U.S. v. Steed

Decision Date10 November 2008
Docket NumberNo. 08-10557 Non-Argument Calendar.,08-10557 Non-Argument Calendar.
Citation548 F.3d 961
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Antwan Lamount STEED, Defendant, Harold Orven Osgood, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeals from the United States District Court for the Northern District of Alabama.

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:

Harold Orven Osgood1 appeals from his conviction and sentence after a jury found him guilty of 1 count of possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Osgood raises the following four issues on appeal: (1) the district court erred by denying his motion to suppress evidence of the marijuana because the search of his commercial motor vehicle violated the Fourth Amendment; (2) the district court abused its discretion by admitting expert testimony under Fed. R.Evid. 703 and 704(b); (3) the district court erred by instructing the jury on deliberate ignorance; and (4) the district court violated Osgood's Sixth Amendment rights by enhancing his sentence based on a prior conviction that had not been pled or proven to the jury. For the reasons set out below, we affirm.

I.
A. Osgood's Motion to Suppress

Before trial, Osgood filed a motion to suppress marijuana discovered in connection with a traffic stop and an administrative inspection of a commercial motor vehicle. He argued, inter alia, that the search of the truck violated the Fourth Amendment because there was no probable cause to make the initial stop and that an Alabama statute authorizing the administrative inspection violated the Fourth Amendment under the Supreme Court's decision in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). With respect to the latter point, he argued that the statute violated the third prong of the test set out in Burger because it did not provide an adequate substitute for a warrant, as it did not provide notice of when, where, and under what circumstances an inspection may be conducted and, thus, did not sufficiently constrain the discretion of inspecting officers.

The government responded that the initial stop was justified because the officer had probable cause to believe a traffic violation had occurred. The government also argued, inter alia, that the evidence should not be suppressed even if Alabama's administrative inspection statute was unconstitutional because, under Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the inspecting officer reasonably relied on the validity of the statute.

At the suppression hearing, the government called Alejandro Gonzalez, a law enforcement officer with the Interstate Criminal Enforcement Unit of the Hoover City Police Department, who testified as follows. On May 21, 2007, while monitoring traffic from the median of Interstate 20, he observed a tractor-trailer following another vehicle too closely. Without putting his overhead lights on, Gonzalez exited the median and pulled up alongside the truck, at which point the truck attempted to move into Gonzalez's lane without using a turn signal. This constituted an improper lane change because the truck did not use its turn signal and it was not safe to make the lane change. At that point, Gonzalez pulled the truck over.

Upon making contact with Osgood, who was the driver of the truck, Gonzalez immediately informed Osgood, even before asking for Osgood's license, that he was conducting a level two inspection of the truck and would not be issuing a traffic citation. A level two inspection was a safety inspection requiring Gonzalez to review the truck's paperwork and equipment. Gonzalez conducted this inspection pursuant to an Alabama statute, and the government asked the court to take judicial notice of Ala.Code § 32-9A-3.

When Osgood asked why he had been pulled over, Gonzalez informed him that he had been following another vehicle too closely. Osgood and Steed, his passenger, exhibited signs of nervousness, and Osgood produced paperwork for the truck that contained several omissions and irregularities. While Gonzalez was in the midst of his inspection, he requested a canine unit, which arrived shortly thereafter and gave a positive alert to the trailer. After Gonzalez finished his inspection, he informed Osgood that, based on the canine's alert, he was going to conduct a probable cause search of the trailer. The search revealed approximately 1,600 pounds of marijuana. On cross-examination, Gonzalez testified that it was in the officer's discretion regarding which vehicles to inspect and that he had not been provided with any procedures or regulations on when to conduct an inspection.

The district court denied Osgood's motion to suppress. It first found that the initial stop was valid because Gonzalez had probable cause to believe that the driver of the truck was following another vehicle too closely and had made an improper lane change, both of which constituted traffic violations under Alabama law. The court then concluded that the Alabama statute and federal regulations authorizing administrative inspections of commercial motor vehicles satisfied the three-part test in Burger. Because the initial stop and administrative inspection were both valid, the court found that the subsequent probable cause search of the trailer, based on the canine's positive alert, was constitutional. The court alternatively concluded that, even if the Alabama statute was unconstitutional, suppressing the evidence would still be inappropriate because, under Krull, Gonzalez relied in good faith on the validity of the statute.

B. Trial

At trial, the government called Gonzalez, who testified extensively regarding his background as a law enforcement officer and an inspector of commercial motor vehicles. Gonzalez testified that criminal interdiction included "looking beyond a traffic stop" for signs of nervousness, such as hands shaking and other body language. Defense counsel objected to this testimony under, inter alia, Fed.R.Evid. 703 and 704, but the district court overruled the objection, finding that Gonzalez was merely relating his experience.

Shortly thereafter, and in response to an open-ended question regarding drug trafficking on the roadways, Gonzalez premised his response by citing his training and experiences — specifically referring to his police work in Los Angeles and Hoover City, discussions that he had with other law enforcement officers over the course of his career, and literature with respect to trends in drug trafficking published by the El Paso Intelligence Center ("EPIC") and the National Drug Intelligence Center ("NDIC"). Each time Gonzalez referred to his training and experience, defense counsel objected to the testimony as hearsay, and the court overruled his objections.

With respect to the incident on May 21, 2007, involving Osgood and Steed, Gonzalez repeated much of his testimony from the suppression hearing, but also included the following facts. During his interaction with Osgood at the traffic stop, Gonzalez noticed that Osgood's hands were visibly shaking, that he had sweat beads on his forehead even though the air conditioner had been on, and that Osgood did not make direct eye contact with Gonzalez when they were speaking. Gonzalez also noticed that Steed looked uneasy and had elevated breathing, which was unusual because he had just awakened. Gonzalez also observed five cellular telephones in the truck. The seal numbers listed on three shipping papers provided by Osgood did not match the number on the actual seal on the trailer. Gonzalez also observed that the shipping papers did not have any phone numbers or addresses. Although the shipping papers indicated that the truck was traveling from southern California to Orlando, its location on Interstate 20 was "off route" by about 150 miles. Osgood provided Gonzalez with a carbon receipt from a truck repair shop in southern California dated May 18, 2007, and written on the receipt in pen was a seal number matching the seal number on the trailer. Osgood used a key that he had in order to unlock the trailer for the authorities. Gonzalez testified that, according to Osgood's logbook, the entry for May 18 did not indicate any repairs or any loading times, even though the receipt from the repair shop occurred that day and the shipping papers indicated that three cargo shipments were loaded on that day. There were several inconsistencies between Osgood's logbook and receipts found in the truck as to the truck's location on May 19 and 20. The times provided in Osgood's logbook were also "completely off" with those provided in Steed's logbook.

During the jury charge conference, the court read this Circuit's pattern jury instruction on deliberate ignorance.2 Defense counsel objected to this instruction on two grounds. First, he argued that the government had proceeded under a theory of actual knowledge and, while there was circumstantial evidence suggesting that Osgood had actual knowledge of the drugs in the truck, the instruction was inappropriate because there was no evidence that Osgood deliberately avoided such knowledge. Second, he argued that the pattern instruction was unconstitutional because this Court did not have the power to equate the statutory standard of "willfully and knowingly" to a lower standard requiring only a "high probability of knowledge."

Defense counsel rested without putting on any evidence, and he informed the court that Osgood was choosing not to testify, "especially since he has got a prior conviction that hasn't been introduced in the trial of this case." After the parties presented closing arguments and the court instructed the jury — including on the deliberate ignorance instruction quoted in the margin above — the jury returned a guilty...

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