United States v. Boomer , 165 F. App'x 266 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4907
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL LAMONT BOOMER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District Judge.
(CR-04-89)
Submitted: November 30, 2005 Decided: February 3, 2006
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William J. Dinkin, DINKIN, PURNELL & JOHNSON, PLLC, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Michael J. Elston, Angela Mastandrea-Miller, Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Michael Lamont Boomer was convicted after a jury trial for
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1) & (b)(1)(A) (2000), possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(D) (2000), and possession of a firearm in furtherance of drug
trafficking, in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp.
2005). He argues that the search warrant for his home was invalid,
that the district court erred in denying his motion for a new trial
on the ground that police destroyed evidence, and that his
conviction for possession of a firearm in furtherance of a drug
trafficking crime was not supported by sufficient evidence. Finding
no error, we affirm.
I.
Boomer argues that the district court erred by denying his
motion to suppress the evidence obtained through the execution of a
search warrant for his home because probable cause did not support
the warrant and the court erred in finding that the good faith
exception to the exclusionary rule applied. If a warrant is found
to be defective, the evidence obtained from the defective warrant
may nevertheless be admitted under the good faith exception to the
exclusionary rule. United States v. Leon, 468 U.S. 897, 922-23
(1984). Evidence seized pursuant to a defective warrant will not be
- 2 -
suppressed unless: (1) the affidavit contains knowing or reckless
falsity; (2) the magistrate acts as a rubber stamp for the police;
(3) the affidavit does not provide the magistrate with a substantial
basis for determining the existence of probable cause; or (4) the
warrant is so facially deficient that an officer could not
reasonably rely on it. United States v. Wilhelm, 80 F.3d 116, 121-
22 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151, 1156
(4th Cir. 1995).
Where, as here, the challenge is to both the probable
cause determination and also the conclusion that the good faith
exception applies, the court will ordinarily address the good faith
determination first, unless the case involves the resolution of a
novel question of law necessary to provide guidance to police
officers and magistrates. See United States v. Legg, 18 F.3d 240,
243 (4th Cir. 1994); United States v. Craig, 861 F.2d 818, 820 (5th
Cir. 1988) (“Principles of judicial restraint and precedent dictate
that, in most cases, we should not reach the probable cause issue if
. . . the good-faith exception of Leon will resolve the matter.”).
Boomer contends that the good faith exception should not
apply in this case because Officer Godsey’s reliance on the
allegedly insufficient search warrant was objectively unreasonable.
Godsey’s affidavit stated that he was experienced in narcotics
investigation and identified the plant seeds and stems as marijuana,
and identified sandwich bag materials. The officer also found in
- 3 -
the same trash a piece of mail with the residence’s address on it.
Based on these facts, we conclude that an objectively reasonable
police officer could rely on the integrity of the warrant.
Therefore, the district court properly applied the good faith
exception. See United States v. Dickerson, 166 F.3d 667, 694-95
(4th Cir. 1999), rev’d in part on other grounds, 530 U.S. 428(2000); see also Leon, 468 U.S. at 926; United States v. Lalor, 996
F.2d 1578, 1583 (4th Cir. 1993).
II.
Boomer filed a motion for a new trial under Fed. R. Crim.
P. 33, arguing that the Government did not comply with the discovery
order because it did not make the potentially exculpatory videotape
of the search available to him. The district court denied the motion
finding that there was no due process violation because Boomer did
not prove that the evidence would have been favorable to him, that
it was material, or that the police destroyed the tape in bad faith.
In evaluating whether the government’s withholding of
material evidence as to guilt or punishment violates a defendant’s
due process rights, the court looks to Brady v. Maryland, 373 U.S.
83 (1963). To prove a Brady violation, a defendant must show that
the non-disclosed evidence was (1) favorable to the defendant; (2)
material; and (3) intentionally suppressed by the government. Moore
v. Illinois, 408 U.S. 786, 794-95 (1972). When law enforcement
- 4 -
officers fail “to preserve evidentiary material of which no more can
be said than that it could have been subjected to tests, the results
of which might have exonerated the defendant,” a defendant must show
bad faith on the part of law enforcement officers to establish a
denial of constitutional due process. Arizona v. Youngblood, 488
U.S. 51, 57 (1988).
