
15 unlawfully.3 The officers were not required to conduct
16 surveillance long enough to “rule out the possibility of
17 innocent conduct.” Diaz, 802 F.3d at 240 (quoting Navarette
18 v. California, 134 S. Ct. 1683, 1691 (2014)).
19
20 Grady contends that any reasonable suspicion dissipated
21 once the officers approached the car and realized that it
22 was occupied and that the engine was running. This argument
23 lacks merit. The ordinance forbids stopping on the wrong
24 side of the street without active loading or unloading,
25 regardless of whether the vehicle is occupied, or whether
26 the engine is running. See N.Y. Veh. & Traf. Law § 1200(c)
27 (definition of “parking”); Syracuse, N.Y., Charter, Gen.
28 Ordinances pt. M., ch. 15, art. I, 15-1(19) (same).
29
30 2. At trial, the government’s expert witness,
31 Detective Proud, testified on the subject of narcotics
32 distribution and packaging, chiefly the so-called
33 “freestyle” method of crack cocaine distribution, in which
34 the seller holds the cocaine base in a bulk form, e.g., in a
35 single rock, and breaks off purchases only at the time of
36 sale. This differs from the method in which one-to-three
37 doses of crack cocaine (typically one-tenth of a gram each)
38 are pre-packaged for sale in individual plastic baggies.
39 Grady challenges the admission of this testimony pursuant to
40 Federal Rules of Evidence 702(a) and 704(b).
41
3
Officer Ettinger testified that he observed the
Impala for approximately ten seconds before deciding to
approach it.
4
1 The district court did not abuse its discretion in
2 admitting Detective Proud’s testimony. See United States v.
3 Barrow, 400 F.3d 109, 123 (2d Cir. 2005). Rule 702(a)
4 requires that expert testimony “will help the trier of fact
5 to understand the evidence or to determine a fact in issue.”
6 Fed. R. Evid. 702(a). Detective Proud’s testimony did that:
7 it concerned facts not within the average juror’s knowledge,
8 and was important to understanding the potential
9 significance of Grady’s possession of a single 2.27-gram
10 rock of crack cocaine (and a steak knife). See United
11 States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir. 1994)
12 (“Testimony about the weight, purity, dosages, and prices of
13 cocaine clearly relates to knowledge beyond the ken of the
14 average juror.”).
15
16 At one point, Detective Proud testified that, in his
17 experience, 2.27 grams of crack cocaine was consistent with
18 distribution as opposed to personal use, because 2.27 grams
19 constituted approximately 22 to 25 individual doses of crack
20 cocaine, and because a typical user would limit purchases to
21 one-to-three doses at a time, so as to avoid a big
22 investment in crack of poor quality. Grady argues that this
23 amounted to an opinion on Grady’s intent to distribute, and
24 thus violated Rule 704(b). See Fed. R. Evid. 704(b) (“In a
25 criminal case, an expert witness must not state an opinion
26 about whether the defendant did or did not have a mental
27 state or condition that constitutes an element of the crime
28 charged or of a defense.”).
29
30 “Rule 704(b) does not prohibit all expert testimony
31 that gives rise to an inference concerning a defendant’s
32 mental state. The . . . rule . . . means that the expert
33 cannot expressly ‘state the inference,’ but must leave the
34 inference, however obvious, for the jury to draw.” United
35 States v. DiDomenico, 985 F.2d 1159, 1165 (2d Cir. 1993)
36 (citation omitted). Detective Proud’s testimony did not
37 violate Rule 704(b) because, while it could have been used
38 by the jury to conclude that the crack cocaine in Grady’s
39 possession was intended for distribution rather than
40 personal use, that final inference was left to the finder of
41 fact. See United States v. Lopez, 547 F.3d 364, 373-74 (2d
42 Cir. 2008); United States v. Taylor, 18 F.3d 55, 60 (2d Cir.
43 1994). Detective Proud’s testimony made clear that his
44 opinion as to the hypothetical was based on his general
45 experience, not on any specific knowledge of Grady’s mental
46 state; and he conceded on cross-examination that he
47 “suppose[d]” it was “possible” for a person to smoke 2.27
5
1 grams of crack cocaine over the course of one night. App’x
2 445. Accordingly, the jury could have rejected the
3 inference that Grady intended to distribute the cocaine
4 base, and found instead that it was intended for Grady’s (or
5 one of the other Impala occupants’) own use.
6
7 For the foregoing reasons, and finding no merit in
8 Grady’s other arguments, we hereby AFFIRM the judgment of
9 the district court.
10
11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
13
6