United States v. Wilson , 54 F. App'x 725 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-7-2002
USA v. Wilson
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1230
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-1230
_______________
UNITED STATES OF AMERICA
v.
DERRICK WILSON
a/k/a DEE
Derrick Wilson,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00135)
District Judge: Honorable J. Curtis Joyner
Submitted Under Third Circuit LAR 34.1(a)
on October 17, 2002
Before: ROTH, GREENBERG, Circuit Judges
WARD*, District Judge
(Opinion filed: November 7, 2002)
* Honorable Robert J. Ward, District Court Judge for the Southern District of New
York, sitting by designation
OPINION
ROTH, Circuit Judge:
Following a jury trial, appellant Derrick Wilson, a/k/a “Dee,” was convicted of the
following charges: possession of cocaine base (crack) with intent to distribute in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c).1 Wilson discharged his attorney and retained new
counsel for the sentencing phase of trial; his counsel filed nunc pro tunc motions for a
judgment of acquittal and/or a new trial. These motions were denied and Wilson was
sentenced, inter alia, to a total of 181 months’ imprisonment.2 Wilson raises five issues on
appeal: (1) there was insufficient evidence to support the jury’s verdicts; (2) the police
lacked probable cause to search Wilson’s residence and the evidence thereby obtained
should have been suppressed; (3) the search of the leather jacket was unlawful and the
evidence thereby obtained should have been suppressed; (4) the jury instructions given by
the district court judge were inadequate; and (5) there was no evidence that the seized
contraband was, in fact, cocaine base.
We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
1Wilson’s trial counsel filed a motion to suppress, including among the allegations that
the search warrant lacked probable cause and was overly broad. This motion was denied
after a hearing.
2
Wilson is represented by new counsel for this appeal.
2
3742(a). Our standards of review are as follows. We review for substantial evidence the
sufficiency of the evidence on which the jury based its verdict. See United States v. Gibbs,
190 F.3d 188, 197 (3d Cir. 1999). In connection with the suppression hearing, we review
the District Court’s findings of fact for clear error, while our review of its legal
conclusions is de novo. See Ornelas v. United States, 517 U.S. 690, 698-99 (1996);
United States v. Myers, No. 01-3106, 2002 WL 31270280, at *2-3 (3d Cir. Oct. 11,
2002). Further, “[w]e generally review jury instructions for abuse of discretion, but our
review is plenary when the question is whether the instruction misstates the law.” Walden
v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) (citations omitted). However,
we review the record for plain error where no objection was made before the District
Court. See United States v. Jake, 281 F.3d 123, 132 (3d Cir. 2002). Lastly, where an issue
was not raised before the District Court and is raised for the first time on appeal, our
review is also limited to plain error. See United States v. Wolfe, 245 F.3d 257, 260-61 (3d
Cir. 2001).
The facts of this case are familiar to the parties and will not be recited herein.
The Jury Verdict
Wilson claims that there were insufficient facts on which to base the jury verdict
that Wilson was guilty of possession with intent to distribute cocaine base, and, as a result,
the convictions on both counts must be reversed. Both parties agree that the government’s
case against Wilson was one of constructive possession. “Constructive possession
necessarily requires both 'dominion and control' over an object and knowledge of that
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object's existence." United States v. Jenkins, 90 F.3d 814, 817-18 (3d Cir. 1996) (quoting
United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)); see also 21 U.S.C.A. §
841(a)(1). Wilson recites a number of alleged facts as support for his claim of insufficient
evidence to prove either element of constructive possession. In reviewing the evidence in
the light most favorable to the government, see Gibbs, 190 F.3d at 197, we find that there
was sufficient evidence to support an inference that the drugs and gun belonged to Wilson.
Thus we hold that Wilson did not sustain his heavy burden of demonstrating that the trial
evidence was insufficient for the jury to convict him of both charges.
Probable Cause and Suppression Claims
Wilson also alleges that the search warrant was invalid because, allegedly, the
affidavit in support of the search warrant failed to recognize that Wilson’s family members
owned the home that was searched. When a warrant is challenged on the grounds that the
magistrate’s probable cause determination was in error, we inquire whether there was "a
'substantial basis' for finding probable cause [based on the affidavit], as after-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo
review." United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and
Fifty-Seven Cents, No. 00-4348, 2002 WL 31102675, at *5 (3d Cir. Sept. 20, 2002)
(citations omitted). We find that the search warrant was valid as the probable cause
determination was proper.3
3
We are dismayed to discover that in Wilson’s brief, his appellate counsel on several
occasions attributed to the trial judge statements made by Wilson’s trial counsel – an
4
As the search warrant was valid, we find that the District Court correctly denied
Wilson’s motion to suppress the evidence obtained in the search of his residence, including
that found in the leather jacket.4 Wilson claims that the search of the leather jacket violated
Chimel and the drug evidence should have been suppressed. See Chimel v. California, 395
U.S. 752, 763 (1969). In a lawful arrest, the officer may reasonably search and seize
evidence on the arrestee’s person and “the area into which an arrestee might reach in order
to grab a weapon or evidentiary items” in order to prevent harm to the officer or
destruction of evidence. Id. We find that the search warrant was valid and that the search of
the leather jacket was reasonable. The district court did not err in denying Wilson’s motion
to suppress the evidence.
Jury Instructions
Wilson contends that the jury instructions gave the jury “an inaccurate description”
of constructive possession and intent. On review of the record, we find that the District
Judge did not commit plain error in charging the jury. Plain error “is found ‘sparingly and
only where the error was sure to have had unfair prejudicial impact on the jury’s
deliberations.’” United States v. Thayer, 201 F.3d 214, 222 (3d Cir. 1999) (quoting United
attribution which tends to bolster Wilson’s claim before this Court. Wilson’s appellate
counsel further failed to include in his Appendix the relevant pages that identified the
source of the quotation as Wilson’s attorney. (Appellant’s Principal Brief 12, 21, 24,
misquoting Appellant’s Appendix 47).
4
Because we find that the warrant was supported by probable cause, we do not address
the government’s alternative argument that the search was sustainable under the “good faith”
exception to the exclusionary rule.
5
States v. Zehrbach, 47 F.3d 1252, 1263 n.9 (3d Cir. 1995) (en banc)). We review the
“totality of the instructions and not a particular sentence or paragraph in isolation.” Thayer,
201 F.3d at 221 (quoting United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). The
charge to the jury given by the District Court was an accurate and clear statement of the
law.
Evidence of Cocaine Base
Wilson lastly alleges that the seized cocaine was not “cocaine base” because it was
neither pure nor smokable; thus he contends that the District Court erred in applying the
enhanced sentencing guidelines governing cocaine base. Wilson concedes that he did not
make this argument before the District Court. He bases his argument on trial testimony
that the drug experienced some drying in storage and weighed less at trial than at seizure.
Following review of the record for plain error, we hold that the District Court did not err in
finding that the drug was crack cocaine and therefore did not commit plain error in applying
the sentencing guidelines under 21 U.S.C. § 841(a)(1).
Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
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