United States v. Bruce Winston , 651 F. App'x 237 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4054
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRUCE DWAYNE WINSTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:13-cr-00639-RDB-2)
Argued: May 10, 2016 Decided: June 10, 2016
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Shedd and Judge Keenan joined.
ARGUED: Christopher Alan Suarez, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellant. Peter Jeffrey Martinez, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Joanna Beth Silver, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland; F. Lane Heard III,
WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant. Rod
J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
On June 3, 2013, the Maryland State Police stopped
Appellant Bruce Winston and discovered 21 kilograms of cocaine
and $30,000 in cash hidden in a compartment in his truck. A
jury convicted Winston of possessing cocaine with intent to
distribute, and conspiring to do the same, in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. On appeal, Winston
challenges the district court’s denial of his motion to suppress
the evidence discovered in his truck. He also contends that the
district court erred in admitting evidence, under Federal Rule
of Evidence 404(b), that connected Winston to drugs seized by
law enforcement in North Carolina in 2010. Because the Maryland
State Police had reasonable suspicion to stop Winston under the
collective knowledge doctrine, and because the admission of the
North Carolina evidence was harmless, we affirm.
I.
A.
We begin by providing background on the investigation that
led to the arrest of Jorge Herevia, Joe Payne, and Bruce
Winston--all three of whom were indicted as co-conspirators in a
cocaine distribution ring.
The investigation began with information from a cooperating
defendant, Dewon Nelson. In January 2013, Drug Enforcement
2
Agency (“DEA”) agents arrested Nelson in Delaware for possession
of cocaine. During subsequent proffer interviews, Nelson told
DEA agents that his supplier was Juan Carlos Flores, who
operated in Texas. According to Nelson, Flores hired men to
drive cocaine to Delaware in vehicles with hidden compartments.
The scheme was coordinated by one of Flores’s associates,
identified as “George,” who would travel from Texas to Delaware
to oversee the transactions, during which he would drive a
“white utility style truck with an Entergy label on the side of
it that contained a secret compartment where they would keep the
cocaine.” J.A. 103-04.
Nelson explained that one of the men who purchased cocaine
from Flores and “George” was an individual named “Tone.” Tone
was “a light-skinned black male from the Baltimore area that
would drive to Delaware, meet with Flore[s], George, and
Mr. Nelson, and retrieve kilos of cocaine.” J.A. 104. Tone
drove “an older model Honda Odyssey.” J.A. 105. Nelson further
identified several dates in September and October 2012 on which
“George” stayed at the Holiday Inn in Delaware to coordinate
these cocaine transactions.
Using hotel records from the dates Nelson provided, DEA
agents identified “George” as Jorge Herevia from Alton, Texas.
In May 2013, the DEA learned that Herevia had checked into a
Holiday Inn in Baltimore, Maryland, using the same credit card
3
he had used in Delaware. DEA agents promptly began surveillance
of the hotel.
The DEA monitored Herevia in Baltimore from May 30 to
June 3, 2013. The first day passed without event. However, on
the second day of the surveillance, agents observed Herevia meet
with an individual who matched Nelson’s description of Tone, the
Baltimore-based drug dealer. This individual was driving a
Honda Odyssey, the same type of car that Nelson said Tone drove.
Two days later, the DEA observed Appellant Winston arrive
at the Holiday Inn where Herevia was staying. Winston was
traveling with a man later identified as Joe Payne, and they
arrived at the hotel driving “a utility style truck with the
word Shale Entergy, that emblem on the side of the truck.” 1
J.A. 115. Later that evening, after Payne and Winston had
checked into the hotel, DEA agents observed Payne, Winston, and
Herevia at the hotel bar. An undercover detective approached
the three men, joined them for a drink, and later accompanied
the group to a bar across the street, where they socialized for
several hours before returning to the hotel. On more than one
1At the suppression hearing, a DEA agent explained that
“cartels have been more recently using vehicles . . . like even
mail trucks, UPS trucks, and specifically oil trucks to conceal
their true intent of smuggling drugs and money. And they feel
that law enforcement will be less likely to pull these vehicles
over if it looks as if they have a purpose.” J.A. 138.
4
occasion that evening, Herevia bragged to the undercover
detective that he had a large amount of cash with him.
