U.S. v. Snow

• Decision Date: 01 September 2006
• Docket Number: Docket No. 05-2208(CON).,Docket No. 05-0958-CR(L).,Docket No. 05-1850-CR-(CON).
• Citation: 462 F.3d 55
• Parties: UNITED STATES of America, Appellee, v. Fred SNOW, Marcus Snow, Rahad Ross, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

462 F.3d 55

UNITED STATES of America, Appellee, v. Fred SNOW, Marcus Snow, Rahad Ross, Defendants-Appellants.

Docket No. 05-0958-CR(L).

Docket No. 05-1850-CR-(CON).

Docket No. 05-2208(CON).

United States Court of Appeals, Second Circuit.

Argued: February 6, 2006.

Decided: September 1, 2006.

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Bradley E. Tyler, Assistant United States Attorney, Western District of New York, for Appellee.

Bruce Harvey, Law Office of Bruce Harvey, for Defendant-Appellant Marcus Snow; Jeffrey Wicks, Law Office of Jeffrey Wicks, for Defendant-Appellant Fred Snow; Robert Wood, Law Office of Robert W. Wood, for Defendant-Appellant Rahad Ross.

Before JACOBS, POOLER, and JOHN R. GIBSON,^* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

A jury convicted Marcus Snow, Fred Snow, and Rahad Ross in connection with a narcotics trafficking operation in Rochester, New York. Rahad Ross appeals his convictions, Fred Snow appeals his sentence, and Marcus Snow appeals both. For the following reasons, we affirm.

Because the sufficiency of the evidence is in issue, we set forth the facts in the light most favorable to the government, drawing all reasonable inferences in its favor. United States v. Morgan, 385 F.3d 196, 198 (2d Cir.2004). In September 2001, members of the Rochester Police Department's Violent Crime Team received information from a confidential informant that Marcus Snow and his associates were selling cocaine and cocaine base out of three apartments on Sixth Street in Rochester. According to the informant, members of the trafficking organization would cut and package drugs at 183 Sixth Street, store the packaged drugs at 188 Sixth Street, and then sell the narcotics to customers out of an apartment at 190 Sixth Street.

Based on this information, police conducted a series of controlled buys with a confidential informant, Donnie Brown. During the first buy, Brown met with Fred Snow at 190 Sixth Street and asked him for an eight-ball of cocaine; Snow retrieved the desired quantity from 188 Sixth Street. During the second buy, Brown ordered an eight-ball of cocaine from Rahad Ross, who sent Fred Snow out with a set of keys to fetch the order; Snow returned with the cocaine and gave it to Brown in exchange for $170, which Snow handed over to Ross, who put the money in his pocket. In the third controlled buy, an individual known as "J.T." sold Brown an eight-ball for $170. During the last controlled buy, Brown ordered an eight-ball of cocaine from Fred Snow, who gave a key to Ronnie Parsons to retrieve the order; Parsons left out the front door and returned moments later with a package of cocaine for Brown.

Shortly after the last controlled buy, Rochester police learned that an officer from a nearby city had searched Marcus Snow's vehicle in connection with a traffic violation and had uncovered $2,044 in cash proceeds and various utility bills connecting him to the apartments at 183 and 190 Sixth Street. Based on the information gathered during the traffic stop and the controlled buys, as well as through interviews with other confidential informants, officers secured four "no-knock" search warrants from a Monroe County Court judge, which they executed on January 11, 2002.

After officers entered 183 Sixth Street and announced their identity as police, a man, later identified as Charles Snow, jumped out of a front window and onto the lawn. Officers apprehended two other men, Anthony Moore and Rahad Ross, fleeing from the back of the house, neither wearing a coat, and one without shoes. A search of Marcus Snow's Chevrolet Corsica parked outside uncovered a plastic bag containing smaller baggies with yellow markings. Inside the green Acura in the driveway, officers found letters addressed to Marcus Snow and a prescription medicine bottle with his name on it.

Inside 183 Sixth Street officers found drugs, drug paraphernalia, guns, and cash. In the kitchen cabinets, police found three scales, balloons, boxes of sandwich bags, and plastic bags holding hundreds of smaller plastic baggies with yellow markings; in the kitchen sink, officers found a plate holding "small-type white rocks" later determined to be cocaine. In the bedroom directly off the kitchen, officers found a bottle of Procaine,¹ a box of sandwich bags, and photographs of Rahad Ross and Marcus Snow on top of a dresser. Inside the dresser officers found two loaded handguns in a dresser, one of which was in the same drawer as $6,000 in cash. In the basement, police found 180 baggies containing approximately 474 grams of crack cocaine stashed inside a towel.

