U.S. v. Majors, 02-50423.

• Decision Date: 22 April 2003
• Docket Number: No. 02-50423.,02-50423.
• Citation: 328 F.3d 791
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Earl MAJORS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.3d 791

UNITED STATES of America, Plaintiff-Appellee, v. David Earl MAJORS, Defendant-Appellant.

No. 02-50423.

United States Court of Appeals, Fifth Circuit.

April 22, 2003.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Asst. U.S. Atty., Diane D. Kirstein, San Antonio, TX, for Plaintiff-Appellee.

John Michael Hurley, Waco, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, JOLLY and JONES, Circuit Judges.

PER CURIAM:

David Earl Majors appeals his conviction and sentence after a jury trial for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.

BACKGROUND

On March 23, 2000, members of the Waco Police Department's Drug Enforcement and Special Operations Units executed a search warrant for narcotics at the residence of James Murphy Gilbert. Officer Ben Rush was responsible for securing people in the residence and ensuring that no weapons were present. Rush encountered Majors in the kitchen area; he knew that Majors had a criminal record for drugs, weapons charges, and theft.

Upon ordering Majors to the ground, handcuffing him, and conducting a quick patdown for weapons, Rush felt a large bulge in the left pocket of Majors's baggy shorts. Unable to identify the bulge, Rush pulled up the outside of Majors's pocket to see what was inside. He testified that there was no other reasonable way to verify that the bulge was not a weapon.

Inside the pocket, Rush saw a plastic bag filled with smaller plastic bags containing white powder. Satisfied that the bulge was not a weapon, Rush did not remove anything at that time. Instead, he informed another police officer nearby that Majors possessed suspected narcotics. When a Drug Enforcement Unit Officer searched Majors's pockets, he did not find the package that Rush had seen, but it turned up on a staircase where Majors had been leaning against the banister while waiting to be moved into another room of the house. Rush testified that the package found on the staircase was the same package he had seen in Majors's pocket. Police later determined that the package contained approximately 6.21 grams of cocaine.

The district court denied appellants' two motions to suppress and, after a jury found him guilty, sentenced Majors to 262 months in prison, six years' supervised release, a $3,000 fine, and a $100 special assessment.

DISCUSSION

Self-representation

Majors first argues that the district court denied him his Sixth Amendment right to self-representation. The denial of a defendant's right to represent himself, if established, requires reversal without a harmless error analysis. Moreno v. Estelle, 717 F.2d 171, 173 n. 1 (5th Cir.1983).

Prior to trial, Majors's court-appointed attorney, Lisa Kubala, moved to withdraw as counsel. The district court denied the motion, noting that Kubala was Majors's third attorney. On the day of trial, Majors gave the court a letter complaining about Kubala's representation but did not mention anything about self-representation. During trial, Bob Barina, a partner at Kubala's law firm, assisted Kubala by examining the witnesses. Before closing arguments on the second day of trial, Barina informed the court that Majors was dissatisfied with Barina's performance and that Majors wished either to retain counsel or make the closing argument himself.

Although Majors complains of being represented by an attorney who was neither retained by him nor appointed by the court, this circumstance is irrelevant. The district court properly denied his request to represent himself as untimely. Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982)(en banc) (denying defendant's request to assume his own defense as untimely on the third day of trial prior to closing arguments). Moreover, Majors's request was not unequivocal as it was for either new counsel or permission to make the closing argument. United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.1986) (the request to proceed pro se must be clear and unequivocal).

Motions to suppress

Majors argues that the district court erred by denying his motions to suppress. In reviewing the denial of a motion to suppress, the district court's factual findings are reviewed for clear error and the legal conclusions are reviewed de novo. United States v. Smith, 273 F.3d 629, 632 (5th Cir.2001). The evidence is viewed in the light most favorable to the prevailing party. Id.

Majors first contends that because the government could not produce the search warrant for Gilbert's house, it could not show that there was probable cause or reasonable suspicion for Rush to put Majors on the floor, handcuff him, and pat him down for weapons. We note initially that Majors lacked standing to contest the existence of the warrant, since he was neither an owner nor occupant of the house, but merely a visitor. Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998). Nevertheless, the existence of a warrant was not a sine qua non to the officer's frisking or handcuffing Majors. Although the actual warrant for entering the house was lost, nothing in the record suggests that the warrant did not exist at the time of the search. Furthermore, the officers' testimony demonstrates that they believed they were executing a valid warrant to search for drugs. "Under the good faith exception to the exclusionary rule, evidence is not to be suppressed... where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized." United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir.1991)(en banc)(internal quotation marks and citation omitted).

Rush was executing a search for drugs under the good faith belief that the search was authorized by a warrant. Based on his knowledge of Majors's history of narcotics and weapons offenses, it was reasonable to believe that Majors might be armed. See United States v. Dixon, 132 F.3d 192, 197 (5th Cir.1997) ("This Circuit has explicitly recognized that firearms are `tools of the trade' of those engaged in illegal drug activities ....") (internal quotation marks and citation omitted). Rush's patdown for weapons was reasonable.

Majors further argues that even if a warrant existed, Rush exceeded the scope of a reasonable search because he could not have reasonably believed that the bulge in Majors's pants was a weapon. Majors relies on Minnesota v. Dickerson, 508 U.S. 366, 378-79, 113 S.Ct. 2130, 2138-39, 124 L.Ed.2d 334, 347-48 (1993), where the Supreme Court held that an officer's "plain feel" seizure of cocaine violated Terry because the officer manipulated a lump in the defendant's pocket after he knew that the lump was not a weapon. Majors fails to recognize that "so long as an officer is investigating an object that reasonably may be a weapon, the Terry search may continue." United States v. Maldonado, 42 F.3d 906, 909 (5th Cir.1995); see also United States v. Campbell, 178 F.3d 345, 349 (5th Cir.1999) (holding that an officer "had not ruled out the possibility that the large bulge was a weapon, and his removal of the pocket's contents was not beyond the scope of a permissible Terry frisk").

Unlike the officer in Dickerson, Rush did not rule out the possibility that the bulge in Majors's pocket was a weapon; his continued search of Majors's pocket was therefore justified under Terry for the protection of himself and the other officers in the house. The bulge in Majors's pocket was "bigger than a softball" and "in between hard and soft." Although Rush could not feel a knife in Majors's pocket, he could not tell if there was a another weapon in the bulge. Cf. Maldonado, 42 F.3d at 909 (officer wondering if a bulge in a boot was a grenade). Rush testified that apart from looking inside Majors's pocket, there was no other reasonable way to determine if a weapon was present. Viewed in the light most favorable to the Government, Rush had not ruled out the possibility that the bulge was a weapon, nor had he ruled out that the softball size item in Majors's pocket might conceal a weapon. Consequently, he could continue the search beyond the initial "plain feel."¹

Sufficiency of the evidence

Majors next challenges the sufficiency of the evidence to establish that the cocaine seized was intended for distribution. "[W]e must determine whether any reasonable trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt." United States v. Reyna, 148 F.3d 540, 543 (5th Cir.1998). "All credibility determinations and reasonable inferences are to be resolved in favor of the verdict." United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995).

Majors argues that Johnson's testimony is insufficient to establish intent to distribute because he testified only that the manner in which the cocaine was packaged in smaller individual bags usually indicates that it is for distribution. Intent to distribute, however, may also be inferred from "the presence of distribution paraphernalia, large quantities of cash, or the value and quality of the substance.'" United States v. Munoz, 957 F.2d 171, 174 (5th Cir.1992). No minimum quantity of the controlled substance is required. Id.

Johnson testified that the plastic bag contained...