U.S.A v. Doggins

• Decision Date: 09 February 2011
• Docket Number: No. 09-40925,09-40925
• Parties: UNITED STATES OF AMERICA,Plaintiff-Appellee, v. JOHNNIE DOGGINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JOHNNIE DOGGINS, Defendant-Appellant.

No. 09-40925

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FILED February 9, 2011

Lyle W. Cayce

Clerk

Appeal from the United States District Court

for the Eastern District of Texas

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Johnnie Doggins was convicted of two counts of distributing a controlled substance and one count of possession of over fifty grams of a mixture containing cocaine, all in violation of 21 U.S.C. 841(a)(1). He challenges the denial of his suppression m otion, the sufficiency of the evidence, and the calculation of his sentence. He also argues that he received ineffective assistance of counsel dur-ing the suppression hearing and that the district court erred by refusing to reopen the suppression hearing to allow him to testify.

I.

On July 30, 2007, police used a confidential informant to buy cocaine from D oggins. The informant was driving with an undercover agent when they met Doggins in a parking lot. The informant approached Doggins's car and bought one rock of cocaine for $20. As the informant was walking away, he turned around, went back to Doggins, complained about the quality of the rock, and purchased a second rock for $20. Both transactions were caught on videotape. Shortly thereafter, the undercover agent noticed the same car at Doggins's home.

On August 16, 2007, after confirming that the rocks contained cocaine, the police obtained a search warrant for Doggins's house.¹ They executed the warrant the next day, discovering drugs and a collection of drug paraphernalia. Later testing showed that the drugs included 60.63 grams of crack cocaine and 14.65 grams of powder cocaine, but the initial police report indicated that there were 38.4 grams of crack cocaine and 27.069 grams of powder cocaine.

II.

On February 8, 2008, Doggins moved to suppress the drugs found at his house. After a hearing on April 30, 2008, the district court denied the motion, holding that the good-faith exception applied because the police were objectively reasonable in relying on the search warrant. On September 15, 2008, Doggins moved to reopen the suppression hearing, complaining for the first time that hisattorney, Denise Benson, had not allowed him to testify.² After hearing testimony from Benson and Doggins, the court concluded that Doggins had never asked to testify, so it denied the motion. On November 12, 2008, Doggins submitted letters allegedly showing that he had written Benson in March 2008 with a request to testify, and on February 20, 2009, he filed a final motion to reopen the suppression hearing.

The court denied that motion as well, and the jury found Doggins guilty on all counts after a three-day trial. The court sentenced Doggins to the twenty-year statutory minimum for distribution of over fifty grams of cocaine base by a defendant with a prior drug felony. 21 U.S.C. § 841(b)(1)(A) (2009).

III.

Doggins contends that the district court erred by refusing to reopen the suppression hearing to allow him to testify. To prevail, he must show an abuse of discretion. United States v. Hassan, 83 F.3d 693, 696 (5th Cir. 1996). According to Doggins, the court should have reopened the hearing because Benson refused to allow him to testify at the first hearing despite his repeated requests to do so. The basis of his argument is two handwritten letters to Benson in which he requested to testify, dated March 14 and 26, 2008. Doggins did not present those letters at the hearing on his first motion to reopen, however, despite requests from the court that he present evidence showing that he had asked to testify. Instead, he provided the letters almost two months later and nearly six months after the suppression hearing, casting doubt on their authenticity. The court did not abuse its discretion by discounting the evidentiary value of the letters.

Moreover, the court noted that Doggins was present in the courtroomthroughout the suppression hearing and easily could have asked the court to let him testify if he had so desired. The court thus had good reason to find Benson credible when she testified that Doggins never asked to testify and that if he had, she would have allowed him to do so. Doggins presents no evidence to challenge Benson's credibility, and we will not second-guess it on appeal. The court did not abuse its discretion by refusing to reopen the suppression hearing.

IV.

Doggins argues that Benson provided ineffective assistance of counsel. To prevail, he must show that Benson's performance "fell below an objective standard of reasonableness" and that the deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). He alleges first that Benson was deficient by failing to let him testify at the suppression hearing. For the reasons listed above, however, we agree with the district court that Doggins did not request to testify.

Moreover, Benson had a legitimate reason for not putting Doggins on the stand: He had no firsthand knowledge of the search and would have nothing relevant about which to testify. Doggins insists that he could have shown that statements in the government's affidavits were false, but he provides no evidence that he had personal knowledge of those statements. Benson thus provided effective counsel at the suppression hearing.

Doggins also urges that Benson should have requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to point out an inconsistency in the government's warrant affidavits. Franks held that a defendant can request a hearing to challenge the accuracy of statements used to procure a search warrant. To discredit the warrant, the defendant must show that an affidavit contained a false statement that is the product of "deliberate falsehood or of reckless disregard for the truth" and that the remaining truthful portion of the affidavitis insufficient to support a finding of probable cause. Moreno v. Dretke, 450 F.3d 158, 169 (5th Cir. 2006). Doggins points out that the August 15 arrest warrant affidavit detailed only Doggins's first sale to Ricky, but the August 16 search warrant affidavit also included information about the second sale. A Franks hearing, he argues, could have explored that inconsistency.

Doggins's argument fails, because an objectively reasonable performance does not require requesting a Franks hearing over such a trivial inconsistency. The omission of the second incident in the first affidavit does not show the "deliberate falsehood or reckless disregard for the truth" necessary to prevail under Franks. Moreno, 450 F.3d at 169. Rather, it merely indicates that the government needed only one incident to show probable cause to arrest Doggins, while it mentioned multiple sales in the search warrant affidavit to show that Doggins was a large distributor and would likely have drugs at his house. Benson's decision not to raise such a frivolous argument was not deficient.

V.

Doggins maintains that the district court erred by denying his motion to suppress. When evaluating a motion to suppress, the court first must determine whether the searching officers acted "in objectively reasonable good-faith reliance upon a search warrant." United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997). Only if they did not act in good faith must the court consider whether probable cause existed. Id. Doggins does not challenge the holding that the officers acted in good faith. We thus need not reach his arguments on probable cause, and we uphold the denial of the suppression motion.

VI.

Doggins contends that the evidence did not support the jury's conclusion that he sold drugs to the informant twice on July 30, 2007. That argument fails, because both transactions are on video. Doggins points to the undercover agent's deposition, in which he mistakenly stated that Doggins started to pull out of the parking lot before the informant returned to make the second purchase, when in fact the video showed that Doggins remained parked. That contradiction, which the agent later explained resulted from his faulty memory, in no way casts doubt on the video, which provided ample evidence to support the verdict beyond a reasonable doubt.

Doggins also avers that there was insufficient evidence to prove the chain of custody for the 60.63 grams of cocaine found at his house. According to Dog-gins, the drugs recovered there on August 17 came to the drug lab in two shipments, and the government cannot explain why the drugs were separated into two batches. That assertion misreads...