United States v. Bynum , 227 F. App'x 260 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4317
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHURAY VONIQUE BYNUM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:05-cr-00084-RBS)
Submitted: March 19, 2007 Decided: April 3, 2007
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer T. Stanton, Norfolk, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Andrew M. Robbins, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shuray Bynum was indicted after the police discovered
(pursuant to a search warrant) crack cocaine and drug dealing
paraphernalia in her residence. She was tried and convicted of
conspiracy to possess with the intent to distribute cocaine base,
21 U.S.C. § 846, possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(2), and maintaining a drug-involved premises, 21
U.S.C. § 856(a)(1). Bynum appeals both her convictions and
sentence. We find no reversible error and therefore affirm.
I.
On April 7, 2005, the Portsmouth, Virginia, police
received a tip from a confidential informant (CI) that Calvin
“Teko” Coston was sitting in a white Honda Civic parked at the
corner of Astor Avenue and Pinewell Street and that he had crack
cocaine concealed in his buttocks area. Three officers drove to
the location and saw a white Honda Civic with two males in the
front seat. The officers approached the car and observed the male
in the passenger seat reach toward the rear waistband of his pants.
The officers opened the front door of the car and ordered the
passenger to show his hands. One officer immediately recognized
the man as Calvin Coston.
The officer patted down Coston and detected a “hard,
lumpy ball” concealed in his underwear. The officer retrieved the
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item, which was a bag containing 4.020 grams of crack cocaine. The
officers also recovered $392 from Coston’s jacket pockets.
Shortly after Coston’s arrest, the CI informed the police
that Coston kept more drugs and firearms at his residence, which he
shared with Bynum, at 80 Cushing Street. The CI also stated that
he had personally observed drugs and firearms at Coston’s residence
within the previous 72 hours. Coston admitted to the police that
he lived at 80 Cushing Street with Bynum. A check of the Honda’s
license plate also revealed that the car was registered to Bynum.
Based on this information and the crack recovered from Coston’s
body, the police obtained a search warrant for the 80 Cushing
Street residence.
While the search warrant was being prepared, several
officers went to 80 Cushing Street to secure the premises. Bynum
arrived at the scene shortly thereafter and attempted to enter her
first floor bedroom. She argued with the police, who prevented her
from entering. Bynum then sped away in her car. She returned
twenty minutes later, insisted on entering the house, and attempted
to push her way past the police. The police responded this time by
placing her in a patrol car.
The search of Bynum’s bedroom yielded drugs, cash, and
evidence of drug distribution. In the top drawer of her dresser,
the police discovered a “packaging station” that included a digital
scale, plastic baggies, and razor blades. Another dresser drawer
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contained a second scale and $560 in cash. Three bags, containing
99.043 grams of cocaine base, were hidden in clothes belonging to
Coston. The police also recovered a Ruger nine millimeter handgun
and ammunition from a container filled with women’s clothes.
After a two-day trial the jury found Bynum guilty of
conspiracy to possess with the intent to distribute crack cocaine,
possession of a firearm by a felon, and maintaining a drug
premises. In the special verdict form the jury found that Bynum
conspired to distribute less than five grams of crack cocaine. At
sentencing the district court calculated the Sentencing Guidelines
range based on its determination that Bynum was responsible for 110
grams of crack and sentenced her to 151 months’ imprisonment.
II.
Bynum argues that the search warrant was invalid, the
evidence was insufficient to support her convictions, the district
court erred in giving a willful blindness instruction, the court
erred in denying her motion for a new trial, and the sentence
violated her Sixth Amendment rights. We consider these arguments
in turn.
A.
First, Bynum argues that the police committed an illegal
search of Coston, rendering invalid the resulting search warrant
for the house where she and Coston lived. A defendant can
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challenge the search of a third party only if she has a reasonable
expectation of privacy in the area searched or the property seized.
See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v.
Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995). The police recovered
the crack cocaine from Coston’s body. Because Bynum does not have
a reasonable expectation of privacy with respect to Coston’s body,
she does not have standing to challenge his body search.
B.
Second, Bynum argues that there was insufficient evidence
to support the verdict because the government did not prove that
she had any knowledge of the drugs or handgun in her bedroom. The
verdict must be upheld on appeal “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). The trial record
contains substantial evidence that Bynum was aware of the
contraband in her house and was a willing participant in the
conspiracy to distribute the drugs. The police uncovered drugs and
drug paraphernalia throughout her bedroom. They also uncovered a
gun and ammunition in a box containing her clothes. Furthermore,
Bynum’s frantic attempts to enter her bedroom before the police
executed the search warrant indicate that she was aware of the
incriminating evidence located there.
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C.
