U.S. v. Crowder

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Kanne
• Citation: U.S. v. Crowder, 588 F.3d 929 (7th Cir. 2009)
• Decision Date: 07 December 2009
• Docket Number: No. 08-3320.,08-3320.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice CROWDER, Defendant-Appellant.

588 F.3d 929

UNITED STATES of America, Plaintiff-Appellee, v. Maurice CROWDER, Defendant-Appellant.

No. 08-3320.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2009.

Decided December 7, 2009.

Tinos Diamantatos, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Jason P. Stiehl (argued), Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellant.

Before BAUER, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Police arrested Maurice Crowder after finding cocaine and marijuana in a hidden compartment of a car that Crowder and a co-defendant shipped from Arizona to Illinois. Crowder was indicted for conspiracy and attempted possession, both in violation of 21 U.S.C. § 846. Following a bench trial, the district court found Crowder guilty as charged and sentenced him to 240 months' imprisonment on each count, to run concurrently. Crowder appeals his conviction and sentence, alleging numerous missteps below. Because we find that the district court committed no reversible error, we affirm the conviction and sentence.

I. BACKGROUND

Maurice Crowder traveled back and forth between Chicago and Tucson, Arizona, with Charome Watkins¹ in January 2006. The men transported a dog from Tucson to Chicago on January 23. The men traveled back to Tucson the next day, allegedly to pick up additional dogs. Police stopped the men in the Dallas/Fort-Worth Airport and conducted a consensual interview, but later allowed them to leave after a drug-sniffing dog did not alert on the $46,000 in cash that Crowder was carrying.

Three days later, title to a 1998 Ford Mustang was transferred to Watkins's mother, Vickie Watkins,² who lived in Harvey, Illinois, with her son. That same day, a woman arranged to have the driver of a car carrier pick up the Mustang and transport it from Tucson to Harvey. The driver arrived at the designated meeting place, followed shortly thereafter by two unidentified Hispanic men, one driving the Mustang and the other a pickup truck. The driver checked the Mustang for damage prior to loading it onto the carrier, filled out the bill of lading, and gave the pink carbon-copy to the man who dropped off the Mustang. The men left the area before the driver loaded the Mustang, which the driver considered unusual because it was his experience that most people stayed to watch the driver load their vehicles onto the carrier.

While en route to Harvey, the driver contacted the Missouri Highway Patrol to report his suspicions about a Grand Prix that he was transporting. He met the highway patrol at a scale house, where he unloaded the Grand Prix and gave the patrol permission to search it. Using a K-9 unit, the patrol eventually discovered drugs hidden in secret compartments in the Grand Prix. The patrol then asked the driver if he was suspicious of any other vehicle on his carrier. The driver identified the Mustang based on his earlier observations. For example, while inspecting and loading the Mustang, the driver had noted a number of unusual things about the interior of the Mustang: one of the seats did not work, it smelled like spices, there were several air fresheners, and there were no personal items in the vehicle. The body of the Mustang was also missing the fender wells, trim items, hood scoops, Mustang horse emblem, and rubber molding around the lights. The driver also had opened the trunk after the individual dropping off the Mustang told him that there was a speaker box in the trunk. The driver agreed to unload the Mustang from the top row of the truck to facilitate the patrol's search of the car.

The patrol made a number of observations from the outside of the Mustang, including that the backseat appeared to have been tampered with and there was an interior screw sitting loose on the backseat. The patrol then opened and searched the Mustang³ where they discovered eighty pounds of marijuana and approximately two kilograms of cocaine hidden in a secret compartment behind the backseat.

The driver agreed to participate with law enforcement officers in a controlled delivery of the Mustang. The driver called the phone number of the intended recipient of the Mustang and spoke with Watkins. The driver told Watkins that he had been delayed but was still on his way. The next day the driver again spoke with Watkins to arrange a time and place for delivering the Mustang. A police officer recorded the phone conversations between the driver and Watkins.

