United States v. Norman , 379 F. App'x 311 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AL-LAIN DELONT NORMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cr-00034-RGD-FBS-1)
Submitted: April 7, 2010 Decided: May 25, 2010
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, PLC, Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Damian J. Hansen, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Al-lain Delont Norman of possession
with intent to distribute fifty or more grams of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) (2006)
and 18 U.S.C. § 2 (2006) (“Count Two”); possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (“Count Three”); and maintaining a drug-involved
premises, in violation of 21 U.S.C. § 856(a)(1) (2006) and 18
U.S.C. § 2 (“Count Six”). 1 The district court sentenced Norman
to concurrent terms of life imprisonment on Count Two, 360
months on Count Three, and 240 months on Count Six. On appeal,
Norman advances three contentions of error with respect to his
convictions. 2 For the reasons discussed below, we reject these
arguments and affirm the district court’s judgment.
I. Denial of Norman’s Motion to Suppress
Norman first argues that the search warrant the police
obtained prior to his arrest was invalid, and thus that the
narcotics seized upon execution of the warrant should have been
1
The jury acquitted Norman of the three other counts
charged in the six-count superseding indictment.
2
Norman has filed several motions to file pro se
supplemental briefs. As Norman is represented by counsel and
this appeal has not been submitted pursuant to Anders v.
California, 386 U.S. 738 (1967), we deny these motions.
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suppressed. We review the district court’s factual findings
underlying its resolution of a motion to suppress for clear
error and legal determinations de novo. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
In reviewing the validity of a search warrant, the
relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983); Grossman, 400 F.3d
at 217. When a warrant application is based on hearsay, the
issuing court must assess “the veracity and basis of knowledge
of persons supplying hearsay information” to determine “whether
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” United States v.
Servance, 394 F.3d 222, 229 (4th Cir.) (internal quotation marks
omitted), vacated on other grounds, 544 U.S. 1047 (2005). “If
such a showing has been made by affidavit, the issuance of a
search warrant must be sustained on appeal.” Id. This court
affords “great deference” to a judicial probable cause
determination. United States v. Hodge, 354 F.3d 305, 309 (4th
Cir. 2004).
We reject Norman’s contention that the warrant
affidavit was legally insufficient because it contained
conclusory statements regarding the informant’s reliability and
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failed to demonstrate the veracity of the informant’s assertions
regarding Norman’s criminal activity. Corroboration of salient
facts provided by the informant, Lamont Malone, amply
demonstrated Malone’s veracity. See Alabama v. White, 496 U.S.
325, 331-32 (1990); United States v. Lalor, 996 F.2d 1578, 1581
(4th Cir. 1993) (holding that, pursuant to Gates, confirmation
of “innocent details” provided by the informant, which included
the defendant’s “address, vehicle, and alias[,] gives credence
to the allegations of criminal activity”).
The affidavit also established Malone’s reliability.
In cooperating with the police, Malone provided information
about his own criminal actions. The Supreme Court has
instructed that this is highly relevant to the reliability
inquiry: “[a]dmissions of crime, like admissions against
proprietary interests, carry their own indicia of credibility —
sufficient at least to support a finding of probable cause to
search.” United States v. Harris, 403 U.S. 573, 583 (1971).
Further, Malone spoke with the police in person and was
identified by name in the warrant affidavit. This court has
explained that “the circumstances necessarily surrounding a
face-to-face meeting alone provide certain indicia of
credibility that are lacking when the warrant is based solely on
a telephone call from an anonymous, never-to-be-identified
informant.” United States v. Perez, 393 F.3d 457, 464 (4th Cir.
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2004). Lastly, the affidavit reflected the investigating
officer’s professional opinion that Malone’s information was
“accurate and reliable.”
Finally, the warrant affidavit demonstrated the basis
for the proffered information: Malone’s first-hand observations
of Norman’s criminal activity the night before his arrest.