Third, Bynum argues that the jury instruction on willful
blindness was inappropriate because she never testified that she
was unaware of the contraband in her bedroom. “A willful blindness
instruction is appropriate when the defendant asserts a lack of
guilty knowledge but the evidence supports an inference of
deliberate ignorance.” United States v. Guay, 108 F.3d 545, 551
(4th Cir. 1997). Although Bynum did not take the witness stand,
her lawyer argued at closing that she was ignorant of Coston’s
activities in her own bedroom, where Coston spent at least several
nights a week. Bynum therefore asserted a lack of guilty
knowledge.
We also reject Bynum’s contention that there was no
evidentiary foundation for the willful blindness instruction. The
evidence supported an inference of deliberate ignorance. The
presence of contraband in Bynum’s bedroom, and her frantic attempts
to enter the bedroom once the police arrived, support the inference
that she had knowledge of what was concealed there.
D.
Fourth, Bynum argues that the district court erred in
denying her motion for a new trial. She contends that a new trial
is warranted on two grounds: (1) a government witness gave false
testimony at trial and (2) juror misconduct. The district court
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did not abuse its discretion, see United States v. West, 877 F.2d
281, 287-88 (4th Cir. 1989), in denying this motion.
1.
Bynum contends that a new trial is warranted because
Officer McAndrew, a government witness, falsely testified that her
Honda Civic was registered to 112 Ivey Street. A new trial may be
ordered when (1) a material witness gives false testimony, (2) the
false testimony might have affected the jury’s verdict, and (3) the
moving party was “taken by surprise when the false testimony was
given and was unable to meet it or did not know of its falsity
until after the trial.” United States v. Wallace, 528 F.2d 863,
866 (4th Cir. 1976).
We will assume that Bynum can establish the first two
elements of this test. First, the Honda Civic was not registered
to 112 Ivey Street as McAndrew testified, but to 80 Cushing Street.
Second, the testimony may have caused the jury to infer that Bynum
intentionally registered the Honda Civic, which Coston used to sell
drugs, to a false address in order to prevent the police from
linking the car to the location where the drugs were kept. Bynum,
however, fails to meet the third element because she clearly knew
the Civic was registered to 80 Cushing Street and could have
rebutted McAndrew’s testimony before the trial concluded.
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2.
Bynum argues that the district court should have declared
a mistrial due to improper extraneous influences on the jury
foreperson. Shortly after the jury returned its verdict, one of
the jurors informed the district court that the foreperson had
commented earlier that she was uncomfortable because she knew
Coston’s family. The court then questioned the foreperson about
her remarks. The foreperson stated that during the trial she
realized that one of her relatives had dated Coston before he went
to jail. She explained that she did not inform the judge of this
fact during voir dire because she had never met Coston personally
and knew him solely by his nickname, “Teko.” J.A. 874-75. She
then stated that she felt uncomfortable at times during the trial
because she thought that Coston’s family was looking at her. She
said, however, that this did not affect her judgment.
The foreperson’s realization is the sort of internal
influence that is not subject to judicial inquiry. See Tanner v.
United States, 483 U.S. 107, 117-21 (1987). There is no evidence
that there were any improper contacts with the foreperson or that
the foreperson was biased against Bynum. Thus, the district court
properly refused to overturn the jury’s verdict or inquire into the
internal deliberations of the jury.
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E.
Finally, Bynum argues that the court violated her Sixth
Amendment rights by calculating her sentence on a drug quantity
(110 grams) which exceeded that determined by the jury (less than
5 grams). This argument also fails. After the jury renders its
verdict, the sentencing judge makes the factual determinations
necessary to calculate the appropriate guidelines range. See,
e.g., United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005);
United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005). The
judge may consider the jury’s factual findings, but must
independently determine the relevant sentencing facts based on a
preponderance of the evidence. See United States v. Mares, 402
F.3d 511, 519 (5th Cir. 2005); United States v. Yeje-Cabrera, 430
F.3d 1, 13 (1st Cir. 2005). This judicial factfinding does not
violate the Sixth Amendment so long as the facts determined by the
judge do not enhance the defendant’s sentence beyond the time
authorized by the jury verdict. See United States v. Booker, 125
S. Ct. 738, 756-57 (2005); see also Hughes, 401 F.3d at 546;
Vaughn, 430 F.3d at 525-26. In Bynum’s case her conviction under
21 U.S.C. § 841(b)(1)(C) authorized a maximum sentence of thirty
years. The sentence actually imposed, 151 months, does not exceed
this statutory maximum. Thus, there is no Sixth Amendment
violation.
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* * *
For the foregoing reasons, Bynum’s convictions and
sentence are affirmed.
AFFIRMED
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