UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ZAVIAN MUNIZE JORDAN, Defendant – Appellant.
No. 17-4751
United States Court of Appeals for the Fourth Circuit
March 3, 2020
PUBLISHED. Argued: October 29, 2019. Appeal from the United States District Court for the Western District of North Carolina at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00145-RJC-2)
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.
ARGUED: Leigh Schrope, LAW FIRM OF SHEIN & BRANDENBURG, Decatur, Georgia, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Marcia G. Shein, LAW FIRM OF SHEIN & BRANDENBURG, Decatur, Georgia, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
A jury convicted appellant Zavian Munize Jordan of two violations of
Jordan challenges both his conviction and his sentence, raising four principal arguments on appeal: (1) that under the Fourth Amendment, the district court erred in failing to suppress evidence gathered from the traffic stop that led to his arrest and subsequent incriminating statements; (2) that under the Sixth Amendment‘s Confrontation Clause, the district court erred in admitting evidence relating to a recorded phone call between Jordan and an informant who did not testify at trial; (3) that the district court erred in failing to merge his two
Finding no error in the district court‘s rulings and holding that § 403 of the First Step Act does not apply retroactively to cases pending on direct appeal when it was enacted, we affirm both Jordan‘s conviction and his sentence.
I.
A.
Zavian Munize Jordan was the subject of a weeks-long investigation by the federal Drug Enforcement Administration (“DEA“). Jordan came to the attention of federal agents when another individual, Ricky Grant, was arrested for drug distribution and identified Jordan as his primary and long-standing source of heroin. Agency Task Force Officer Clint Bridges then instructed Grant to phone his heroin supplier, while officers monitored and recorded the call. Though Grant and Jordan did not refer to drugs by name during their conversation, the officers understood them to be using a kind of code describing a drug transaction. See S.J.A. 002 (Grant informing Jordan that he is “looking slim” and asking when they would “get back right“; Grant suggesting he might “holler” at someone else and Jordan telling him to “hold up” before he did that); see also J.A. 161–62 (officer testimony at trial describing the way in which drug traffickers routinely use code words when speaking on the phone). Based on Grant‘s statement and the contents of the call, the officers obtained a warrant to track the location of Jordan‘s phone, and later, a second warrant to place a location-tracking device on Jordan‘s truck.
The investigation came to a head on May 11, 2016, when federal agents who had Jordan under surveillance watched him enter and depart several locations over a short period of time, sometimes entering with one package and leaving with another. At that point, DEA Special Agent James Billings decided to conduct an investigatory stop of Jordan. He reached out to Detective Christopher Newman of the Charlotte-Mecklenburg Police Department, who had been assisting the DEA in its operation, and asked him to conduct a routine traffic stop. As Agent Billings explained to the district court, the DEA frequently asks local officers to find cause to pull over drug suspects for traffic violations: A suspect who believes he is the subject of a routine traffic stop is less likely to resist and create a danger to the public; and if the stop does not uncover evidence of criminal activity, the investigation can continue without the suspect having been alerted to it.
Detective Newman followed Jordan until he saw him turn through a red light without stopping, and then pulled him over. When he approached Jordan‘s truck, Newman found Jordan on the phone and unwilling to engage with him, and saw several other cellphones in the vehicle. Newman asked Jordan to step out of the truck and patted him down, observing a rubber glove – which he knew to be common packaging for drugs – in Jordan‘s pants
Jordan was advised of his rights and agreed to talk to the police, admitting that he was involved in cocaine trafficking and giving a detailed statement. After obtaining warrants, police officers conducted several searches. At the home of Jordan‘s deceased grandmother, which Jordan had identified as the place he used to prepare and package drugs, they recovered 275 grams of heroin, digital scales and drug-packaging materials, and a gun and ammunition. At one of the residences Jordan had visited on the day he was stopped, at which Jordan admitted he regularly sold drugs, the police recovered about 750 grams of cocaine, marijuana, and another firearm. And at the residence Jordan shared with his girlfriend, the police found $24,000 in cash and more firearms.
B.