Boomer argues that the exculpatory value of the destroyed
videotape was apparent to the police before its destruction because
the Government’s case turned on Boomer’s constructive possession of
drugs and the firearm. Therefore Boomer argues that the videotape
would have demonstrated, to Boomer’s benefit, the distance between
himself and the contraband. Further, police testimony was that
Boomer confessed to the crimes, but that his confession was not
recorded in Godsey’s notes. Boomer maintained that he did not
confess, but did not testify at trial.
At trial, Officer Godsey testified that it is the
Chesterfield County Police Department’s standard operating procedure
to videotape the execution of a search warrant. The purpose of the
videotape is to protect the police against claims by citizens
asserting that their property was damaged during the search. The
tapes are recycled as a matter of course every thirty to forty-five
days. Godsey further testified that the tape was recycled before
Boomer had been charged at all because the police thought that he
would be a cooperating witness. It was not until approximately six
- 5 -
months after the search that Boomer was indicted. Godsey further
testified that he did not remember anyone in the room with him when
Boomer confessed and therefore it is unlikely that Godsey’s
interaction with Boomer was videotaped.
Boomer has not sustained his burden that the videotape
would have been favorable to him or was material to his case. In
addition, there was no evidence that the police may have destroyed
or recycled the videotape in bad faith. Therefore, the district
court did not abuse its discretion in denying a new trial on this
basis.
III.
Boomer argues that there was insufficient evidence to
convict him on count three: possession of a firearm in furtherance
of a drug trafficking crime. Boomer specifically argues that even
if the Government proved that he possessed a firearm and he
committed a drug trafficking crime, it did not prove that possession
of the firearm was in furtherance of the crime.
A defendant challenging the sufficiency of the evidence
faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). This
- 6 -
court “ha[s] defined ‘substantial evidence,’ in the context of a
criminal action, as that evidence which ‘a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.’” United States v.
Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996)).
We conclude that there was substantial evidence to support
the verdict that Boomer possessed a firearm in furtherance of a drug
trafficking crime. Boomer confessed to police that he possessed the
drugs with intent to sell them. The drugs were found in a bedroom
that was not Boomer’s, but Boomer stated that when he heard the
police approach he picked them up from the front living room and
tossed the items on a bed. Boomer told Godsey that he had purchased
the marijuana and crack cocaine in Richmond earlier in the weekend
and that the other individual in the house at the time of arrest had
come to purchase marijuana from him. Boomer indicated which bedroom
belonged to him, and officers observed a silver 9 mm handgun loaded
with sixteen rounds on a table at the end of the bed. Officers also
observed a bulletproof vest on the floor between the dresser and
nightstand. Boomer told the officers that the gun and bulletproof
vest were his and that he had purchased them in Richmond. Police
also found a dresser drawer that had been pulled out of the dresser
and was on the floor containing $1500 in currency and another small
bag of marijuana. Finally, Special Agent Terpening testified that
- 7 -
drug dealers often have guns to protect themselves and that he based
his opinion that the gun was possessed in furtherance of the
trafficking crime on the location of the gun near the drugs.
Although Boomer argues that Agent Terpening’s opinion is
not sufficient to establish the nexus between the gun and drug
trafficking, we find that Terpening’s opinion was not the only
evidence of the furtherance element. A reasonable jury could
conclude that Boomer possessed the firearm in furtherance of a drug
trafficking crime because the firearm was located near a large
amount of currency and an additional amount of marijuana, Boomer
told police that the other occupant of the house was there to
purchase marijuana, and the gun was on the dresser, easily
accessible and loaded with sixteen rounds. That evidence in
conjunction with Terpening’s opinion, was sufficient to find Boomer
guilty of the charge. See United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002) (discussing factors courts consider in determining
whether sufficient nexus exists between firearm and drug offenses).
Accordingly, we affirm. We deny Boomer’s motion to file
a pro se supplemental brief. 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
- 8 -