United States v. Thomas ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4827
ALVON ALLEN THOMAS, a/k/a Kebo,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Richard C. Erwin, Senior District Judge.
(CR-97-118)
Submitted: October 20, 1998
Decided: December 10, 1998
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. David James, SMITH, JAMES, ROWLETT & COHEN, L.L.P.,
Greensboro, North Carolina; Eric Richard Nordman, Westerville,
Ohio, for Appellant. Walter C. Holton, Jr., United States Attorney,
Clifton T. Barrett, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Alvon Allen Thomas appeals from his conviction for possession
with intent to distribute crack cocaine in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1981 & Supp. 1998), and the 230-month sentence
imposed by the district court. On appeal, he contends that the district
court erred by: (1) denying his motion to appoint substitute counsel;
(2) instructing the jury as to the charged offense; (3) refusing to
instruct the jury as to the lesser included offense of possession of a
controlled substance; (4) sentencing him under the guidelines for
crack cocaine rather than for cocaine powder; (5) failing to review the
evidence and make specific factual findings to support the sentencing
enhancement for obstruction of justice; (6) denying his motion to sup-
press evidence; and (7) refusing to allow the admission of certain evi-
dence, in violation of Thomas' right to due process. In his three
supplemental briefs, Thomas expands upon issues raised in the formal
briefs and raises the additional argument that the district court erred
in allowing Dr. Shirley Brinkley to testify as an expert witness. Find-
ing no error, we grant Thomas' motions for leave to file supplemental
briefs and to file his reply brief out of time and affirm Thomas' con-
viction and sentence.
I.
While conducting a stationary driver's license check in Winston-
Salem, North Carolina, Trooper Kevin Martin of the North Carolina
State Highway Patrol observed a white BMW pull onto the right
shoulder of the road, remain for thirty to forty-five seconds, and then
approach the checking station. Trooper Martin saw the operator of the
vehicle--later identified as Thomas--move about in the vehicle and
lean toward the passenger side of the vehicle; he did not see Thomas
throw anything from the vehicle. Following this brief stop, Thomas
drove the BMW to where Martin was stationed and handed Martin his
driver's license.
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As Trooper Martin reached for the license, he detected a strong
odor of marijuana coming from the vehicle. He asked Thomas to pull
to the left shoulder of the road and exit the vehicle. As Thomas got
out of the car, Martin asked if Thomas had a weapon on him. Thomas
said no. Martin then conducted a pat down search. When Trooper
Martin put his hands on Thomas' waistband, Thomas jumped back
into the car, wrapped his arms around the steering wheel and said that
he needed to call his attorney. Martin requested that Thomas exit the
vehicle. When he refused, Trooper Martin attempted to pull Thomas
from the car. Martin then told Thomas that if he did not get out of the
vehicle, he would be sprayed with pepper spray. Thomas then exited
the vehicle and attempted to run from Trooper Martin. Trooper Mar-
tin held him and arrested him for delaying and obstructing an officer.
Trooper Martin placed handcuffs on Thomas and placed him on the
ground. Trooper Martin and Trooper Naylor searched Thomas and
found in his pants pocket five bags containing a hard rock-like sub-
stance of what appeared to be crack cocaine. Following Thomas'
arrest, the officers searched the BMW and located a pager, a $100
bill, a set of pocket scales, marijuana residue in the ashtray, and vari-
ous documents.
Dr. Shirley Brinkley, a forensic toxicologist for Forsyth County,
performed the chemical analysis on the contraband seized from the
BMW. She testified at trial that the residue found in the ashtray was
marijuana. She also determined after extensive testing that the sub-
stance in four of the five small bags seized from Thomas was crack
cocaine. Because the items in the five bags had similar appearances,
Dr. Brinkley testified that she tested the contents of only four of the
five bags. She determined that the net weight of the substance was
135.3 grams.
