United States v. Billy D. Davis

reasons, the decision foregoing For reversed, court is the district proceedings further is remanded

case opinion. inconsistent with

not America, STATES of

UNITED

Plaintiff-Appellee,

Billy DAVIS, Lil D. also known as Defendant-Appellant.

Spook,

No. 05-4449. Appeals, States Court

Eighth Circuit. 15, 2006. June

Submitted: 9, 2006. Aug.

Filed: Rehearing En Banc

Rehearing and 20, 2006. Sept.

Denied Svoboda,

Nancy A. argued, Asst. U.S. Omaha, NE, Attorney, appellee. BYE, LAY, RILEY, Before Circuit Judges.

LAY, Judge. Circuit A jury Billy found D. guilty conspiracy fifty grams distribute or more of crack cocaine violation § U.S.C. appeal, 846. On challenges the district court’s1 denial of his motion to suppress evidence pursuant seized to a traffic stop and subsequent search of his person. argues Davis also the district court committed several evidentiary er- rors, (1) including: admitting evidence re- garding the seizure of crack cocaine under (2) 404(b); Federal Rule of Evidence re- fusing to admit proposed Davis’ expert (3) testimony sentencing; and admit- ting hearsay testimony under the cocon- spirator exception. Finally, Davis raises objections several to the 360 month sen- imposed by tence the district court. For below, the reasons set forth we affirm.

I. BACKGROUND trial, At government’s case-in-chief upon relied testimony of two Omaha Department Police officers coop- and four erating witnesses. Davis had two wit- nesses parts refute government’s case and testified on his own behalf. A. Gassaway Officer Jeffrey Officer Gassaway of the Omaha Department Police was the first witness for government. Officer Gassaway testified that repeated while he had con- tact with during the course of his Davis, Omaha, James M. argued, NE, work, police discovered Davis’ involve- appellant. for ment the instant conspiracy during the 1. The Camp, Honorable Laurie Smith braska. Judge States District for the District of Ne- arrest, a to exit vehicle so could be searched. prosecution of and

investigation, vehicle, in As Officer Rieck involved Davis exited number of individuals large received, Gassaway requested, permission Officer and narcotics cases.2 similar following a Rieck testi- person. the events search Davis’ also testified about February swept 2001. The stop on fied that Davis’ buttocks traffic when area, car object. remained vehicle he felt a rock or marble-like driver into passengers ran a resi- him placed three The handcuffed while officers from receiving permission cruiser, After police approxi- dence. in a and drove residence, officers assembly owner to search the mately police half block of the vehicle inside occupants building. very upset found Davis became containing crack co- baggie and a small began body, his sever- thrashing requiring toilet. The offi- downstairs caine behind police At the al officers to restrain him. hand of the vehicle’s occu- took swabs cers building, sought assembly Officer Rieck positive tested pants, Davis’ sergeant permission from his to conduct However, pas- one of other cocaine. However, strip strip on Davis. search claimed the crack of the vehicle sengers necessary because, not due search was court to him. The district admit- belonged his and un- thrashing, baggy pants Davis’ events, testimony of these over ted the Offi- derwear had fallen below his waist. Rule objection, pursuant to Federal Davis’ tip bag a plastic cer Rieck then saw 404(b). of Evidence and re- from Davis’ buttocks protruding trieved it.

