United States v. McKenzie

• Decision Date: 09 September 2021
• Docket Number: Docket No. 18-1018,August Term 2020
• Citation: 13 F.4th 223
• Parties: UNITED STATES of America, Appellee, v. Oniel MCKENZIE, aka Darrin Clark, Aka Shower, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

13 F.4th 223

UNITED STATES of America, Appellee,

v.Oniel MCKENZIE, aka Darrin Clark, Aka Shower, Defendant-Appellant.^†

Docket No. 18-1018

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: April 7, 2021

Decided: September 9, 2021

ONIEL MCKENZIE, pro se, FCI Fort Dix, Joint Base MDL, NJ.

RAJIT S. DOSANJH, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

BRIAN E. SPEARS (Janna D. Eastwood, on the brief), Spears Manning & Martini LLC, Southport, CT, for Defendant-Appellant.

Before: LIVINGSTON, Chief Judge, WESLEY, CARNEY, Circuit Judges.

WESLEY, Circuit Judge:

Oniel McKenzie was convicted of possessing marijuana and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) following a jury trial in the United States District Court for the Northern District of New York. He was sentenced to a below-Guidelines term of 188 months’ imprisonment and five years of supervised release. In a counseled brief, he argues that the district court wrongly denied his motion to suppress evidence, failed to hold a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), erroneously calculated his Guidelines sentencing range, and entered a judgment of conviction despite insufficient evidence. In a pro se brief, McKenzie additionally argues that the district court erred by admitting testimony about uncharged drug offenses, relying at sentencing upon drug quantities destroyed by the Government, violating his right to a speedy trial, and exercising jurisdiction despite his crime not being a federal offense. Having considered these arguments, we find no reversible error in the decisions of the district court and affirm the judgment of conviction.

BACKGROUND

I. Facts¹

On April 30, 2014, a federal grand jury indicted Oniel McKenzie on one count of possessing with an intent to distribute five or more kilograms of cocaine and 100 or more kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). The indictment capped a months-long investigation by the Albany, New York office of the Drug Enforcement Administration ("DEA") into McKenzie's drug trafficking operation. A confidential informant originally identified McKenzie as the leader of an enterprise wherein two women (later identified as Deondra Forney and Latrina Riggins) picked up packages of cocaine and marijuana from UPS mailboxes and transported them to storage units controlled by McKenzie in the Albany area.

The First Search

DEA agents were able to confirm many of the confidential informant's allegations through first-hand observation. In late September 2013, they began conducting surveillance on Riggins. On October 3, an agent observed her pick up eleven boxes from a UPS store in Troy, New York, and transport them to Mabey's Self Storage ("Mabey's") in Rensselaer, New York. Agents interviewed the Site Manager for Mabey's and reviewed surveillance footage showing Riggins accessing storage units throughout the facility.

The storage units at Mabey's are enclosed by a fence and a security gate in an open air area. When Riggins arrived at Mabey's, the agent continued his surveillance within the enclosed area.² Riggins opened unit 296 ("Unit 296"), placed several boxes inside, locked the door, and left at approximately 5:35 p.m. When she departed, the agents called in a canine unit. The dog—certified in narcotics detection—examined the outside of several storage units and alerted on Unit 296. In an interview with the Site Manager the next day, agents learned that Unit 296 was rented by "Darrin Clark."

New York State Police Investigator Christopher T. Gilroy prepared and signed an application for a warrant to search Unit 296. His affidavit accompanying the application described the informant's tips, the surveillance operation, and the canine alert. The Hon. Thomas A. Breslin of the Albany County Supreme Court signed the warrant that afternoon; law enforcement officers commenced a search of Unit 296 and ultimately seized approximately 100 pounds of marijuana. The marijuana was packaged in cardboard boxes, white construction buckets, and trash bags.

The Second Search

Later that afternoon, Investigator Gilroy applied for a second warrant. He indicated in his affidavit that officers were surveilling Unit 296 at approximately 12:10 p.m. when a Jeep entered Mabey's, its driver opened Unit 296, paid rent at the front office, and then drove away. The officers followed the Jeep to 27 Thornton Street, where it parked and the driver exited and began talking with a man on the sidewalk. At the request of a DEA agent, the officers approached the driver and asked for identification. The driver, later identified in court as McKenzie, presented a California driver's license in the name of Darrin Clark—the name registered to Unit 296. Following this brief interaction with the officers, McKenzie dropped the Jeep's keys into the open engine block compartment of a nearby truck and walked away. He left the scene in a different vehicle.