Jordan was indicted on six counts of drug- and firearm-related offenses. Count One charged Jordan and others with conspiring to distribute heroin and cocaine. Counts Five and Six – the next counts involving Jordan – charged him with substantive drug offenses: possession with intent to distribute heroin and cocaine, and distribution of cocaine. Counts Eight and Nine each charged Jordan with possessing a firearm during and in relation to a drug-trafficking crime in violation of
Before trial, Jordan moved to exclude the evidence seized from the traffic stop and his subsequent incriminatory statements, on the ground that Detective Newman violated the Fourth Amendment by unduly prolonging his traffic stop without the requisite reasonable suspicion. The district court denied the motion. Jordan also moved unsuccessfully to exclude from trial his recorded phone call with Ricky Grant, arguing that because Grant would not be testifying at trial, his statements were inadmissible hearsay and their introduction would violate the Sixth Amendment‘s Confrontation Clause.
After a three-day trial, the jury found Jordan guilty of all charges against him. Before sentencing, Jordan moved to merge Counts Eight and Nine – the two
The district court sentenced Jordan to a total of 420 months, or 35 years, in prison: five years on the drug-conspiracy count, each of the drug-trafficking counts, and the felon-in-possession count (Counts One, Five, Six, and Ten), all to run concurrently;
Jordan filed this timely appeal. While his appeal was pending and after briefs were filed, on December 21, 2018, Congress enacted the First Step Act. Pub. L. No. 115-391, 132 Stat. 5194. Section 403 of the First Step Act amended
II.
Jordan raises four arguments on appeal, two concerning his conviction and two concerning his sentence. We take those arguments in turn, providing additional factual context as necessary.
A.
Jordan first challenges his conviction on the ground that the district court erred in denying his motion to suppress evidence seized from the traffic stop and the incriminatory statements that followed. Jordan does not dispute the validity of Detective Newman‘s initial stop of his truck for a traffic violation, regardless of the officer‘s actual motives. See United States v. Palmer, 820 F.3d 640, 649 (4th Cir. 2016) (“In assessing the legitimacy of a traffic stop, we do not attempt to discern an officer‘s subjective intent for stopping the vehicle.“). But, Jordan argues, Newman violated the Fourth Amendment when he prolonged that stop for 11 minutes, beyond the time required to complete a traffic stop, without reasonable suspicion of some other offense.
In an oral ruling, the district court rejected that claim. At the time Newman initiated his traffic stop of Jordan, the court concluded, there already was “overwhelming” indicia of reasonable suspicion that Jordan was engaged in drug trafficking: the cooperating witness, Ricky Grant; the preliminary cell phone and GPS tracking devices, based on a magistrate‘s probable cause determination; and the suspicious activity – the quick stops at various locations, entering and leaving with different packages – on the day of the stop. By itself, the district court held, that was sufficient to justify the length of the detention at issue: Given the safety concerns generated by “this drug trafficking investigation in which guns and large sums of drugs and money had recently been seized from a co-conspirator,” Newman was justified in waiting for back-up before proceeding, and “that length of time was a reasonable period” for the stop. J.A. 778. The activity observed during the stop, the court finished – multiple cell phones, the rubber glove that Newman believed to be contraband – “only furthered” the reasonable suspicion with which Newman started. Id. at 779.
We agree with the district court. In considering the denial of Jordan‘s suppression motion, we review the district
It is true, as Jordan emphasizes, that when a stop is based solely on probable cause of a traffic violation, it may not be prolonged beyond the time reasonably required to “complete the mission” of a traffic stop – inspecting license and registration, issuing a ticket, and so forth. United States v. Bowman, 884 F.3d 200, 209–10 (4th Cir. 2018) (alteration omitted) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)); see also Rodriguez v. United States, 575 U.S. 348, 354 (2015). After that time, the stop will become unlawful, unless during the stop the officers obtain consent or develop reasonable suspicion of some ongoing criminal activity. Bowman, 884 F.3d at 210.
