U.S. v. McCullough

• Decision Date: 10 August 2006
• Docket Number: No. 05-3280.,No. 05-3270.,05-3270.,05-3280.
• Citation: 457 F.3d 1150
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alverez McCULLOUGH, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jami Mosley, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.3d 1150

UNITED STATES of America, Plaintiff-Appellee, v. Alverez McCULLOUGH, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jami Mosley, Defendant-Appellant.

No. 05-3270.

No. 05-3280.

United States Court of Appeals, Tenth Circuit.

August 10, 2006.

Matthew M. Robinson of Robinson & Brandt, Cincinnati, OH, for Defendant-Appellant, Alverez McCullough.

Carl E. Cornwell, (Jessica J. Travis, with him on the brief), of Cornwell, Erickson, Travis, Breer & Scherff, Olathe, KS, for Defendant-Appellant, Jami Mosley.

Sheri P. McCracken, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the briefs), District of Kansas, Kansas City, KS, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Defendants Alvarez McCullough and Jami Mosley were convicted following a jury trial on various drug and weapons-related charges, and were sentenced to lengthy terms of imprisonment. Mosley now appeals her convictions, arguing (1) the evidence was insufficient to support her conspiracy conviction, (2) the jury's verdicts were inconsistent and the evidence was insufficient to support her conviction for maintaining a residence for the purpose of storing cocaine, and (3) her counts of conviction are multiplicitous. Mosley does not appeal her sentence. McCullough appeals both his convictions and sentence, arguing (1) the district court erred in denying his motion to suppress evidence, (2) the district court erred in denying his motion for new trial based upon newly discovered evidence, (3) the evidence was insufficient to support three of his convictions, and (4) the sentence imposed by the district court was unreasonable. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I.

Defendant Mosley is the owner of a residence located at 3244 Cleveland Avenue, in Kansas City, Kansas, which had a security system installed by ADT Security Services (ADT). At approximately 8:18 p.m. on June 9, 2003, ADT's monitoring center received an alarm signal from the security system in Mosley's residence. An ADT representative placed a telephone call to the residence and an individual identifying herself as Heather Gordon answered. Gordon, however, was unable to provide the ADT representative with Mosley's personal identification code, so the ADT representative called the Kansas City, Kansas Police Department (KCKPD) at approximately 8:21 p.m. That call resulted in Officers Sandra Carrera and George Simms being dispatched to the residence.

At approximately 8:23 p.m., after Officers Carrera and Simms were dispatched, the security system at the residence was restored and automatically reset. In turn, an ADT representative called the KCKPD at approximately 8:26 p.m. to cancel the alarm call. Because official KCKPD policy does not permit a 911 operator to cancel an alarm call once officers have been dispatched to the scene, the 911 operator who received this second call from ADT did not report the call to either the police dispatcher or Officers Carrera and Simms.

Officer Carrera was the first to arrive at the residence. Upon her arrival, she observed a woman, later identified as Gordon, standing in the driveway and a man, later identified as Richard Cook, leaving from a sliding glass door that lead from the basement area of the home directly onto the driveway. According to Officer Carrera, Gordon and Cook "were grungy, dirty in nature," and looked "like probably they hadn't changed their clothes in a few days . . . ." Mosley App. at 333.

Gordon immediately approached Officer Carrera and stated that the setting off of the alarm was an accident. Officer Carrera, in response, asked Gordon if she and Cook were the homeowners. Gordon stated "no," that she and Cook were working putting up a privacy fence at the house. Id. at 332. Gordon further stated that Cook, who was standing nearby observing the conversation and appearing disoriented, had some type of medical condition that prevented him from speaking. According to Officer Carrera, Gordon "just seemed nervous" and kept looking at Cook while Carrera was questioning her. Id. at 333. Officer Carrera asked Gordon and Cook for identification, but neither one had any. Officer Carrera then asked Gordon who the homeowners were and Gordon "sat there and couldn't recall their names and just had no idea who . . . the homeowners" were. Id. at 335. Gordon did, however, indicate that the alarm was false, that she had contacted the homeowner to obtain the alarm code, and that she had successfully reset the security system.