B. Rieck Officer Witnesses Cooperating C. of the Omaha Police Officer David Rieck a stopped that he Department testified presented the tes- government The also a on passenger was in which Davis vehicle witnesses, all of timony cooperating four 12, 2001, the driver failed because October serving terms lengthy prison whom were a Rieck turned signal turn. As Officer conspiracies. These wit- for crack cocaine stop, he saw an lights to execute on his various the details of nesses recounted backseat, later in identified individual part.3 in Davis a drug played which deals Davis, make movements.” Offi- as “furtive Henderson, cooperating one of the Victor appeared it Davis cer Rieck testified witnesses, bought that he testified rear up right his torso off “raise[d] occa- separate Davis on two cocaine from seat, him as if goes and his hand behind Both intermediary. an through sions him, something either under placing he’s times, car while waited in a Henderson seat, per- his under the or somewhere cent store. Parish went inside Swift $.99 suggested These to Offi- son.” movements sight he lost of Swift testified Henderson trying conceal that Davis was cer Rieck store, when Swift but when he entered something. and stated had crack cocaine returned he objected from Davis. Davis bought driver he was under informing After The district testimony hearsay. as li- to this suspended driving arrest with come into the statement court allowed cense, passengers Officer Rieck asked testimony objected to these prosecution 3. witnesses’ Davis 2. Davis contended the instant against by After pro the court. the result of a vendetta se letter filed with was acquitted by Gassaway. considering arguments, Officer Davis we carefully Davis’ prosecution jury previous in a federal merit. find them to be without agent. Gassaway was the case which coconspirator evidence under the exception caine person found on Davis’ during the hearsay rule. search by conducted Officer Rieck on Oc- tober 2001. When considering a denial D.Evidence Presented the Defense of a motion suppress, we review the behalf, Davis testified on his own admit- district court’s factual findings for clear ting marijuana that he sold and used crack legal error and its conclusions de novo. cocaine, but denying that he ever sold United Esquivias, States v. cocaine. Davis also knowing denied two of (8th Cir.2005). cooperating witnesses who testified against him. Marcus Brown testified on Law may enforcement officers behalf of stating he observed Offi- briefly detain an individual for investiga Gassaway cer harassing at a local purposes they tive if have a reasonable and festival. testified, Parish Swift also deny- suspicion articulable activity. criminal ing he ever bought crack cocaine from Bustos-Torres, United States v. Davis on behalf Victor Henderson. The Cir.2005) (citing Terry v. district court request denied Davis’ to call Ohio, 1, 25-31, 392 U.S. 88 S.Ct. the Federal Public Defender for the Dis- (1968)). L.Ed.2d 889 In determining trict of provide Nebraska to expert testi- exists, whether reasonable suspicion we mony about the sentencing guidelines, totality consider the of the circumstances statutory sentences, minimum and sub- in light of experience the officers’ and spe stantial assistance. training. Arvizu, cialized United States v. 266, 273, 534 U.S. 122 S.Ct. E.Sentencing (2002). L.Ed.2d 740 During Terry stop, jury The found guilty of conspira- an officer who has reason to believe the cy to possess distribute or with intent to detained may individual be armed and dan distribute grams 50 or more of crack co- gerous may conduct a pat-down search for presentence caine. The investigation re- weapons to ensure safety. officer Bustos- port held Davis accountable for 2.47 kilo- Torres, 396 F.3d at 943. grams cocaine, of crack setting his offense level at 38. history With criminal cate- During the course of the lawful VI, gory of the advisory guidelines range traffic stop, Officer Rieck saw Davis rise was 360 prison. months to life in off the seat place and his hand behind his objected to presentence investigation back if as he were placing something un report’s calculation drug quantity, of argu- derneath or behind him. Officer Rieck ing the attributed amount upon was based testified this behavior was unusual and speculation mere and contending that the suspicion raised that Davis was attempting drug quantity should by have been found to something. hide Suspicious by behavior jury. The district court adopted the passenger during a traffic findings stop may of presentence rea investigation report sonably warrant a pat-down and of sentenced Davis to 360 the individ months’ imprisonment, at ual. the low end See United v. Moorefield, of the advi- States 111 (3d sory guidelines 10, range. Cir.1997) F.3d 13-14 (collecting cases); Malone, see also United States v. II. DENIAL OF MOTION (8th Cir.1995); 49 F.3d 397 United TO SUPPRESS Woodall, (8th States v. 938 F.2d 837 Cir.1991). argues Davis first Moreover, the district court the district court erred refusing to suppress concluded, crack co- concedes, and Davis Officer February on stop traffic to search his initiation Davis’ consent Rieck received objects to admission 2001. of these conclude that either person.4 We testimony, it was irrelevant arguing Davis at the the search of support grounds one of the other prejudicial and because scene. cocaine be- passengers confessed the crack swept Davis’ but Rieck As Officer longed him and none of individuals to hard, area, marble-like he felt a tocks are in the in the incident named involved Davis was at suspected substance and conspiracy. instant conceal narcotics. While tempting to had the Officer Rieck Davis concedes for an abuse of dis We review stop and con the traffic right execute admission of evi cretion a district court’s that argues once pat-down, he duct under Federal prior dence of bad acts he was unarmed determined Officer Rieck v. 404(b). Rule Evidence authority place legal there was no Katz, (8th Cir.2006). 1023, 1029 handcuffs, transport police him to crimes, wrongs, or “Evidence of other building, further search assembly purpose acts” admissible for may be suspicious disagree. Davis’ be him. We “motive, intent, prep proving opportunity, stop the traffic Officer during havior identity, aration, knowledge, or ab plan, discovery of what subsequent Rieck’s Fed. sence of mistake or accident.” in Davis’ buttocks narcotics believed to be 404(b). has A district court R.Evid. probable Rieck cause gave area admitting such evi “broad discretion attempting conceal believe Davis only be if such dence and will reversed Bustos-Torres, 396 F.3d at narcotics. See bearing clearly no evidence had Williams, 944-45; States v. United solely prove introduced case and was (8th Cir.1998); United F.3d commit crim propensity to the defendant’s (8th Craft, States F.3d Katz, (cita at 1029 inal acts.” Hughes, States Cir.1994); omitted). quotations internal tions and Cir.1994). The officers F.3d (1) if it is relevant Evidence is admissible cause to arrest trans probable had (2) issue; in kind and to a material similar assembly police building, port him to the (3) charged; time to the crime close in from his the cocaine and remove support to supported by sufficient evidence See arrest. incident to person as a search the jury a that defendant finding by Mendoza, v. F.3d (4) act; if the and committed the other Cir.2005). Therefore, (8th dis the 667-68 substantially does not potential prejudice Davis’ motion properly trict court denied probative value of the evi the outweigh suppress. to Kern, 12 F.3d States v. dence. United Cir.1993). (8th 122, 124-25 PRIOR III. EVIDENCE OF BAD ACTS case, challenged the testi In this crack cocaine mony Davis with he linked Gassaway found testified period the time within February in a a toilet residence crack cocaine behind It is undenia- charged conspiracy. following of the Davis other men entered and two version Officer Rieck’s chose to credit argues at the scene of the court 4. the search Davis events, beyond scope dis- of his and no reason to stop the of we have traffic went the alleges Esquivias, Davis consent to conduct search. pute See that conclusion. literally into Davis’ but- Officer Rieck reached at 699-700. However, fingers. the district tocks with his cocaine linked to incriminate Davis. “Expert testimony ble that evidence of crack to period time of an during a defendant the is it to appropriate when relates issues co- alleged conspiracy to distribute crack beyond are ken of people that of ordi caine relevant as to the defendant’s subject is nary intelligence. ‘Where mat Moreover, dis- knowledge and intent. knowledge experience ter is within the or trict court noted the evidence was relevant laymen, testimony superflu of is expert ” that light of Davis’ defense Officer Gass- French, 12 ous.’ United F.3d States away pursuing personal vendetta Cir.1993) (quoting Bartak v. against him. The district court did not Wells, Inc., Bell-Galyardt & it Offi- abuse its discretion when admitted (8th Cir.1980)). addition, In the dis Gassaway’s testimony cer into evidence. gave jury trict court an instruction fully explaining substantial assistance and OF EXPERT