But this is not that kind of case because, as the district court recognized, Detective Newman already had reasonable suspicion of ongoing criminal activity, apart from Jordan‘s traffic violation, when he stopped Jordan‘s truck. Under the constructive or collective knowledge doctrine, we impute to Detective Newman knowledge of all the facts known to Agent Billings when he asked Newman to make a traffic stop of Jordan. See United States v. Massenburg, 654 F.3d 480, 493 (4th Cir. 2011) (under the collective knowledge doctrine, we “substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer“). And, indeed, Newman in fact was aware – because he had been told by federal agents – that Jordan was suspected of drug trafficking, and that others involved in the same scheme had been found with firearms or had histories of violent crimes. He also had constructive knowledge, as the district court described, of Ricky Grant‘s identification of Jordan as his primary supplier; of the warrants issued, based on probable cause, for the tracking of Jordan‘s cell phone and truck; and of Jordan‘s movements earlier in the day, which Agent Billings observed and believed, based on his knowledge and experience, were indicative of drug transactions.
We think that is enough for reasonable suspicion, which is “simply . . . a particularized and objective basis for suspecting the person stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996) (internal quotation marks omitted). Jordan insists that his earlier behavior on the day in question, observed by the agents, is as consistent with running errands and visiting friends as it is with drug transactions. But Agent Billings, based on his knowledge and experience, saw it differently, and in any event, those observations must be considered together with the totality of the circumstances, including the credible identification of Jordan as Grant‘s regular drug supplier. Considering the facts as a whole, and “mindful of the practical experience of officers who observe on a daily basis what transpires on the street,” Agent Billings and thus Detective Newman had a “particularized and objective basis,” for suspecting Jordan of drug trafficking when Detective Newman initiated the stop. See Bowman, 884 F.3d at 213 (internal quotation marks omitted).
We also agree with the district court that this initial reasonable suspicion justified the length of the stop in question, which was extended by roughly 11 minutes
The district court also determined, as noted above, that Detective Newman‘s observations during the stop “furthered” the reasonable suspicion showing, and the government relies on some of those observations in its argument for reasonable suspicion. Because we conclude that Newman had reasonable suspicion from the outset, however, we need not consider whether additional information uncovered during the stop may have contributed to that showing. Newman had the requisite reasonable suspicion that Jordan was engaged in illegal drug activity from the start, and that reasonable suspicion was sufficient to justify Jordan‘s stop under the Fourth Amendment.
B.
Jordan‘s second challenge to his conviction concerns the admission at trial of parts of the recorded phone call Ricky Grant made to him at police direction. The excerpts were introduced at trial with the testimony of Officer Bridges, who testified that he “instructed Mr. Grant to place a call to his supplier,” J.A. 173, and described the way the call was monitored and recorded. The district court instructed the jury that it should not consider any of Grant‘s statements on the recording “for the truth of the matter that he‘s stating,” but only to “provid[e] context” for Jordan‘s responses. J.A. 177. Over Jordan‘s objection, the jury then heard excerpts of the conversation, along with testimony from Bridges explaining that drug traffickers, when speaking on the phone, commonly use coded terms to avoid referring expressly to drugs.
1.
Before trial, Jordan had moved to exclude the recording. Jordan did not dispute the admissibility of his own statements on the call, instead arguing that Grant‘s statements were inadmissible: Because Grant would not be testifying at trial, his statements constituted hearsay, and their admission would violate Jordan‘s rights under the Sixth Amendment‘s Confrontation Clause. The district court denied Jordan‘s motion, ruling that so long as Grant‘s statements were “offered for the limited purpose of providing context for the responses of Mr. Jordan,” they were not inadmissible hearsay and their introduction would violate the Confrontation Clause. J.A. 96.
On appeal, Jordan renews his Confrontation Clause argument against the admission of Grant‘s side of the recorded call. While we typically review evidentiary decisions for abuse of discretion, we review those that implicate the Confrontation Clause de novo. United States v. Summers, 666 F.3d 192, 197 (4th Cir. 2011). We agree with the district court, finding no error in admitting the recorded phone call.
The Sixth Amendment‘s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . . .” This constitutional right to confrontation bars the admission of “testimonial statements of a witness who did not appear at trial unless
2.