Officer Carrera informed Officer Simms, who had just arrived on the scene, that she was going to go inside the residence to check the alarm panel. Officer Carrera then asked Gordon to show her where the alarm panel was. Entering the house through the open front door of the main level, Gordon led Officer Carrera to the alarm panel, which was situated near the main floor kitchen area. Officer Carrera noted that a red, rather than a green, light appeared on the panel and that the display monitor was flashing "01/04," which indicated to her that there was still an active alarm covering the front door and motion detectors. Based upon these observations, Officer Carrera concluded that the alarm panel was still active, even though no sirens or beeps could be heard. According to Officer Carrera, this heightened, rather than alleviated, her suspicions.

Officer Carrera left the house and asked Gordon and Cook what business they had inside the residence. Again, Gordon did all of the talking, while Cook remained silent. Gordon ultimately told Carrera she knew how to get in touch with the homeowners and asked if she could call them. Carrera agreed to let her do so.

Using a cell phone, Gordon dialed a number and spoke to someone for a short while. Gordon then handed the phone to Officer Carrera. According to Officer Carrera, the person on the other end of the line was a man who denied being the owner of the residence. Officer Carrera handed the phone back to Gordon and said "I need to speak to the homeowner." Id. at 336. Gordon spoke to the man on the phone for an additional time period and, at the conclusion of her conversation, asked Officer Carrera if she could make another call. Officer Carrera agreed to let her do so. Gordon dialed a second number, spoke briefly, then handed the phone to Carrera and indicated that the homeowner was on the other end of the line. Officer Carrera asked the woman on the phone if she was the owner of the residence at 3244 Cleveland. The woman said "yes," and identified herself as Jami Mosley. Officer Carrera asked Mosley if there should be individuals at the residence. Mosley answered affirmatively, stating that people were at her residence installing a fence. Officer Carrera told Mosley that she was at the residence because the alarm was going off. Mosley responded by saying "My alarm's going off? It shouldn't." Id. at 337. Officer Carrera asked Mosley whether Gordon and Cook had permission to be inside the residence. Mosley refused to answer and was insistent that she be allowed to speak to Gordon again. Officer Carrera handed the phone back to Gordon.

During the ensuing conversation between Officer Carrera and Gordon, Gordon stated that she and Cook were allowed to use the restroom in the basement of the residence. Officer Carrera asked Gordon where in the basement the restroom was located. After receiving Gordon's response, Officer Carrera, still concerned that she had interrupted a burglary in progress, informed Officer Simms that she was going to go into the basement area of the residence to make sure everything was okay and to verify Gordon's statement.

Officer Carrera entered the residence, this time through the sliding glass door that leads from the driveway into the basement (i.e., the door that Cook was observed exiting when Officer Carrera initially arrived at the residence). Following Gordon's description of where the restroom was located, Officer Carrera took an immediate left and observed a small kitchen and counter area. As she was walking past that area in search of the restroom, Officer Carrera observed on the kitchen counter a clear plastic bag that appeared to contain a brick of marijuana. Turning to her left to leave the residence, Officer Carrera observed on the other side of the kitchen counter a trash bag that was wide open and contained what appeared to be more bricks of marijuana.

Based upon Officer Carrera's observations inside the residence, the KCKPD obtained a search warrant for the residence later that evening and executed it in the early morning hours of June 10, 2003. When Stephen Owen, a detective with the KCKPD, arrived at the scene to assist in the execution of the search warrant, he was approached outside the residence by Mosley. Mosley told Owen that she was the owner of the residence and that she lived there with her children and her boyfriend, Alvarez McCullough. McCullough was present with Mosley outside the residence during the search.

During the search, the police found in the basement kitchen area the brick of marijuana on the counter and the trash bag full of marijuana bricks observed by Officer Carrera. Near the marijuana the police found various documents pertaining to both Mosley and McCullough. In the basement family room, the police found what they believed to be residue of crack cocaine. In the main floor kitchen area, the police found (a) a shoe box containing a digital scale covered with some sort of white powder, several plastic baggies with a white substance inside them, and a baggie containing what appeared to be marijuana, (b) a glass, sauce-type pan with white residue on the inside and outside, (c) a grocery bag containing what appeared to be marijuana, (d) a plastic baggie containing what appeared to be powder cocaine, (e) a baggie containing what appeared to be crack cocaine, and (f) a...