U.S. v. Malone, 94-2680

• Decision Date: 06 April 1995
• Docket Number: No. 94-2680,94-2680
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Scott MALONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 393

49 F.3d 393

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Scott MALONE, Defendant-Appellant.

No. 94-2680.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1994.

Decided Feb. 28, 1995.

Rehearing Denied April 6, 1995.

Alfredo Parrish, Des Moines, IA, argued, for appellant.

Edwin F. Kelly, Jr., Des Moines, IA, argued (Don C. Nickerson and Ed Kelly, on the brief), for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Patrick Scott Malone appeals from his convictions of one count of conspiring to pass counterfeit money in violation of 18 U.S.C. Sec. 371 (1988), and three counts of passing counterfeit money in violation of 18 U.S.C. Secs. 472 and 2 (1988). He argues his convictions should be reversed because the prosecutor failed to produce Rule 16 material during trial, improperly commented on his failure to testify, and misstated the law to the jury. He also argues that there is insufficient evidence that he passed counterfeit money, that the district court ¹ erred in failing to suppress evidence from the search of his car, and that the district court erred in sentencing him. We affirm his convictions and sentence.

On January 31, 1994, two police officers observed a 1994 Lincoln Town Car, driven by Malone, stop at a reported "crack house" in Des Moines, Iowa. Initially, the officers did not stop the car but parked nearby so they could watch the car. Several minutes later, the car approached the intersection and made an illegal turn. As the officers pulled the car over, they saw the passenger moving quickly as if he was putting something under the floor mat. The officers stopped the car, and asked Malone to get out of the car. The officers frisked Malone and found a knife in his right front pocket. The officers told Malone to sit in the patrol car, and then asked the passenger, Darren Luckett, to get out of the car. After Luckett got out of the car, one of the officers saw a loaded clip for a handgun in the middle of the car's front seat. The officers then searched the car, finding a semi-automatic firearm in the glove compartment and several hundred dollars cash under the front carpet on the passenger's side.

The officers arrested Malone and Luckett and took them to the Des Moines police station. An inventory of the contents of Luckett's pockets revealed two counterfeit $100 bills. Malone had $1,246 cash, including a $100 bill which bore the same serial number as the counterfeit money retrieved from Luckett. The officers later found two counterfeit $100 bills bearing the same serial number under the patrol car's back seat cushion.

Luckett ² testified at trial that during the "Super Bowl" football weekend Malone drove him to various bars in the Des Moines area. Malone waited in the car while Luckett went into the bar and bought a drink with a $100 counterfeit bill. Luckett drank the drink then returned to the car where the two split the proceeds. Luckett testified that he passed approximately twenty $100 bills in this manner, but that he could not remember the names of all the bars due to the amount of alcohol he consumed. The Secret Service recovered twelve counterfeit $100 bills which had been passed at different bars in the Des Moines area. These counterfeit bills also had the same serial number as the genuine bill recovered from Malone. Luckett also testified about computer equipment he helped Malone steal.

At trial, the court amended Count I of the indictment charging a conspiracy to manufacture counterfeit bills because there was no evidence of an agreement to manufacture. The court submitted the case to the jury on one count of conspiracy to pass counterfeit and three counts of passing counterfeit. ³ The jury found Malone guilty on all counts of the amended indictment. Malone appeals.

I.

Malone first argues that his conviction should be reversed because the government violated Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), by failing to produce material evidence favorable to him. ⁴

The Secret Service interviewed Luckett the day after his arrest and Luckett signed a statement detailing his activities with Malone. Malone's trial started on April 4, 1994. On that day, a secret service agent sent an electronic mail message to the prosecutor, stating that the agent interviewed Luckett following the start of the trial and requesting the prosecutor to contact the agent. The prosecutor contacted the agent the next day. The agent told him that he had some notes from his most recent interview with Luckett, and that some of the details of Malone's and Luckett's activities differed from Luckett's account at the time of his arrest. The prosecutor got the notes from the agent and presented a copy to the court in camera. After reviewing the notes, the district court determined that the notes did not qualify as Jencks ⁵ material but nevertheless should be turned over to the defense.

