United States v. Lindsey

• Decision Date: 14 February 2013
• Docket Number: 11–3513.,Nos. 11–3485,s. 11–3485
• Citation: 702 F.3d 1092
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Tyvarus Lee LINDSEY, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Rashad Raleigh, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

702 F.3d 1092

UNITED STATES of America, Plaintiff–Appellee

v.Tyvarus Lee LINDSEY, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Rashad Raleigh, Defendant–Appellant.

Nos. 11–3485, 11–3513.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2012.

Filed: Jan. 9, 2013.

Rehearing and Rehearing En Banc Denied Feb. 14, 2013.

Jon M. Hopeman, argued, Minneapolis, MN, for appellant Tyvarus Lindsey.

James E. Ostgard, II, argued, Minneapolis, MN, for appellant Rashad Raleigh.

Jeffrey S. Paulsen, USA, argued, Minneapolis, MN, for appellee.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Tyvarus Lee Lindsey and Rashad Arthur Raleigh of one count of possessing a firearm to further drug trafficking, and three counts of murder from possessing a firearm to further drug trafficking—in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A), (j)(1). They appeal. Lindsey argues that the district court ¹ should have granted his motion to suppress evidence and not admitted prior-acts evidence (and raises various pro se arguments). Both argue that the district court erred in admitting a deceased co-conspirator's statements and denying them acquittal based on insufficient evidence of a conspiracy to distribute drugs. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On March 23, 2007, Lindsey, Raleigh, and two co-conspirators broke into a home where a man was living with his fiancée and her three children. The intruders demanded drugs and money, took jewelry from the fiancée, and ransacked the house. They found 4.5 ounces of crack cocaine in the man's car. After he claimed not to have known the cocaine was there, they began torturing him. One of the intruders shot him dead. Raleigh entered the bedroom where the fiancée and her three children were laying on the floor. He shot and killed the fiancée and her 15–year–old daughter. The fiancée's 10–year–old daughter and son survived. Items stolen included the cocaine, two watches, and a television.

Three days later, two officers were looking at a house for a suspect (unrelated to this case). They knocked on the door. A woman answered. They asked if the suspect was inside. The woman said, “No.” She consented to a search of the house. An officer found Lindsey, arrested him for a prior, outstanding warrant, and recovered a cell phone on him. (When Lindsey and Raleigh were indicted for the present crimes, both were serving prison sentences for unrelated, independent state murders. See State v. Raleigh, 778 N.W.2d 90 (Minn.2010); State v. Lindsey, No. A08–453, 2009 WL 4908842 (Minn.2009) (unpublished).)

The district court denied Lindsey's motion to suppress the cell phone. Lindsey opposed evidence of a 2005 crime, which the court admitted (and the government referenced in its closing rebuttal argument). He also objected to admitting any statements of Albert “Bozo” Hill, a deceased co-conspirator.

At trial, three witnesses testified to three separate Hill statements. Cell phone records placed Lindsey in the crime-scene vicinity and showed that he communicated with the co-conspirators, including Raleigh, just before the crimes occurred. A witness testified that the co-conspirators left an after-hours party together near the crime scene before the murders. Multiple witnesses testified, and other evidence showed, that Lindsey and Raleigh committed the crimes, including their intent to steal drugs. At the close of the government's case, the court denied the defendants' motions for acquittal. The jury convicted them on all counts.

II.

Lindsey argues that the district court should have suppressed the cell phone, attacking the woman's consent to search the house where officers arrested him. For denial of a suppression motion, this court reviews the district court's factual findings for clear error and its legal conclusions de novo. United States v. Hudspeth, 518 F.3d 954, 956–57 (8th Cir.2008) (en banc).

Consent is valid “when an officer reasonably relies on a third party's demonstration of apparent authority” over the premises. United States v. Amratiel, 622 F.3d 914, 915 (8th Cir.2010); seeUnited States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (“[A] third party who possesse[s] ... [a] sufficient relationship to the premises [may give consent]....”). “Apparent authority exists when ‘the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.’ ” Amratiel, 622 F.3d at 916 (omission in original), quoting Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). “[S]urrounding circumstances could conceivably be such that a reasonable person would doubt” another's consent “and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793. “Some circuits have ... require[d] police to go behind appearances to verify third party authority.” United States v. Almeida–Perez, 549 F.3d 1162, 1171 (8th Cir.2008), citing United States v. Cos, 498 F.3d 1115, 1128–31 (10th Cir.2007), United States v. Whitfield, 939 F.2d 1071, 1074–75 (D.C.Cir.1991). “[This] circuit ... has been more liberal about allowing police to form their impressions from context.” Id.

