U.S. v. Nichols, No. 03-3284.

• Decision Date: 06 July 2004
• Docket Number: No. 03-3284.
• Citation: 374 F.3d 959
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cordell NICHOLS also known as Quinndell Johnson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

374 F.3d 959

UNITED STATES of America, Plaintiff-Appellee, v. Cordell NICHOLS also known as Quinndell Johnson, Defendant-Appellant.

No. 03-3284.

United States Court of Appeals, Tenth Circuit.

July 6, 2004.

COPYRIGHT MATERIAL OMITTED

Stephen W. Kessler, Topeka, KS, for Defendant-Appellant.

Eric F. Melgren, United States Attorney, Anthony W. Mattivi, Assistant United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Before TACHA, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.

ANDERSON, Circuit Judge.

Cordell Nichols was convicted, following a jury trial, of one count of possession with intent to distribute approximately 4.6 kilograms of heroin, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to distribute in excess of one kilogram of heroin, in violation of 21 U.S.C. § 846. He was sentenced to 360 months' imprisonment, followed by ten years of supervised release. On appeal, Nichols argues (1) evidence seized following two traffic stops should have been suppressed because the stops violated the Fourth Amendment; (2) testimony regarding a third traffic stop should have been held inadmissible under Fed.R.Evid. 404(b); (3) a DEA agent's testimony regarding allegedly threatening statements made by Nichols at the time of his arrest should also have been held inadmissible under Fed.R.Evid. 404(b); and (4) there was insufficient evidence to support Nichols' conspiracy conviction. For the reasons set forth below, we affirm.¹

BACKGROUND

Nichols was stopped by police on three separate occasions in three different states over a two-and-a-half year period, each time while traveling on the stretch of I-70/I-80 that runs between St. Louis, Missouri, and Sacramento, California. As discussed in further detail below, Nichols argues that testimony concerning the first of these stops is extrinsic evidence that should have been excluded from trial under Rule 404(b), and that the second and third stops were in violation of the Fourth Amendment. For clarity, we describe each of the stops here in chronological order.

1999 — Wyoming Traffic Stop

The first traffic stop occurred on October 12, 1999, on westbound I-80 near Rawlins, Wyoming. Police officers presented the following testimony at trial: On that evening, Trooper William Morse of the Wyoming Highway Patrol observed a Mercury Cougar traveling only sixty mph in a seventy-five mph zone and weaving back and forth across the center line. He stopped the vehicle based on his suspicion that the driver, who turned out to be Nichols, was intoxicated or fatigued. Upon approaching the vehicle, Morse smelled burnt marijuana. Nichols told Morse he was traveling to Sacramento and, responding to Trooper Morse's request for a driver's license and registration, produced a Missouri ID card bearing the name "Charles Rhodes." Morse immediately recognized the card was "obviously a cheap imitation." Tr. of Jury Trial at 53, R. Vol. 6. Meanwhile, Morse observed bits of a "green leafy substance" on Nichols' clothing and, based on his police training and experience, suspected the substance was marijuana that Nichols had tried to destroy by eating it. Id. at 55. Trooper Morse then asked Nichols to step out of the car and placed him under arrest. In a pat-down search, the officer discovered a large roll of cash, later determined to amount to $12,746, in Nichols' pocket. Though Nichols claimed to have won the money at the Casino Queen, a riverboat casino, further investigation conducted by Special Agent Robert Lezanby of the Wyoming Division of Criminal Investigation revealed the casino had no record of such a win. After Nichols gave consent to a search of his car, Agent Lezanby also discovered false compartments behind the vehicle's front seats with evidence of recent use, a receipt indicating the car had been recently vacuumed, and traces of marijuana on the floorboard of the car.

Pursuant to an agreement with the State of Wyoming, Nichols subsequently pled guilty to interference with lawful police duties, driving under suspension, and a lane violation. In exchange, the state dropped a charge of marijuana possession. Instead of going through forfeiture proceedings regarding the seized $12,756, the state agreed to return $7000 to Nichols, thus keeping $5,746.

2000 — St. Louis Traffic Stop and Subsequent Apartment Search

The second traffic stop occurred on September 14, 2000, on westbound I-70 near St. Louis, Missouri. DEA agents and state police officers testified to the following facts at the suppression hearing and at trial: After receiving information from a confidential informant that Nichols and others, driving a green Land Rover, would be leaving that evening for California in order to pick up heroin, and would be carrying drugs and a large amount of money, DEA Special Agent David Turner enlisted the help of local police to watch for the vehicle.

