United States v. Reyes ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4161
DONALD MIKE REYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-95-27)
Submitted: May 19, 1998
Decided: June 30, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jack W. Stewart, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, H. Thomas Church, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Donald Reyes appeals his conviction for conspiracy to possess with
the intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) (1994). We find no error and affirm.
At trial, the Government presented testimony from several wit-
nesses about Reyes' involvement in a conspiracy to obtain metham-
phetamine in California and Nevada and to transport the drugs to
North Carolina for distribution. Teddy Ray Hunt, a member of the
conspiracy, testified that he and his associate, Michael Barrett, began
distributing methamphetamine to regular customers in 1993. At that
time, Barrett had several individuals driving to California to get the
drugs he distributed in North Carolina. One of these individuals,
Charles Thomas, testified that when he began selling methamphet-
amine to Barrett, Reyes was his main source in California and that he
made several purchases from Reyes in 1993. Further testimony estab-
lished that other methamphetamine dealers used Reyes as a source as
well.
In 1994, Hunt testified that he and Barrett drove to Texas to meet
Dale Werkmeister. Werkmeister often sold methamphetamine to Bar-
rett and testified that Reyes was one of his sources. Barrett and Werk-
meister drove to Las Vegas where they purchased five pounds of
methamphetamine from Reyes. Again in 1994, Hunt accompanied
Barrett on a purchasing trip to California where Barrett purchased
eight pounds from a different dealer and discussed the possibility of
Reyes transporting methamphetamine to North Carolina.
Officer Joseph David of the California Highway Patrol testified
that while on routine patrol, he pulled over Reyes' car after noticing
that he was speeding and that he and his passenger were not wearing
seat belts. When David approached the car, he smelled a strong odor
of methamphetamine. He also observed that Reyes was shaky and
nervous. When David asked Reyes to step outside the car, he noticed
a bulge in the front of Reyes' pants. Upon searching the front of
Reyes' pants, David discovered a five dollar bill with a powdery sub-
stance that he believed to be methamphetamine. Reyes was arrested
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and his car searched. The search of the car uncovered four brown
lunch bags containing freezer zip-lock bags holding methamphet-
amine.
On appeal, Reyes asserts that David's testimony was prejudicial
and improper under Fed. R. Evid. 403, 404(b). Because Reyes did not
object to the evidence at trial, we review for plain error. See United
States v. Olano, 507 U.S. 725, 732-36 (1993).
Evidence is admissible under Rule 404(b) when it is relevant to an
issue other than character, necessary to show an essential part of the
crime, and reliable. See United States v. Rawle , 845 F.2d 1244, 1247
(4th Cir. 1988). The record shows that the evidence was not used
solely to show bad character, but rather consciousness of guilt and
criminal intent. See United States v. Hayden, 85 F.3d 153, 159 (4th
Cir. 1996); see also United States v. Morsley , 64 F.3d 907, 911 (4th
Cir. 1995) (acts occurring after the charged conduct are admissible
under Rule 404(b) if Rawle criteria satisfied). Thus, we find no plain
error.
Reyes next asserts that the trial court erred by allowing Officer
David to testify concerning the stop and subsequent search of his car
because there was no probable cause to search his car. Because Reyes
did not object to this evidence at trial, we review for plain error. See
Olano, 507 U.S. at 732-36. There was no error in the ruling. Where
a valid basis for stopping a motor vehicle exists--either probable
cause or reasonable suspicion--the stop does not become unreason-
able and taint further police conduct merely because the officer mak-
ing it may have suspected other criminal activity and would not have
stopped for the traffic violation alone. See Whren v. United States,
116 S. Ct. 1769 (1996). United States v. Hassan-El, 5 F.3d 726 (4th
Cir. 1993). Here, the observed traffic violation validated the stop,
without regard to the officer's motivation, so that evidence establish-
ing that an objective basis for the stop existed was properly admitted.
The record shows that Officer David stopped Reyes for speeding
and failing to wear a safety belt. After stopping the vehicle, David
smelled methamphetamine coming from the car and observed that
Reyes was acting very nervous. Further, David found a five dollar bill
on Reyes containing what he believed to be methamphetamine. Given
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these circumstances, David had probable cause to search the car and
his stop of the vehicle was objectively reasonable. Thus, we find no
plain error as to this claim.
Reyes next asserts that the district court abused its discretion by
failing to give Reyes' proffered jury instruction as to the effect of the
witnesses' drug addiction on their testimony. A district court's denial
of a requested jury instruction "``constitutes reversible error only if the
instruction: (1) was correct; (2) was not substantially covered by the
court's charge to the jury; and (3) dealt with some point in the trial
so important that failure to give the requested instruction seriously
impaired the defendant's ability to conduct his defense.'" United
States v. Guay, 108 F.3d 545, 550 (4th Cir. 1997) (quoting United
States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)).
While Reyes' requested instruction was a correct statement of the
law, it was substantially covered by other instructions the court gave
to the jury. Specifically, the district court instructed the jury that it
should consider whether the witness has a motive or reason for being
truthful or untruthful as well as any biases, prejudice, or special inter-
ests the witness may have in the outcome of the case, when weighing
the witnesses' testimony. Thus, the district court's decision was not
an abuse of discretion.
Finally, Reyes asserts that he received ineffective assistance of
counsel. Such claims generally are not cognizable on direct appeal
unless they can be assessed on the face of the record, see United
States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973), and are more
appropriately raised by a motion filed pursuant to 28 U.S.C.A. § 2255(West 1994 & Supp. 1998). See United States v. DeFusco, 949 F.2d
114, 120-21 (4th Cir. 1991). Reyes asserts that counsel created a sub-
stantial conflict of interest impairing his ability to render a competent
defense. The record shows that prior to trial, Reyes' counsel brought
to the court's attention that he had previously represented co-
conspirator Hunt and that he had informed Reyes of this representa-
tion. Reyes acknowledged disclosure of the information and waived
any conflicts. The claims here are such that they could not be deter-
mined by reference only to the face of the record, but would require
further factual development. Therefore, we find these claims should
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be raised in a § 2255 proceeding, not on direct appeal, and we decline
to address them in this appeal.
Accordingly, we affirm Reyes' conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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