Thomas, proceeding pro se with standby counsel, called several
witnesses and testified on his own behalf. At the conclusion of the
trial, the jury returned a verdict of guilty. The district court sentenced
Thomas to 230 months imprisonment to be followed by a five-year
term of supervised release. Thomas timely noted his appeal.
II.
Thomas first contends that the district court erred in refusing to
delay the start of the trial and to appoint substitute counsel. We
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review this decision for abuse of discretion. See United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). In determining
whether the district court abused its discretion in denying Thomas'
motion for a continuance and to appoint new counsel, this court con-
siders whether the motion was timely, whether the district court suffi-
ciently inquired into Thomas' complaint, and whether the degree of
conflict between Thomas and his appointed counsel amounted to a
"total lack of communication" and thus prevented an adequate
defense. See id. (quoting United States v. Gallop, 838 F.2d 105, 108
(4th Cir. 1988)).
Thomas was arrested on June 2, 1997. On June 6, 1997, when he
appeared before a magistrate judge, he waived appointment of
assigned counsel. Assistant Federal Public Defender Greg Davis was
appointed to represent Thomas. At the July 7, 1997, motion hearing,
Thomas requested that Davis be replaced because he was "insuffi-
cient."
Davis moved to withdraw on July 8, 1997. At the hearing on this
motion, Thomas asserted that he was not "comfortable" with Davis,
Davis did not meet with him before the hearing, and Davis did not
argue what was written in the motions. With the trial scheduled to
begin on July 14, 1997, the trial judge informed Thomas that he could
remain with Davis, retain other counsel, or represent himself. Davis
provided Thomas with a copy of the government's prosecution file.
The court did not relieve Davis, but retained him as standby counsel.
On the day of trial, Thomas, having acknowledged the possible pun-
ishment he faced and that he would be held to the same standards as
an attorney, stated that he would represent himself.
"[T]he court is entitled to take into account the . . . state interest
in proceeding on schedule" when considering whether a defendant's
request for substitution of counsel is timely made. Gallop, 838 F.2d
at 108. In this case, Thomas requested new counsel one week before
trial. Concerning the substantiality of the complaints Thomas had
against Davis, the court is required to inquire into the factual basis for
the defendant's dissatisfaction. See United States v. Mullen, 32 F.3d
891, 896 (4th Cir. 1994). Thomas' basis for requesting new counsel
was counsel's failure to meet with him prior to the hearing on the
motion to suppress, failure to argue at the hearing the points raised in
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the suppression motion, and that Davis' "spirit does not compare with
mine." Having reviewed the arguments counsel did make during the
suppression hearing, we find that these reasons are insufficient to
show that there was a total breakdown in communication. See Mullen,
32 F.3d at 896-97.
Because we find that the district court conducted an adequate
inquiry as to the basis for Thomas' request for new counsel and find
that the stated reasons do not evidence a total lack of communication
preventing an adequate defense, we find no abuse of discretion in the
district court's denial of Thomas' motion for substitution of counsel.
See Corporan-Cuevas, 35 F.3d at 956; Gallop, 838 F.2d at 108.
Likewise, we find that the district court conducted a sufficient
inquiry into Thomas' desire and ability to represent himself. Before
allowing a defendant to proceed pro se, the court must conduct an
adequate inquiry and advise the defendant of the"dangers and disad-
vantages of self-representation" to assure that the waiver of counsel
is knowing, intelligent, and voluntary. See Faretta v. California, 422
U.S. 806, 835 (1975); Gallop, 838 F.2d at 110-11.
In this case, Thomas stated that he understood the charge against
him and the possible punishment. He asked whether he could defend
himself in federal court. The district court explained the order of
events in a jury trial and asked if Thomas had questions or wanted
anything else explained. Thomas understood that Davis was
appointed as standby counsel to answer any questions he might have,
and Thomas stated that he appreciated Davis' availability. A refusal
to accept an able court-appointed attorney is a voluntary waiver of
counsel, Gallop, 838 F.2d at 109. We find that Thomas knowingly,
voluntarily, and intelligently waived his right to appointment of coun-
sel and chose to proceed pro se.
