UNITED STATES of America, Plaintiff-Appellee, v. Timothy Newman BROWN, and Tracy Alexander Brown, Defendants-Appellants.
No. 95-10969.
United States Court of Appeals, Fifth Circuit.
Dec. 23, 1996.
Opinion Denying Rehearing Jan. 13, 1997.
Ralph H. Brock, Lubbock, TX, for defendant-appellant.
Before GARWOOD, DAVIS and STEWART, Circuit Judges.
STEWART, Circuit Judge:
Timothy Newman Brown (“Tim“) and Tracy Alexander Brown (“Tracy“) were convicted by a jury of their peers on all counts of a six count indictment, which included conspiring to possess with intent to distribute crack cocaine and using and carrying firearms during and in relation to drug trafficking crimes. Tim was sentenced to imprisonment for a total of 624 months. Tracy was sentenced for a total of 270 months. Both defendants appeal their convictions. For the following reasons, we reverse and remand for a new trial Tim and Tracy‘s convictions on Count 6, as well as Tim‘s conviction on Count 3. We affirm the convictions and sentences on all remaining counts.
FACTS
On January 11, 1995, Officers Tommy Salmon and Tommy Ray of the Shallowater Police Department were driving on U.S. Highway 84 in Lubbock County, Texas, when Officer Salmon noticed that the driver, of a black Astro van approaching from the oppo-site direction was not wearing his seatbelt and that the van‘s inspection sticker was expired. Officer Salmon turned his patrol car around, activated the overhead lights, and stopped the van.
Officer Salmon noticed that there were several people in the van and radioed for backup. He approached the van and asked the driver, Marcellus Briggs, for his driver‘s license and insurance information. When Briggs failed to produce proof of insurance, Officer Salmon asked Briggs to step to the rear of the van and issued Briggs a citation for the seatbelt and insurance violations. After Briggs signed the citation, Officer Salmon asked Briggs if there were any illegal drugs, weapons, or other contraband in the vehicle, to which Briggs replied that there were not. Officer Salmon then asked Briggs if he could search the van. Briggs told the officer that the van did not belong to him, but to Tracy, who was sitting in the front passenger seat at the time.1
Officer Salmon asked Tracy if there were any illegal drugs, contraband, guns, or large amounts of cash in the vehicle. Tracy re-plied that there were not, lifting up a styro-foam cooler and stating that they had only alcoholic beverages. When Officer Salmon asked Tracy for consent to search his van,
In the course of Officer Salmon‘s search of the van, the following items were found: a razor blade in the drink tray between the seats; a pipe in the glove compartment that had the odor of burnt marihuana; a brown paper bag that contained an electronic scale and a large number of zip-lock bags under the front seat where Tracy had been sitting; a loaded twelve-gauge shotgun under the middle seat where Tim had been sitting; a small baggie containing marihuana, rolling papers, and a roach clip necklace under the rear seats; a bandolier-type shotgun sling containing several rounds of shotgun ammu-nition in the right armrest console; four baggies containing a total of 23.30 grams of marihuana and a clear plastic bag containing 190.69 grams of crack cocaine, all found un-derneath the shotgun sling; five small bag-gies containing a total of 5.98 grams of crack cocaine in the head liner above the back seat; and a loaded .357 caliber magnum revolver and a loaded .40 caliber semi-automatic pistol under the rear seat.
Officers Salmon and Ray immediately ar-rested all five passengers of the van and transported them to the Texas Department of Public Safety where they were questioned by investigator John Waits.2 Waits ques-tioned Briggs, Tracy, and Tim. Tracy admit-ted that he owned two of the weapons, the .357 caliber revolver and the twelve gauge shotgun. Tim told Waits he knew the drugs were in the van and that their were planning to drive to Clovis, New Mexico. Tim and Briggs stated that the drugs belonged to Tracy and that he was traveling to Clovis to sell the drugs.
Tim and Tracy were charged by supersed-ing indictment as follows: both defendants were charged with conspiring to possess with intent to distribute 50 grams or more of crack cocaine in violation of
Prior to trial, both Tim and Tracy filed motions to suppress evidence seized from the van. After hearings were held, the court denied the motions by written order.
