U.S. v. Patterson
| Citation | 472 F.3d 767 |
| Decision Date | 27 December 2006 |
| Docket Number | No. 05-6386.,05-6386. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cleo PATTERSON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Mary M. Smith, Assistant United States Attorney, (and John C. Richter, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.
James L. Hankins, Oklahoma City, OK, for Defendant-Appellant.
Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.
Defendant-Appellant Cleo Patterson appeals his conviction and sentence on drug trafficking charges arising from the discovery of 67 pounds of cocaine in his vehicle. After denial of his motion to suppress, Mr. Patterson was tried before a jury and convicted of possession with intent to distribute approximately sixty-seven pounds of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count II) and traveling in interstate commerce with intent to further a drug trafficking enterprise in violation of 18 U.S.C. §§ 1952(a)(3) and 2 (count III). The jury was unable to reach a verdict on conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (count I). The district court sentenced Mr. Patterson to concurrent sentences of 360 months in prison on count II and 60 months on count III, followed by 60 months of supervised release on count II and 36 months on count III.
In this appeal, Mr. Patterson asserts that the district court erred by: (1) denying his motion to suppress the drug evidence seized from his van; (2) requiring him to proceed to trial alone with a jury he had jointly selected with his former co-defendant; (3) denying his Rule 29 motion for judgment of acquittal; (4) giving an unduly coercive partial verdict instruction; (5) relying on a drug quantity proven by a preponderance of the evidence in calculating his sentence; (6) refusing to reduce his offense level for acceptance of responsibility; (7) refusing to reduce his offense level for his minor role in the offense; (8) classifying him as a career offender based on his non-violent late return from a prison furlough; and (9) failing to dismiss the indictment because it was untimely under the Speedy Trial Act, 18 U.S.C. § 3162(a)(1). We have jurisdiction pursuant to 18 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
On December 31, 2004, shortly after 10 a.m., Oklahoma Highway Patrol Trooper Jeff Steelman observed a red Volkswagen van passing several vehicles while traveling eastbound on I-40. The trooper's radar indicated that the van was traveling 86 miles per hour, 16 miles per hour above the posted speed limit. The trooper activated his emergency lights and stopped the vehicle.
At 10:04 a.m.,1 the trooper exited his patrol vehicle and approached the passenger's side of the van. He asked Mr. Patterson, the driver, to accompany him to his Suburban, and Mr. Patterson complied. The passenger, Herman Majors, Jr., remained in the van's back seat. The trooper later testified that nothing about the van's condition or its occupants aroused any suspicion during this initial encounter.
When the two men reached the patrol vehicle, the trooper got in on the driver's side and asked Mr. Patterson to sit in the front passenger's seat. The trooper informed Mr. Patterson that he intended to issue him a warning citation for speeding. Mr. Patterson then engaged the trooper in conversation about a wide variety of topics, including the radios in the vehicle, the trooper's name, and that Mr. Patterson had been shot in a bar. I Aplt. App. at 136.
Meanwhile, the trooper asked Mr. Patterson for proof of his registration and insurance, and Mr. Patterson replied that those documents were in a pocket on the van's door. At 10:09, the trooper returned to the van and asked Mr. Majors to hand him the documents; Mr. Majors did so. The trooper also briefly questioned Mr Majors about his travel plans, and Mr. Majors explained that he and Mr. Patterson were returning from Amarillo, Texas, to Tennessee. Mr. Patterson had given the same account of their route. Then, at 10:10, the trooper returned to his vehicle and radioed to dispatch for a "Triple I" check on Mr. Patterson, which searched for warrants and verified the validity of his license and registration. While the trooper awaited a reply, Mr. Patterson remained talkative.
At 10:14, Oklahoma Highway Patrol Trooper Garrett Vowell arrived on the scene with his drug detection dog, Hilto. The two troopers spoke briefly outside the Suburban, but their discussion was not captured by the vehicle's recording device because Trooper Steelman had switched off his wireless microphone. Shortly thereafter, at 10:15, dispatch informed Trooper Steelman that it had completed the requested checks. Trooper Vowell then got into the back seat of Trooper Steelman's Suburban and observed Mr. Patterson. Meanwhile, Trooper Steelman got back into the driver's seat and received the reports from dispatch, which indicated that Mr. Patterson had a felony drug record but that his license was clear and the van was registered in his name. Both troopers later testified that Mr. Patterson seemed very nervous, talkative, and sweaty, and that he fidgeted and pulled at his shirt.