Malone alleges three violations of Rule 16. First, the government's failure to turn over the agent's electronic mail message. Second, the government's failure to immediately turn over the agent's notes. Malone contends that he was unable to fully cross-examine Luckett because he did not get the agent's notes until after Luckett testified. Third, Malone argues the government violated Rule 16 by failing to present a list of items seized from the search of his residence. Although the government did provide a copy of the portion of the $100 bill seized from Malone's residence to the defense before trial, the government did not provide Malone a list or make available for inspection the other items seized from his residence before trial.

The government is required to disclose to the defense and make available for inspection any statements by the defendant, relevant documents and tangible objects. Fed.R.Crim.P. 16(a)(1)(A) and (C). Neither the electronic mail message nor the agent's notes qualify as Rule 16 material because these items constitute the agent's impression of his interview with Luckett, not a statement by Luckett. Fed.R.Crim.P. 16(a)(2). See United States v. Willis, 997 F.2d 407, 413-14 (8th Cir.1993) (FBI reports are not "statements" subject to the Jencks Act), cert. denied, --- U.S. ----, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). Moreover, the record before us reveals that the electronic mail message did nothing more than result in the prosecutor contacting the agent to obtain the notes, and the government provided the agent's notes to the defense. Malone's argument that he was unable to effectively cross examine Luckett is unpersuasive. Malone's attorney cross-examined Luckett about the inconsistencies between his trial testimony and the statement he made the day of his arrest. In addition, after Malone obtained the notes, the court offered Malone the opportunity to recall Luckett. Although the government should have disclosed a list of the items seized from Malone's residence before trial and made the items available for inspection, the district court prohibited the prosecution from introducing the items at trial or eliciting testimony regarding them. Malone, therefore, cannot argue that he was substantially prejudiced. See United States v. Williams, 902 F.2d 675, 677 (8th Cir.1990).

II.

Malone next argues that the district court erred when it failed to suppress evidence derived from the warrantless search of his car. Malone contends that the stop was pretextual, that the illegal turn was conduct typical of a broad category of innocent people, and that the officers lacked a reasonable articulable suspicion to detain him under Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968).

A traffic violation, however minor, creates probable cause to stop a vehicle. United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994) (citing United States v. Cummins, 920 F.2d 498, 500 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991)). Thus, the stop was not pretextual. ⁶ United States v. Woodall, 938 F.2d 834, 837 (8th Cir.1991).

Next, we must consider whether the resulting detention was reasonably related in scope to the circumstances which justified the stop. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994); Cummins, 920 F.2d at 502. Here, after pulling the car over, the officers noticed Luckett move suspiciously as if he was putting something under the seat. The officers found a knife in Malone's pocket during a pat-down search for weapons. After asking Malone to sit in the patrol car, they saw a clip of ammunition in the front seat. The totality of these circumstances meet the reasonable articulable suspicion standard of Terry, permitting the officers' limited search of the car's interior. Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3480-81, 77 L.Ed.2d 1201 (1983) (once reasonable articulable suspicion is established, a limited search of a car's interior is permissible); Cummins, 920 F.2d at 502.

III.

Malone next argues that there was insufficient evidence that he passed or aided and abetted the passing of counterfeit bills. Specifically, he contends that there is insufficient evidence that he was involved in the passing of the counterfeit currency at the three locations charged in Counts II through IV, and that the mere possession of a counterfeit note is insufficient to support his conviction. United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983) (citation omitted).

In reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the jury's verdicts. We will reverse only if a reasonable jury must have a reasonable doubt about "the existence of one of the crime's essential elements." United States v. Watson, 953 F.2d 406, 408 (8th Cir.1992).

There was sufficient evidence that Malone was...