United States v. Nixon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5013
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY LEROY NIXON,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00008-RLV-DSC-1)
Submitted: September 23, 2010 Decided: October 1, 2010
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Leroy Nixon appeals his jury convictions and
180-month sentence for one count each of: (i) possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) (2006); (ii) using and carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2006); and (iii) possession
of a firearm in and affecting commerce by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). Nixon asserts that
the district court erred when it denied his motion to suppress
the fruits of a warrantless police search on his vehicle,
allowed evidence of other bad acts, allegedly in violation of
Fed. R. Evid. 404(b), failed to grant his motion for a mistrial,
and denied his motion for judgment of acquittal on his § 924(c)
conviction. Because we disagree, we affirm the district court’s
judgment.
In reviewing the district court’s denial of Nixon’s
suppression motion, we review the district court's factual
determinations for clear error and any legal determinations de
novo. United States v. Kelly, 592 F.3d 586, 589 (4th Cir.),
cert. denied, 130 S. Ct. 3374 (2010). Because the district
court denied Nixon’s motion, we construe the evidence “in the
light most favorable to the government.” Id.2
The Fourth Amendment guarantees “the right of the
people to be secure . . . against unreasonable searches and
seizures . . . .” U.S. Const. amend. IV. This guarantee
requires that “searches be conducted pursuant to a warrant
issued by an independent judicial officer.” California v.
Carney, 471 U.S. 386, 390 (1985). There are “a few specifically
established and well-delineated exceptions[,]” however.
California v. Acevedo, 500 U.S. 565, 580 (1991) (internal
quotation marks and citations omitted).
For instance, it is undisputed that the officers were
within their rights to conduct the vehicle checkpoint during
which Nixon was detained. See City of Indianapolis v. Edmond,
531 U.S. 32, 37-38 (2000) (reaffirming that a “roadblock with
the purpose of verifying drivers’ licenses and vehicle
registrations would be permissible”). Moreover, officers asked
Nixon for consent to search his person and the record
establishes that Nixon voluntarily agreed. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (recognizing that consent
is an exception to the warrant requirement).
Nixon nonetheless suggests that after the officers
found crack cocaine on his person, arrested him and placed him
in handcuffs, he could not have voluntarily consented to the
search of his vehicle because the officers failed to Mirandize
him. Regardless of whether Nixon consented to the search of his
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vehicle, we find that the crack cocaine found on Nixon’s person
provided officers with an independent right to conduct a limited
protective search of the vehicle. See Arizona v. Gant, 129 S.
Ct. 1710, 1723 (2009) (holding that police may search a vehicle
incident to a recent occupant’s arrest if it is reasonable to
believe the vehicle contains evidence of the offense of arrest).
Moreover, we conclude that, under the facts of this case, the
absence of Miranda warnings did not render Nixon’s consent
involuntary. United States v. Saenz, 474 F.3d 1132, 1137
(8th Cir. 2007); United States v. Elie, 111 F.3d 1135, 1146
(4th Cir. 1997) (recognizing that “the absence of Miranda
warnings is [only] a factor to be considered in assessing
whether a defendant's consent was given voluntarily”), abrogated
in part on other grounds by, United States v. Sterling, 283 F.3d
216 (4th Cir. 2002).
Given the narcotics found on Nixon’s person and in the
passenger compartment of the vehicle he drove, the officers also
had probable cause to search the vehicle’s trunk under the
“automobile exception” to the warrant requirement. Kelly,
592 F.3d at 589; see Gant, 129 S. Ct. at 1721 (recognizing that
“[i]f there is probable cause to believe a vehicle contains
evidence of criminal activity, United States v. Ross, 456 U.S.
798, 820-821 (1982), authorizes a search of any area of the
vehicle in which the evidence might be found”).
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In light of the narcotics canine’s alert on the safe
found in the vehicle’s trunk, and considering Nixon’s narcotics
possession, we hold that the subsequent search of the safe was
also supported by probable cause. See Acevedo, 500 U.S. at 579-
80 (eliminating warrant requirement for locked containers in
automobiles, which require probable cause); United States v.
