U.S. v. McNatt

• Decision Date: 25 April 1991
• Docket Number: No. 90-5315,90-5315
• Citation: 931 F.2d 251
• Parties: , 32 Fed. R. Evid. Serv. 1117 UNITED STATES of America, Plaintiff-Appellee, v. Robert McNATT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 251

931 F.2d 251

59 USLW 2743, 32 Fed. R. Evid. Serv. 1117

UNITED STATES of America, Plaintiff-Appellee, v. Robert McNATT, Defendant-Appellant.

No. 90-5315.

United States Court of Appeals Fourth Circuit.

Argued Jan. 8, 1991.

Decided April 25, 1991.

David F. Tamer, Winston-Salem, N.C., argued (Walter T. Johnson, Jr., Barbee, Johnson, Glenn & Associate, Greensboro, N.C., on brief), for defendant-appellant.

Christine Witcover Dean, Asst. U.S. Atty., argued (Margaret Person Currin, U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.

Before HALL and CHAPMAN, Circuit Judges, and COPENHAVER, United States District Judge for the Southern District of West Virginia, sitting by designation.

CHAPMAN, Circuit Judge:

Robert McNatt was convicted of possession with intent to distribute a kilogram of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B). He appeals and claims error by the district court in (1) failing to suppress the kilogram of cocaine seized from his truck on the day of his arrest; (2) denying his motion to dismiss the indictment upon his claim of ineffective assistance of counsel; (3) restricting the testimony of state prosecutor Elaine Pappas so as to prevent her from stating her reason for changing her opinion of the reputation of Fayetteville narcotics agent Edwin Clarke for truthfulness; (4) refusing to admit into evidence a letter "probably written by Edwin Clarke," which letter admitted that Clarke had fabricated evidence in another narcotics case; (5) refusing to admit testimony going to the reason for Edwin Clarke leaving his employment with the Fayetteville Police Department; (6) denying appellant's motion in limine to prevent the government from arguing to the jury that appellant refused to consent to search his truck at the time of his arrest; and (7) using an erroneous base offense level in determining his sentence by including a quantity of drugs for which he was not indicted.

We find no merit to these exceptions, and we affirm the conviction.

I

In August 1988, North Carolina officers executed a search warrant at a farm owned by Robert McNatt. There was a fairly sizable hog raising operation at the farm, and during the search the officers found 80 grams of marijuana and several loaded firearms. The marijuana was found in a barrel close to a shed removed from the house and in the vicinity of other barns and outbuildings. A warrant for the arrest of McNatt was not issued at that time, but was issued on September 9, 1988 charging him with possession of marijuana and possession of a weapon as a convicted felon.

On September 9, 1988, government informant Davis called Special Agent Jackson of the DEA in Wilmington, North Carolina. He informed Jackson that McNatt was going to purchase a kilogram of cocaine from James McGrady, Sr. in Fayetteville, North Carolina on that day and that the cocaine was to be delivered by Federal Express. Agent Jackson requested informant Davis to call North Carolina SBI Agent Lea in Fayetteville and give him this information. Upon receiving this information from informant Davis, Lea sent agents Edwin Clarke and David Jenkins to McGrady Enterprises, a business owned by James McGrady. He advised the agents to watch for the Federal Express truck and for a blue Chevrolet pickup truck that was owned by McNatt. Agent Lea told Agent Brabble to get the arrest warrant for McNatt signed immediately.

The agents saw a Federal Express truck near McGrady Enterprises. They stopped the truck and were advised that a delivery had been made to McGrady Enterprises. As they approached McGrady Enterprises, they saw the blue pickup truck leaving the parking lot, and they followed it. After several blocks they stopped this pickup and found appellant McNatt was the driver. Agent Clarke asked McNatt to get out of the truck and at this point Agent Ridgen arrived. The agents asked McNatt for permission to search the vehicle, but he denied the request when he found that they did not have a search warrant. Ridgen called police headquarters to confirm that there was an outstanding arrest warrant for McNatt on the marijuana charges arising out of the search of his farm. McNatt was searched at the scene and $9,000 was found on his person. The truck was not searched at that time but was towed to the impoundment lot where it was searched, and a kilogram of cocaine was found on the front seat under a sweater. The defendant was arrested on state charges of possession with intent to distribute cocaine. This charge was dismissed by the state. In August 1989, McNatt was arrested by DEA Agent Jackson on the federal charges arising out of the same facts and upon which he stood trial and was convicted.

