U.S. v. Lattner

• Decision Date: 05 October 2004
• Docket Number: No. 03-1488.,03-1488.
• Citation: 385 F.3d 947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Terrell LATTNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.3d 947

UNITED STATES of America, Plaintiff-Appellee, v. James Terrell LATTNER, Defendant-Appellant.

No. 03-1488.

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2004.

Decided and Filed: October 5, 2004.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the Eastern District of Michigan, John Corbett O'Meara, J.

Paul J. Stablein (argued and briefed), Stablein, Flood & Lanctot, Royal Oak, MI, for Appellant.

Michael R. Mueller (argued and briefed), Assistant United States Attorney, Detroit, MI, for Appellee.

Before: SILER and ROGERS, Circuit Judges; FORESTER, Chief District Judge.^*

FORESTER, Chief District Judge.

The Defendant-Appellant James Terrell Lattner ("Lattner") herein appeals his conviction on one count of Possession with Intent to Distribute Cocaine Base, alleging various trial errors. Lattner has been sentenced to a term of imprisonment of 170 months in connection with this crime. We AFFIRM.

BACKGROUND

On July 18, 2001, a state search warrant was executed at 2416 Monterey in Detroit, Michigan by five (5) Detroit police officers. Large quantities of what proved to be heroin, cocaine, and crack cocaine, as well as narcotics paraphernalia for cutting, packaging, and distribution, were found in the house. Notable among the seized paraphernalia were several ink pads used for labeling drug packets, including one reading "World Domination." Lattner was present at 2416 Monterey when the search warrant was executed, keys taken from his pocket during the search fit the front door, and the home was later found to be titled in the name of his mother.¹ Lattner's fingerprint was also found on one of the plastic bags containing narcotics.

Subsequently, Lattner was charged by way of superseding indictment with three counts relating to the evidence seized from 2416 Monterey. These include: Count I: Possession with Intent to Distribute Heroin; Count II: Possession with Intent to Distribute Cocaine Base; and Count III: Possession with Intent to Distribute Cocaine.

Prior to the jury trial of this matter, Lattner filed a motion to suppress the evidence seized pursuant to the search warrant executed at 2416 Monterey and for an evidentiary hearing to challenge the factual allegations contained in the supporting affidavit. Over two (2) days of testimony, eight (8) witnesses were called to testify, including four (4) Detroit Police Officers. Following the evidentiary hearing, the district court denied Lattner's motion to suppress and ruled that the affidavit in support of said warrant was adequate on its face.

Prior to trial, Lattner also moved to suppress the government's proposed FRE 404(b) evidence. The motion was denied, and the government introduced evidence at trial concerning several prior acts, including: 1) testimony from two police officers who arrested Lattner in October of 1999 after observing him conducting drug transactions and heroin packets seized during that arrest, which were stamped "World Domanation;"² 2) testimony from a police officer who, in August of 1999, assisted other officers in the seizure of heroin from Tremayne Nowden pursuant to a search warrant executed at 4155 Wesson Street in the City of Detroit; 3) portions of an earlier hearing transcript that were read into the record to establish that Lattner had admitted ownership of the property at 4155 Wesson; and 4) testimony from an officer who seized 89 packets of heroin from 4155 Wesson in September of 1999, when Thomas Latham was arrested for the possession of said packets, which were also stamped "World Domination." The district court gave both an interlocutory and final limiting instruction on the use of Rule 404(b) evidence.

Lattner was found guilty of one count in the superseding indictment — Count II, Possession with Intent to Distribute Cocaine Base. He was subsequently sentenced to a term of imprisonment of 170 months. Lattner moved for a new trial based on several alleged trial errors, including: 1) comments from the district court judge surrounding Lattner's testimony on his own behalf and the revelation of the fact that he had been previously convicted of two prior drug offenses; 2) instances where jurors observed Lattner in handcuffs and being escorted by court marshals while getting on or off the elevator; 3) interruptions of defense counsel's cross-examination of various witnesses by the district court judge; and 4) statements made by the attorney for the United States in closing argument. Lattner's motion for a new trial was denied.

