U.S. v. Nolen

• Decision Date: 04 August 2008
• Docket Number: No. 07-3887.,07-3887.
• Parties: UNITED STATES of America, Appellee, v. Kenneth NOLEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

536 F.3d 834

UNITED STATES of America, Appellee, v. Kenneth NOLEN, Appellant.

No. 07-3887.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2008.

Filed: August 4, 2008.

Rehearing Denied August 29, 2008.

Leslie Jane Borgognoni, argued, Little Rock, AR, for appellant.

Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, EBEL,¹ and COLLOTON, Circuit Judges.

EBEL, Circuit Judge.

Following a jury trial, Defendant-Appellant Kenneth Nolen was convicted on three counts: (I) conspiracy to possess crack cocaine and marijuana with the intent to distribute, (II) possession of crack cocaine with the intent to distribute, and (III) possession of marijuana with the intent to distribute. Nolen now appeals his convictions, raising two arguments: (1) the district court² erred in denying his motion to suppress, and (2) the jury's verdict was not supported by sufficient evidence, and therefore the district court erred in denying his motion for acquittal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Based on the testimony received at Nolen's trial, law enforcement's initial interest in Nolen was prompted by a call to the Akron, Ohio Police Department on January 31, 2006, by an individual named Carita Hale. To this end, Angela Lewis, a detective in the department, testified that she "received a phone call ... from a female stating that she was Carita Hale" and that Hale disclosed "very specific information on drug-related crimes starting in Arkansas and coming back to Akron. ..." A subsequent memorandum authored by Lewis summarized the information that Hale provided.

According to this memorandum, Hale alleged that Conici Clark would be flying from Cleveland, Ohio to Little Rock, Arkansas on January 31, 2006. Upon her arrival in Little Rock, Clark would be picked up in a red Ford Explorer by two males known only as "Calvin" (later identified as Calvin Blair) and "Kitney" (later identified as Nolen). Thereafter, Clark, with Blair and Nolen as her passengers, was to drive the Explorer back to Ohio. The Explorer would allegedly contain 10 kilos of cocaine, 3 bundles of ecstasy, and 20 pounds of marijuana. According to Hale, in exchange for driving the vehicle back to Ohio, Clark was to receive one pound of marijuana.

Because Hale had not previously served as an informant, Lewis took steps to confirm Hale's identity. In this regard, Lewis used Hale's "jail file" to confirm that the social security number provided by Hale in fact matched Hale's actual social security number. Additionally, Lewis questioned Hale, ostensibly using the information in Hale's "jail file," "[t]o make sure that she was who she said she was...." Satisfied that Hale "was who she said she was," Lewis began to corroborate the information that Hale provided.

First, Lewis, along with other officers, went to the Akron Greyhound bus station and confirmed Hale's assertion that at 3:25 p.m., Clark would be taking a bus from Akron to Cleveland. Subsequently, officers also confirmed Hale's claim that Clark would take a flight departing from Cleveland at 5:35 p.m., which after a layover, would arrive in Little Rock at 10:00 p.m. Because the information provided by Hale had so far proven accurate, Lewis's supervisor, Mike Caprez, relayed Hale's tips to Roger Case, a task force officer with the Little Rock district office of the Drug Enforcement Administration (DEA). Case took over the investigation from there.

Impressed with the specificity of the information relayed by Caprez, Case concocted an "operations plan," under which Clark would be placed under surveillance upon her arrival at the Little Rock airport. On account of this surveillance, officers observed that when Clark departed the airport, "she ... entered a vehicle almost exactly matching the description" of the vehicle that, according to Hale, "was supposed be picking her up." Thereafter, officers observed the vehicle, a red Ford Expedition (as opposed to an Explorer), travel in an erratic fashion, during which time it went at an extremely high rate of speed, made a number of circles around a residential block, stopped unexpectedly in odd places, and drove down a dead-end alley. After taking this roundabout route, the vehicle eventually arrived at the StudioPlus Hotel, where officers continued their surveillance.

While keeping watch at the hotel, officers observed the vehicle leave a number of times during the evening. Although officers attempted to watch the vehicle on these occasions, it continued to be driven in an erratic fashion, which made surveillance difficult. Finally, "early in the morning hours," officers observed three individuals enter the vehicle — eventually identified as Clark, Blair, and Nolen — and depart from the hotel. After officers observed the vehicle travel for a long enough distance to satisfy themselves that it was on its way to Ohio, Officer Case requested that a member of the Arkansas State Police pull the vehicle over.

