United States v. Lacy , 17 F. App'x 745 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 31 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 00-2096
v. (District of New Mexico)
GREGORY LACY, (D.C. No. CR-99-439-BB)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON and LUCERO, Circuit Judges, and MILLS, District Judge.**
I. BACKGROUND
Officers John Salazar, Robert D. Sanchez and Michael Teague were all part of a
Drug Enforcement Agency (DEA) interdiction team in Albuquerque, NM. As part of
their duties, the team routinely went to the Albuquerque train station to meet the
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Richard Mills, Senior United States District Judge for the Central
District of Illinois, sitting by designation.
eastbound Amtrak train when it stopped on its Los Angeles to Chicago route. Prior to the
train's arrival, officers would review passengers’ reservations by checking Amtrak's
computer records. They were on the look out for reservations that fit drug trafficking
profiles (i.e. reservations made soon before the time and date of departure, for one way
tickets that were paid for in cash).
On March 23, 1999, Officer Teague reviewed the reservation record of Amtrak
passengers Millard and Gregory Lacy. Greg and Millard were traveling together, sharing
a room in the train's sleeping car, and bought their tickets with cash. The Lacys originally
reserved tickets for March 22, but they missed that train and had to take the March 23
train instead. On their way to meet the Lacys' train, Officers Teague, Sanchez, and
Salazar made several calls to the number the Lacys provided to Amtrak. Each time, the
officers received a message stating that the phone had been disconnected.
When the officers reached the station, Officer Salazar spoke with the Amtrak
attendant assigned to the sleeper car occupied by the Lacys. The attendant described the
Lacys, said they were staying in two rooms in the same car, and then pointed them out to
Officer Salazar. Officer Salazar was several feet away from the Lacys at the time. He
observed them for some time and watched as they used the public telephones. When he
walked toward them, Millard walked away so as to board the train. Officer Salazar
approached him and turned on a tape recorder he carried on his belt. Officer Salazar was
in street clothes and did not have a weapon visible. He identified himself as a police
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officer and asked Millard if he could speak to him. Millard said that he could. Officer
Salazar asked Millard if he had any luggage and Millard said that he had a bag and a radio
in his room. Officer Salazar asked Millard if he was traveling with anybody else and
Millard said that he was traveling with his brother Greg. Officer Salazar told Millard
about his duties as an interdiction officer. He said that it was his job to talk with
passengers because "we have problems with people carrying contraband, . . . narcotics,
weapons, guns, all kinds of stuff." Salazar then asked if he could search the room and
Millard said "Yes."
Meanwhile, Gregory Lacy began to approach the room. As he did so, Officer
Sanchez arrived. Officer Sanchez stopped Gregory and asked him for identification.
Gregory claims that he identified himself as Gregory Lacy. However, he produced a
college identification card bearing the name of his younger brother, Michael Lacy.
Officer Sanchez knew that the train reservation had been made in the names of Gregory
and Millard Lacy. He asked Gregory if his name was Gregory or Michael—the name that
appeared on the card. Gregory said his name was Michael, and that Gregory was the
name of his younger brother, in whose place he had come. From that point on, Officer
Sanchez addressed Gregory as Michael and Gregory assumed that identity. Officer
Sanchez asked for and received Gregory’s permission to search the room and luggage.
Officer Sanchez's entire encounter with Gregory lasted about seven minutes. It revealed
nothing. When the encounter ended, Officer Sanchez released Gregory and went to
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Millard's room to assist Officer Salazar.
Gregory followed Officer Sanchez to Millard's room. As the two men stood in the
hallway outside the room, Officer Salazar asked Millard if the person standing with
Officer Sanchez was his brother Greg. Millard said that it was not, that Greg was one of
his brothers, but the person in the hallway was Michael Lacy, another one of his brothers.
Officer Salazar then proceeded to search Millard's black duffle bag. Although Officer
Salazar found no contraband, he found Millard to be "very nervous" during the
search—shuffling back and forth, continually touching his head and avoiding eye contact
with Officer Salazar. Officer Salazar noticed an old, "beat up" radio on the lower bunk
bed and Millard became more nervous when Officer Salazar handled it. Millard’s
shuffling intensified, he fidgeted, looked side to side quickly, and touched his face.
Officer Salazar decided to examine the radio more closely. When he did so, he
saw tool marks around the screws on the back of the stereo and scratches around the
screws. Based on his training, Officer Salazar determined that the back "had been taken
on and off quite a bit." He said to Millard "Have you ever opened this before? . . . This
thing has been opened; take a look at it." He then asked, "Who's [sic] is this, is this
yours?" Lacy responded, "I bought it from a friend," but he soon changed his answer and
said he merely borrowed it.
Officer Salazar tapped one of the stereo's speakers and heard a "clanking noise like
something hitting the side on the inside of the speaker box" when he shook the speaker.
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He picked up the other speaker and could feel a difference between the two speakers.
Officer Salazar peered into a gap in the back of the speaker and saw some grey material.
He inserted a leatherman tool through the gap and tried to pull the material from the
speaker. Something was wrapped inside the material which prevented him from
removing it from the speaker. He poked his finger through the gap in the speaker and felt
a "lumpy substance" wrapped in a grey cloth. He placed his nose near the gap and
detected the odor of ether. Officer Salazar knew from his training and experience as an
interdiction officer that the smell of ether indicated the presence of cocaine base.