At 10:17, while Trooper Steelman finished filling out the warning citation, Trooper Vowell retrieved Hilto and began walking him around the van. Trooper Steelman explained the warning, and he asked Mr. Patterson to sign the citation at 10:17. At the very same time, Hilto alerted next to the driver's side door of the van.2 Trooper Vowell continued walking around the van with Hilto, and Hilto again alerted, this time on the passenger's side. Trooper Steelman asked Mr. Patterson if he had anything illegal in the van. Mr. Patterson said "no" and then "a long time ago, maybe." Trooper Vowell circled the van with Hilto a second time, and, once again, the dog alerted.
After Hilto's third alert, Trooper Vowell asked Mr. Majors to step out of the van and ordered Hilto to go inside. Hilto alerted on the area between the two captain's chairs. The troopers then searched the van's interior and noticed an abnormality in the carpet. They peeled it back, revealing a fresh adhesive. Lifting the plywood below, the troopers discovered a hidden compartment in which they found 26 cellophane packages containing approximately 67 pounds of a white powder later determined to be cocaine. At 10:46, the troopers informed Mr. Patterson and Mr. Majors that they were under arrest.
After the two men were indicted, they moved to suppress the cocaine; the district court denied these motions on August 5, 2005, following a hearing. The court determined that the stop was justified because Trooper Steelman had clocked Mr. Patterson's van at 86 m.p.h. in a 70 m.p.h. zone, and it held that the duration of the stop was reasonable, noting that any extension beyond the bare minimum time needed to verify Mr. Patterson's records and write out the warning was caused by Mr. Patterson's loquaciousness. Alternatively, the court held that the detention was justified by reasonable suspicion.
At jury selection on August 8, 2005, the district court required Mr. Patterson and Mr. Majors, as co-defendants, to share their peremptory challenges. Defense counsel did not object. Shortly after the jury was chosen, however, the government moved to dismiss the indictment against Mr. Majors. The court granted this motion the next morning, and Mr. Patterson began the trial as the lone defendant.
At trial, the government called four witnesses: (1) Trooper Steelman; (2) Trooper Vowell; (3) Pauline Orlando, a DEA forensic chemist who testified about the chemical analysis of the substances found in the van; and (4) DEA Agent Garth Hamelin, who testified to interviewing Mr. Patterson, examining the van, and transporting the evidence to the DEA lab for testing. After the government rested, Mr. Patterson moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. The district court denied the motion.
During deliberations, the jury sent a note asking the court for clarification and further definition of "intent to distribute." The court refused to provide any further definition, instructing the jury that it had received all of the law that it should appropriately consider. Later, the jury sent another note, this time indicating that it had agreed on verdicts for two of the three counts. The court, with the concurrence of counsel, instructed the jurors to continue deliberating. When the jury sent another note later that afternoon informing the court that it was taking a break but would resume deliberating, the court proposed a supplemental instruction stating that the jury had the option of returning a partial verdict. Over defense counsel's objection, the court read Sixth Circuit Pattern Jury Instruction 9.03 (2005) to the jury:
Members of the jury, you do not have to reach unanimous agreement on all charges before returning a verdict on some of them. If you have reached unanimous agreement on some of the charges, you may return a verdict on those charges and then continue deliberating on the others. You do not have to do this, but you can if you wish.
If you do choose to return a verdict on some of the charges now, that verdict will be final. You will not be able to change your minds about it later on. Your other option is to wait until the end of your deliberations and return all of your verdicts then. The choice is yours.
I would ask that you now return to the jury room and resume your deliberations.
II Aplt.App. at 407. Ultimately, the jury did return a partial verdict, convicting Mr. Patterson on counts II and III but deadlocking on count I.
The Presentence Report (PSR) calculated a total offense level of 37 and a criminal history category...
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