In Almeida–Perez, consent to a search was valid where a man on the front porch led officers “into the house without knocking” after they asked if they could talk inside. Id. at 1164–65. The officers did not inquire further or ask “whether he ‘had any interest in the house.’ ” Id. In United States v. Hilliard, 490 F.3d 635, 639 (8th Cir.2007), consent was valid where a woman allowed officers inside and showed “familiarity with the premises” by picking “clothing off the floor to dress herself.” If “someone comes to the door of a domestic dwelling with a baby at her hip ... that fact standing alone is enough” to show authority to consent to a search. Georgia v. Randolph, 547 U.S. 103, 111, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

Assuming, without deciding, that Lindsey had a legitimate expectation of privacy in the cell phone—and thus has standing to challenge the search ²—the woman's consent to search the house was nonetheless valid. The two officers testified—credibly according to the district court—that the woman answered the door and showed familiarity with the house by responding “no” when asked if the suspect was there. Cf. Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir.1994) (holding that a woman showed familiarity with a house by climbing in through an unlocked window). Then, she verbally consented to the officers' request to walk through the house. Answering the door and showing knowledge of occupants demonstrate greater authority than in Almeida–Perez, where a man was outside and simply walked in the house. The woman “exercise[d] ... privileges that would only be proper for an occupant of the house.” Almeida–Perez, 549 F.3d at 1171.

Lindsey further argues that the woman's consent was “mere acquiescence to a claim of lawful authority.” See United States v. Escobar, 389 F.3d 781, 785 (8th Cir.2004), citing Bumper v. North Carolina, 391 U.S. 543, 548–49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The officers were in plainclothes. They requested permission to look inside for the suspect and did not show their weapons. See Almeida–Perez, 549 F.3d at 1165. They (as the district court found) did not coerce consent. Cf. Escobar, 389 F.3d at 786 (holding that consent to search bags was coerced because the officer falsely “represented a drug-sniffing dog had alerted,” and the defendant stated, “Go ahead, you're going to do it anyway.”). The woman's consent to search the house was valid. The district court properly admitted the cell phone evidence.

III.

Lindsey claims that the district court erred in admitting prior-acts evidence under Federal Rule of Evidence 404(b). This court reviews for “clear abuse of discretion a district court's evidentiary rulings.” United States v. Chase, 451 F.3d 474, 479 (8th Cir.2006).

A.

Lindsey objects to the government's notice of intent to admit evidence of his 2005 crime. “[T]he prosecutor ... shall provide reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial.” Fed.R.Evid. 404(b).³ Factors to consider for whether notice was reasonable include: (1) “when the government could have learned ... of the evidence through timely preparation for trial; (2) ... prejudice to [the] defendant from lack of time to prepare; and (3) how significant the evidence is to the government's case.” United States v. Green, 275 F.3d 694, 701 (8th Cir.2001). In Green, the “government provided a printout of the arrest record four months before trial and supplemented the information as it became available.” Id. at 702. Notice given one week before trial was reasonable. Id. at 701.

Here, the government listed Lindsey's 2005 crime in the 2010 indictment—over one year before trial. One month before trial—consistent with the schedulingorder—the government provided formal notice to Lindsey. The district court did not abuse its discretion in finding notice timely.

Lindsey claims that notice was deficient because it did not reveal the purpose for offering evidence of the 2005 crime. He cites United States v. Crenshaw, 359 F.3d 977, 999 (8th Cir.2004), where this court noted that the Rule 404(b) evidence was only “marginally relevant” to one of the government's bases for using it at trial. Crenshaw, however, did not involve notice. Cf. United States v. Robinson, 110 F.3d 1320, 1326 (8th Cir.1997) (“The trial court has discretion to reject evidence if the court finds that the notice is unreasonable due to ‘lack of ... completeness.’ ” (omission in original) (citation omitted)). Lindsey cites no authority that notice must reveal the government's purpose for the evidence. Regardless, the government did file a memorandum that informed...