Gates, 462 U.S. at 238; United States v. DeQuasie, 373 F.3d 509,
518 (4th Cir. 2004). This type of first-hand, direct knowledge
is afforded greater credence than hearsay information. See,
e.g., Perez, 393 F.3d at 462 (affirming issuance of search
warrant that was based, in part, on informant’s statement that
established his first-hand knowledge of relevant facts).
For these reasons, we affirm the district court’s
denial of Norman’s motion to suppress. 3
II. Admission of Norman’s Prior Narcotics Conviction
Norman next argues the district court should have
excluded evidence of his 1998 felony conviction for possession
with intent to distribute cocaine. We review a district court’s
evidentiary rulings for an abuse of discretion. United States
v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). An abuse of
3
In light of this ruling, we decline to consider Norman’s
alternative argument that the district court erred in concluding
that the good-faith exception to the exclusionary rule applied.
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discretion occurs when “the district court judge acted
arbitrarily or irrationally in admitting evidence.” Id. at 326(internal quotation marks omitted).
Federal Rule of Evidence 404(b) prohibits the
admission of evidence of “other crimes, wrongs, or acts” solely
to prove a defendant’s bad character; however, this evidence may
be admitted “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). For
such evidence to be admissible under Rule 404(b), it “must be
(1) relevant to an issue other than character; (2) necessary;
and (3) reliable.” Basham, 561 F.3d at 326. In addition, the
evidence must be more probative than prejudicial. Id. (citing
Fed. R. Evid. 403).
Here, the district court found the evidence of
Norman’s prior narcotics conviction was admissible because it
demonstrated Norman’s knowledge of narcotics distribution,
motive, and intent to distribute cocaine. This ruling is wholly
consistent with the law of this Circuit. See United States v.
Rooks, 596 F.3d 204, 211 (4th Cir. 2010) (affirming admission of
evidence of prior narcotics conviction to establish the
defendant’s knowledge of drug trafficking and intent to
distribute). Accordingly, we conclude the district court did
not abuse its discretion in admitting this evidence.
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III. Sufficiency of the Evidence
Finally, Norman challenges the sufficiency of the
Government’s evidence that he constructively possessed the drugs
found in his motel room. More particularly, Norman argues the
Government did not demonstrate that he had actual knowledge of
and dominion and control over the drugs.
In reviewing a challenge to the sufficiency of the
Government’s evidence, this court determines whether, viewing
the evidence in the light most favorable to the Government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. United States v. Collins, 412
F.3d 515, 519 (4th Cir. 2005); see Glasser v. United States, 315
U.S. 60, 80 (1942). We consider both direct and circumstantial
evidence, and accord the Government all reasonable inferences
that may be drawn from the proven facts to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008). This court will uphold the jury’s verdict if
substantial evidence supports it, and will reverse only in those
rare cases of clear failure by the prosecution. United States
v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007).
We have thoroughly reviewed the record and conclude
the Government’s evidence was more than sufficient to establish
Norman’s possession of the narcotics. See United States v.
Moye, 454 F.3d 390, 395 (4th Cir. 2006). In executing the
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search warrant, the police seized 115.6 grams of crack cocaine
and 105.3 grams of powder cocaine from the motel room that was
rented in Norman’s name — a fact that Norman conceded — and in
which Norman was one of two occupants. Plainly, Norman had
sufficient dominion and control over the premises to establish
his constructive possession of the drugs hidden therein. United
States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010) (“A person
may have constructive possession of contraband if he has
ownership, dominion, or control over the contraband or the
premises or vehicle in which the contraband was concealed.”).
Moreover, there was ample evidence of Norman’s actual possession
of the seized drugs. Both Malone and Norman’s companion in his
motel room testified that the drugs belonged to Norman.
Although Norman vigorously disputed their testimony, the jury
was well within its province to credit it, and we will not
disturb such a credibility determination on appeal. See Harvey,
532 F.3d at 333 (“Where there are conflicts in the testimony, it
is for the jury and not the appellate court to weigh the
evidence and judge the credibility of the witnesses.”) (internal
quotation marks omitted).
For these reasons, we affirm Norman’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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