United States v. Loving , 242 F. App'x 922 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4708
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANDON LOVING,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (5:05-cv-00220)
Submitted: May 9, 2007 Decided: July 5, 2007
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller A. Bushong III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Landon Loving was convicted by a jury of possession with
intent to distribute crack and cocaine, 21 U.S.C. § 841(a) (2000),
and sentenced to 121 months imprisonment. He appeals, claiming
that: (1) the district court erred in denying his motion to
suppress; (2) the district court plainly erred in allowing certain
testimony; (3) he was denied effective assistance of counsel; and
(4) the evidence was insufficient to establish the requisite intent
to distribute. Loving has also filed a supplemental pro se brief
in which he asserts that certain testimony was admitted in
violation of his Sixth Amendment rights. For the reasons that
follow, we affirm.
The evidence presented at Loving’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.
In March 2005, the Beckley, West Virginia, police department began
an investigation into alleged drug dealing at Loving Auto Repair,
an automobile repair shop owned by Loving. After arranging two
controlled buys through a confidential informant and conducting
surveillance of the repair shop, police obtained search warrants
for Loving’s home and Loving Auto Repair.
During the search of the auto repair shop, police found
a key in a desk drawer. The key was to a safe which was later
found behind the repair shop, hidden in a pile of garbage. The
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safe contained 8.01 grams of crack cocaine, 141 grams of powder
cocaine, and a small amount of marijuana. An additional 2.87 grams
of crack cocaine and $1156 in cash were found in Loving’s pockets.
Loving was indicted on two counts of possession with
intent to distribute cocaine and crack cocaine. Prior to trial,
Loving filed a motion to suppress on three grounds: (1) the search
warrant was invalid because it was based on a misrepresentation in
the affidavit submitted in support of the warrant application;
(2) the search warrants were actually obtained after the search had
been completed; and (3) the warrants were “re-applied for to cover
up an illegal search.” Following a pre-trial hearing, the district
court denied the motion, but invited Loving’s counsel to supplement
his motion at trial, “[i]f anything new comes up or occurs to you.”
On the morning of trial, Loving filed a document entitled “Addendum
to Suppression Motion Filed by Defendant, Landon Loving.” The
Government’s attorney stated that “as I understand it from [defense
counsel], there is no additional argument, he is just vouching the
record.” Loving’s attorney replied, “That’s essentially true, your
honor. There is a request in there that if the tapes be found of
those particular buys, because there does appear to be some kind of
a conflict, that those be included in the record. However, given
the court’s previous rulings, I believe that would pretty much just
put it on the record for such appeal purposes as it covers, sir.”
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During Loving’s trial, one of the government witnesses,
Detective Montgomery, was asked on direct examination why the safe
had not been submitted for fingerprint analysis. Detective
Montgomery responded that: “In my experience, it’s very difficult
to obtain fingerprints from surfaces such as these. . . Plus the
fact that it was just - - the evidence was so overwhelming that day
leading to Mr. Loving, that we thought the case was so solid that
we didn’t really need fingerprints.” Loving’s counsel did not
object. The government also presented the testimony of Vincent
Larkin, who stated that Loving was his crack cocaine supplier and
that he (Larkin) had purchased the drugs at issue in both of the
controlled buys from Loving and then, in turn, sold them to the
confidential informant.
Loving contends, first, that the district court erred in
denying his motion to suppress because the search exceeded the
scope of the warrant. This argument was raised for the first time
in the “Addendum” to the motion to suppress, filed on the morning
of trial, and never brought to the district court’s attention.
Accordingly, Loving waived this claim by failing to timely raise it
before the district court. See Fed. R. Crim. P. 12(f) (providing
that failure to raise defenses or objections which must be made
prior to trial constitutes waiver).
Next, Loving claims that the district court erred in
allowing Detective Montgomery’s testimony that “the evidence was so
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overwhelming” because it invaded the province of the jury. Because
Loving failed to object at trial, this claim is reviewed only for
plain error. United States v. Olano, 507 U.S. 725, 732-34 (1993).
We find there was no error. Smith’s answer was merely a response
to a question regarding his state of mind (i.e., why he did not
feel the need to have the safe tested for fingerprints). Also, the
testimony was in response to an issue first raised by Loving in his
cross-examination of Detective Smith. Accordingly, any error was
invited by Loving. See Shields v. United States, 273 U.S. 583, 586
(1927)(holding that defendant in a criminal case “cannot complain
of error which he himself has invited”); see also United States v.
Jackson, 124 F.3d 607, 617 (4th Cir. 1997). Moreover, even
assuming the district court erred, we would not find plain error as
Detective Montgomery’s statement was sufficiently brief and
isolated that its admission did not affect Loving’s substantial
rights or call into question the integrity of the trial.
Next, Loving claims that his attorney was ineffective for
failing to object to Detective Montgomery’s testimony. Claims of
ineffective assistance of counsel should be raised by motion under
28 U.S.C. § 2255 (2000), in the district court, unless it
conclusively appears from the record that counsel failed to provide
effective representation. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). We find that it does not conclusively
appear from the face of the record that Loving’s attorney failed to
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provide effective representation sufficient for the claim to be
cognizable on direct appeal.
Loving also challenges the sufficiency of the evidence.
Specifically, Loving claims that the Government failed to prove
intent to distribute because “there was no testimony that the
amounts seized were distribution amounts.” However, intent to
distribute may be proved by a number of factors, including the
amount of cash seized, the possession of drug paraphernalia, and
the seizure of a quantity of drugs too large for personal
consumption. See United States v. Fisher, 912 F.2d 728, 730 (4th
Cir. 1990). Here, Detective Montgomery testified that the 145
grams of cocaine found in Loving’s safe had a street value of
approximately $8000 to $10,000, and that the crack cocaine had a
value of approximately $1400. Along with the cocaine found in
Loving’s safe, officers also found digital scales and plastic
baggies. Also, Loving had a large amount of cash in his pocket.
Finally, Detective Montgomery testified that he saw no evidence of
personal use by Loving, such as a crack pipe. We find that this
evidence was sufficient to support a finding that Loving possessed
the drugs at issue with the requisite intent to distribute.
Finally, Loving asserts in a pro se supplemental brief that
the district court erred in allowing the Government to present
testimony (through Detective Montgomery) about information received
from a confidential informant concerning the three controlled buys,
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in violation of his Sixth Amendment confrontation rights as
articulated in Crawford v. Washington, 541 U.S. 36 (2004). Loving
did not object in the district court to the testimony concerning
the informant, therefore we review only for plain error. Olano,
507 U.S. at 732-34.
Under Crawford, the Sixth Amendment requires that a witness be
unavailable and that there be a prior opportunity for
cross-examination before testimonial hearsay evidence may be
admitted, regardless of the inherent trustworthiness of the
statement. Crawford, 541 U.S. at 68. Crawford applies only to
testimonial hearsay statements. Id. We find that the testimony
concerning the confidential informant was introduced for the
limited purpose of explaining the course of the investigation and
thus was not a testimonial hearsay statement to which Crawford
applies. Therefore, this claim is meritless.
Accordingly, we affirm Loving’s conviction. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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