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)
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
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
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 pocket. By then, Jordan‘s brother had arrived on the scene in a separate vehicle, attempting to “interject himself” into the stop. J.A. 132. Newman accordingly waited for about 11 minutes for back-up before walking his drug-detecting dog around the truck. The dog alerted, and Jordan admitted that he had cocaine in his possession.
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
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; plus the mandatory five-year consecutive term on the first
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,
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
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 court‘s factual findings for clear error, taking the evidence in the light most favorable to the government, and its legal conclusions de novo. United States v. McBride, 676 F.3d 385, 391 (4th Cir. 2012). Like the district court, we think that
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
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 when Detective Newman waited for back-up before completing his investigation. “Investigating officers may take such steps as are reasonably necessary to maintain the status quo and protect their safety during an investigative stop.” United States v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988). Detective Newman, who had reason to believe that Jordan was
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.
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 he was unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). The Clause does not, however, “bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n.9. And so we have made clear – along with several other circuits – that recorded
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.
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
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,
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
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.
Jordan‘s contrary reading, on the other hand – that a sentence is not “imposed” until it becomes final after appeal – has no support in the text of § 403(b). Section 403(b) requires, for application of the Act, that a sentence be “imposed” after its enactment, not that it be “finally imposed.” § 403(b), 132 Stat. at 5222. And the absence of a textual finality requirement is underscored by the fact that Congress did use finality as a marker in
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 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
III.
For the reasons given above, the judgment of the district court is affirmed.
AFFIRMED