Jeffus, 22 F.3d 554, 557 (4th Cir. 1994) (holding that a drug
detection dog alert on an automobile gives rise to probable
cause to search the automobile). Because we conclude that the
district court correctly determined that Nixon’s consent and
probable cause justified the search of Nixon’s person and the
vehicle he drove, we conclude that the district court did not
err when it denied Nixon’s motion to suppress the fruits of the
checkpoint search on his vehicle.
Nixon next asserts that the district court erred when
it allowed the jury to hear evidence that he was taken into
custody and questioned by police the day following his
checkpoint arrest. According to Nixon, the evidence of his
subsequent arrest was inadmissible under Rule 404(b) because it
was not “inextricably intertwined” with the crimes for which he
was tried and its prejudicial effect substantially outweighed
its probative value.
Rule 404(b) is “an inclusive rule, admitting all
evidence of other crimes or acts except that which tends to
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prove only criminal disposition.” United States v. Young, 248
F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks and
citation omitted). To be admissible under Rule 404(b), prior
bad acts evidence: (i) must be relevant to an issue other than
character, such as intent; (ii) must be necessary to prove an
element of the crime charged; (iii) must be reliable; and (iv)
its probative value must not be substantially outweighed by its
prejudicial nature. See United States v. Siegel, 536 F.3d 306,
317-21 (4th Cir. 2008).
Rule 404(b) does not limit the admission of evidence
of acts intrinsic to the crime charged, however. United
States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). “Other
criminal acts are intrinsic when they are inextricably
intertwined or both acts are part of a single criminal episode
or the other acts were necessary preliminaries to the crime
charged.” Id. at 88 (citation and internal quotation marks
omitted). We have also recently recognized that “[e]vidence is
inextricably intertwined with the evidence regarding the charged
offense if it forms an integral and natural part of the
witness's accounts of the circumstances surrounding the offenses
for which the defendant was indicted.” United States v. Wilson,
-- F.3d --, 2010 WL 3495876, *6 (4th Cir. Sept. 8, 2010)
(internal citation and quotation marks omitted). Rule 404(b)
decisions by the district court are discretionary and will not
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be overturned unless arbitrary or irrational. See United States
v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). We conclude that
the district court’s decision to admit the limited fact of
Nixon’s custody on the day following his checkpoint arrest was
neither arbitrary nor irrational. 1 Wilson, 2010 WL 3495876 at
*6.
Nixon last asserts that the district court erred when
it denied his motion for judgment of acquittal on his § 924(c)
conviction because he claims that nothing in his encounter with
police on the day of his arrest ties his firearm possession to a
drug trafficking offense. We review the denial of a Fed. R.
Crim. P. 29 motion de novo. See United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005). When a Rule 29 motion was based
on a claim of insufficient evidence, the jury’s verdict must be
sustained “if there is substantial evidence, taking the view
most favorable to the Government, to support it.” United States
v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal
quotation marks and citations omitted). This court “ha[s]
defined ‘substantial evidence’ as evidence that a reasonable
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We also discern no error in the district court’s decision
to deny Nixon’s motion for a mistrial. See United States v.
Wallace, 515 F.3d 327, 330-31 (4th Cir. 2008) (holding that
district court did not abuse its discretion when it denied a
motion for mistrial where the Government did not purposefully
elicit prejudicial testimony and defense counsel did not
immediately request a curative instruction).
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finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Alerre, 430 F.3d at 693 (internal quotation marks and
citations omitted).
We “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982) (citations omitted). 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).
To convict Nixon of violating § 924(c), the Government
was required to prove that Nixon: (i) committed a drug
trafficking crime; and (ii) possessed a firearm in furtherance
of that crime. 18 U.S.C. § 924(c)(1)(A). We have reviewed the
record and conclude that, construing the evidence in the light
most favorable to the Government, a reasonable finder of fact
could have found beyond a reasonable doubt that Nixon possessed
the firearm found by police to further his crime of possession
with intent to distribute cocaine base. Cf. United States v.
Lomax, 293 F.3d 701, 705-06 (4th Cir. 2002).
Based on the foregoing, we affirm the district court’s
judgment. 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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