U.S. v. Herder

Decision Date11 February 2010
Docket NumberNo. 08-4420.,08-4420.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kinsey Cory HERDER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Virginia, for Appellant. David Brian Goodhand, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Richard H. McWilliams, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Jeanine Linehan, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge DAVIS wrote the majority opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a separate opinion concurring in part and dissenting in part.

OPINION

DAVIS, Circuit Judge:

Kinsey Cory Herder ("Herder") appeals his conviction and sentence following a jury trial on one count of possession with the intent to distribute five grams or more of crack cocaine and one count of possession with the intent to distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Herder to 41 months' imprisonment—a sentence at the bottom of the applicable Sentencing Guidelines range—as well as five years of supervised release, a $200 special assessment, and forfeiture of property and proceeds obtained as a result of the offenses of the conviction. On appeal, Herder alleges that (1) there is insufficient evidence to support his conviction; (2) the district court erred in declining to give his proposed jury instruction on possession; (3) his sentence is procedurally unreasonable; and, (4) the money found on his person at the time of his arrest should not have been forfeited. For the following reasons, we affirm the conviction and forfeiture, vacate Herder's sentence, and remand for resentencing and to correct a clerical error in the judgment.

I.

Around midnight on June 20, 2007, Fauquier County Sheriff's Deputy Paul Cable ("Deputy Cable") was patrolling a commuter parking lot, which was used primarily by commuters who carpool during rush hour and was known to host drug activity after hours. Members of the Sheriff's Office and the Blue Ridge Narcotics Task Force had conducted undercover drug purchases in the lot throughout the prior year, the last arrest occurring in May 2007. Deputy Cable observed two vehicles, a Jeep Cherokee and a silver Buick, leaving the lot. He followed the Buick, which was occupied solely by Herder. According to Deputy Cable, Herder was driving "overcautiously," keeping under the speed limit and signaling well in advance of turns. Deputy Cable did not follow directly behind the Buick or attempt to pull it over. Herder pulled into the parking lot of a nearby convenience store and parked at the far end of the lot near pay phones instead of the available spots directly in front of the store. Deputy Cable parked his patrol car on the opposite side of the parking lot.

As Herder was getting out of the Buick, Deputy Cable asked him where he was coming from; Herder replied that he had been out that evening having dinner at Ruby Tuesday with a friend, Stephanie Umble. Hearing this, Deputy Cable became suspicious because he had just followed Herder from the commuter lot. In addition, the restaurant was directly across from the parking lot but a mile away from the commuter lot.

During his interaction with Herder, Deputy Cable came to believe that criminal activity had taken place because Herder came from an area of high narcotic activity, gave implausible responses, exhibited cautious behavior, and constantly received cell phone calls. Deputy Cable asked Herder whether there were any drugs in the car and Herder said that there were not. Notwithstanding Herder's response, Deputy Cable asked permission to allow a narcotics detection dog to scan the Buick. Herder acquiesced, saying that he had nothing to hide.

The K-9 unit was deployed to Herder's Buick and positively alerted to the presence of the odor of narcotics. Deputy Cable then began a probable cause search. He found nothing in the console, glove box, front passenger area, or under the seats. He did find three containers disguised to look like household products which contained false bottoms concealing narcotics and coffee grounds. One container, made to look like Ajax Bleach, was on the back seat of the car in plain view and concealed a plastic bag containing smaller plastic bags of crack cocaine and a plastic bag of coffee grounds. Another container, made to look like Old Spice shaving cream, was found on the floor board behind the driver's seat and concealed three bags of marijuana and a plastic bag of coffee grounds. The final container, made to look like Cheetos cheese curls, was found inside a plastic shopping bag near the middle of the back seat of the car. This container concealed a large plastic bag containing smaller plastic bags of crack cocaine.

Deputy Cable seized a total of 21 bags of crack cocaine and three bags of marijuana from Herder's car. Also inside the car was a prescription pill bottle bearing the name Tiffany Stokes. The pills in the bottle were not consistent with the label. On Herder's person was $1223.00 in multiple denominations. Herder was thereafter arrested.

On October 18, 2007, a federal grand jury in the Eastern District of Virginia indicted Herder on one count of possession with the intent to distribute five grams or more of crack cocaine and one count of possession with intent to distribute marijuana, both in violation of Title 21 U.S.C. § 841(a)(1). Herder pleaded not guilty and went to trial.

During trial, the government called a police lieutenant with 18 years of experience as a drug expert. The expert testified that there was a recent rise in the use of false-bottom containers to conceal crack cocaine and marijuana. The expert also testified that persons engaging in illegal drug purchases used "folds," which are bills of money that are folded over. He then identified at least six "folds" depicted in a photograph of the money recovered from Herder at the time of his arrest. This expert, along with Deputy Cable, testified that coffee grounds are used to prevent a dog from sniffing the presence of drugs. The convenience store where Herder was arrested was known for illegal drug activity where police have conducted under cover drug buys. The expert concluded that the denominations of money found on Herder, the use of the canisters and coffee grounds, as well as the individually packaged crack cocaine and marijuana were consistent with distribution.

The defense called two witnesses. First, Umble testified that she and Herder did, in fact, go to Ruby Tuesday on the night of his arrest. Umble stated that she lived a few miles away from the commuter lot and that she and Herder frequently met at the commuter lot, where she would leave her Jeep Cherokee and ride in Herder's car. Her car had been towed in the past and, to prevent a recurrence, she always parked in the commuter lot where her car would be safe. She testified that Herder's car was very messy but she did not see any drugs that night. She also testified that she did not leave any drugs in the car.

Second, Tiffany Stokes, Herder's fiancee, testified that the two of them owned a t-shirt business, together with a woman named Aida Hernandez. The three shared the Buick for business deliveries and, as a result, the car became littered with "junk." Shortly before the search, Herder had gone on one such delivery and collected payment. (There were no t-shirts in the car at the time of the search.) Stokes further testified that Herder had access to money, approximately $16,000, because she recently received money from a settlement following a car accident and she had given the money to Herder to deposit in his bank account. Stokes was on prescription medication at the time of the search. She did not leave any crack cocaine or marijuana in the car.

Counsel for Herder submitted a proposed jury instruction on the meaning of "possession," which the district court refused. The final jury instruction discussed the difference between actual and constructive, as well as joint and sole, possession. The court defined constructive possession as follows: "The possession is called constructive possession when a person does not have the direct and physical control over the substances but can knowingly control it and intends to control it, sometimes through another person." J.A. 140. The instruction proposed by the defense and rejected by the court would have added the following two sentences: "Presence in a car from which the police recover contraband does not establish possession. In other words, the mere proximity of contraband to the occupant is insufficient to establish constructive possession." J.A. 18.

During deliberations, the jury sent out the following note: "Does possession mean knowing possession? Can the drugs be in the car and not be possession?" J.A. 151. The parties agreed that the first question should be answered affirmatively. Defense counsel again offered the proposed instruction and again, the district court refused. Shortly thereafter, the jury found Herder guilty on both counts.

The original presentence report prepared by the probation officer erroneously determined that Herder was found in possession of nine grams of cocaine (powder) but it was later amended to reflect Herder's possession of 3.8 grams of crack cocaine (the amount determined at trial) and 7.3 grams of marijuana. The conversion yielded the equivalent of 50.54 kilograms of marijuana for sentencing.1 With an offense level of 20 and five criminal history points, Herder was...

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