U.S. v. Green, 01-31359.

• Decision Date: 11 March 2003
• Docket Number: No. 01-31359.,01-31359.
• Citation: 324 F.3d 375
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin C. GREEN, also known as Bones, also known as Shaka, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 375

324 F.3d 375

UNITED STATES of America, Plaintiff-Appellee, v. Alvin C. GREEN, also known as Bones, also known as Shaka, Defendant-Appellant.

No. 01-31359.

United States Court of Appeals, Fifth Circuit.

March 11, 2003.

Lyman Edgar Thornton, III (argued) and Robert William Piedrahita, Asst. U.S. Attys., Baton Rouge, LA, for Plaintiff-Appellee.

J. David Bourland (argued), Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GARWOOD, JONES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Alvin C. Green ("Green") appeals various procedural rulings by the district court. For the following reasons, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

From June through August 1999, pursuant to court authorization, law-enforcement agents intercepted telephone conversations occurring over two cellular phones used by Green. The intercepts graphically depicted Green's drug trafficking and money laundering activities. On January 27, 2000, two law enforcement officers, armed with a parole warrant, arrested Green. One of the officers conducted a warrantless search of Green's automobile and recovered a .357 caliber revolver.¹ On April 5, 2000, Green was indicted on the following charges: Count I, conspiracy to possess with the intent to distribute and to distribute cocaine and 50 grams or more of cocaine base in violation of 21 U.S.C. § 846; Count II, distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1); Counts IV and V, engaging in a monetary transaction using criminally derived property, in violation of 18 U.S.C. § 1957; Counts VI through IX, unlawful use of a communications facility, in violation of 18 U.S.C. § 843(b); and Count X, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The Government filed two superceding indictments which amended Counts I, II, and X to include, among other things, Green's prior drug and felony convictions.

Both parties filed a number of pre-trial motions. Relevant to this appeal, the district court denied Green's motion to suppress the warrantless search of his vehicle. The district court granted the Government's motion to authenticate the intercepted wiretaps and to use the corresponding transcripts.² The case proceeded to a jury trial. During the trial, the district court denied Green's request to sequester Special Agent Mark Lusco ("Lusco"), and Task Force Agent Rudy Babin, ("Rabin," collectively with Agent Lusco, "DEA agents") from being present in the courtroom. The district court further denied Green's request to prevent the DEA agents from serving as expert witnesses. Finally, the district court overruled Green's objection calling for a mistrial based on comments made by the prosecutor in his rebuttal.

On April 19, 2001, the jury found Green guilty on all counts. Green was sentenced to life imprisonment on Counts I, II, and X, ten years on Counts IV and V, and eight years on Counts VI through IX, with all terms to be served concurrently. Green appeals the district court's procedural rulings. Green also moves for a new trial claiming that the district court committed plain error by failing to sever Count X from the remaining counts of the indictment.

DISCUSSION

I. Warrantless Search

Green contends that the district court erred by failing to suppress the firearm recovered during the warrantless search of his vehicle. When reviewing a district court's ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error. See United States v. Vasquez, 298 F.3d 354, 356 (5th Cir.2002).

The facts of Green's arrest are as follows. Armed with a warrant based on a parole violation, two law enforcement officers, followed Green from a location to his residence. When the officers pulled into his driveway, Green was on his front door steps, around twenty-feet from his vehicle. After the officers parked their car, they announced who they were. After they identified Green, they summoned him back to the driveway and placed him on an adjacent automobile in a frisk-type position. Green was initially cooperative. However, when the officers advised Green that he was under arrest for a parole violation, Green broke away and ran. Green was quickly tackled and immediately handcuffed, approximately six to ten feet from his vehicle. As Green was lying on the ground, handcuffed, surrounded by the arresting officer and three other Baton Rouge city police officers called to the scene, another officer searched Green's vehicle and recovered a .357 caliber revolver found protruding from beneath the driver's seat.

