U.S. v. McDonald

• Decision Date: 04 August 1995
• Docket Number: No. 93-5264,93-5264
• Citation: 61 F.3d 248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond H. McDONALD, a/k/a Play, a/k/a Randolph Smith, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 248

61 F.3d 248

UNITED STATES of America, Plaintiff-Appellee, v. Raymond H. McDONALD, a/k/a Play, a/k/a Randolph Smith Defendant-Appellant.

No. 93-5264.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1995.

Decided Aug. 4, 1995.

ARGUED: Douglas Leroy Thomas, Hempstead, NY, for appellant. Thomas Ernest Booth, U.S. Dept. of Justice, Washington, DC, for appellee. ON BRIEF: J. Preston Strom, Jr., U.S. Atty., Alfred W. Bethea, Jr., Asst. U.S. Atty., U.S. Dept. of Justice, Washington, DC, for appellee.

Before ERVIN, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.

OPINION

ERVIN, Chief Judge:

Raymond H. McDonald appeals his convictions for conspiring to distribute cocaine base, in violation of 21 U.S.C. Sec. 846, and using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c). McDonald claims that (1) the indictment against him should be quashed because of prosecutorial misconduct, (2) his convictions should be reversed because the district court refused to suppress evidence obtained in violation of his rights under the Fourth Amendment to the United States Constitution, and (3) his Sec. 846 sentence should be vacated because the district court erred in its calculation of the amount of crack cocaine for which McDonald was to be held accountable. Finding no error, we affirm McDonald's convictions and sentences.

I.

Around 3:30 in the afternoon of May 25, 1991, Corporal Troy Knight of the South Carolina Highway Patrol ("SCHP") attempted to pull over a Chevrolet Nova for speeding on the Old Marion Highway in Florence, South Carolina. Refusing to stop, the car accelerated to a speed of 100 miles per hour. The Nova eventually ran into a ditch near Betty's One Stop convenience store and the Mars Bluff Apartments. Its driver, whom Corporal Knight identified as a black male, fled into nearby woods carrying a paper bag. The officer lost sight of the suspect, and other troopers arrived on the scene shortly thereafter.

Meanwhile, Mars Bluff residents Pam Jose and Lisa Day saw a police car at Betty's One Stop as they were returning home to their apartment, Number 14. The women also saw an African-American man run to Apartment 11 from the side of the building, request admittance to the premises, and enter that apartment in a frantic manner. Approximately fifteen to twenty minutes later, after seeing more police cars in the area, Jose and Day phoned Betty Squires, who operated Betty's One Stop, to see if her establishment had been robbed. Day recounted what she had seen to Squires, who subsequently told her husband, who in turn informed an unidentified member of the SCHP about Day's phone call.

At approximately 4:30 and as a result of the information path outlined above, Corporal Knight received a dispatch indicating a possible forced entry by a black male into Apartment 11 at the Mars Bluff complex. Fearing a possible hostage situation, Knight requested assistance from sheriff's deputies. Law enforcement officers then knocked on the door and windows of Apartment 11 and received no response, although they did hear music coming from inside. After surrounding the building, the officers forcibly entered the apartment. They found the unit unoccupied and spotted a safe, a set of scales, some baking soda, and other objects eventually admitted into evidence at McDonald's trial. Pam Jose testified that approximately one hour elapsed from the time law enforcement officials first knocked on the door of Apartment 11 and the time they entered the residence.

Later that day, Mars Bluff residents Jose, Day, and John Hudson, who had been advised by the police to report any suspicious conduct, noticed that several men were unloading property from Apartment 11 into a red Honda and a BMW that had been parked beside the building at the time of the initial search. Day phoned the police to report her observations, and Hudson followed the BMW to a local highway, at which time he called law enforcement as well. Acting on these reports, officers proceeded to the scene, and Trooper David Whatley pulled over the red Honda, which he noticed had temporary license tags. The occupants of the car, Tyrone Burgess and Mark Reid, informed Whatley that another passenger had gotten out of the car a few minutes earlier, and Hudson confirmed Burgess and Reid's statement. After Burgess consented to a search of his Honda, officers seized a loaded semi-automatic machine gun, approximately 400 grams of crack cocaine, and a scale.