Jordan now raises an additional Confrontation Clause argument for the first time on appeal. This one focuses not on the contents of the call, but on Officer Bridges’ testimony that Grant phoned Jordan after he was instructed to “call . . . his supplier.” J.A. 173. Though its precise contours are a bit unclear, Jordan‘s claim appears to be that when Grant placed a call to Jordan after being told to call his supplier, he engaged in “assertive conduct” – the equivalent of saying verbally “Jordan is my supplier” – that falls within the scope of the Confrontation Clause.
Because Jordan did not object at trial to Officer Bridges’ testimony about the call, we review his new argument for plain error only. “To establish plain error, a defendant has the burden of showing: (1) that an error was made; (2) that the error was plain; and (3) that the error affected his substantial rights,” and even then, we will exercise our discretion to correct only those errors that would result in a miscarriage of justice or otherwise undermine the “fairness, integrity[,] or public reputation of judicial proceedings.” United States v. Carthorne, 726 F.3d 503, 510 (4th Cir. 2013) (internal quotation marks omitted). Here, we need focus only on the second requirement. Any error in admitting Officer Bridges’ testimony – a matter we need not decide – was not so “clear or obvious” that it amounted to “plain error” for purposes of our review. United States v. Marcus, 560 U.S. 258, 262 (2010) (defining “plain error“).
The Confrontation Clause applies only to “testimonial statements.” United States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007). The jury in Jordan‘s case never heard testimony that Grant said that Jordan was his supplier. But as Jordan explains, a “statement” also may take the form of nonverbal conduct intended as an assertion, often referred to as “assertive conduct.” Id. at 230 & n.1 (discussing definition of “statement” in Federal Rule of Evidence 801(a) and applying same analysis to Confrontation Clause); see, e.g., United States v. Caro, 569 F.2d 411, 416 n.9 (5th Cir. 1978) (treating “pointing” at location of drug source as “assertive conduct” that, “like an oral declaration, is subject to the hearsay rule“). According to Jordan, when Grant phoned him in response to a direction to call his supplier, he engaged in assertive conduct, effectively identifying Jordan as his source just as though he had said the words out loud. Because the jury could infer from Officer Bridges’ testimony a “statement” by Grant that was not subject to cross-examination at trial, Jordan finishes, his Confrontation Clause rights were violated.
This court has not addressed whether and under what circumstances compliance with law enforcement instructions might be deemed “assertive conduct,” so that testimony about that compliance would be subject to Confrontation Clause limits. But the First Circuit has, and on facts virtually identical to those presented here, it held that when a confidential informant, at the direction of police officers, made a phone call to the intended recipient of intercepted drugs and then drove the officers to a rendezvous with the recipient, she engaged only in non-assertive conduct that did not qualify as a “statement” for evidentiary purposes. See United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001). Testimony about that compliance, the court explained, “described conduct” rather than introducing statements: The confidential informant “did not orally identify [the defendant],” and “[t]he agent did not testify that [the confidential informant] pointed at [the defendant] or in any way made an out of court declaration regarding his identity.” Id.
Jordan cites no cases to the contrary, and we have found none. Jordan relies primarily on the Second Circuit‘s decision in United States v. Gomez, 617 F.3d 88 (2nd Cir. 2010), and though that case, too, involves a police-directed phone call by a confidential informant to his supplier, there is an important distinction. In Gomez, a police officer testified at trial that he told an informant to call his supplier, and that he himself – the officer – then selected the defendant‘s phone number from the informant‘s phone and placed the call, before handing the phone back to the informant. Id. at 91. From that testimony, the court held, a jury could infer that the informant must have told the officer, in so many words, the identity of his supplier, because otherwise the officer would not have been able to select the defendant‘s number from the informant‘s address book. Id. Gomez, in other words, involved an actual verbal statement, inferable from the officer‘s testimony. Here, by contrast, Officer Bridges neither said nor suggested that Grant verbally identified Jordan as his supplier. The only question, again, is whether Grant‘s act of calling Jordan qualified as a “statement” in the form of assertive conduct – a question to which Gomez does not speak, but Bailey does. Given Bailey‘s rejection of Jordan‘s position, and the absence of case law adopting it, the district court did not commit plain error when it admitted Bridges’ testimony about the call. See Carthorne, 726 F.3d at 516 (district court does not commit plain error by following reasoning of another circuit when we have “yet to speak directly on a legal issue“).