The government‘s witnesses at trial includ-ed, among others, Briggs and Jowisa Pop, Tim‘s girlfriend. Briggs testified that on several occasions he had accompanied Tim and Tracy on their road trips to Clovis to sell crack cocaine and that Briggs had sold crack cocaine for Tim and Tracy for about a year. Pop testified that Tim and Tracy sold crack cocaine from her house, that Dewayne Brown and Briggs also sold crack cocaine from her house, and that she had sold crack cocaine supplied by Tim and Tracy. In addition to the witnesses’ testimony, the government had other evidence of Tim and Tracy‘s drug dealings. In particular, the government pre-sented to the jury drug evidence seized dur-ing various police searches of the defendants’ homes, which were conducted before the Jan-uary 11 van search.
A jury found both defendants guilty on all counts. Tim was sentenced to imprisonment for 324 months as to Counts 1, 2, and 5, to
DISCUSSION
We are here presented with several points of error raised by the defendants. First, both defendants challenge the police stop and search of the van. Second, Tim challenges the district court‘s application of the U.S. Sentencing Guidelines (“guidelines“). Third, both defendants allege jury misconduct. Fi-nally, both defendants challenge the suffi-ciency of the evidence on various counts.
I. Stop and Search of the Van
The defendants make three arguments re-garding the police search of the van: (A) the initial police stop of the van was invalid be-cause, according to the law in some circuits, no reasonable officer under those circum-stances would have made such a stop; (B) even if the initial stop was valid, the U.S. Constitution required the police officers to inform the defendants that the detention for the traffic violations had concluded before requesting permission to search the van; and (C) even if the initial stop was valid and the Constitution does not require “informed con-sent,” the search was unlawful because Tracy did not voluntarily give Officer Salmon con-sent to search the van.
With respect to arguments (A) and (B), when reviewing a district court‘s rulings on a motion to suppress, we review findings of fact for clear error and questions of law de novo, viewing the evidence in the light most favorable to the government, unless inconsis-tent with the trial court‘s findings or found to be clearly erroneous after considering the evidence as a whole. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir.1993). As to argument (C), we examine the voluntariness of a consent search by examining the totality of the circumstances under a clear error standard of review. United States v. Zucco, 71 F.3d 188, 191 (5th Cir.1995), cert. de-nied, U.S. -, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996).
A. The police officers’ initial stop of the van for traffic violations was lawful.
Defendants argue that this Court should adopt the Fourth Amendment views shared by the Ninth, Tenth, and Eleventh Circuits, which hold that because the police may be tempted to use commonly occurring traffic violations as means of investigating violations of other laws, the Fourth Amendment test for traffic stops is whether a reasonable offi-cer would have stopped Tracy‘s van for the purpose of enforcing the traffic violations at issue. In this case, defendants argue, the police officers’ stop of Tracy‘s van for viola-tions of the traffic laws was unrelated to the drug search and, therefore, must be consid-ered unlawful because the stop was used as pretext for discovering possible drug activity.
We have consistently rejected this ar-gument, see United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (en banc), and under the recent decision in Whren v. United States, U.S. -, 116 S.Ct. 1769, 1774-76, 135 L.Ed.2d 89 (1996) (decid-ed after defendants filed their first set of briefs), the Supreme Court unanimously agreed with this Court‘s treatment of the issue. As neither defendant contends that the police officers in this case had no proba-ble cause to stop the van for traffic violations, defendants’ pretext argument fails.
B. The Fourth Amendment to the U.S. Constitution does not require police offi-cers, who lawfully stop a motorist for traffic violations, to inform the motorist that the legal detention has concluded before the officers can obtain a valid consent to search the vehicle.
Tracy adopts Tim‘s argument that even if the initial stop for traffic violations was lawful, the officers were required to inform Tracy that the traffic violation stop had concluded before they could ask for con-
In the recent decision of Ohio v. Ro-binette, U.S. -, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), a case with facts similar to those presented by the Browns’ appeal, the Supreme Court held that the Fourth amendment does not require that a lawfully seized defendant be advised that he is “free to go” before his consent search will be rec-ognized as voluntary. In Robinette, a police officer pulled over the defendant‘s car for violation of the speed limit. After giving an oral warning, the officer asked the defendant whether he was carrying any illegal contra-band in his car, such as weapons or drugs, to which the defendant answered “no.” The officer then asked for permission to search the car, and the defendant gave his consent. During the course of the car search, the officer found a small amount of marihuana in the car‘s console and a methylenedioxy meth-amphetamine pill in a clear plastic container. Id. at -, 117 S.Ct. at 418-20.