IV. EXCLUSION jurors’ ability weigh to credibility TESTIMONY instruction, cooperating of a witness. This argues next the district coupled with defense own argu counsel’s right present court interfered with his a ments, “sufficiently communicated to the by refusing expert defense to admit the jury the it information needed assess testimony of the Federal Public Defender government the incentives witnesses had regarding substantial assistance and or the truth in stretch shade order to pro mechanics the federal sentencing sentence Id. at obtain reductions.” testimony cess. intended to use this (internal omitted).5 quotations credibility impeach govern witnesses, cooperating ment’s into calling V. ADMISSION OF HEARSAY question testifying their motivation for TESTIMONY against thereby raising doubt reliability as to testimony. of their We Henderson testified that Victor conclude the district court did not abuse bought Parish Swift cocaine for from by refusing its discretion to admit the ex Billy Davis. that Henderson claimed while pert testimony. States transactions, never observed Swift (8th Cir.2006) Anderson, F.3d purchased him he told the cocaine from (standard review). Swift testified and Davis. denied ever hav ing bought cocaine from Davis

Each cooperating witness testified argues Henderson. Davis the district facing lengthy prison he was sentence erred court when admitted Henderson’s hoped reduce his sentence testi hearsay testimony because was not a fying against Swift Davis. Each testi witness charged conspiracy. member government fied the We would have to file asking evidentiary review the district court’s rul motion the court to reduce sen his discretion, jury ings tence. for an in expert “keeping The did not need testi abuse of mony that explaining sentencing particularly the details of mind its discretion is procedures to that in govern conspiracy understand the broad trial.” United Jordan, 930, (8th ment’s have an might witnesses incentive States v. 260 F.3d 932 argues 5. Davis also was not allowed to reasons discussed above and the conclude dis- sufficiently government's cross the examine trict court did not abuse its discretion in particulars sentencing deciding the witnesses on of the to cross limit examination. See 677, guidelines statutory (8th table and sen- Wipf, minimum United States v. 397 F.3d 683 Cir.2005) (standard reject review). argument tences. We this for the of same

