23 F.3d 1047 (6th Cir. 1994), 92-3804, United States v. Braggs

Docket Nº:Robert BRAGGS (92-3804); Avery Clemmons (92-3805); and
Citation:23 F.3d 1047
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:May 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1047

23 F.3d 1047 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert BRAGGS (92-3804); Avery Clemmons (92-3805); and

Norman McCrary (92-3806), Defendants-Appellants.

Nos. 92-3804 to 92-3806.

United States Court of Appeals, Sixth Circuit

May 11, 1994

Argued Nov. 30, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied July

7, 1994 in No. 92-3804.

Page 1048

William E. Hunt, Office of the U.S. Atty., Cincinnati, OH (argued and briefed), for U.S. in No. 92-3804.

Rayl L. Stepter, Reynoldsburg, OH (argued and briefed), for Robert Braggs.

William E. Hunt (argued and briefed), Robert Brichler, Asst. U.S. Atty., Cincinnati, OH, for U.S. in No. 92-3805.

Derek W. Gustafson, Cincinnati, OH (argued and briefed), for Avery Clemmons.

William E. Hunt (argued and briefed), Robert Brichler, Asst. U.S. Atty., Cincinnati, OH, for U.S. in No. 92-3806.

Michael Hohn, Cincinnati, OH (argued and briefed), for Norman McCrary.

Before: BOGGS and SILER, Circuit Judges, and CHURCHILL, Senior District Judge. [*]

SILER, Circuit Judge.

Defendants Robert Braggs, Avery Clemmons and Norman McCrary appeal their jury convictions for conspiracy to distribute cocaine and cocaine base. Braggs and Clemmons also appeal their convictions for possession with intent to distribute cocaine and cocaine base, while McCrary also appeals his conviction for possession of crack cocaine. The primary issues raised are whether: (1) there were illegal searches of an automobile and an apartment; (2) a new trial should have been granted; (3) the Jencks Act was violated by destruction of notes; and (4) there was sufficient evidence to convict McCrary. For reasons stated herein, we AFFIRM.

I.

On October 15, 1991, Cincinnati Police Officer William Couch received an anonymous phone call at the Street Corner Narcotics unit. The caller stated that two individuals, Avery Clemmons and "R.B.," would be leaving 3881 Reading Road with a quantity of cocaine, and would be entering a white car with temporary tags and traveling to an unknown location on Kellogg Avenue to consummate a drug transaction. No physical description of these individuals was given. As a result of this tip, the police proceeded to the address given and began surveillance. Three men, one of whom was carrying a brown paper bag, were seen leaving the address and then driving off in a white car with temporary tags.

The police called for assistance and followed the car. The car weaved in and out of

Page 1049

traffic and accelerated. When the car made a left turn from the right hand lane, a marked police cruiser pulled the car over. At this point, the car had yet to reach its alleged intended destination on Kellogg Avenue. Braggs was driving the car, and McCrary was in the front passenger seat. One of the officers spotted money and a torn paper bag at the feet of Clemmons who was in the back seat. No one in the car claimed the money, which totaled $3,730.00. A narcotics dog later reacted to the money, indicating cocaine residue. After being escorted from the car and advised of his Miranda rights, Clemmons told officer Couch that he would "show them where the dope was" at the original location, 3881 Reading Road. Based upon this information, and the reaction of the narcotics dog, a search warrant was obtained for 3881 Reading Road. The search of the apartment revealed scales, crack cocaine, and other evidentiary items. 1

McCrary was arrested under an outstanding warrant at the scene of the traffic stop. One of the officers observed McCrary retrieving a small plastic bag of crack cocaine from his pants and throwing it on the floor of the police van. When McCrary was later taken to use the bathroom, a different officer found an additional quantity of crack cocaine concealed on McCrary's person.

By the time of trial, the police had managed to identify the person who had originally placed the "anonymous" phone call. That person...

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