The police then called a canine unit which alerted for drugs within the Jeep. Investigator Gilroy stated in his affidavit that six cardboard boxes similar to the ones Riggins placed in Unit 296 were plainly visible in the Jeep. He also referenced the marijuana recovered from Unit 296. Justice Breslin signed the warrant to search the Jeep at 3:54 p.m. An initial search revealed approximately fifty-six kilograms of marijuana. A handgun, ammunition, and $68,780 in cash were later discovered in a "sophisticated trap" in the back of the vehicle. PSR ¶ 17.

McKenzie contends that the officers searched the Jeep before Justice Breslin issued the warrant. He relies upon the affidavit of Paul Breslin, a mechanic who claimed to have witnessed the search.³ In Breslin's account, "[t]he police ... stated the vehicle was unlocked and opened the doors to the jeep at approximately 11:00 a.m." A 72. He claimed the Jeep was parked on Thornton Street from "approximately 10:00 a.m.," contradicting Investigator Gilroy's account of the officers seeing it at Mabey's that afternoon. Id . Breslin stated he was "certain the police searched the vehicle before the warrant arrived" because he "watched them do so" and "heard when they stated they had the warrant which was much later then [sic] when they first opened the doors." A 72–73.

The Government responded with two sworn affidavits. Investigator Gilroy acknowledged in his affidavit that he was not present on the scene, but asserted that he had "spoken to members of the Drug Enforcement Administration who were present, and learned that there was no search [of the Jeep] prior to the time of the issuance of the warrant." A 121. DEA Special Agent Ronald Arp stated in his affidavit that he was "personally present and maintaining surveillance of the Jeep from the time it was parked by an individual later identified as Oniel McKenzie until the time that the search was conducted pursuant to a warrant issued by Justice Breslin at 3:54 pm ...." A 129. He asserted that "[a]t no point during this interval was the Jeep opened or searched." Id .

The Third Search

Later that day, Investigator Gilroy applied for a search warrant for an apartment located at 6707 Oak Hill Circle (the "Oak Hill Residence") in nearby North Greenbush, New York. According to the application, records obtained from the landlord showed that the Oak Hill Residence was rented in the names of Chantell Chambers and Darrin Clark. A Jeep of the same model and year as the one from which the marijuana had been recovered on Thornton Street was registered to the apartment. The application also noted the marijuana recovered from Unit 296 as a predicate for probable cause. Justice Breslin issued the warrant.

Upon execution of that search warrant, law enforcement officers seized approximately 60 kilograms of cocaine from the Oak Hill Residence. The cocaine was packaged in a manner similar to the marijuana recovered from Unit 296—cardboard boxes, white construction buckets, garbage bags, and packing peanuts. DEA Special Agent James Cryan testified that the agents also found a booklet containing names, quantities, and dollar amounts—i.e., what appeared to be a drug ledger—in the Oak Hill Residence. Fingerprints recovered from the scene matched McKenzie's, according to expert testimony introduced at trial.

II. Procedural History

McKenzie was charged with knowing and intentional possession of cocaine and marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(a). McKenzie's counsel moved to suppress the evidence acquired during the searches and requested a hearing to challenge the warrant applications under Franks . The district court denied the motion, ruling that the dog sniff outside of Unit 296 was not a search within the meaning of the Fourth Amendment. It made two alternative holdings on the search of the Jeep: (1) that McKenzie lacked standing to challenge the search of the Jeep because he abandoned any expectation of privacy by discarding the keys, and (2) even assuming the Jeep was searched prior to the issuance of the warrant, the inevitable discovery rule made the evidence recovered from it admissible. Based upon the validity of the warrants to search Unit 296 and the Jeep, the district court found that the Oak Hill Residence warrant was "undoubtedly supported by probable cause." A 154. It also rejected McKenzie's request for a Franks hearing.

In a motion in limine , the Government sought to admit evidence of McKenzie's prior drug trafficking activity under Federal Rule of Evidence 404(b), arguing that it would establish his connection to accomplices and knowledge of wrongdoing. McKenzie objected, contending that the evidence would impermissibly connect him to uncharged offenses. The district court denied the Government's request without prejudice to renew at trial and ultimately admitted some of the testimony.

Forney...