825 did not abuse its Cir.2001) (internal the district court quotations clude citations testimony. admitting in this discretion omitted). is VI. SENTENCING not An out-of-court statement against the defen if it is offered hearsay Davis raises several Finally, of the defendant’s is a statement dant and by objections imposed to the the sentence during the course and coconspirator made First, the argues court. Davis dis district Fed. conspiracy. the in furtherance of trict court violated his Sixth Amendment 801(d)(2)(E); v. United States R.Evid. for a rights by holding accountable Cir.2004). (8th 368 F.3d Manfre, by a quantity pre of crack cocaine found “in further phrase the interpret we While evidence, rather than ponderance of the broadly, “a state conspiracy” of the ance jury this to to find submitting issue the informs the listener of simply ment that beyond argu doubt. This a reasonable is not activities the declarant’s criminal It merit. is well ment is without estab conspiracy.” of the in furtherance made “judicial findings in this that lished circuit McKay, F.3d v. 431 quantity sentencing purposes of for drug Cir.2005) (citation (8th and internal 1093 when do the Sixth Amendment not violate omitted). quotations advisory re under an Guidelines made Tabor, v. 439 F.3d gime.” States United objections, Davis’ it is Despite Cir.2006). (8th the district While 830 formally necessary not for Swift to be special jury the given court could have named, conspiracy, in or charged, even drug quanti to verdict form determine the was question in long “so as the statement ty responsible, Davis was for which demonstrating in sufficiently itself reliable failing for to do not in error so. court was 801(d)(2)(E).” applicability of Rule Haack, F.3d 403 See States United Mahasin, F.3d States v. 362 United (“[W]ith (8th Cir.2005) mandatory Cir.2004). (8th provisionally After excised, the tradition use the Guidelines of testimony under allowing Henderson’s to authority sentencing judge of find al Bell, States v. United sentencing to will encoun all facts relevant Cir.1978), concluded the district court later objection.”) (quo ter no Sixth Amendment enough there is evidence “believe[d] it that omitted). and citation tation government that was introduced Second, thirty-year argues link the statements conspiracy court is imposed by the district sentence conspiracy.” into Swift’s declarant excessively it is unreasonable because identified Davis statements Henderson Davis. necessary punish greater than Coconspira cocaine. as a source crack argument, Davis contends support To supply discuss the that tors’ statements for the district court unreasonable identify or illegal drugs for the source investigation rely upon presentence conspiracy are coconspirator’s role drug report quantity. determine “in made further statements considered erred also the district court contends States conspiracy. ance” upon sentencing guidelines relying (8th Cir.2001); Arias, in dis- they result cocaine because (“A Jordan, F.3d state see at also crack and for proportionate sentences of the coconspirator informing ment powder cocaine offenders. is admissible obtaining [drugs] methods must first sentencing A court to ensure con designed help it is because guidelines range involvement.”). advisory Therefore, the we con- determine tinued 826 Haack, consider factors in at

and then the set forth F.3d 741 (citing 403 F.3d at 3553(a) 1004). § 18 to determine whether U.S.C. impose guidelines. to sentence under the Davis contends the district court unrea Haack, 403 F.3d at 1003. We review the sonably relied upon drug the 100-to-l application district court’s of the sentenc- quantity powder ratio between and novo, its ing guidelines findings de factual in sentencing cocaine the guidelines be error, for clear and the ultimate sentence it in cause results irrational and unfair in reasonableness accordance with the sentencing Our disparity. previ court has 3553(a). §in factors listed ously rejected addressed argu and this (8th Davidson,