III.
Thomas next contends that the district court erred in instructing the
jury as to the charged offense. During the charge to the jury, the dis-
trict court instructed on the elements of distribution of a controlled
substance. The Assistant United States Attorney noted this mistake
and the court then instructed as to possession. Again, the Assistant
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United States Attorney informed the court that the indictment charged
possession with intent to distribute. The court then correctly
instructed the jury on this offense. Five minutes into deliberations, the
jury returned, inquiring about the definition of"possession." A juror
also inquired whether they "could have one maybe without the other."
The district court responded by stating that to convict Thomas, they
must find that he possessed the drugs and that he had the intent to dis-
tribute the drugs.
Because the instructions, taken as a whole, fairly state the law as
to possession with intent to distribute, we find no plain error in the
court's instructions. See United States v. Cobb , 905 F.2d 784, 788-89
(4th Cir. 1990); United States v. McCaskill, 676 F.2d 995, 1001 (4th
Cir. 1982) (standard of review). Here, the district court inadvertently
instructed the jury as to possession only and distribution only, and
finally, correctly instructed as to possession with intent to distribute.
Because the jury had before them the indictment charging possession
with intent to distribute and did receive the proper instruction prior to
deliberations, the district court's mistaken instructions do not rise to
the level of plain, reversible error. See United States v. Hanley, 974
F.2d 14, 18-19 (4th Cir. 1992).
IV.
Thomas also contends that the district court erred in refusing to
instruct the jury as to the lesser included offense of possession of a
controlled substance. A defendant is not entitled as a matter of course
to a lesser included offense instruction. See United States v. Walker,
75 F.3d 178, 179 (4th Cir. 1996). Rather, such an instruction is war-
ranted where "proof of the element that differentiates the two offenses
[is] sufficiently in dispute that the jury could rationally find the defen-
dant guilty of the lesser offense but not guilty of the greater offense."
Id. at 180. On the evidence presented in this case, an instruction on
mere possession was not warranted. The quantity of crack cocaine
involved--135 grams--supports an intent to distribute. See United
States v. Roberts, 881 F.2d 95, 99 (4th Cir. 1989). The packaging of
the drugs into five one-ounce packages may evidence an intent to dis-
tribute. See United States v. Childs, 463 F.2d 390, 392 (4th Cir.
1972). Also, the absence from the location of drug paraphernalia
which would provide a means of ingesting the drugs and the lack of
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any evidence of Thomas' personal use of crack cocaine may be con-
sidered in determining whether the evidence could be construed to
show mere possession. See United States v. Wright, 131 F.3d 1111,
1112-13 (4th Cir. 1997), cert. denied, #6D 6D6D# U.S. ___, 66 U.S.L.W.
3782 (U.S. June 8, 1998) (No. 97-9034); United States v. Levy, 703
F.2d 791, 792 (4th Cir. 1983) (presence of pipes customarily used for
the purpose of consuming cocaine considered to support instruction
on lesser included offense).
In this case there is no evidence of Thomas' personal drug use. In
fact, he denied using crack and he denied even possessing the pack-
ages of crack. Because this element is not sufficiently in dispute so
as to warrant an instruction on mere possession of a controlled sub-
stance, the district court appropriately did not give such an instruc-
tion. See Walker, 75 F.3d at 180.
V.
Thomas next contends that the district court erred in sentencing
him under the guidelines for crack cocaine rather than for cocaine
powder. He asserts that the government failed to prove that the sub-
stance was crack cocaine. However, Dr. Brinkley was qualified as an
expert in the field of forensic toxicology and testified as to the differ-
ences between crack cocaine and cocaine hydrochloride. She then
explained the testing she performed on the substance seized from
Thomas, and she gave her opinion that the substance was crack
cocaine. Likewise, two law enforcement officers--Trooper Martin
and Trooper Naylor--testified that, based on their training and experi-
ence, the substance seized from Thomas was crack. See United States
v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (lay testimony and cir-
cumstantial evidence is sufficient to identify controlled substances).