The next morning, Herevia drove the Shale Entergy truck to
a Wal-Mart store, where he purchased a heat sealer. This was
significant to the DEA because, as one DEA agent explained,
“[d]rug traffickers often use heat sealers to compact drugs and
drug money. It’s also used as a way to lessen the amount of
odor that can emanate from drugs.” J.A. 118. The DEA agents,
however, lost track of Herevia for a period of time between his
purchase of the heat sealer and his return to the hotel. Within
fifteen minutes of Herevia’s return, Winston and Payne came out
of the hotel with their luggage and drove off in the Shale
Entergy truck wearing shirts bearing “Shale Entergy” logos.
Herevia remained at the hotel.
At this point, the DEA agents believed that the truck
likely contained drugs and drug money, and they directed the
Maryland State Police to stop the truck as it traveled on the
highway out of Baltimore. The DEA’s purpose behind directing a
marked, local law enforcement unit to conduct the stop was
twofold: first, it was safer than using an undercover vehicle to
stop suspected drug traffickers, and second, the Maryland State
Police could stop the car without alerting the suspects that
they were part of a federal investigation.
5
Shortly after state police officers stopped the truck, a
canine team detected the odor of narcotics emanating from the
truck bed. A subsequent search of the truck uncovered $30,000
in cash and 21 kilograms of cocaine within a hidden compartment
in the truck bed. The truck was registered to Winston.
B.
A federal grand jury indicted Winston, Payne, and Herevia
on two counts: conspiring to possess and distribute over five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846,
and possessing five kilograms or more of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Herevia
pleaded guilty on May 1, 2014, and Payne and Winston proceeded
to trial.
In addition to filing other pre-trial motions, Winston
moved to suppress the evidence seized from his truck, arguing
that the stop was not supported by reasonable suspicion. The
government opposed the motion and filed a motion in limine,
seeking to admit trial evidence related to a 2010 incident under
Federal Rule of Evidence 404(b). In that incident, an employee
on Winston’s farm was stopped in North Carolina driving a horse
trailer with $1.1 million in cash and over a half-ton of
6
marijuana hidden in a secret compartment. The trailer was
registered to Winston. 2
The district court held hearings on the motions and issued
a written opinion on September 23, 2014, denying Winston’s
suppression motion and granting the government’s motion in
limine.
C.
Winston and Payne were jointly tried in October 2014. The
primary issue at trial was whether Winston was a knowing and
active participant in the conspiracy.
At trial, the government introduced as evidence the cocaine
and money seized from Winston’s car, and the jury heard
testimony about the 2010 incident in North Carolina. The focus
of the government’s case, however, was the testimony of Herevia,
who detailed Winston’s involvement in the cocaine distribution
conspiracy. According to Herevia, Winston was a drug courier
for Flores, and it was Winston’s idea to install a secret
compartment in his pickup truck to avoid detection by law
enforcement. Herevia testified that, in the spring of 2012, he
traveled with Flores to Winston’s farm in Arkansas and installed
the compartment. Flores and Herevia performed the installation
2Winston himself was not present during this incident. He
later retrieved the vehicle from the police, but he was not
charged with any crimes.
7
work in Winston’s shed, welding a box underneath the truck bed
to make the compartment. Winston assisted them by maneuvering
the truck with his tractor to provide access to the underside of
the bed. 3 Herevia testified that Winston and Payne used the
modified truck on multiple occasions to transport drug shipments
to Delaware and Maryland for Flores. Herevia’s role in the
conspiracy was to unload the truck and deliver the drugs at the
point of sale.
Winston testified that he was an unknowing participant in
the scheme, and that he believed he had been taking trips to
Delaware and Baltimore to work for a legitimate company, “Shale
Entergy.” Winston testified that he was a company employee,
that he reported to Herevia, and that he drove his truck--
bearing Shale Entergy’s logo--to job sites for the company. But
Winston ultimately conceded that the company did not exist, and
Herevia told the jury that neither he nor Winston ever worked
for Shale Entergy. And Herevia further testified that it was
Winston’s idea to put the Shale Entergy logo on his truck and
wear logo-bearing shirts to appear less suspicious to law
enforcement.
3
Winston himself testified that he helped Herevia install a
new bed on his truck. However, he claimed that Herevia told him
they were installing a new bed with tool compartments. Winston
denied seeing a trap door or secret compartment in the new truck
bed when he installed it.