While police searched 183 Sixth Street, officers were also executing search warrants at the other two apartments. At 190 Sixth Street, officers encountered three men and one woman, later identified as John Turner a/k/a "J.T", Shawn Thomas, Ronald Parsons, and Sharon Robinson. They found two small baggies of marijuana and a partially burned marijuana cigarette. The apartment at 188 Sixth Street was empty of furniture and no one was inside. In the kitchen, officers found a box of rounds of .10 mm ammunition, a box with a digital scale, clear plastic bags with a razor blade, a digital scale case, and a micro ziplock bag containing a substance believed to be cocaine.

A federal grand jury handed down a multi-count indictment charging Marcus Snow, Fred Snow, and Rahad Ross in connection with the raid on the Sixth Street apartments.² Among other motions (not relevant to this appeal), Marcus Snow sought to suppress the evidence seized at 183 Sixth Street pursuant to the no-knock search warrant. The magistrate judge denied Snow's motion, and, reviewing the record de novo, the district court affirmed the denial.

At trial, the government presented the testimony of unindicted co-conspirators Ron Keitt, Marzell Miller, Sherman Green, as well as Donnie Brown, the confidential informant who conducted the controlled buys. The jury also heard testimony from Oliver Jackson, the owner and landlord of 183 Sixth Street, and Nancy Salvato, the owner and landlord of 188 and 190 Sixth Street. Several police officers involved in the investigation of the drug activities at the Sixth Street apartments also testified at trial.³

Following the thirteen-day trial, the jury found the defendants guilty on all charges. The district court sentenced Fred Snow to concurrent terms of imprisonment of 135 months on each of Counts I, II, III, and IV. The district court sentenced Rahad Ross to concurrent sentences of 240 months on Count I and V and 168 months on Counts III and VI. The district court sentenced Marcus Snow to life imprisonment on Counts I and V, 240 months on Count VI, and 120 months on Count VIII to be served concurrently, plus an additional sixty months on Count VII.

Appellants raise a number of claims on appeal. Marcus Snow challenges the legality of the "no-knock warrant" executed at 183 Sixth Street, argues that there was insufficient evidence to support his conviction for possession of the two charged handguns in furtherance of a drug trafficking offense, argues that there was a "fatal variance" between the indicted drug conspiracy and the proof at trial, and advances several challenges to his sentence. Rahad Ross seeks reversal of his convictions on Counts I, V, and VI for insufficient evidence. Fred Snow challenges only his sentence, claiming that the district court erred in its drug quantity calculation. We address each claim in turn.

I. MARCUS SNOW

A. FAILURE TO KNOCK AND ANNOUNCE

Marcus Snow argues that the district court erred by denying his motion to suppress physical evidence obtained pursuant to the search warrant for 183 Sixth Street because officers entered the apartment without first knocking and announcing their presence. Assuming arguendo that the officers violated the so-called "knock and announce rule," see Wilson v. Arkansas, 514 U.S. 927, 931-932, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), Snow is not entitled to the exclusionary remedy he seeks following the United States Supreme Court's recent decision in Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

With the government conceding that officers executing a search warrant at the home of Booker Hudson had failed to knock and announce their presence before entering, the issue before the Court in Hudson was one of remedy: "whether violation of the `knock and announce' rule requires the suppression of all evidence found in the search." Id. at 2162. The Court answered that question in the negative, holding that the strong medicine of suppression was inappropriate for an officer's failure to knock and announce.⁴ Accordingly, the district court did not err in refusing to exclude the evidence seized at 183 Sixth Street.

B. INSUFFICIENT EVIDENCE: POSSESSION "IN FURTHERANCE"

Marcus Snow challenges the sufficiency of the evidence in support of his conviction for possession of two specifically-described handguns in furtherance of the charged drug trafficking offenses. See 18 U.S.C. § 924(c)(1)(A). We review a challenge to the sufficiency of the evidence de novo, although the defendant bears a "heavy burden" to overturn a conviction on this ground. United States v. Naiman, 211 F.3d 40, 46 (2d Cir.2000). The burden is heavy, in part, because we view the evidence at trial in the light most favorable to the government, and we draw every inference in its favor. Id. So long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the jury's verdict will stand. Id.

A person may be convicted under § 924(c)(1)(A) for "mere possession of a firearm" so long as "that possession is `in furtherance' of a drug trafficking crime." United States v. Lewter, 402 F.3d 319, 321 (2d Cir.2005). Marcus Snow does not dispute that he possessed the handguns alleged in the indictment, since he does not challenge his conviction under § 922(g)(1) for being a felon in...