U.S. v. Myers, 95-5316

• Decision Date: 11 December 1996
• Docket Number: No. 95-5316,95-5316
• Citation: 102 F.3d 227
• Parties: 46 Fed. R. Evid. Serv. 165 UNITED STATES of America, Plaintiff-Appellee, v. Garlin MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 227

102 F.3d 227

46 Fed. R. Evid. Serv. 165

UNITED STATES of America, Plaintiff-Appellee, v. Garlin MYERS, Defendant-Appellant.

No. 95-5316.

United States Court of Appeals Sixth Circuit.

Argued June 6, 1996.

Decided Dec. 11, 1996.

Gary Humble, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Chattanooga, TN, for Plaintiff-Appellee.

Jerry Sanford Sloan (argued and briefed), Chattanooga, TN, for Defendant-Appellant.

Before MILBURN and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge. ^*

ROSEN, District Judge.

Defendant/Appellant Garlin Myers appeals his conviction on charges of conspiracy to possess with intent to distribute cocaine and using and carrying firearms during and in relation to a drug trafficking offense. For the following reasons, we affirm.

I. INTRODUCTION

Defendant Garlin Myers was charged along with a co-defendant, Ira Reed, in two counts of a three-count indictment on May 13, 1994. Myers was charged with (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and (2) using and carrying firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Myers was tried before a jury on November 22-23, 1994, and the jury found him guilty on both counts. He was sentenced on February 6, 1995 to 169 months on Count 1, and to 60 months on Count 2 (the sentence on Count 2 to run consecutively to the one imposed on Count 1).

Myers now appeals his conviction on several grounds:

(1) the District Court erred in denying his motion to suppress evidence seized from the search of his person, his car and the passengers in the car;

(2) the District Court erred in admitting Rule 404(b) evidence of other cocaine transactions he was involved in with other individuals prior to and following the incident charged in the indictment;

(3) the District Court erred in instructing the jury that the Rule 404(b) evidence of other drug transactions could be considered on the issue of Defendant's intent on March 28, 1993 (the date of the incident charged in the indictment);

(4) the evidence at trial was insufficient to support Defendant's conviction under both the drug trafficking and the use and carrying of firearms counts; and

(5) it was plain error for the Court to instruct the jury that Defendant could be convicted of Count 2 (the 924(c)(1) use and carrying count) under the Pinkerton theory of vicarious liability.

II. FACTUAL BACKGROUND

In the evening of March 28, 1993, Officer Phil Headden of the Chattanooga, Tennessee Police Department was patrolling the streets in his unmarked patrol car in the Poss Homes area of Chattanooga, a known high crime area. At approximately 11:00 p.m., Headden was travelling eastbound in the 100 block of 25th Street when he noticed that traffic had come to a stop. He saw a Nissan Maxima illegally parked facing in the wrong direction on the left side (westbound side) of the street, obstructing the progress of four or five cars. He observed that the car had an expired license tag.

As he sat for several minutes in his unmarked car, he observed a large number of people approach the driver's window and observed what appeared to be a couple of drug transactions or exchanges between the driver of the car and the people outside the car. Headden also saw the Defendant leave the car, go into an apartment unit, and come back.

Headden testified that when traffic moved on, he pulled in behind the Nissan and radioed for backup. He turned on his police lights, got out and approached the car. He testified that he saw "a lot of movement going on inside the vehicle ... like they were scuffling around trying to hide something." As Headden approached the car, he observed that there were four individuals in the vehicle. He recognized one of them, James Jordan, who was in the front passenger seat. Headden testified that he was familiar with Jordan's arrest record and knew that there was a warrant outstanding for his arrest. Headden also testified that he was aware that Jordan had previously assaulted police officers.

In addition to Jordan, there were three others in the car. Defendant Myers was in the driver's seat, Ira Reed was in the right rear passenger seat, and a juvenile named Waddell Ramsey was in the left rear passenger seat.

After backup arrived, Headden ordered all four occupants out of the car and patted them down for weapons. He found no weapons on their person, but did find $817 on James Jordan and $2,496 on Ira Reed. He placed James Jordan under arrest then searched the interior of the car and found two hand guns under the front passenger seat. After finding the guns, Headden placed Ira Reed and Defendant Myers under arrest then searched the trunk of the car where he found $2,700 in cash, bundled in $500 lots. No drugs were found on the person of anyone in the car or anywhere inside the vehicle.

