U.S. v. Lee

• Decision Date: 09 November 1995
• Docket Number: No. 93-7044,93-7044
• Citation: 68 F.3d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo LEE, a/k/a Ponytail; Terrance Lanea Hires, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1267

68 F.3d 1267

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo LEE, a/k/a Ponytail; Terrance Lanea Hires,

Defendants-Appellants.

No. 93-7044.

United States Court of Appeals, Eleventh Circuit.

Nov. 9, 1995.

Cindy W. Powell, Mobile, AL, for Lorenzo Lee.

Winn Faulk, Mobile, AL, for Terrance Lanea Hires.

Gloria A. Bedwell, Asst. U.S. Atty., Mobile, AL, for the U.S.

Appeals from the United States District Court for the Southern District of Alabama.

Before KRAVITCH, Circuit Judge, and GODBOLD and MORGAN, Senior Circuit Judges.

MORGAN, Senior Circuit Judge.

Lorenzo Lee and Terrance Lanea Hires appeal their sentences for conspiracy to possess crack cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 and for possession of crack cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Hires also appeals his convictions. Based upon the reasons set forth below, we affirm Hires' conviction, but we vacate both appellants' sentences and remand to the district court.

FACTUAL BACKGROUND

On two occasions in March of 1993, Officer John Molyneaux, a narcotics agent for the Mobile, Alabama, Police Department, received a phone call from an unknown informant who apprised him of suspected drug activity. ¹ In addition to the phone conversations, Molyneaux also met with the informant on one occasion to obtain more detail. Specifically, the informant provided Molyneaux with information regarding a person from Miami, Florida, known as Ponytail who allegedly had been carrying cocaine to the Mobile area for delivery to local distributors. This information included a personal description of Ponytail; the fact that he was staying at the Econo Lodge at I-65 and Dauphin Street; that he was driving a blue Mitsubishi sports car bearing a specific license tag; that the car was parked in a particular location; and that he was traveling with a woman and young child. According to the informant, it was Ponytail's usual business practice to meet with local distributors at his hotel and drive their vehicles in order to avoid suspicion which may be caused by the Dade County plates on Ponytail's car.

With this information in hand, Molyneaux proceeded to the Econo Lodge in Mobile on March 11, 1993, to corroborate the informant's tip. Upon his arrival, he found a car matching the informant's description. Later, Molyneaux noticed appellant Lee exiting this vehicle. Lee exhibited all the characteristics provided by the informant, such as wearing a ponytail and travelling with a woman and child. Thereafter, Molyneaux and two other Mobile police officers, Sergeant Prentiss Lawson and Lieutenant Steve Arthur, noticed a red Honda Prelude enter the hotel's parking lot. The car was driven by appellant Hires who was accompanied by Lorenzo Cox. When the car arrived, Lee left his hotel room with a brown paper bag. Lee entered the back seat of the Honda, and the car pulled away. At that moment, Molyneaux decided to stop the Honda.

Once Molyneaux and his fellow officers stopped the car, they ordered the occupants out. In plain view on the rear floorboard of the vehicle, they saw wrapped in plastic crack cocaine in cookie forms. Sergeant Lawson then frisked Hires. Upon doing so, he found a bulge in Hires' front pocket. Purportedly out of fear that a weapon could be concealed in the pocket, Lawson looked in Hires' pocket and found a wad of cash and another crack cocaine cookie. The officers continued by searching Lee's hotel room after obtaining the permission to do so from Lee, Hires, and Cox were tried in federal district court for possession of crack cocaine with intent to distribute and for conspiracy. The government's theory was that Hires and Cox were involved in a drug conspiracy led by Lee to distribute crack cocaine in the Mobile area. In contrast, the defendants' theory at trial was that Hires and Cox picked Lee up at the hotel to help him find transportation for a new, legitimate business he was planning to start in Mobile and that the three were not involved in any drug conspiracy. Lee and Cox testified that they did not own and were not aware of the drugs found in the Honda. Hires did not testify. Hires, however, did make a request to admit jail records which showed that he had less than one dollar when he was arrested or to subpoena witnesses with additional information on this issue. Admission of this evidence would have disputed the testimony of one of the arresting officers, who had testified that he found a large sum of money in Hires' pocket. The district court refused this request. The district court also rejected Hires' request that the jury be instructed on the lesser included offense of mere possession. The jury convicted both Lee and Hires, but acquitted Cox.

