United States v. Trapp , 241 F. App'x 148 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICARDO J. TRAPP, a/k/a Ricardo Jovan Trapp,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:05-cr-00387-JRS)
Submitted: July 12, 2007 Decided: July 20, 2007
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John C. Jones, Jr., Providence Forge, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo J. Trapp appeals his convictions and sentence for
distribution of 50 grams or more of cocaine base, see 21 U.S.C.A.
§ 841(a)(1), (b)(1)(A)(iii) (West 1999 & Supp. 2007), possession of
a firearm in furtherance of a drug trafficking crime, see 18
U.S.C.A. § 924(c) (West 2000 & Supp. 2007), and possession of a
firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West
2000). Finding no error, we affirm.
I.
In March 2005, Richmond, Virginia narcotics detectives
arranged the first in a series of controlled drug purchases from
Salethia Mason, a known drug dealer, using a confidential informant
(CI). Mason arrived at the prearranged buy location accompanied by
Trapp. A second controlled purchase of cocaine base from Mason
occurred on May 6, 2005; Mason was again accompanied by Trapp.
Trapp’s participation at this controlled purchase was visually
confirmed by an officer in the narcotics unit’s surveillance
support van because Mason parked his vehicle directly beside the
van. The officer observed Mason, Trapp, and the CI huddled
together in Mason’s vehicle during the transaction.
A third and final controlled purchase occurred on June 24,
2005. As on prior occasions, the CI contacted Mason to make
arrangements to buy 62 grams of cocaine base. This time, however,
Mason indicated that the CI would need to wait because the cocaine
2
base was not yet fully cooked. Later, the CI received a telephone
call from Mason indicating that the cocaine was ready for sale and
that they would meet in the parking lot of a McDonald’s restaurant.
Richmond police officers working surveillance then observed Trapp
and Mason leave Trapp’s grandmother’s residence in a vehicle driven
by Trapp. Shortly thereafter, the men arrived at the prearranged
buy location. The CI joined Mason and Trapp in the car and
completed the purchase. Because the drug quantity was less than
the agreed upon amount, Trapp and Mason told the CI that he could
ride back with them to pick up the remainder. The CI declined.
Trapp was stopped soon after leaving the parking lot and
arrested. At that time law enforcement officers recovered U.S.
currency, matching the bills given to the CI to make the controlled
buy, and a plastic sandwich bag box containing baggies and a razor
blade. Officers also recovered a loaded 9 millimeter handgun from
under the driver’s seat cushion.
During his trial, Trapp admitted that he had previously been
convicted of felony distribution of cocaine and felony possession
of a concealed firearm. He also stated that he knew Mason sold
drugs and that a drug transaction took place in his car on June 24,
2005 in the restaurant parking lot. He also admitted that he was
aware a drug transaction had taken place between Mason and the CI
on May 6, 2005. Trapp further testified that although the gun
3
recovered from his car was not his, he had the only set of keys to
the car.
After a one-day bench trial, Trapp was convicted and sentenced
to 262 months imprisonment for distribution of 50 grams or more of
cocaine base. He was also sentenced to a 60-month consecutive term
for possession of a firearm in furtherance of a drug trafficking
crime, and to a 120-month concurrent term for possession of a
firearm by a convicted felon.
II.
Trapp argues that the evidence was insufficient to support his
convictions. When reviewing a challenge to the sufficiency of the
evidence, we consider whether the evidence, taken in the light most
favorable to the Government, was sufficient for a rational trier of
fact to have found the essential elements of the crime beyond a
reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996) (en banc). Thus, a defendant challenging his conviction
based upon the sufficiency of the evidence “bears a heavy burden,”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted), as “a decision [to reverse for
insufficient evidence] will be confined to cases where the
prosecution’s failure is clear.” Burks v. United States, 437 U.S.
1, 17 (1978).
4
Having examined the record in light of these principles, we
conclude that the evidence was sufficient to support Trapp’s
conviction for distribution of 50 grams or more of cocaine base.
See Burgos, 94 F.3d at 862-63.
Trapp also challenges the sufficiency of the evidence
supporting his convictions for being a felon in possession of a
firearm and possession of a firearm during a drug crime. Because
Trapp stipulated to the facts that he had been previously convicted
of a felony, that the firearm had moved in interstate commerce, and
that his right to own or possess a gun had not been restored, the
Government was required to prove only that Trapp knowingly
possessed a firearm. See United States v. Langley, 62 F.3d 602,
606 (4th Cir. 1995) (en banc); United States v. Scott, 424 F.3d
431, 435-36 (4th Cir. 2005). The evidence in the record, including
Trapp’s own testimony that the vehicle was his and that he
possessed the only set of keys to it, amply supports a conclusion
that Trapp constructively possessed the firearm recovered from his
vehicle. See Scott, 424 F.3d at 435.
With respect to his conviction for possession of a firearm in
furtherance of a drug trafficking crime, Trapp contends that the
Government did not meet its burden of proving that he knowingly
possessed the firearm during the drug transaction. See 18 U.S.C.A.
§ 924(c)(1)(A) (providing that “any person who, during and in
relation to any crime of violence or drug trafficking crime ...,
5
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm” shall be sentenced to an additional
term of imprisonment) (emphasis added). Again, when we examine the
record, we conclude that the evidence to support Trapp’s conviction
was sufficient. Trapp stated that the vehicle was his, that he was
the only person with keys to it, and that he drove Mason to the
parking lot on June 24, 2005 for a drug sale. Five to ten minutes
after leaving the parking lot, Trapp was arrested. The firearm,
along with other physical evidence, was recovered at this time.
III.
Trapp also asserts that the Government’s failure to disclose
an investigation of a case agent for a misdemeanor offense violated
his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio
v. United States, 405 U.S. 150 (1972). We review the factual
findings of a district court regarding claims of prosecutorial
misconduct for clear error. See United States v. Ellis, 121 F.3d
908, 927 (4th Cir. 1997) (noting that review of district court’s
determination of prosecutorial misconduct is mixed question of law
and fact). To prove a Brady violation, a defendant must show he
requested certain evidence and that it was (1) favorable; (2)
material; and (3) the prosecution had it and failed to disclose it.
See Moore v. Illinois, 408 U.S. 786, 794-95 (1972); United States
v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence tending to
6
impeach a government witness must be disclosed to a defendant if
known to the government. See Giglio, 405 U.S. at 154.
Trapp’s claim is based on a post-conviction investigation of
a Richmond Police Department officer, who was involved in the
investigation leading to Trapp’s arrest, for a misdemeanor offense.
After reviewing the record, we conclude that Trapp has wholly
failed to meet his burden and therefore cannot prevail on this
claim. The record reveals that the Government was not aware of the
investigation of the officer prior to Trapp’s trial and that the
officer’s role in that investigation was limited. See id. In
addition, Trapp has failed to demonstrate how the information was
material and favorable to him. See id. at 154-55; Stokes, 261 F.3d
at 502. Instead, Trapp argues only that if the officer was willing
to break the law in one instance then she might also be willing to
break the law in other instances. Such speculation is not enough
to establish a Brady or Giglio violation.
IV.
For the reasons set forth above, we affirm Trapp’s convictions
and sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
us and argument would not aid the decisional process.
AFFIRMED
7