v. 739-40 Cawthorn, ment. United States 429 Cir.2006). (8th Cir.2005) F.3d (holding that “sentencing within the Guidelines based on adopted The district court crack-powder disparity is not inherent presentence investigation report’s calcula unreasonable”). ly drug tion quantity, denying Davis’ ob Finally, Davis appears make an unde jections “[g]iven presented the evidence at argument fined that the district sum court trial.” The district court was present marily sentenced him within guidelines throughout the trial to hear the evidence range giving proper without weight to the credibility weigh of the witnesses. 3553(a) § factors. While district court presented Davis has us with no reason did explicit not make findings as each question determination, the district court’s factor, the record reflects the district court disagreement other than his own with the acknowledged anywhere it could sentence government’s truthfulness of the wit within the statutory limitations after con light In nesses. of the district court’s sidering advisory guidelines and the advantage “comparative evaluating at 3553(a) § factors. The Lincoln, district court listed credibility,” United States (8th all it considering the factors was Cir.2005), arrive F.3d we conclude at a reasonable sentence and acknowl clearly the district court did not in err edged obligation its to do so. From the adopting presentence investigation re us, record before are “we satisfied that the port’s drug quantity. calculation of district court actually fac considered each The district court determined tor in determining an appropriate sen level offense was 38 and Davis’ crimi Cadenas, tence.” United States v. history VI, nal category resulting was in Cir.2006). F.3d advisory an guidelines range of 360 months to life in prison. stating After VII. CONCLUSION 3553(a) factors, § considered dis reasons, For above stated affirm we trict court determined sentence the district court. imprisonment months’ A reasonable. sentence within guidelines is range BYE, Circuit Judge, dissenting part in presumptively A reasonable. Id. sentence in concurring the result. may be if “the unreasonable district court failed to consider a Although relevant factor that I agree with the result significant weight, case, should have received I separately my write to express gave significant weight to an or improper disagreement analysis with the Court’s factor, irrelevant or otherwise committed a the denial of the suppress moiion Davidson, clear judgment.” error of II. Section

827 did under arrest and then conduct a search officers not The law enforcement for a cause to arrest Davis probable have incident arrest. the time he was violation at

narcotics Although I not agree do with the Court’s in handcuffs because the officers placed of of motion to analysis the denial the yet the crack cocaine had not uncovered I concur in suppress, nonetheless the re- in at that time. Davis’s buttocks concealed sult I the warrantless because believe sei- search consequence, subsequent As the a zure of the crack cocaine found in Davis’s justi drugs the cannot be which disclosed permissible “plain buttocks under the was a inci grounds fied the it was search on doctrine, touch” or feel” which is “plain of a The fruits a dent to lawful arrest. for the simply “plain as the an an extension of view” search cannot used basis be arrest, a justify in turn is used to which pat-down doctrine to a search: to arrest. See Smith v. search incident lawfully If officer a police pats down 1288, 108 Ohio, 543, 110 494 U.S. S.Ct. clothing an suspect’s outer and feels ob- (1990) the (“[Justifying 464 ar L.Ed.2d ject contour or mass makes its whose at time by rest the search and the same identity immediately apparent, has there do.”) just not the the will by search arrest suspect’s privacy no invasion of the been (internal omitted); quotations citations and beyond already that the authorized 448 Rawlings Kentucky, see U.S. also if weapons; officer’s search for the ob- 6, 100 n. 65 L.Ed.2d 633 S.Ct. contraband, ject its is warrantless sei- (1980) fruits a search (indicating the justified by zure would be the same probable the for the must not be basis that in practical considerations inhere arrest). The simultaneous cause plain-view the context. analysis simply cannot be recon Court’s Supreme with the Court’s Fourth ciled Bustos-Torres, United States v. jurisprudence. Amendment (8th Cir.2005) (quoting Minnesota Furthermore, analysis the blurs Court’s 366, 375-76, Dickerson, U.S. important probable the distinction between (1993)). I L.Ed.2d S.Ct. probable cause to cause arrest contour, mass, believe the and location LaFave, generally See W. Search search. object felt when the rock-like Officer Rieck A Fourth and Seizure: Treatise pat-down he search on conducted (dis 3.1(b) (4th ed.2004) § Amendment past experience with his coupled distinction). A cussing warrantless in people hiding drugs knowledge (outside search the context of search buttocks, suspi- their as well as arrest) re generally to a lawful incident he cious behavior observed when exigent cause and quires probable both vehicle, togeth- seat was back circumstances. Kleinholz v. United the contraband’s enough er make were (8th Cir.2003). States, immediately ap- incriminating character By probable implicitly equating cause justify and to its parent to Rieck search, probable with cause arrest during pat-down warrantless seizure exigent essentially Court eviscerates the justified in If was search. Officer Rieck requirement for a warrant- circumstances during seizing the contraband immediately analysis, less the Court’s search. Under search, why I see no reason pat-down no law officers will have in enforcement justified seizing dur- not also for a search— centive to obtain warrant which occurred subsequent search ing exigent even there are no circum when assembly building. at place suspect police they simply will stances — I concur therefore result

case. America,

UNITED STATES

Appellee, LOPEZ-VARGAS, Appellant.

Noe

No. 05-3283. Court Appeals,

Eighth Circuit. April

Submitted: 2006. Aug.

Filed: 2006.

Case Details

Case Name: United States v. Billy D. Davis

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 9, 2006

Citation: 457 F.3d 817

Docket Number: 05-4449

Court Abbreviation: 8th Cir.