Trooper Trenton Behnke stopped the vehicle at 4:15 a.m. According to Behnke, he stopped the vehicle after following it for about a mile as it was going 90 miles per hour in a 65 miles per hour zone. Upon approaching the vehicle, Behnke learned that the vehicle's driver was Nolen and requested "his driver's license, registration, and insurance." Thereafter, the stop was taken over by the DEA and the Little Rock Police Department's narcotics division, which searched the vehicle.

Among the officers who assisted in the vehicle's search was Chris Littleton. According to Littleton, he searched underneath a "bench seat" where he "found a white pillowcase that contained an off-white, rock-like substance and also green vegetable matter." The "off-white, rock-like substance" was later identified to be 278.0 grams of crack cocaine, while the "green vegetable matter" was later identified to be 125.4 grams of marijuana. Both officers Case and Littleton testified that based on their experiences, each of these amounts exceeded what would normally be associated with personal use, and was instead consistent with distribution. Thereafter, each of the vehicle's three occupants — Clark, Nolen, and Blair — were taken into police custody and indicted on three counts: (I) conspiracy to possess crack cocaine and marijuana with the intent to distribute, (II) possession of crack cocaine with the intent to distribute, and (III) possession of marijuana with the intent to distribute.

Shortly after his arrest, Blair signed a statement that asserted the crack cocaine and marijuana found in the vehicle were his alone, and that he had placed the drugs in the vehicle without any assistance from Clark or Nolen. Blair later recanted this statement, however, and reached a plea agreement with the government. Pursuant to this agreement, Blair testified on the government's behalf at Clark and Nolen's trial. According to Blair's trial testimony, Nolen and Clark were with him when he purchased the drugs and were responsible for placing the drugs in the vehicle. Blair asserted that "most of" the marijuana was for Clark. As for the crack cocaine, however, Blair somewhat ambiguously testified that although it was for him alone, he was going to sell it with Nolen's help, from which Nolen would profit.

Hale also testified on the government's behalf. According to Hale, the plan to acquire the drugs was initially hatched by Blair and Nolen, who eventually convinced Clark to be a part of the crime. For her part, Clark was to be the driver, because neither Blair nor Nolen had a driver's license. Hale also testified that "marijuana was the main drug that [she] heard discussed" in relation to the trio's plans. She was not sure, however, about the plan as it related to crack cocaine. Nor was Hale sure about the quantities of drugs that were being sought, only that "it was a large amount."

Clark took the stand in her own defense. According to Clark, she knew nothing about the drugs, and only went to Little Rock after the individual who was to drive Blair and Nolen back to Ohio decided to stay in Little Rock. Clark nevertheless recounted that while she was at the hotel with Nolen and Blair, she heard discussions concerning marijuana and surmised that the drug was in the hotel room, although she did not observe what quantity was possessed. According to Clark, she never observed any crack cocaine.

Following the close of testimony, Nolen moved for a judgment of acquittal; this motion was denied. Thereafter, the case went to the jury, which found Nolen guilty of each of the charges against him. Clark, meanwhile, was found guilty in relation to the marijuana charges, but not guilty in relation to the crack cocaine charges. Nolen now appeals.

II. DISCUSSION

On appeal, Nolen has raised two central arguments: (1) the district court erred in denying his motion to suppress, and (2) the jury's verdict was not supported by sufficient evidence, and therefore the district court erred in denying his motion for acquittal. We consider each argument in turn.

A. Motion to Suppress

On the day before his trial, Nolen moved to suppress the drugs that were discovered during the officers' warrantless search of the Ford Expedition. Specifically, Nolen argued that the warrantless search was not supported by probable cause, and therefore violated his Fourth Amendment rights. After the trial began and the district court had an opportunity to hear testimony from a number of government witnesses, the court denied Nolen's motion. According to the court, based on the information provided by Hale, as well as the erratic driving of the Ford Expedition, the officers' search was supported by probable cause. We agree.

1. Standard of Review

"We review the district court's factual findings in support of its denial of a motion to suppress for clear error and its legal determination of probable cause de novo." United States v. Solomon, 432 F.3d 824,...