At approximately 7:15 p.m., Detective William Verhaeghe, traveling with Lieutenant Hawkins, a uniformed officer in a marked police car, was informed by other detectives in unmarked surveillance cars that they had just observed the vehicle speeding and changing lanes without signaling. Verhaeghe then spotted the vehicle, identifying it based on its model and license plate number. He and Hawkins stopped the Land Rover. When they approached, they smelled raw marijuana. They immediately arrested all four people in the vehicle, including Nichols, who had been driving, and Tristin Mitchell, a passenger, who was sixteen years old at the time and was one of Nichols' codefendants at trial. When asked to identify himself, Mitchell said his name was "Tyrone Greene" and that he was from Los Angeles. Police later identified him as Mitchell from fingerprint evidence.

The officers determined that the vehicle had been leased by another of the passengers, Damon Campbell, and obtained Campbell's consent to search the vehicle after it was taken to the police department. During the search of the rear hatch area of the Land Rover, police found approximately twenty grams of marijuana, divided up into eight baggies, and, in a suitcase Nichols identified as his, $5,700 cash.

After learning Nichols had been staying in St. Louis with Sheneice Sanders, police went to her apartment and obtained her consent to search. The search revealed a small amount (less than five grams) of marijuana; approximately two ounces of black tar heroin; two .380 semiautomatic handguns, one of them in the same drawer as the heroin; ammunition; and $2,700 in currency. Police also found Dormin capsules, which can be used as a cutting agent for heroin; empty gel capsules of the type used to distribute heroin after it has been cut; and a coffee grinder, which police suspected of being used to process heroin. Nichols' fingerprint was found on the grinder. No charges were filed as an immediate result of this incident.

2002 — Kansas Traffic Stop

The third traffic stop occurred on May 22, 2002, at approximately 7:15 a.m. on eastbound I-70 in Lincoln County, Kansas. Police testified to the following facts at the suppression hearing: Trooper Michael Weigel of the Kansas Highway Patrol observed a gold Buick following close behind an RV. Using a stopwatch, Weigel timed the distance between the Buick and the RV at less than two seconds, which he considered unsafe. He timed the distance twice more, with the same result. He then activated his police car lights and initiated a traffic stop. The vehicle had three occupants — Tristin Mitchell, who was driving; Nichols, who identified himself to Weigel as Quinndell Johnson; and Kristen White. Weigel first spoke to Mitchell, who said he did not have a driver's license and showed the officer a rental contract for the car. The contract indicated the car had been rented in Sacramento on May 15, 2002, for one day only, and was not supposed to be driven outside California. Angela McCauley, who was not in the Buick, was listed in the contract as the person who had rented the vehicle and as the only authorized driver. Mitchell told Weigel that McCauley was White's aunt, but she was later determined to be Nichols' aunt.

Weigel took Mitchell back to his police car and ran background checks on the vehicle occupants and on McCauley. He learned that Mitchell had a prior drug arrest and criminal record and that McCauley had a criminal record. He found no record of a driver's license under the name Quinndell Johnson but did verify that White had a valid driver's license. Weigel then issued a warning to Mitchell and returned his paperwork. Weigel then returned to the Buick to tell White that she would have to drive the vehicle since she was the only occupant with a valid license. He told her they were free to leave and then asked if he could talk to her further. When she agreed, Weigel asked if there were drugs, guns, or explosives in the vehicle. She said no. He then asked if he could look in the trunk of the vehicle. According to Weigel's testimony, she said, "Sure" and, with Weigel's assistance, opened the trunk. There, Weigel found a plastic bag containing several small bags of marijuana along with a number of bundles wrapped in black electric tape. He cut one of the bundles open and observed a dark substance that appeared to be black tar heroin. A total of approximately 4.6 kilograms of the substance, later determined to contain 17% heroin, was seized. As a result of this incident, Nichols, Mitchell, and White were indicted in federal court on counts of possession and conspiracy to distribute. Following the indictment Nichols was arrested by DEA Special Agent George Cazenavette. According to Cazenavette, while he was processing the arrest at the police station, Nichols made a threatening statement to him.

Before trial, Nichols filed two motions to suppress the evidence seized during the St. Louis and Kansas stops and the St Louis apartment search. He also filed a motion in limine seeking to exclude testimony about the Wyoming stop. ...