At trial the government called James McGrady, Sr. and James McGrady, Jr. to prove the sale of the kilogram of cocaine to McNatt on September 9, 1988 for $18,000. The government also called agents Jackson and Lea and police officers Clarke and Ridgen to testify as to the information received from the informant and to the circumstances of the stop and arrest of McNatt, the impoundment of his truck, and the finding of the cocaine under a sweater under the front seat of the truck.

Agent James Sparks, Assistant Supervisor of the Drug Chemistry Section of the SBI, testified that he had examined the white powder removed from the appellant's pickup truck and that he found it to be cocaine in an undiluted form and that it weighed 1,001 grams.

Jackson also testified that after McNatt had been arrested and while he was being transported from Fayetteville to Raleigh, McNatt told him that shortly after he left McGrady Enterprises, he was stopped by Officer Clarke and that Clarke put the kilo of cocaine in his truck. He also told Jackson that marijuana found on his farm had been placed there by the police.

The defense, from the opening statement and throughout the trial, attacked Clarke, who had left the police department prior to the trial. Appellant contended that Clarke left the police department because he had manufactured evidence in prior narcotics cases and that the state had dropped certain prosecutions, including the state charges against him, because it did not wish to rely upon Clarke's testimony.

II

Appellant made an oral motion at trial to suppress the kilogram of cocaine taken from his truck. He claimed that the inventory search of his pickup was not the result of a valid arrest and was therefore illegal, because he was stopped and arrested before an arrest warrant was issued. He also claims that the information received from the confidential informant was not reliable and would not justify a stop of his vehicle.

The trial judge conducted a voir dire hearing during the trial, and concluded that even if the warrant for McNatt's arrest had not been issued prior to the stop, there was probable cause to stop him because of the information supplied by the informant. This information proved correct and set forth the time of the sale, the place of the sale, the delivery by Federal Express and the color of appellant's pickup. While the appellant argues that the government did not prove the reliability of the informant, the record is otherwise. The trial judge asked Agent Jackson during the voir dire: "Have you found this information provided to you on previous occasions to be reliable?" The witness answered in the affirmative. On the present facts, we agree that the officers acted on probable cause. The officer confirmed from the Federal Express driver that he had made a delivery to McGrady Enterprises, he saw a truck at McGrady Enterprises matching the description given him by the informant and he had the informant's statement that the cocaine would be sold at the time. This was probable cause under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The same probable cause would support the arrest of appellant, and the inventory search of the vehicle subsequent to appellant's arrest is valid under Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987).

III

Appellant claims error in the denial of his motion to dismiss the federal charges upon the ground that his sixth amendment right to effective assistance of counsel had been denied because the attorney, who had represented him in connection with the state charges arising out of his arrest on September 9, 1988, had also been representing James W. McGrady, Sr. and James W. McGrady, Jr. on cocaine trafficking charges pending against them in the United States District Court for the Eastern District of North Carolina. He claims this was a conflict of interest and that he was prejudiced because his then attorney did not make an effort to resolve the state charges against him.

Appellant does not allege a conflict of interest involving his trial counsel on the federal charges. His trial counsel in the present case had not represented the McGradys. The appellant does not claim actual prejudice during the trial of his federal case, but asks us to presume prejudice because his prior counsel was not sufficiently aggressive in obtaining dismissal of his state charges. He also claims that because his prior attorney actively engaged in negotiating a plea agreement on behalf of the McGradys, "such activity necessarily compromised the right of defendant McNatt to the undivided loyalty of his counsel."

The trial judge conducted a hearing on the motion and took the testimony of the prior attorney. The judge could find no conflict nor could he find any prejudice to appellant. Neither can we. The state charges against McNatt were dismissed, and he was represented by a different attorney at his trial on the federal charges.

IV

Appellant contends that at trial he should have been allowed to ask his witness, North Carolina prosecutor Elaine Pappas, on redirect examination, the basis for her opinion that government witness Edwin Clarke was not truthful. On direct examination, appellant's attorney asked...