Although there was no evidence presented that the substance was pre-
pared by processing powder cocaine and sodium bicarbonate, the
guideline definition merely states that crack is usually prepared in this
manner. The definition acknowledges that not all forms of crack are
prepared by using sodium bicarbonate. See U.S. Sentencing Guide-
lines Manual § 2D1.1(c), Note (D) (1995).
Thomas also challenges the enhanced sentences provided for crack
cocaine over those provided for cocaine powder offenses. We have
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previously upheld the sentencing ratio against equal protection and
due process challenges, and we decline to revisit this issue. See
United States v. Ford, 88 F.3d 1350, 1365 (4th Cir. 1996); United
States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995).
VI.
Thomas next challenges the obstruction of justice enhancement to
his sentence, contending that the district court failed to review the evi-
dence and make specific factual findings to support the sentencing
enhancement. He asserts that his "theory of defense was that the
cocaine found on his person was planted by the police. The truth or
falsity of that defense is not an issue." The Sentencing Guidelines
provide for a two-level adjustment for obstruction of justice. See
USSG § 3C1.1. Perjury constitutes an obstruction of justice. See
USSG § 3C1.1, comment. (n. 3(b)). Before imposing the enhance-
ment, the district court must make an independent finding that the
defendant provided false testimony on a material matter with the
intent to deceive. See United States v. Dunnigan , 507 U.S. 87, 95
(1993).
Addressing Thomas' objection to the enhancement in the presen-
tence report, the district court reminded Thomas of his trial testimony
that the troopers did not locate any cocaine or cocaine base on his per-
son. Similarly, Thomas denied this fact at the earlier hearing on his
motion to suppress evidence. After the court overruled Thomas'
objection to the presentence report, the government urged the court
to make explicit findings and proposed such findings. The court then
stated that it did so find. The findings proposed by the government
were also contained in the presentence report, and the district court
adopted the findings contained therein. We find that the district court
appropriately enhanced Thomas' sentence for obstruction of justice
and that the district court's adoption of the proposed findings does not
--as Thomas asserts--implicate the "concern that courts will enhance
sentences as a matter of course whenever the accused takes the stand
and is found guilty." Dunnigan, 507 U.S. at 96-97.
VII.
Thomas also challenges the district court's decision to deny his
motion to suppress evidence. Trooper Martin lawfully stopped
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Thomas at the routine license checkpoint. See Michigan Dep't of
State Police v. Sitz, 496 U.S. 444 (1990). Upon identifying the strong
odor of marijuana coming from Thomas' car, Martin was justified in
further detaining Thomas. See United States v. Sifuentes, 504 F.2d
845, 848 (4th Cir. 1974) (strong marijuana odor places contraband in
plain view). Based on Trooper Martin's observation of the marijuana
smell, Thomas' actions prior to approaching the checkpoint, Martin's
experience that weapons frequently accompany drugs, and the poten-
tial hazards involved in roadside encounters with a suspect, Trooper
Martin was justified in conducting a protective search to uncover any
concealed weapons. See United States v. Baker , 78 F.3d 135, 137 (4th
Cir. 1996).
Thomas' actions in jumping back into the car, wrapping his hands
around the steering wheel, and refusing to exit the vehicle constituted
resisting, delaying, or obstructing an officer under N.C. Gen. Stat.
§ 14-223 (Michie 1993). See State v. McNeill, 283 S.E.2d 565, 567
(N.C. App. 1981) (flight from a lawful investigatory stop provides
probable cause to arrest individual for violation of N.C. Gen. Stat. 14-
223.). Because the arrest was proper, the search incident to arrest was
proper, and the district court appropriately denied Thomas' motion to
suppress the drugs found during that search.
VIII.