The defendant was charged with violating
The appellate court reversed the convic-tion, and the Ohio Supreme Court affirmed the reversal. The four-justice majority held that the search of the defendant‘s car was invalid because it was the product of an unlawful seizure. The court explained that, while the decision to stop the defen-dant for speeding had been justified, once the officer returned to the defendant‘s car after checking his license, “every aspect of the speeding violation had been investigated and resolved.” Ohio v. Robinette, 73 Ohio St.3d 650, 653 N.E.2d 695, 697 (1995). And, the court held, “[w]hen the motivation behind a police officer‘s continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some sep-arate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure.” Id. In so holding, the court emphasized that it was adopting a bright-line test, requiring police officers to inform motorists that their legal detention has concluded before the police officer may engage in any consensual inter-rogation. The court explained:
“The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police offi-cers to coerce citizens into answering ques-tions that they need not answer, or to allow a search of a vehicle that they are not legally obligated to allow....
Most people believe that they are validly in a police officer‘s custody as long as the officer continues to interrogate them. The police officer retains the upper hand and
the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him....
[C]itizens stopped for traffic offenses [must] be clearly informed by the detain-ing officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase ‘At this time you legally are free to go’ or by words of similar import.” Id. 653 N.E.2d at 698-99.
The U.S. Supreme Court rejected the Ohio Supreme Court‘s per se rule as directly un-dermining the U.S. Supreme Court‘s prior decisions which preclude any adoption of a per se rule to replace the totality-of-the-cir-cumstances analysis. The Supreme Court explained:
“We have previously rejected a per se rule very similar to that adopted by the Supreme Court of Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte it was argued that such consent could not be valid unless the defendant knew that he had a right to refuse the request. We rejected this argu-ment: ‘while knowledge of the right to refuse consent is one factor to be taken into account, the government need not es-tablish such knowledge as the sine qua non of effective consent.’ And just as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary....
The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘voluntariness is a question of fact to be determined from all the cir-cumstances.’ The Supreme Court of Ohio having held otherwise, its judgment is re-versed....” Robinette, U.S. at -, 117 S.Ct. at 421 (internal citations omit-ted).
In sum, the per se rule advanced by the defendants has been rejected by the U.S. Supreme Court and, accordingly, is rejected by this Court.
C. Tracy Brown voluntarily consented to the police search of his van.
Tracy contends that, Robinette notwith-standing, under the totality-of-the-circum-stances test it is clear that his consent was not voluntary. Specifically, Tracy claims—by adopting the relevant arguments in Tim‘s brief—that under the test set forth by this Court in United States v. Phillips, 664 F.2d 971, 1023-24 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), Tracy‘s consent to search the van was not voluntarily given.
“[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be deter-mined from the totality of all the circum-stances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). In addition “[w]here the judge bases a finding of consent on the oral testi-mony at a suppression hearing, the clearly erroneous standard is particularly strong, since the judge had the opportunity to ob-serve the demeanor of the witnesses.” Unit-ed States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert. denied, 508 U.S. 944, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993).
In Phillips, this Court announced six fac-tors to be considered in deciding whether consent to search is obtained voluntarily. These factors include (1) the voluntariness of the defendant‘s custodial status; (2) the pres-ence of coercive police procedures; (3) the extent and level of the defendant‘s coopera-tion with the police; (4) the defendant‘s awareness of his right to refuse to consent; (5) the defendant‘s education and intelli-gence; and (6) the defendant‘s belief that no incriminating evidence will be found. Id. at 1023-24; see also Kelley, 981 F.2d at 1470. All of these factors are relevant; however, no single factor is dispositive. Zucco, 71 F.3d at 191 n. 14.
II. Tim‘s Sentencing Challenge
Tim argues that the district court erred by increasing his sentence under the guidelines based on his possession of firearms when he had already been convicted for the underly-ing crime of using or carrying the same firearms. He attempts to support his argu-ment by pointing to the court‘s statement, made during the sentencing hearing, that it was adopting the four-level increase recom-mended by the Presentence Report (PSR) because of Tim‘s leadership role in the crimi-nal activity and his possession of firearms during the drug trafficking offense. Because the district court ultimately increased his sentence by four levels, Tim believes that the district court must have increased his sen-tence by two levels under
Based upon a careful review of the record, we reject the defendant‘s interpreta-tion of the district court‘s sentencing proce-dure. Tim has crafted a computation method that would invalidate his sentence; then, he argues backwards that the district court used this impermissible method to impose the four-level increase. Nevertheless, a more plausible explanation exists as to why the court imposed the four-level increase. Stat-ed simply, the court adopted the PSR‘s rec-ommendation. The PSR recommended that Tim receive a four-level increase in offense level under
III. Peremptory Challenge Argument
Both defendants claim that their right to exercise meaningfully their peremptory chal-lenges was denied or impaired when a mem-ber of the jury (Townsend) unintentionally failed to disclose during voir dire that she graduated from high school with Agent Ear-nest Dishman, a government witness. We review a district court‘s refusal to grant a mistrial for an abuse of discretion. United States v. Layne, 43 F.3d 127, 134 (5th Cir.), cert. denied, U.S. -, 115 S.Ct. 1722, 131 L.Ed.2d 580 (1995).