The district court found that the case was governed by New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) and denied Green's motion to suppress the firearm. Green asserts that this case is governed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), while the Government asserts that Belton is controlling. We find that neither case is controlling and hold that the district court erred in denying Green's motion to suppress the firearm.

The Supreme Court developed the doctrine of search incident to arrest in Chimel. The Supreme Court held that an officer making a lawful custodial arrest may search the person in custody and the "area `within his immediate control'" into which he might reach in order to obtain a weapon or to destroy evidence. 395 U.S. at 763, 89 S.Ct. 2034. The Supreme Court addressed the applicability of this doctrine to searches of automobiles in Belton. There, the Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." 453 U.S. at 460, 101 S.Ct. 2860. The Supreme Court in Belton adopted this bright line rule to avoid case-by-case evaluations of whether the defendant's area of control within the automobile extended to the precise place where the policeman found the weapon or evidence. See 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 7.1 at 136 (Supp. 1982).

Although this Court has not addressed this issue, the decisions from other Circuits are instructive. The Sixth and D.C. Circuits do not apply Belton where the police come upon the arrestee outside of his vehicle. See United States v. Strahan, 984 F.2d 155, 159 (6th Cir.1993) (declining to apply Belton where the officer first made contact with the defendant after he had exited his automobile and was thirty feet away from his vehicle when arrested); United States v. Fafowora, 865 F.2d 360, 362-63 (D.C.Cir.1989) (declining to apply Belton to a search of a defendant's automobile where the defendant had parked and was walking in the opposite direction, approximately one car length away, at the time of the arrest).³ The Seventh Circuit, however, applies Belton where the defendant exited the automobile immediately prior to his arrest. See United States v. Willis, 37 F.3d 313, 317-18 (7th Cir.1994).

Relying on the Seventh Circuit's reasoning, the Government asserts that Belton is applicable because the search of Green's vehicle occurred shortly after Green exited his vehicle. Given the undisputed facts of this case regarding Green's actions, we do not find the Seventh Circuit's reasoning dispositive. The principle behind Belton and Chimel is to protect police officers and citizens who may be standing nearby from the actions of an arrestee who might gain access to a weapon or destructible evidence. In this case, the officers approached Green after he exited his vehicle and was at his front door steps, around twenty-five feet away from his vehicle. Although Green attempted to flee from the officers, the Government admits that at the time the search occurred, Green was handcuffed and lying face down on the ground surrounded by four police officers, approximately six to ten feet away from his vehicle. The record contains testimony from the officer who searched Green's vehicle that, at the time of the search, Green was "pretty secure" and that he and the other officers did not fear that their life or safety was in danger. Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence are present in this case, the Government cannot justify the search of Green's vehicle under Belton or Chimel. Accordingly, we conclude that the district court erred in denying Green's motion to suppress the weapon obtained from his vehicle.

II. Authenticity of Intercepted Wire Communications

To establish authenticity, the Government must demonstrate: 1) the operator's competency, 2) the fidelity of the recording equipment, 3) the absence of material alterations, and 4) the identification of relevant sounds or voices. See United States v. Biggins, 551 F.2d 64, 66 (5th Cir.1977); United States v. Stone, 960 F.2d 426, 436 (5th Cir.1992). The party seeking to establish authenticity need not meet all the factors set out in Biggins, if "... upon independent examination, the district court is convinced that the `recording accurately reproduces the auditory experience.'" United States v. Buchanan, 70 F.3d 818, 827 (5th Cir.1995) (quoting Stone, 960 F.2d at 436). This Court reviews the district court's determination of authenticity of the recordings for abuse of discretion. Id.

Green asserts that the district court erred in finding that his intercepted telephone recordings had been authenticated. Green maintains that the Government failed to demonstrate that the recordings were reliable. Specifically, Green asserts that Agent Lusco and Barry Stewart, the Government's expert witnesses, did not adequately demonstrate how the recording equipment worked, who worked it, what kind of training the operator had, whether the equipment was...