Police set up surveillance at the delivery site and filmed the controlled delivery. The driver was also wearing audio recording equipment. Crowder and Watkins arrived in a maroon Ford Taurus, with Crowder driving. Both men got out of the Taurus, leaving the doors open and the engine running. Crowder handed Watkins cash to pay the driver for the delivery. The men told the driver that they did not have any form of identification, but Crowder told the driver that they had received the paperwork directly from the men that shipped the car from Arizona. Crowder gave the driver the pink bill of lading that the driver had given the unidentified Hispanic men in Arizona. The driver gave Watkins the white bill of lading after Watkins signed for the Mustang, and Watkins then handed the white bill of lading to Crowder. The men then left the delivery site, with Watkins driving the Mustang and Crowder the Taurus. Both men were arrested shortly thereafter.

A grand jury charged Crowder with conspiracy (Count I) and attempted possession with intent to distribute (Count II), both in violation of 21 U.S.C. § 846. Crowder moved to suppress evidence of the drugs found in the Mustang, based in part on his argument that the search violated the Fourth Amendment. The district court denied Crowder's motion to suppress.

The day before the trial was to begin, the government orally communicated to Crowder's counsel a large amount of new information that had not been disclosed previously to Crowder, including transcripts of the phone calls between Watkins and the driver.⁴ The government indicated its preference to the district court that Crowder's counsel have time to review the evidence once it had been reduced to writing. The court asked Crowder's counsel what the evidence was, apparently in an effort to determine whether a continuance was required or justified. Defense counsel indicated that he was uncomfortable sharing with the judge the contents of the new information because Crowder intended to waive his right to a jury trial and defend himself in a bench trial. The district court eventually denied Crowder's motion for continuance and started the trial later that same day. Following a three-day bench trial, the district court found that Crowder was guilty as charged in the indictment.

After denying Crowder's motion for a new trial, the district court entered judgment against Crowder for conspiracy and possession with intent to distribute (not attempted possession, as charged in the indictment). At sentencing, the government urged that Crowder's offense level include an enhancement for being a career offender under section 4B1.1A of the Sentencing Guidelines. The district court eventually sentenced Crowder to 240 months' imprisonment on each count, to run concurrently, a term of imprisonment that falls above the guideline range without any enhancements (130 to 162 months) but below the range if all of the proposed enhancements were included (360 months to life).

Crowder filed a timely appeal, challenging both his conviction and sentence. We find no error below and therefore affirm.

II. ANALYSIS

On appeal, Crowder argues that (1) the district court should have suppressed the evidence from the search of the Mustang; (2) the district court should have granted the motion for continuance; (3) his conviction on Count II should be reversed because the indictment was constructively amended; (4) he cannot be sentenced for both conspiracy to possess and attempted possession arising out of the same statute; (5) the evidence was insufficient to support his conviction; and (6) his prior crimes should not have triggered the career offender enhancement.

A. Fourth Amendment

Crowder argues that the police search of the Mustang violated his Fourth Amendment rights, and that the district court therefore erred when it denied his motion to suppress the contents of the search. We review the district court's factual findings for clear error, but review legal conclusions de novo. United States v. Mosby, 541 F.3d 764, 767 (7th Cir.2008).

The Fourth Amendment protects "against unreasonable searches and seizures." U.S. Const. amend. IV. A government agent's search is unreasonable when it infringes on "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). To challenge a search the defendant must show that he had both a subjective and objective expectation of privacy in the item or location searched. United States v. Haywood, 324 F.3d 514, 515-16 (7th Cir.2003) (citing United States v. Walker, 237 F.3d 845, 849 (7th Cir. 2001)). A court usually excludes evidence obtained in violation of the Fourth Amendment. Mosby, 541 F.3d at 767. But see Herring v. United States, 129 S.Ct. 695, 700, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ("The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Indeed, exclusion has always been our last resort, not our first impulse...." (citation and quotation omitted)).

The district court found that Crowder lacked standing⁵ to challenge the search of the Mustang because he did not have a reasonable expectation of privacy in the Mustang. The court also found that the search did not violate the Fourth Amendment. United States v. Crowder, No. 06 CR 102-2, 2007 WL 1424606, at *4-5 (N.D.Ill. May 10, 2007). On appeal,...