Nearby, Trooper Thomas Campbell spotted appellant Raymond H. McDonald, who fit the general description of the passenger reported to have left Burgess' Honda. Campbell asked McDonald to accompany him to Burgess' car, and McDonald indicated that he had "no problem with that." When asked for identification, McDonald said that he did not have any, but he wrote his name down for the trooper as "Randolph Smith." After Reid and Burgess denied knowing McDonald, he was released. Later, Reid and Burgess told law enforcement officers that the drugs and weapon found in the vehicle belonged to McDonald.

After interviewing the manager of the Mars Bluff complex, officials with the Drug Enforcement Agency ("DEA") learned that the residents of Apartment 11, McDonald and a woman named Sonja Graham, were being evicted for non-payment of rent, effective June 23 at midnight. On June 24, with the consent of the owner of the property, DEA agents searched the apartment and seized numerous drug-related items, including the safe, a gun magazine containing several bullets, and a stove burner.

On July 19, 1991, DEA agent Thomas Jacobs searched the abandoned Chevrolet Nova at the service station to which it had been towed. The station manager gave Jacobs a key ring that contained keys both to the abandoned Nova and to Apartment 11. On October 31, 1991, DEA agents arrested McDonald pursuant to a warrant in Queens, New York. After being advised of his Miranda rights, McDonald told federal agents that he was not the "main individual" in South Carolina, and that he knew bigger drug dealers in New York.

On November 21, 1991, a grand jury sitting in the United States District Court for the District of South Carolina indicted McDonald for conspiring to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Sec. 846. Prior to issuing its indictment, the grand jury had heard testimony to the effect that Reid and Burgess, whose statements were used as evidence against McDonald, had taken polygraph tests. Specifically, Agent Jacobs testified that:

Reid and Burgess admitted to agents prior to taking a polygraph they had purchased crack and powder cocaine from McDonald and also they had sold crack cocaine for McDonald on several occasions.

Sometime later, while examining Jacobs' testimony that Burgess and Reid attributed possession of the drugs found in Burgess' car to McDonald, the grand jury foreperson asked: "It could belong to them, though; couldn't it?" In a non-responsive answer, Jacobs replied They are part of--they're two of the known persons that he conspired with that day.

Two months after handing down the first indictment, the same grand jury issued a superseding indictment charging McDonald, Reid, and Burgess with conspiring to distribute cocaine base, in violation of 21 U.S.C. Sec. 846, and using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c).

At trial, McDonald made a motion to quash the indictment against him, which the district court denied summarily. In addition, McDonald moved to suppress the physical evidence seized during the post-eviction search of his apartment and the searches of his Chevrolet Nova and Burgess's Honda, as well as his post-arrest admissions. The trial court also denied this motion, rejecting McDonald's argument that admission of the evidence violated his Fourth Amendment rights. The court ruled that the initial warrantless search was justified based on both the exigent circumstances and hot pursuit exceptions to the warrant requirement. Additionally, the court ruled that the stop of Burgess' Honda was justified by reasonable suspicion based on the earlier incident outside Apartment 11 and by the car's temporary license tags. The court also found that Burgess had consented to a search of his vehicle. The post-eviction apartment search was upheld based on the landlord's consent. Finally, the court admitted McDonald's post-arrest admissions to DEA agents on the ground that McDonald had initiated the conversation leading to the statements.

The jury convicted McDonald on both the Sec. 846 and Sec. 924(c) counts. The district court found McDonald's crimes to have involved more than five kilograms of crack cocaine and assigned him a base offense level of forty. Based on that figure, the court sentenced McDonald to consecutive sentences of 576 months on the conspiracy count and 60 months on the weapons charge.

II.

McDonald rests his argument that the district court should have quashed the indictment against him on allegations of prosecutorial misconduct. Specifically, he claims that the testimony by Agent Jacobs informing the grand jury that Reid and Burgess had taken polygraph tests misled the jury by implying that the two had passed their tests, even though Reid's results were inconclusive and Burgess' results indicated deception. As other evidence of misconduct, McDonald points to several misstatements by Agent Jacobs. For example, the officer testified that Jose and Day saw a black male run from the woods into Apartment 11. In fact, Jose and Day had seen the man come from the side of the building, not the woods. Agent Jacobs offered other evidence, however, that McDonald was the suspicious individual who had entered Apartment 11, including McDonald's own admission to Burgess. The other alleged...