USA v. Howard
| Decision Date | 14 September 2010 |
| Docket Number | No. 08-6143.,08-6143. |
| Citation | 621 F.3d 433 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Willard HOWARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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ARGUED: M. Keith Davis, Austin, Davis & Mitchell, Dunlap, Tennessee, for Appellant. Scott A. Winne, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: M. Keith Davis, Austin, Davis & Mitchell, Dunlap, Tennessee, for Appellant. Scott A. Winne, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.
Before GILMAN and COOK, Circuit Judges; OLIVER, Chief District Judge. *
Willard Howard was found guilty by a jury on one count of conspiring to possess and distribute at least five kilograms of cocaine and on one count of attempting to possess and distribute the drug. The district court sentenced Howard to life imprisonment. Howard appeals his conviction, arguing that the district court erred by (1) failing to authorize funding for Howard to obtain the assistance of a drug-dog expert, (2) refusing to suppress certain evidence, (3) limiting Howard's cross-examination of a government witness, (4) permitting the government to introduce evidence of Howard being previously investigated by law enforcement agents, (5) declining to grant a mistrial when a government witness mentioned that he had previously encountered Howard during another drug investigation, and (6) concluding that Howard's conviction was supported by sufficient evidence. For the reasons set forth below, we AFFIRM the judgment of the district court.
A. Factual background
This case began on December 12, 2005 with a typical traffic stop along northbound Interstate 75 in Bradley County, Tennessee. Deputy Shane McKee of the Bradley County Sheriff's Office stopped a Volkswagon Passat driven by Antonio Bautista-Benitez for a minor traffic violation. Upon further investigation, Deputy McKee discovered that Bautista-Benitez had no driver's license and that the Passat was not registered in his name.
Detectives Eduardo Choate and Joe Renner soon joined Deputy McKee to assist with the traffic stop. They searched the Passat, with Bautista-Benitez's consent, and discovered a secret compartment underneath the backseat. Hidden inside were over five kilograms of cocaine. This discovery caused the officers to arrest Bautista-Benitez and take him, the contraband, and two cell phones found in the Passat back to the Bradley County Sheriff's Office.
Once back at the Sheriff's Office, one of Bautista-Benitez's cell phones began to ring. Detective Choate answered it. The caller sounded like a male of Hispanic origin. Detective Choate told this man that Choate worked for a wrecker service that had been called to tow the Passat because of a collision. He gave the caller Detective Renner's cell phone number, telling the caller that the number belonged to the owner of the wrecker service.
A short time later, a woman named Amy Cornwell called Detective Renner's cell phone. She claimed to be Bautista-Benitez's girlfriend and asked Detective Renner (believing him to be the owner of the wrecker service) about the Passat, indicating that she wanted to come by and pick it up. Over the next couple of days, Cornwell and Detective Renner exchanged phone calls and planned for Cornwell and her stepfather to drive from Crittenden, Kentucky (in the greater Cincinnati area) to Cleveland, Tennessee to retrieve the Passat.
At approximately 7:00 p.m. on December 14, 2005, Detective Renner met Cornwell and her stepfather near the highway and led them to Brewer's Wrecker Service, where the Passat was purportedly being held. Cromwell and her stepfather were driving a Chevrolet Suburban. Once they arrived at Brewer's, Cornwell went inside with Detective Renner while her stepfather remained in the vehicle.
Detective Renner gave Cornwell a “tow bill” in the amount of $326, which she paid in cash. He then told Cornwell that he had found the secret compartment inside the Passat and that he would call the police if she did not give him some of what he had found inside. Cornwell appeared stunned, paused for a second, and then responded that she did not know what he was talking about. Detective Renner then gave the “takedown signal” to the other officers present at Brewer's, after which he took Cornwell into custody.
The other officers approached the Suburban. They identified themselves as police officers and ordered Cornwell's stepfather to get out of the vehicle. He was then patted down by the officers, handcuffed, and taken into a small office inside the Brewer's building. Deputy McKee and Agent Crosby Jones of the U.S. Drug Enforcement Administration (DEA) joined the stepfather in the office to ask him some questions. There they learned that this man, Cornwell's stepfather, was Howard.
Detective Choate left Howard with Deputy McKee and Agent Jones for the purpose of going back outside to search the Suburban. Before Detective Choate started the search, however, his supervisor (Lieutenant Brian Quinn) instructed Choate to retrieve the latter's drug-detection dog, Titan, to first sniff the exterior of the Suburban before doing a search of the vehicle's interior. Detective Choate briefly left the scene to pick up Titan, returned ten minutes later, and walked Titan around the Suburban. Titan “alerted” on the vehicle, meaning that he signaled that there was an odor of narcotics present.
After the alert, Detective Choate went back inside Brewer's to speak with Howard. Agent Jones informed Detective Choate that Howard had been given the Miranda warnings. Detective Choate then asked Howard whether there were any drugs, guns, or large amounts of money in the vehicle. Howard responded that there were no drugs or guns in the Suburban, but there was about $100,000 of cash inside. The parties dispute whether Howard told the officers that they could “check” the Suburban, and further dispute whether he was given the Miranda warnings. The record is also inconsistent as to whether Detective Choate retrieved Titan before or after Howard admitted that there was cash in the Suburban. In any event, after Howard was questioned and after Titan alerted on the Suburban, officers searched the vehicle. They discovered a shoebox in the back of the Suburban with approximately $95,000 in cash inside.
That same evening, Detective Renner called the Northern Kentucky Drug Strike Force (NKDSF) and spoke with Agent Matthew Dewayne Rolfson. Detective Renner told Agent Rolfson about the circumstances surrounding Howard's arrest, and Agent Rolfson passed this information on to NKDSF Agent Scott Hardcorn. Agent Hardcorn then drove out to a parcel of land owned by Howard in Crittenden, Kentucky. The property appeared to contain two mobile homes accessible by a common driveway that could be locked with a single gate, with a mailbox across the road that bore the address 15712 Carlisle Road (the Carlisle Road property).
After making the trip to Carlisle Road, Agent Hardcorn prepared an affidavit for a warrant to search the property. A search warrant was subsequently issued on December 15, 2005. It described the property as follows:
(Bold in original.)
The property was searched on the same day that the search warrant was issued. During the search, the officers discovered digital scales and an electronic money counter inside the second mobile home (the one 100 yards to the right of the pole barn). But as revealed almost a year later, when Howard filed a supplement to his original motion to suppress this evidence, the second mobile home “was actually contained on a separate parcel of property and listed under a different address, that is, 15690 Carlisle Road.”
B. Procedural background 1. Pretrial motions
Both Bautista-Benitez and Howard were jointly charged in the same indictment with offenses relating to the distribution of cocaine. But unlike Howard, Bautista-Benitez eventually pled guilty to conspiring to distribute the drug. The government in turn dismissed the remaining charge against Bautista-Benitez of possessing cocaine with the intent to distribute.
Howard elected to proceed to trial. But before the trial began, Howard filed a number of motions. Only those relevant to the instant appeal are discussed below.
Two months after this case was opened, Howard filed a motion, pursuant to 18 U.S.C. § 3006A, to authorize funding for him to obtain the assistance of a drug-dog expert in order “to properly challenge the admissibility of evidence with respect to contraband located by ‘Titan.’ ” The magistrate judge denied the motion as moot, relying on the government's representation that it would “not seek to introduce at any trial of [Howard] evidence that a drug-detection dog alerted on Howard's vehicle.”
Howard also filed a motion to suppress evidence of the $95,000 in cash discovered during the search of his...
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