USA v. Allen

• Decision Date: 13 August 2010
• Docket Number: No. 08-6363.,08-6363.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie Dewayne ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

619 F.3d 518

UNITED STATES of America, Plaintiff-Appellee,

v.Leslie Dewayne ALLEN, Defendant-Appellant.

No. 08-6363.

United States Court of Appeals,Sixth Circuit.

Aug. 13, 2010. ^*

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ON BRIEF: Ashley L. Ownby, III, Cleveland, Ohio, for Appellant. Terra L. Bay, Assistant U.S. Attorney, Chattanooga, Tennessee, for Appellee.

Before SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge. ^**

OPINION

McKEAGUE, Circuit Judge.

Defendant-Appellant Leslie Allen was arrested by Chattanooga Police Officers Lawrence Goodine and Lee Mayweather after a car that he was a passenger in fled from the police. The officers recovered drugs and a handgun from the scene. Allen challenges his convictions stemming from this arrest. However, we do not find his arguments convincing and, therefore, AFFIRM the judgment.

I. BACKGROUND

On August 29, 2006 Officer Goodine attempted to stop a rental car, which Larry Bush was driving with Allen as his only passenger. Bush initially stopped, but then fled and led police on a car chase, which ended when Bush turned onto an intersecting street and came to a stop near the curb. Officers Goodine and Mayweather approached the car and instructed Bush and Allen to get out of the vehicle. Bush immediately complied, but Allen did not. Allen was ultimately tasered by Officer Goodine, at which point Allen fell to the ground and was handcuffed by Officer Mayweather. Officer Goodine found a bag containing a white powdery substance that later turned out to be cocaine base; Officer Mayweather found a handgun under the vehicle, which he believed, based on its location and Allen's movements, had been slid underneath the car from the passenger's side. A police camera located in Officer Mayweather's cruiser recorded the arrest.

A grand jury indicted Allen for: conspiring to distribute and possess with intent to distribute more than five grams of crack cocaine; possessing with intent to distribute more than five grams of crack cocaine; possessing a firearm in furtherance of a drug trafficking crime; and possessing a firearm after a felony conviction. Allen pled guilty, but the district court allowed him to withdraw his guilty plea and proceed to trial after Officer Goodine was indicted on multiple charges relating to theft and official misconduct. The jury found Allen guilty of all counts, and he was sentenced to 360 months on Counts One, Two, and Four, with the sentences to run concurrently. Allen received a life sentence on Count Three, to be served consecutively with the other sentences. This timely appeal followed.

II. ANALYSIS

Allen challenges whether: (1) there was sufficient evidence to support his conviction; (2) evidence of prior acts should have been admitted under Rule 404(b); (3) there was a proper chain of custody for the crack cocaine found at the scene of the arrest; (4) the district court erred in refusing to dismiss his indictment due to outrageous government conduct; and (5) the district court erred in refusing to grant his motion to suppress.

1. Sufficiency of the evidence

Allen challenges the sufficiency of the evidence with respect to his motion for mistrial and his motion for acquittal concerning his convictions for possession and conspiracy to possess. The denial of a motion for acquittal is reviewed de novo to ascertain, “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Garrido, 467 F.3d 971, 984 (6th Cir.2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original). ¹

To show a drug conspiracy, the government must prove the following elements beyond a reasonable doubt: “(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Welch, 97 F.3d 142, 148-49 (6th Cir.1996). The evidence that the defendant agreed to join a conspiracy to violate the drug laws “need only be slight.” United States v. Hodges, 935 F.2d 766, 773 (6th Cir.1991). To show possession of a controlled substance with intent to distribute, the government must prove that: (1) the defendant knowingly, (2) possessed a controlled substance, (3) with intent to distribute. United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006).