8
The jury also heard about incriminating statements Winston
made during a post-arrest interview with several DEA agents and
two officers from the Maryland State Police. When asked about
his activities leading up to his arrest, Winston told the
officers that he had traveled to a Shale Entergy job site in New
Holland, Pennsylvania, but he was turned away due to rain and
returned to Baltimore. To demonstrate that this statement was
false, the government introduced weather reports and cell-site
location data from Winston’s phone, showing that Winston never
went to New Holland, and that it had not rained there over the
weekend. Special Agent Fitzpatrick of the DEA further testified
that, during this interview, he confronted Winston about his
account of events, telling him that his story “didn’t make any
sense, and that he wasn’t telling [the DEA] the truth.”
J.A. 818. Winston eventually conceded: “I don’t believe my own
story.” J.A. 819.
At the conclusion of the trial, the jury returned a verdict
acquitting Payne and convicting Winston on both counts. The
district court sentenced Winston to 120 months’ imprisonment.
This timely appeal followed.
II.
On appeal, Winston argues that the district court erred in
denying his motion to suppress the evidence discovered in his
9
truck. He also asserts that the district court abused its
discretion in admitting evidence relating to the 2010 North
Carolina incident. We address each of these contentions below.
A.
Winston challenges the district court’s conclusion that the
DEA had reasonable suspicion to direct the stop that led to the
discovery of the cocaine in his truck. 4 We review the district
court’s legal conclusions de novo, viewing the evidence in the
light most favorable to the government. United States v. Green,
740 F.3d 275, 277 (4th Cir. 2014).
When a police officer stops a vehicle, the stop constitutes
a seizure under the Fourth Amendment, which mandates that any
seizure be reasonable. U.S. Const. amend. IV; United States v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011). The Fourth
Amendment permits a police officer to “initiate a brief
investigatory stop if the officer has reasonable suspicion to
believe that ‘criminal activity may be afoot.’” United States
v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). In the context of a suppression
motion, the reasonable suspicion standard requires courts to
4 Winston argues only that the initial stop was
unconstitutional. He does not claim that the canine sniff or
the search of the truck was unlawful. He seeks suppression of
the evidence found in the truck only because the search flowed
from an allegedly impermissible stop.
10
“view the totality of the circumstances to determine whether the
officer had ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’” Id.(quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
However, “reasonable suspicion may exist even if each fact
standing alone is susceptible to an innocent explanation.”
United States v. McCoy, 513 F.3d 405, 413-14 (4th Cir. 2008)
(citing United States v. Arvizu, 534 U.S. 266, 277-78 (2002)).
In this case, the Maryland State Police stopped Winston
based on instructions from the DEA. Under the collective
knowledge doctrine, “[w]hen an officer acts on an instruction
from another officer, the act is justified if the instructing
officer had sufficient information to justify taking such action
herself; in this very limited sense, the instructing officer’s
knowledge is imputed to the acting officer.” United States v.
Massenburg, 654 F.3d 480, 492 (4th Cir. 2011). Therefore, the
question before us is whether Special Agent Fitzpatrick of the
DEA--who led the investigation and directed the stop--had
reasonable suspicion to believe that Winston was involved in
criminal activity. Given the totality of the circumstances, we
conclude that he did.
Here, a team of DEA agents witnessed Winston participating
in conduct that closely tracked the patterns of the Flores
cocaine trafficking ring, according to information the DEA
11
received from a cooperating defendant. As discussed above,
Special Agent Fitzpatrick learned during his investigation that
Flores’s couriers typically transported drugs in a white truck
marked “Entergy,” and delivered drugs--with the assistance of
Jorge Herevia--to a Baltimore man named Tone. After learning
this and tracking down Herevia, a team of DEA agents observed
Herevia, Winston, and Payne engage in a suspicious sequence of
events. First, Herevia (the suspected drug seller) met with a
man matching the description of Tone (the suspected drug
purchaser). Then, Winston arrived at Herevia’s hotel, driving a
white truck marked “Shale Entergy,” just like the drug courier’s
vehicle the informant had described. Next, Herevia took
Winston’s vehicle on a shopping excursion to buy equipment
commonly used in drug trafficking, and he disappeared for a
period of time before returning the truck to the hotel. Winston
then immediately checked out of the hotel and left in the same
vehicle.