To obtain a new trial based on a juror‘s failure to disclose information during voir dire, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only the reasons that affect a juror‘s impartiality can truly be said to affect the fairness of the trial.” McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984).
In United States v. Ortiz, 942 F.2d 903 (5th Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992), the defen-dants contended that they were entitled to a new trial because a juror had failed, despite being asked during voir dire, to inform the court that both his cousin and his sister were employees of the U.S. Attorney‘s Office. During jury deliberations, a secretary with the U.S. Attorney‘s Office in Brownsville, Texas notified the prosecutor that she had recognized one of the jurors as her cousin and that the juror had a sister who held a clerical position with a U.S. Attorney‘s Office in a different city. After the jury verdict, the trial court questioned the juror, who stated that he thought his cousin who worked in the U.S. Attorney‘s Office actually worked for the Customs Bureau and that, although he knew his sister worked for a prosecutor‘s office in Houston, he did not know “what they do or what their job is or anything like that.” Id. at 909. Moreover, the juror claimed that “he and his sister had never discussed her occupation, that he had not considered her in any way related to the prosecution, and that neither her nor his cousin‘s vocation bore upon his impartiality during deliberations.” Id.
On appeal, this Court held that the defen-dants failed to meet the requirements of the McDonough two-pronged test. Importantly, the Court found that the juror‘s “post-verdict dialogue with the district court suggests that he answered the voir dire query honestly yet inaccurately, something McDonough ... ex-pressly permits.” Id. at 909.
In the instant case, neither defendant satisfies the McDonough standard as juror Townsend did not deliberately withhold in-formation and there is nothing in the record to indicate actual bias on her part. Neither the prosecutor nor the defendants knew of Townsend‘s inadvertent failure to disclose her “familiarity” with Agent Dishman until after voir dire. When questioned by the trial judge in chambers, Townsend stated that she had not seen Agent Dishman since high school, that the fact that she went to high school with Agent Dishman would not have any bearing upon her being a fair and impar-tial juror, and that she believed she could still continue to serve as a fair and impartial juror. Counsel for both defendants, al-though given the opportunity to question Townsend, declined to do so. Hence, we find that the defendants’ peremptory challenge argument fails.
IV. Sufficiency of the Evidence Challenges
A. There was sufficient evidence to convict Tracy Brown on Count 1 for conspiracy to possess with intent to distribute crack cocaine and on count 5 for possession with intent to distribute crack cocaine.
Tracy contends that there was insufficient evidence to support a conviction on Count 1 for conspiring to possess with intent to dis-tribute 50 grams or more of crack cocaine and on Count 5 for possession with intent to
To establish a drug conspiracy un-der
Here, the evidence in the record suf-ficiently supports Tracy‘s convictions on Count 1 and Count 5. In addition to the physical evidence seized during the search of Tracy‘s van and the presence of Tracy‘s co-conspirator in the van, there was considera-ble testimony at trial that supports Tracy‘s convictions. Briggs testified that, on several occasions, he had accompanied Tim and Tracy to Clovis, New Mexico for the purpose of selling crack cocaine. Briggs also testified that Tra-cy possessed firearms on two of those trips, that Briggs sold crack cocaine from Tracy‘s house for a year, and that Briggs, Tim, and Tracy loaded Tracy‘s van on the morning of January 11, 1995, the date of the seizure of crack cocaine found in the van. Briggs’ testi-mony was corroborated by the testimony of Pop, Tracy‘s girlfriend. Pop testified that, among other things, Tim and Tracy sold crack cocaine from her house and that she sold crack cocaine furnished by Tim and Tracy either directly or through Briggs. Also, photographs seized during a search of Tracy and Tim‘s house displayed Tim, Tracy, Sonny Ector and Dewayne Brown holding firearms.
B. The evidence was not sufficient to con-vict Tim Brown on Count 3 or either defendant on Count 6, using and carry-ing a firearm during and in relation to a drug trafficking crime, in light of the Supreme Court‘s recent decision in Bailey v. United States.
