122 F.3d 1064 (4th Cir. 1997), 95-5327, U.S. v. Poindexter

Docket Nº:95-5327.
Citation:122 F.3d 1064
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frederick Jermaine POINDEXTER, a/k/a Curtis Davis, Defendant-Appellant.
Case Date:September 18, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1064

122 F.3d 1064 (4th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frederick Jermaine POINDEXTER, a/k/a Curtis Davis, Defendant-Appellant.

No. 95-5327.

United States Court of Appeals, Fourth Circuit

September 18, 1997

Argued March 7, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria, (CR-94-483-A); T.S. Ellis, III, District Judge.

ARGUED: Dennis F. Nee, Washington, D.C., for Appellant.

Bernard James Apperson, III, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.

ON BRIEF: Bernard S. Grimm, Washington, D.C., for Appellant.

Helen F. Fahey, United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.

Before HAMILTON, Circuit Judge, KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation, and GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

OPINION

PER CURIAM:

Following a jury trial, Frederick Jermaine Poindexter was convicted of: (1) conspiracy to possess cocaine with the intent to distribute, see 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the possession of cocaine with the intent to distribute, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) interstate travel in aid of racketeering, see 18 U.S.C.§ 1952. On appeal, Poindexter challenges: (1) the district court's denial of his motion to suppress; (2) certain evidentiary rulings made by the district court; and (3) the sufficiency of the evidence to support his convictions. For the reasons stated below, we affirm.

I

On October 17, 1994, Poindexter and Thomas Lee Cheung traveled on American Airlines Flight 36 from Los Angeles, California to Dulles International Airport, located near Washington, D.C. Poindexter and Cheung checked in at the airport in Los Angeles just before Flight 36 departed, having made their reservation for Flight 36 at a travel agency less than thirty minutes prior to Flight 36's scheduled departure. Neither Poindexter nor Cheung checked any luggage.

After Flight 36 arrived at Dulles Airport, Drug Enforcement Administration (DEA) Task Force agents followed Poindexter and Cheung from the gate to the terminal's upper level exit; the upper level of the terminal is for passenger drop-offs so there is no departing ground transportation. The agents followed Poindexter and Cheung because they fit the description of two suspected drug traffickers on Flight 36 provided by DEA agents in Los Angeles. The information conveyed by the DEA in Los Angeles included: (1) that two men had purchased two one-way tickets, paying in cash, for Flight 36; 1 (2) that the two men purchased their tickets at a travel agency less than thirty minutes prior to Flight 36's departure; 2 (3) that the two men arrived at the gate just before the plane departed and checked no luggage; and (4) a detailed description of each man: (a) "a black male flying under the name of Curtis Davis, five foot ten, 200 pounds, approximately 20 years old wearing a white sweatshirt"; and (b)"an Hispanic male flying under the name of Tony Lewis, five foot ten, wearing a green shirt."

Prior to Flight 36's arrival at Dulles airport, a DEA Task Force agent at Dulles Airport, Agent Frank Oliff, confirmed, from American Airlines personnel, that two individuals flying under the names Curtis Davis and Tony Lewis were aboard Flight 36. Agent Oliff was further advised that the seat assignments for the tickets issued were next to each other.

As Poindexter and Cheung reached the terminal's exit, they were approached from behind by DEA Task Force agents. Poindexter and Cheung stopped before the terminal exit and spoke to each other. At this point, Poindexter and Cheung were able to observe the DEA Task Force agents through a reflection on the terminal exit's glass doors. Cheung then walked through the exit door, and Poindexter walked back in the direction they had come from.

Cheung was followed through the exit door by two DEA Task Force agents, Agent Oliff and Agent Arthur Jacobson. Agents Oliff and Jacobson identified themselves and asked Cheung to speak with them. During the encounter, Cheung clutched a duffle bag that he was carrying tightly against his chest. In the conversation that ensued, Cheung acknowledged that he had just arrived from Los Angeles. Cheung allowed the agents to view his airline ticket which reflected that it was issued for Flight 36 in the name of "Tony Lewis." Cheung stated that he was traveling alone and had no identification. Agent Oliff then asked if he could search the duffel bag. After Cheung refused, Agent Oliff told Cheung that he and the bag were being detained in order to allow a drug-sniffing dog (which was at the airport) to sniff the bag. A few moments later, Cheung threw the bag at Agent Oliff and bolted across the lanes of traffic and over the guardrail, dropping to the lower level of the airport. Cheung was eventually apprehended in the airport parking lot. Meanwhile, one of the DEA Task Force agents recovered a kilogram of cocaine from the duffel bag.