Having considered the totality of the circumstances, based
on all of the information known to Special Agent Fitzpatrick at
the time he directed the stop, we agree with the district court
that Special Agent Fitzpatrick reasonably suspected that Winston
was carrying drugs and drug money in his truck. See McCoy, 513
F.3d at 414-15 (emphasizing that courts must consider “the
totality of the circumstances” when evaluating reasonable
12
suspicion). Taken together, the facts known to Special Agent
Fitzpatrick certainly gave him reasonable suspicion to believe
that criminal activity was afoot at the time he directed the
stop. Because the officer who directed the stop had reasonable
suspicion, the stop was justified under the collective knowledge
doctrine. Therefore, the stop was fully consistent with the
requirements of the Fourth Amendment.
B.
We turn now to Winston’s contention that the district court
erroneously admitted trial evidence related to the 2010 North
Carolina incident under Federal Rule of Evidence 404(b).
“We review evidentiary rulings for an abuse of discretion,
affording substantial deference to the district court.” United
States v. White, 810 F.3d 212, 227 (4th Cir. 2016) (citing
United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011)).
Under Federal Rule of Criminal Procedure 52(a), evidentiary
rulings are subject to review for harmless error. “[I]n order
to find a district court’s error harmless, we need only be able
to say ‘with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.’” United
States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (quoting
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).
13
At trial, the government presented evidence regarding a
2010 incident, in which North Carolina officials discovered that
one of Winston’s employees was driving a trailer containing
concealed drugs. According to Winston, this evidence was
inadmissible character evidence under Rule 404(b), because the
incident was unrelated to the conspiracy that was the subject of
the trial, and it was factually dissimilar and prejudicial.
Assuming without deciding that the district court erred in
admitting the evidence, given the strength of the rest of the
evidence against Winston at trial, we conclude that any such
error was harmless.
The government’s case against Winston was powerful, and the
evidence of his culpability was overwhelming. The government
presented testimony from Winston’s co-conspirator, Herevia, that
not only implicated Winston as a knowing participant in the
cocaine trafficking conspiracy, but also illustrated Winston’s
active role in concealing the drugs he was transporting at the
time of his arrest. Most importantly, the cocaine and money
seized from Winston’s own truck were admitted as evidence.
The government also demonstrated that Winston’s account of
events was not credible. Though Winston denied knowing that he
was carrying drugs in his truck and claimed he was merely
traveling to a work site, the government introduced as evidence
Winston’s post-arrest statement, in which he conceded: “I don’t
14
believe my own story.” J.A. 819. The government also
introduced cell phone data and weather reports that directly
refuted Winston’s account of his travels in the days before his
arrest. Further still, the government demonstrated that the
“legitimate” company Winston claimed to be working for, Shale
Entergy, was fictitious.
Winston asserts that the jury’s verdict acquitting Payne
reveals that the North Carolina evidence--which implicated only
Winston--tipped the scales against him. This argument rests
upon Winston’s assertion that the government’s evidence against
Winston and Payne was identical except for the North Carolina
evidence:
Although the evidence and arguments against them
were identical in nearly every respect, the jury
acquitted Mr. Payne and convicted Mr. Winston. It is
not hard to understand why. Against Mr. Winston
alone, the Government introduced prior “bad acts”
evidence that it used to argue that he must have known
that the truck in which he and Mr. Payne were riding
contained illegal drugs.
Appellant’s Br. at 18. But this characterization of the trial
ignores significant evidence that implicated only Winston, and
not Payne. For example, Herevia testified that Winston was
present during the installation of the secret compartment in the
truck, and that the secret compartment and the sham Shale
Entergy decals were Winston’s ideas. And Winston made
15
incriminating statements that were admitted at trial, whereas
Payne remained silent post-arrest.
In sum, the evidence at trial showed that Winston was
caught with a significant amount of cocaine and cash in a secret
compartment built into his own truck. Both tangible evidence
and Winston’s own statements proved that the version of events
he gave to both law enforcement and the jury was false. In
light of the overwhelming evidence of Winston’s guilt, we
conclude that any error the district court may have made in
admitting evidence of the North Carolina incident was harmless.
We therefore affirm.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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