There was sufficient evidence for a rational trier of fact to convict Allen on all counts. The jury heard evidence that Allen admitted that he and Bush had spent the day together, that Bush was initially driving an Oldsmobile, but that they rented another vehicle and were driving that vehicle when arrested. They also heard that Allen had told Agent Healy that Bush got a phone call, and that Allen believed Bush went upstairs to get some crack cocaine before they left in the rental car. They heard that Allen and Bush were members, “OGs” or Original Gangsters, in the Athens Park Blood Gang, and were engaged in drug dealing together. Agent Healy also testified that Allen told him that Bush gave him the gun and the drugs prior to the stop and told him to get rid of them. In response, Allen said that he slid the gun under the car and put the drugs in his pocket. Officer Mayweather testified that he saw Allen open the passenger door and make movements consistent with throwing something away. Agent Hennessee testified, and the defendant stipulated, that eight grams of crack cocaine is a distribution amount. Agent Hennessee also said that drug traffickers often use rental cars to prevent detection, and that drug traffickers do not ask uninvolved individuals to participate in their drug trafficking endeavors.

Allen essentially requests that we ignore the evidence presented against him at trial and interpret the video as, “clear ... evidence that Goodine planted the drugs....” (Appellant Br. at 19.) The district court found-correctly-at trial that: “[t]he video alone is ... inconclusive as to the source of the bag of cocaine.” (R. 113 at 261). To now interpret it as Allen desires is a far cry from viewing the evidence in the light most favorable to the prosecution. Clearly a rational juror could have concluded that Allen committed each of the essential elements of the crimes for which he was convicted, and that Officer Goodine did not plant the crack cocaine. Consequently, there was sufficient evidence to support the denial of the motion for acquittal.

2. Prior acts evidence

The district court admitted evidence of two prior drug convictions for the “purpose of proving [Allen's] identity with respect to the crimes charged in the present indictment.” (R. 113 at 272.) Allen argues on appeal that this evidence should not have been admitted under Federal Rules of Evidence 404(b) and 403.

As an initial matter, any potential error was clearly harmless. “An error is harmless unless one can say, with fair assurance that the error materially affected the defendant's substantial rights-that the judgment was substantially swayed by the error.” United States v. Murphy, 241 F.3d 447, 453 (6th Cir.2001). In this case, Agent Healy testified that Allen told him that Bush gave him the drugs, and that he put them in his pocket. Furthermore, contrary to Allen's claims, the video tape evidence does not show that Officer Goodine planted the drugs. Nor at any rate was there an abuse of discretion in admitting the evidence. Rule 404(b) states that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Prior to admitting Rule 404(b) evidence, the district court must: (1) make a preliminary finding as to whether sufficient evidence exists that the prior act occurred; (2) determine whether the other act is admissible for one of the proper purposes outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice or the other concerns embodied in Rule 403. United States v. Mack, 258 F.3d 548, 553 (6th Cir.2001).

We review the district court's decision to admit this evidence for an abuse of discretion. See United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002). “Generally, an abuse of discretion is evident when the reviewing court is firmly convinced that a mistake has been made. A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.”

Ross v. Duggan, 402 F.3d 575, 581 (6th Cir.2004) (citation omitted). ² Prior acts or crimes can be admitted to show identity, provided they are “of sufficient distinctive similarity” with the charges in the indictment to “create a pattern or modus operandi.” United States v. Perry, 438 F.3d 642, 648 (6th Cir.2006) (noting that “[i]t is not necessary ... that the crimes be identical in every detail”); see also Mack, 258 F.3d at 554 (noting that “standard conduct, although not particularly unusual by itself, may, in combination, present an unusual and distinctive pattern constituting a ‘signature’ ”).

Allen challenges the final two prongs of the standard: namely, (1) whether the other acts evidence was admissible for a proper purpose and (2) the district court's balancing under Rule 403. Initially, he argues that identity was not disputed because his arrest “was observed by two officers” and recorded on the dashboard camera of Officer Mayweather's patrol car. (Appellant Br. at 15.) However, Allen based his defense on the theory that Officer Goodine planted the crack cocaine at the scene. This theory called into question the identity of the person who put...