Lattner appeals his conviction, arguing that the drugs and other evidence of narcotics trafficking activities found during the execution of the search warrant at 2416 Monterey should have been excluded at his trial because the affidavit upon which said warrant was based failed to establish probable cause to believe evidence of a crime would be found at the stated place. Lattner asserts that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when the district court denied his motion to suppress evidence on these grounds. Lattner further contends that the trial court erred in denying his pre-trial motion to suppress evidence of other acts outside those charged. Finally, Lattner claims that the trial court erred in denying his motion for a new trial based on the individual and cumulative effect of alleged trial errors that Lattner believes resulted in a denial of his right to a fair trial under the Sixth Amendment.

DISCUSSION

A. Motion to Suppress

Lattner argues that the search warrant for 2416 Monterey is defective because the affidavit on which it is based is insufficient. To be sufficient, the affidavit must establish probable cause to believe that evidence of narcotics trafficking would be present at 2416 Monterey on July 18, 2001. United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991). Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion," United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990), and is said to exist "when there is a `fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." Davidson, 936 F.2d at 859; see also, e.g., United States v. Johnson, 351 F.3d 254, 258 (6th Cir.2003). In reviewing the sufficiency of a search warrant affidavit the "magistrate's determination of probable cause is afforded great deference," and should only be reversed if arbitrarily made. United States v. Greene, 250 F.3d 471, 478 (6th Cir.2001); United States v. Finch, 998 F.2d 349, 352 (6th Cir.1993). To this end, "review of an affidavit and search warrant should rely on a `totality of the circumstances' determination, rather than a line-by-line scrutiny." Greene, 250 F.3d at 479. The district court's denial of Lattner's motion to suppress is reviewed by this Court for clear error with respect to that court's findings of fact and de novo with respect to conclusions of law. United States v. Miggins, 302 F.3d 384, 397 (6th Cir.2002) (citing United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir.1996)).

The affidavit in this case was given by one of the investigating officers. After recounting the averring officer's professional history, the affidavit summarizes the factual basis for the warrant request as follows:

On July 16, 2001, the affiant received a complaint that the location of 2416 Monterey was involved in narcotic trafficking.

On July 16, 2001, the affiant went to the location of 2416 Monterey and conducted a fixed surveillance for 30 minutes. During this surveillance 3 persons arrived at this location, entering the front door and staying a few minutes and returned with small items in their hands (concealed manner). The affiant was afforded the opportunity to speak with one of the buyers B/M/40's wearing blue jeans and a yellow shirt, affiant asked buyer "If Marty was opened for business" and buyer replied "yes" and open[ed his] hand showing affiant one z/l of suspected cocaine.

On July 17, 2001 the affiant was working in conjunction with an SOI. On this date the affiant met with the SOI to formulate plan to make a controlled purchase from the location of 2416 Monterey. The SOI was searched for money and narcotics with negative results. The affiant issued secret service funds and instructed the SOI to attempt a purchase of narcotics from the location of 2416 Monterey. The affiant observed the SOI go directly to the front door of the location, enter same and stay for a short period of time, then to return directly back to the affiant. The SOI returned and stated that the above seller told him (SOI) to come back later because he (seller) was out of cocaine. This Source of Information has been utilized on 6 occasions, resulting in the arrest of over 4 persons, for the violation of the controlled substance act and other related offenses, with at least 3 convictions and cases still pending in the Wayne County Circuit Court and the 36th District Court. Independent investigation has proven that the SOI's information is both credible and reliable.

On July 18, 2001, the affiant went back to the above location to assure that narcotics activity was still in progress. The affiant set up surveillance for a time period of 30 minutes and observed 2 persons go to the front door of the above location, enter same for a period of time of less than 45 seconds and the [n] leave the location same manner as above.

J.A. p. 40.

The affidavit thus contains several different kinds of information in the form of anonymous assertions, direct observations, corroboration of assertions, and valid inferences from circumstances. Id. Through independent surveillance of 2416 Monterey, the affiant witnessed several people visiting the residence, staying a few minutes, and then leaving with small packages. This activity, consistent with the affiant's training and...