952 F.2d 397 (4th Cir. 1991), 91-5386, U.S. v. Fish
| Citation | 952 F.2d 397 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. William James FISH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfatir Yasin CONNOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Christopher Lyman HUGHES, Defendant-Appellant. |
| Case Date | December 16, 1991 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
Page 397
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 (See FI CTA4 Rule 36 regarding use of unpublished opinions)
Argued Oct. 28, 1991.
34 F. R. Evid. Serv. 741
Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. (CR-90-92-G), Norwood Carlton Tilley, Jr., District Judge.
Argued: James Wilson Swindell, High Point, N.C., for appellant Fish; Lawrence Jay Fine, Winston-Salem, N.C., for appellant Connor; Susan Hayes, Greensboro, N.C. for appellant Hughes. Richard S. Glaser, Jr., Assistant United States Attorney, Greensboro, N.C., for appellee.
On Brief: Anne Rebecca Littlejohn, Greensboro, N.C., for appellant Hughes; Robert H. Edmunds, Jr., United States Attorney, Greensboro, N.C., for appellee.
M.D.N.C.
AFFIRMED.
Before PHILLIPS and HAMILTON, Circuit Judges, and GERALD W. HEANEY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
OPINION
HAMILTON, Circuit Judge:
William Fish, Alfatir Connor, and Christopher Hughes appeal their convictions for conspiracy to possess with intent to distribute and to distribute quantities of crack cocaine, and for possession of crack cocaine with intent to distribute. 21 U.S.C. §§ 841, 846. Seven issues are raised on appeal. Fish challenges the admission of certain evidence pursuant to Fed.R.Evid. 404(b), the sufficiency of the evidence as to his participation in the conspiracy, and the attribution of drugs to him for purposes of sentencing. Connor argues that drug evidence obtained in the course of a stop and frisk should be suppressed because the stop and frisk violated the fourth amendment guarantee against unreasonable searches and seizures. Finally, Hughes challenges the attribution of drugs for sentencing purposes, a two point enhancement of his base offense level for possession of a firearm during a drug offense, and an enhancement in sentencing for being a supervisor or manager in the drug conspiracy. Finding no error, we affirm the judgments of the district court.
I
In mid-July 1989, the defendant Christopher Hughes and Henry Clayton Bell joined together to distribute crack cocaine at "The Hill" area in Greensboro, North Carolina. Hughes would provide crack to Bell, who would sell the crack while Hughes remained in the area. This business relationship continued until September 26, 1989, when Bell was arrested by the Greensboro police. During the course of the relationship, Bell sold crack for Hughes, at Hughes direction, three to four days a week, with twenty-five to fifty "rocks" of crack valued at $20.00 apiece being sold on any given day.
On September 26, 1989, Bell came to Hughes' apartment to pick up crack for distribution as previously instructed by Hughes. Bell received three packages containing 66.1 grams of crack from Hughes in the kitchen of Hughes' apartment. Soon after Bell received the crack, an individual named "Psych," later identified as Carrington Harrell, appeared at Hughes' apartment. Hughes, his wife, Harrell, and Bell then proceeded to The Hill so that Bell could sell the crack.
Shortly after his arrival on The Hill, Bell was arrested and the police discovered the crack he possessed. Bell gave a statement to the police implicating Hughes. Based on that statement, the police obtained a warrant and searched Hughes' apartment. They found a gun and trace amounts of cocaine in the kitchen of the apartment where Hughes had given Bell crack earlier that day. At trial, Bell identified the gun as a gun Hughes had purchased on The Hill approximately three weeks prior to Bell's arrest in exchange for a quantity of crack cocaine.
[1
Defendant William Fish was with Bullock at the time Bullock observed Hughes and others placing crack cocaine in the car for transporting to North Carolina in August 1989. Bullock discussed the sale of crack in Greensboro with Fish and asked if Fish wished to join him and the others in travelling to Greensboro and selling drugs. Bullock, Jones, and Fish had previously sold drugs together in the Linden area. Fish declined to go to Greensboro on this occasion, although he later accompanied Jones and Bullock to Greensboro on December 17, 1989, for the purpose of selling drugs.