Tim asserts that there was insufficient evi-dence to support his conviction on Count 3, and both defendants complain that there was insufficient evidence to support their convic-tions on Count 6. Tim contends that pursu-ant to the Supreme Court‘s recent decision in Bailey v. United States, U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), this Court must vacate his conviction on Count 3 be-cause the two firearms that were found in a closet in proximity to drugs and drug pro-ceeds can no longer be considered sufficient evidence to support a conviction under
In Bailey, two defendants were convicted under
In reversing and remanding both convic-tions, the Supreme Court held that the term “use,” as it appears in
In the present case, the government con-cedes that, under Bailey, Tim‘s conviction on Count 3 should be reversed. Appellee‘s Brief at 33. The government believes that both defendants’ convictions under Count 6 should be remanded for a new trial on the “carrying” theory only. Appellee‘s Brief at 34. Relying on this Court‘s recent decision in United States v. Fike, 82 F.3d 1315 (5th Cir.), cert. denied, U.S. -, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996), the government maintains that a remand for a new trial is appropriate on the single issue of “carrying,” as applied under
Under the law prior to Bailey, the two rifles found in a closet in close proximity to a metal safe containing crack cocaine, proceeds of drug sales, Tim‘s driver‘s license, and his birth certificate would have been sufficient evidence to support his conviction on Count 3. In light of Bailey, however, these facts are insufficient to meet the re-quirements set forth by the Supreme Court. Thus, we reverse and remand Tim‘s convic-tion on Count 3.7
We also reverse the defendants’ con-viction on Count 6, and remand so that they may be retried on the “carrying” theory. As noted by this Court, the Supreme Court in Bailey limited its decision to the interpreta-tion of the term “use,” and did not address the “carry” requirement. United States v. Rivas, 85 F.3d 193, 195 (5th Cir.1996). In-deed, because the Court of Appeals in Bailey did not consider liability under the “carry” prong of
“Prior to Bailey, in United States v. Pine-da-Ortuno, 952 F.2d 98 (5th Cir.1992), ... we examined the ‘carrying’ require-ment of
§ 924(c) and explained that the word ‘carry’ derives from the french carier, which means ‘to transport in a vehicle.’ (quoting WEBSTER‘S THIRD INTERNATIONAL DICTIONARY 353 (1966)). Webster‘s provid-ed the following definitions of ‘carry‘: ‘to move while supporting (as in a vehicle or in one‘s hands or arms): move an appreciable distance without dragging: sustain as a burden or load and bring along to another place.’ Id. We observed that the legisla-tive history did not indicate that the word ‘carry’ should be given any meaning but its ordinary or literal meaning. Significantly, we also recognized that carrying on the person is different from carrying in a vehi-cle ‘because the means of carrying is the vehicle itself.’ Thus, we held that the ‘car-rying’ requirement of§ 924(c) is met ‘if the operator of the vehicle knowingly pos-sesses the firearm in the vehicle during and in relation to a drug trafficking crime.” Id. at 195-96.
See also Fike, 82 F.3d at 1328 (stating that “[i]n placing a gun under the driver‘s seat of a car, then driving the car to another loca-tion, one has carried the gun according to Webster‘s definition. This, in our view, satis-fies
CONCLUSION
For the foregoing reasons, we REVERSE and REMAND for a new trial Tim and Tra-cy‘s convictions on Count 6, as well as Tim‘s conviction on Count 3. All other convictions and sentences are AFFIRMED.
OPINION ON PETITION FOR REHEARING
Jan. 13, 1997.
STEWART, Circuit Judge:
The petition for rehearing is denied. However, we amend the preamble and the conclusion of our previous opinion to read as follows:
Timothy Newman Brown (“Tim“) and Tra-cy Alexander Brown (“Tracy“) were convict-ed by a jury of their peers on all counts of a six count indictment, which included conspir-ing to possess with intent to distribute crack cocaine and using and carrying firearms dur-ing and in relation to drug trafficking crimes. Tim was sentenced to imprisonment for a total of 624 months. Tracy was sentenced for a total of 270 months. Both defendants appeal their convictions. For the following reasons, we reverse Tim‘s conviction on Count 3. We reverse and remand for new trial on Tim and Tracy‘s convictions on Count 6. We affirm the convictions and sentences on all remaining counts.
CONCLUSION
For the foregoing reasons, we REVERSE Tim‘s conviction on Count 3. We RE-VERSE and REMAND for new trial Tim and Tracy‘s convictions on Count 6. All oth-er convictions and sentences are AF-FIRMED.