The Nissan driven by Defendant Myers on March 28, 1993 was registered in his mother's name. The unrebutted testimony at trial, however, was that Defendant drove it every day.

At Defendant Myers' trial, in addition to Officer Headden, both Ira Reed and James Jordan testified for the Government. Also, two other individuals, Terrence Ware and Kelvin Smith testified for the Government regarding other drug transactions involving Defendant. Defendant did not testify.

James Jordan testified about his agreement with Defendant Myers to purchase cocaine. ¹ Jordan stated that he had regularly purchased crack cocaine from Myers beginning in 1990 and that he and Myers entered into an agreement to make a purchase on March 28, 1993. Jordan testified that in the two or three months prior to March 28, 1993, Jordan made five or six purchases of crack from Myers, and after purchasing the crack from Defendant Myers, he acted as a "retailer" and sold it by the rock. Jordan identified Myers' supplier of cocaine as Myers' father, Gregory Myers.

According to Jordan's testimony, on March 28, 1993, the night of their arrest, Myers was taking Jordan to purchase 1/4 kilo of cocaine from his father. Jordan had an agreement with Myers that Myers would take them to Jordan admitted that one of the guns found in the car was his; that he needed the gun "in case something went wrong." He testified that Myers knew he had a gun.

his father where they would purchase cocaine and "split it"; they were to "go in half and half". Myers was supposed to put in $3,000 and Jordan and Reed were, together, to put in $3,000.

Kelvin Smith also testified against Defendant Myers. He was not a co-conspirator in the alleged March 28 conspiracy. Both Smith and Defendant's father were drug suppliers. Smith testified that he was involved in selling crack cocaine with Defendant Myers from late 1992 until February 1993. He testified that he and Defendant's father "fronted" crack to Defendant who then reimbursed them after he distributed it. Smith and Defendant's father provided Defendant with one or two ounces of crack on a weekly basis over a three to four-month period. According to Smith, Defendant's assigned geographical area of distribution of crack was the Poss Homes projects. ²

Terrence Ware also provided evidence of Defendant's drug trafficking on other occasions. According to Ware, he bought crack cocaine from Defendant nine months after the date of the offense charged in this case.

Defendant's indicted co-conspirator, Ira Reed, also testified at trial, although less definitively than the others. He testified that he knew Defendant Myers was going to pick up the drugs and that he and James Jordan were going to get some.

III. DISCUSSION

A. THE DISTRICT COURT DID NOT ERR IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE SEARCH OF HIS PERSON, HIS CAR AND THE PASSENGERS IN THE CAR

The parties to this appeal are in agreement on the standard of review: a district court's findings of fact on a motion to suppress are reviewed under the "clearly erroneous" standard. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993). The probable cause issue, however, is reviewed de novo. Id.

"A factual finding will only be clearly erroneous when, although there is evidence to support it, 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " United States v. Ayen, 997 F.2d 1150, 1152 (6th Cir.1993) (citation omitted).

As indicated above, Defendant Myers challenges as improper the searches of, and resulting seizure of property from, his person, his car, and the passengers in the car.

1. DEFENDANT MYERS LACKS STANDING TO CONTEST THE SEARCH OF THE OTHER PERSONS IN THE CAR OR TO CHALLENGE THE ADMISSIBILITY OF THE EVIDENCE FOUND ON THEM

As an initial matter, the Court notes that Defendant Myers lacks standing to challenge the personal search of the passengers in his car or the admissibility of the money found on them. As the Supreme Court explained in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), "Fourth Amendment rights are personal [and] may not be vicariously asserted." Id. at 134, 99 S.Ct. at 425. See also, United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980) (defendants may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have been violated). Thus, when a defendant is aggrieved by an allegedly illegal search of a third party's person or property, the Fourth Amendment rights of that defendant have not been infringed. Rakas, supra, 439 U.S. at 134-35, 99 S.Ct. at 425-26.

2. OFFICER HEADDEN'S STOP AND SEARCH OF DEFENDANT AND HIS CAR WERE PROPER

The district court determined that, based on the totality of the circumstances, Officer Headden had a reasonable suspicion that Defendant Defendant Myers concedes that Officer Headden had a "reasonable suspicion" to conduct a Terry stop. He further concedes that it was proper for Officer Headden to conduct the "pat...