In Greensboro, the conspirators, other than Fish, divided the drugs carried by Hughes and sold them. The conspirators performed various tasks, including selling, collecting money, and watching for police. Defendant Connor was also present with the other conspirators during this particular episode of drug selling in Greensboro. Hughes boasted to Fred Durham of being "top dog," along with Carrington Harrell, in a major crack cocaine drug conspiracy between Linden, New Jersey, and Greensboro, North Carolina.
Bullock conducted a second, one-day, drug expedition in November 1989, from Linden to Greensboro. He sold approximately $1000.00 worth of cocaine for Harrell on this occasion. He was accompanied on this trip by Cory Rozier.
Defendant Connor was also in Greensboro in November 1989. On November 9, 1989, two Greensboro police officers were patrolling The Hill at approximately 10:20 P.M. in separate patrol cars. The Hill was an area specifically known as a place where drug transactions were prevalent. As the officers proceeded down High Street, the first patrol car passed a parked car which was apparently unoccupied. Immediately after the first patrol car passed, the officer in the second car, Detective Craig McMinn, saw two individuals "pop up" in unison from the front seat of the vehicle. Detective McMinn's vehicle was approximately 40 yards behind the first patrol car when this event was observed. The individuals in the parked vehicle were Connor and Rozier.
Detective McMinn pulled in behind the vehicle. The area was dark. McMinn noted that the car had no license plates, but had a paper tag in the rear window with New Jersey markings. The car was unfamiliar to McMinn, who had patrolled The Hill for some time.
After stopping the patrol car and activating his blue lights, McMinn approached the passenger side of the vehicle where Connor was seated. The officer in the first car had turned around and was approaching the driver-side passenger. Connor's hands were down between his legs as McMinn approached the car with a flashlight. McMinn spoke to Connor through the window of the car and requested that he step out of the vehicle. As Connor stepped out, McMinn saw that Connor held a large amount of cash in his hand.
After Connor exited the car, McMinn conducted a pat-down search of the defendant "for my safety and my partner's safety." McMinn testified that in the area of The Hill, he always conducted a pat-down for safety purposes.
In the course of frisking Connor, McMinn felt a hard lump in Connor's front right jacket pocket. McMinn reached in the pocket and removed the item. The lump was two plastic baggies wrapped together, one of which contained crack cocaine.
Seizure of these drugs was the subject of two suppression hearings before the district court. At the first hearing, the seized drugs and baggies were not available for examination. In addition to giving an account of the events leading to the discovery of the drugs, as set forth above, Detective McMinn testified that the lump in Connor's jacket was about the size of two cue balls placed together or perhaps somewhat smaller. He testified that the object he felt was similar in size to a small handgun. The district court concluded that under the circumstances cited, the stop and frisk leading to discovery of the drugs was proper and denied suppression.
At trial, the drugs seized by Detective McMinn were available for inspection. Counsel for the defendant requested that the district court reconsider the suppression question, because the quantity of drugs and the baggies seized from Connor could not possibly be mistaken for a weapon. Counsel argued that there was no basis for searching Connor's pocket and that the drugs should be suppressed as the fruit of an illegal search. After once again reviewing the circumstances of the stop and frisk and carefully examining the drug evidence, the district court again refused to grant the motion to suppress.
Fish, Jones, and Bullock stopped. The officers walked up, identified themselves, and attempted to speak with the defendants. Detective Robin Saul asked Fish to identify himself, but Fish's response was garbled. Saul repeated the question, but Fish's reply was again garbled. Saul concluded that Fish had something in his mouth that was impeding his speech and asked defendant to swallow before speaking. When Fish did not swallow the object, Saul asked Fish to spit the object out into his [Saul's] hand. Fish spit out a plastic bag containing 3.4 grams of cocaine. Fish was arrested at that time.
The officers also took a spray can of "Gunk" engine cleaner from defendant Jones in conjunction with this stop. The can had a false bottom. It was opened and contained 7.6 grams of crack cocaine.
Though the record is not clear, Fish was apparently released from custody following his December 20, 1989, arrest. On April 12, 1990, a federal arrest warrant was executed at defendant Fish's residence in Linden, New Jersey. The arresting officers found Fish asleep at the time. A search of the immediate area, specifically under the pillow upon which Fish slept, revealed an aspirin bottle containing 37 clear vials...
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