While Cheung was approached, Poindexter remained under the surveillance of other DEA agents. Poindexter was observed following Cheung's movements. When Agents Oliff and Jacobson approached Cheung, Agent William Buss overheard Poindexter mumble "shit." Agent Buss identified himself to Poindexter and asked to speak to him. During the conversation that ensued, Poindexter admitted that he had just gotten off Flight 36 and indicated that he was traveling alone and had no luggage. When asked his name, Poindexter replied "Poindexter." However, the name on the ticket that he produced for Agent Buss was in the name of "Curtis Davis." When asked how long he was in Los Angeles, Poindexter indicated that he was there for two days. During the encounter, Poindexter appeared nervous and fidgety.

Agent Buss then asked Poindexter if he could search him, and Poindexter replied "go ahead." When Agent Buss discovered a pager inside Poindexter's waistband, Poindexter became agitated and belligerent and asked why he was picked for the interview. Agent Buss responded by asking Poindexter why he was traveling under an assumed name, why he had no luggage, and why he lied about traveling alone, but Poindexter did not respond.

At this point, Agent Jacobson approached Agent Buss and Poindexter. Agent Jacobson informed Agent Buss that Agent Oliff had requested a drug-sniffing dog for the duffel bag that Cheung carried. Poindexter then asked Agent Buss if he was under arrest. Agent Buss told Poindexter that he was not but was nevertheless being detained while he (Agent Buss) went for the drug-sniffing dog.

While Agent Jacobson was waiting with Poindexter, Agent Oliff ran past in pursuit of Cheung, who had fled. Agent Oliff instructed Agent Jacobson to handcuff Poindexter. After the cocaine was discovered in the duffel bag and Cheung was apprehended, Poindexter was arrested. Recovered from him following his arrest was, among other things, a pager, which repeatedly went off during Poindexter's booking.

On October 18, 1994, a federal grand jury sitting in the Eastern District of Virginia returned a four-count indictment against Poindexter and Cheung. Count I of the indictment charged Poindexter and Cheung with conspiracy to possess cocaine with the intent to distribute, see 21 U.S.C.§§ 841(a)(1) and 846. Count II charged Cheung with possession of cocaine with the intent to distribute, see 21 U.S.C. § 841(a)(1). Count III charged Poindexter with aiding and abetting the possession of cocaine with the intent to distribute, see id. and 18 U.S.C. § 2. Count IV charged Poindexter with interstate travel in aid of racketeering, see 18 U.S.C. § 1952.

Prior to trial, Poindexter moved to suppress the pager recovered from his person following his arrest. The district court denied the motion. At trial, the government's evidence centered around the facts and circumstances leading up to Poindexter's arrest. In addition, the government introduced evidence that a few months before Poindexter's trip to Los Angeles, he purchased an automobile, paying $11,000 in cash, when he already owned an automobile and was unemployed. The government also introduced evidence of a larger, ongoing business enterprise reflected in repeated and interconnected telephone activity, occurring both before and after Poindexter's arrest. The government's evidence showed that a person using the name "Tewana Freeman" checked into a Best Western Hotel in Connecticut the same day that Poindexter and Cheung traveled from Los Angeles with the cocaine (October 17), with a scheduled departure date of October 19.

Shortly after Poindexter and Cheung were arrested, a call was placed from the Best Western to Poindexter's pager, and to Cheung's home phone.

On October 18, the day after Poindexter and Cheung were arrested, a telephone call was placed from Cheung's residence to the Best Western. That same day, a call was placed from the Best Western to Cheung's pager. There was also a call on this date from the Best Western to Poindexter's pager. The person registered as Tewana Freeman checked out of the Best Western on October 18.

On October 19, a call was made from Tewana Freeman's number 3 to Cheung's home telephone. On October 21, there was another call made from the Tewana Freeman number to Poindexter's home telephone. Other telephone activity connected Poindexter to an ongoing business...

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