The next issue presented by Thomas is that the district court erred
and denied him due process of law by allowing the government to
admit certain evidence and refusing to allow him to admit certain evi-
dence. Specifically, he challenges the admission of the fact that he
received citations for misdemeanor offenses of which he had not been
convicted. These questions were relevant to connect Thomas to an
incriminating letter that was seized from the vehicle along with the
citations and other personal effects bearing Thomas' name. The dis-
trict court properly allowed these questions. Thomas also challenges
the government's inquiries concerning the number of times he had
been stopped for driving while his license was revoked. These ques-
tions were proper to impeach his earlier claim that his license was
valid at the time of his arrest.
The government's questions regarding Thomas' 1995 conviction
for carrying a concealed weapon were improper because this offense
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is punishable by only 60 days. See N.C. Gen. Stat. § 15A-1340.23
(Michie 1983). However, Thomas did not answer these questions and
cannot thereby claim that he was prejudiced. Additionally, Thomas
freely admitted that he had two or three previous concealed weapons
convictions. We find that any error resulting from the improper ques-
tions about Thomas' 1995 conviction was harmless.
Thomas also contends that the district court erred in refusing to
allow him to admit into evidence the troopers' prior testimony and
police reports. However, Thomas was allowed to question the wit-
nesses concerning these documents, and in fact, while questioning a
witness, did read one officer's complete statement. However, Thomas
never marked the proffered documents as an exhibit, never had a wit-
ness identify the documents, and did not attempt to admit the docu-
ments into evidence. Rather, Thomas repeatedly attempted to read the
contents of the documents to the jury. We find no abuse of discretion
in the district court's evidentiary rulings. See United States v.
Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988).
IX.
In his supplemental brief, Thomas raises an additional issue con-
cerning the propriety of the district court's admission of Dr. Brinkley
as an expert witness. Because Thomas did not object to Dr. Brinkley's
qualifications or her testimony, our review is for plain error. See Fed.
R. Crim. P. 52(b); United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995).
Dr. Brinkley testified about her considerable educational back-
ground and training. Although she admitted that most of her work was
in the area of testing urine samples for the presence of drugs, she had
some experience in testing drugs and determining their type, purity,
and quantity. She testified as to the differences between crack cocaine
and cocaine hydrochloride. She then explained the tests she per-
formed on the substance seized from Thomas and gave her opinion
that the substance was crack cocaine. We find no abuse of discretion
by the district court in allowing Dr. Brinkley to testify concerning the
manner in which she tested the drugs, the results of the testing, and
her conclusions from those results. See United States v. Powers, 59
10
F.3d 1460, 1470-71 (4th Cir. 1995); United States v. Harris, 995 F.2d
532, 534 (4th Cir. 1993).
Moreover, even if the district court erred in allowing Dr. Brinkley
to express her opinion that the substance was crack cocaine, such
error was not plain error. The admission of Dr. Brinkley's opinion did
not affect Thomas' substantial rights. See United States v. Moore, 11
F.3d 475, 481 (4th Cir. 1993) (finding plain error only if error affects
substantial rights and impairs integrity or reputation of judicial pro-
ceedings). Whether the drug seized was cocaine powder or crack
cocaine was not disputed during the trial. The two law enforcement
officers involved in Thomas' arrest--Trooper Martin and Trooper
Naylor--testified that, based on their training and experience, the
substance seized from Thomas was crack. See Dolan, 544 F.2d at
1221. Also, these officers described the drug found during the search
as a "hard, rock-like substance." This is a description typical of crack
cocaine. See USSG § 2D1.1(c), Note (D). Thomas presented no evi-
dence supporting his argument that the substance was not crack
cocaine. Rather, he based his defense on his contention that the offi-
cers planted the drugs in the vehicle. We conclude that the district
court's decision to allow Dr. Brinkley to testify as an expert was not
an abuse of discretion and did not amount to plain error.
X.
In conclusion, we grant Thomas' motions to file supplemental
briefs and to file his reply brief out of time. We have considered the
arguments raised therein, and we affirm Thomas' conviction and his
sentence. 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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