C.
With respect to his sentence, Jordan argues, first, that the district court erred in sentencing him separately for his two convictions, under Counts Eight and Nine, for possession of a firearm in furtherance of a drug-trafficking crime in violation of
The district court rejected that claim when Jordan raised it, after his guilty verdict but before sentencing, in a “Motion to Merge/Vacate Counts 8 and 9.” J.A. 464. The district court acknowledged that other circuits have adopted the premise of Jordan‘s argument: that one use of a firearm, in the simultaneous commission of two predicate drug-trafficking offenses, will not support separate
We review this question of law de novo, see United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002), and again, we agree with the district court. Under Khan, there is no requirement that multiple and consecutive
Jordan emphasizes that our decision in Khan conflicts with the rule adopted by several other circuits, prohibiting multiple
Accordingly, we find the district court did not err in denying Jordan‘s motion to sentence him on only one of his two
D.
Jordan‘s final argument also concerns his
This question is governed by the text of the First Step Act, which provides that § 403(a)‘s “amendments” to
Circuit court case law uniformly supports that reading. Two other circuits have considered precisely this question, and both have concluded that a sentence is “imposed” under § 403(b) when it is entered by a district court, so that § 403(a) does not apply to cases pending on appeal on the date of enactment. See United States v. Richardson, 948 F.3d 733, 748–53 (6th Cir. 2020); United States v. Hodge, 948 F.3d 160, 162–64 (3d Cir. 2020).4 Two additional circuits have considered identical retroactivity language in a different section in the First Step Act, and likewise held that a sentence is “‘imposed’ in the district court, regardless of later appeals.” United States v. Pierson, 925 F.3d 913, 927 (7th Cir. 2019); see also Young v. United States, 943 F.3d 460, 462 (D.C. Cir. 2019).5 We agree.
As those courts have explained, in common usage in federal sentencing law, a sentence is “imposed” when the district court announces it, not when appeals are exhausted.
See Richardson, 948 F.3d at 749–50 (citing examples); Pierson, 925 F.3d at 927–28 (citing examples); see also, e.g.,
the immediately preceding section, § 403(a), amending
Jordan points us to the Sixth Circuit‘s 1997 decision in United States v. Clark, in which the court, construing a different sentencing statute and retroactivity provision, held that a sentence is not “imposed” until after a case is decided on appeal. See 110 F.3d 15, 17 (6th Cir. 1997), superseded by regulation on other grounds, U.S.S.G. § 1B1.10(b)(2)(A). That case does indeed lend support to Jordan‘s position here. But we can find no other circuit court decision applying that definition of “imposed” even under the statute at issue in Clark, let alone applying it in any other context. See Pierson, 925 F.3d at 928. And the Sixth Circuit itself, in joining the consensus that a sentence is “imposed” for purposes of the First Step Act‘s retroactivity provisions when it is handed down by the district court, declined to apply Clark to this different statute, cautioning against giving that decision “broad applicability.” Richardson, 948 F.3d at 752–53; see also Wiseman, 932 F.3d at 417 (holding that sentence is “imposed” under § 401(c) of First Step Act without applying Clark).
Jordan‘s final argument focuses on the title of § 403 of the First Step Act: “Clarification of Section 924(c) of Title 18, United States Code.” According to Jordan, because § 403 is intended only to clarify what always was the proper interpretation of
Jordan‘s argument puts more weight on the word “clarification” than it will bear. Section 403(a) does not “clarify” something that once was ambiguous; it changes
Any reduction in criminal penalties will pose “difficult line-drawing” questions when it comes to retroactivity. See Pierson, 925 F.3d at 927. Here, Congress decided to extend the more lenient terms of § 403(a) of the First Step Act to some but not all pre-Act offenders, with “the date of sentencing in the district court” drawing the line between those who are covered and those who are not. Id. As a result, Jordan may not benefit under the Act.
III.
For the reasons given above, the judgment of the district court is affirmed.
AFFIRMED