                Lee's girlfriend. 2  While the search revealed no more drugs, the officers retrieved almost $3,000 in cash and some handwritten notes appearing to be records of drug transactions
                

At the sentencing stage of the trial, the district court, utilizing the federal Sentencing Guidelines, sentenced Lee to life on the conspiracy charge and a concurrent forty years for possession with the intent to distribute. At the time of Hires' sentencing, Lee recanted his testimony given at trial and claimed that Hires had nothing to do with the drug conspiracy. Based upon Lee's recantation, Hires moved for a new trial. The district court denied the motion, however, and subsequently sentenced Hires to jail for 235 months on both the conspiracy and intent to distribute charges.

Hires appeals his conviction and, in the process raises four specific issues. First, he contends that the evidence seized from the car should have been deemed inadmissible as the officers did not have a sufficient legal basis to conduct an investigatory stop of the Honda. Second, Hires argues that the district court erred by refusing to issue subpoenas for witnesses to authenticate documents regarding the amount of cash he had in his possession at the time of the arrest. Third, Hires maintains that the district court should have instructed the jury on the lesser included offense of possession. Finally, Hires claims that he should have received a new trial based upon Lee's recantation of his trial testimony. Both Lee and Hires also appeal their sentencing by arguing that the district court's findings of fact were clearly erroneous. We consider each of these issues separately below.

DISCUSSION

A. Investigatory Stop of the Car

Hires first argues that Molyneaux and his fellow officers did not have a sufficient legal basis to stop and search the Honda on March 11, 1993. He raised this issue before the district court by way of a motion to suppress the evidence seized in the search, which the district court denied. Rulings on motions to suppress involve mixed questions of fact and law. Thus, we evaluate the district court's factual findings for clear error and evaluate its legal conclusions de novo. United States v. Hromada, 49 F.3d 685, 688 (11th Cir.1995); United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir.1994). Furthermore, we construe all facts in a light most favorable to the government as it was the party prevailing in the district court. Hromada, 49 F.3d at 686.

It is acceptable under the Fourth Amendment for the police to stop persons and detain them briefly in order to investigate a reasonable suspicion that the persons have engaged or are about to engage in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry rationale also applies to allow the police to conduct an investigatory stop of a car. United States v. Sharpe, 470 U.S. 675, 682 In arguing that the Mobile police officers did not have a sufficient legal basis to stop the Honda, Hires relies on the Supreme Court's decision in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In White, the Court noted that an anonymous telephone tip ³ absent sufficient corroborating evidence would not justify a Terry stop and search. Id. at 329, 110 S.Ct. at 2415-16. Within the context of an informant's tip, a reasonable suspicion would exist if the informant had the ability to predict the suspect's future actions as compared to just merely relaying presently observable facts. On this issue, the White Court stated as follows:

                105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985);  United States v. Williams, 876 F.2d 1521, 1524 (11th Cir.1989).  The key, however, is "reasonable suspicion" on the part of the police officer.  "Reasonable suspicion" is more than just a hunch because the Fourth Amendment requires at a minimum some objective justification for the investigatory stop.  United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989).  The validity of the stop must be considered in view of the totality of the circumstances.  Id. at 8, 109 S.Ct. at 1586.   None of the suspect's actions need be criminal on their face, yet taken together, they can provide trained police with reasonable suspicion
                

The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of [presently observable facts]. Anyone could have "predicted" that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information--a special familiarity with respondent's affairs.... When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

Id. at 332, 110 S.Ct. at 2417 (emphasis added). Hires contends that Molyneaux and his colleagues only corroborated presently observable facts before stopping the Honda, instead of waiting to observe if any of the informant's predictions or future conduct proved to be true. Thus, he claims the...