By the time Officer Salazar discovered the substance in the speaker, Officer
Teague had arrived on the scene. He and Officer Sanchez were standing in the hallway
with Gregory Lacy while Officer Salazar spoke to Millard about the stereo. Officer
Salazar then said, "There's something wrong with this. I don't feel comfortable, I don't
feel comfortable with this." Officer Salazar told Millard, "[T]here's something in there
like a ball or something inside where it won't come out. And I should have to break it, I
should have to break it. You want to figure out what it is [?] Go ahead and break it open
[?]" Millard replied, "Well, I don't want no one to mess up the radio, you know I want to
listen to it." Officer Salazar acknowledged Millard's concern.
Gregory had by this time shown a keen interest in the stereo's examination and
when Millard expressed concern, Gregory chimed in "Right” as if to echo Millard's
concern that the radio remain operational. Officer Sanchez responded, "[Y]ou have one
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speaker there I'd say just go ahead . . . break it open." Officers Salazar and Sanchez then
looked at Millard and Millard nodded to them. The officers immediately began to pry the
speaker apart. Officer Salazar used a pair of pliers to break off part of the back of the
speaker and extract a grey cloth which turned out to be a pair of boxer shorts. Two
packages of crack cocaine were wrapped inside the boxer shorts. Extracting the boxer
shorts and cocaine did not affect the stereo’s ability to function. Moreover, the entire
series of events—from initial contact to discovery of the drugs—lasted fifteen minutes.
The agents arrested Millard and Gregory Lacy and took them into custody. Officer
Sanchez conducted a strip search of Gregory Lacy at the DEA offices. As a routine part
of the search, Officer Sanchez ordered Gregory to turn away from him and bend over.
When Gregory did this, Officer Sanchez discovered that Gregory had a package wedged
between his buttocks. The package consisted of 34 packets which contained 24 grams of
crack. Gregory was processed and signed a fingerprint card and several other documents
as "Michael B. Lacy."
Prior to trial, Gregory and Millard Lacy each moved to have the crack suppressed.
They claimed that the officers lacked probable cause to arrest them and that the officers'
search exceeded the scope of their consent. United States District Judge Bruce Black
presided at a joint hearing on the Lacys' motions. Upon hearing the evidence, Judge
Black found that while the dialogue of Millard's encounter was equivocal, Millard
consented to Officer Salazar breaking open the speaker. Millard’s sole condition with
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respect to Officer’s Salazar’s search was that Officer Salazar leave the stereo operational.
Judge Black also found that there was probable cause to arrest Gregory since he traveled
from a city that was a source for drugs, shared a room with someone engaged in drug
trafficking, purchased a one-way ticket in cash, and attempted to conceal his identity.
Following Judge Black's ruling, Gregory and Millard Lacy proceeded to trial. The
trial was by jury and Judge Warren Egington1 presided. The government played its tape
of Officer Salazar and Millard Lacy's conversation on the train. While the tape played,
the prosecution used a monitor to display a typed transcript of the tape which Officer
Salazar prepared. There were two ways in which the transcript differed from the one the
trial court used at the suppression hearing. First, although the court had already
determined during the motion to suppress that Millard had said, "Well, I don't want no
one to mess up the radio, you know I want to listen to it.", the transcript displayed on the
monitor read, "Well, I wanna one to mess up the radio, you know I want to listen to it."
Second, the transcript that appeared on the monitor stated that Millard went to get a drink
of water during the search of his compartment and luggage. The transcript presented at
the motion to suppress indicated no such thing. Gregory Lacy moved for a mistrial,
arguing that Officer Salazar changed the transcript in order to bolster his credibility.
Judge Egington took the matter under advisement and ruled that Judge Black should
1
The Honorable Warren W. Egington, Senior United States District Judge for the
District of Connecticut, sat by designation at Gregory Lacy’s trial.
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decide the merits of the motion. Judge Black never ruled on the motion. Thus, the
district court deemed it to be denied.
After closing arguments, the court gave the jury instructions. The court did not,
however, inform the jury that the weight of the cocaine base was an element of a 21
U.S.C. § 841 offense. Nevertheless, the jury convicted Millard and Gregory. At
sentencing, the court found that the preponderance of the evidence showed that Gregory
and Millard Lacy were responsible not only for the cocaine found on each of them
individually, but for the cocaine possessed by the other as well. Thus, the court found
each brother responsible for possessing 68.6 grams of cocaine. Pursuant to the United
States Sentencing Guidelines, the court sentenced Gregory Lacy to 240 months in prison.
Gregory filed a timely appeal on March 15, 2000. He argues that the district court
erred when it denied his motion to suppress and erred again when it found there was
probable cause to support arrest. He also argues that the district court erred when it found
that the prosecutor’s display of altered transcripts to the jury did not constitute grounds
for a mistrial. Finally, he contends that the trial court erred at sentencing when it found
him responsible for possessing 68.8 grams of cocaine base.
The Court exercises jurisdiction based on 28 U.S.C. § 1291. We affirm all the
district court’s judgments.
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II. ANALYSIS
The Motion to Suppress
The Court reviews the denial of a motion to suppress in the light most favorable to
the party who prevailed below. See United States v. Pena, 143 F.3d 1363, 1368 (10th Cir.
1998). The Court must accept the trial court's factual findings unless they are clearly
erroneous. See United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.), cert.
denied, 525 U.S. 978 (1998). Whether or not law enforcement had probable cause to
arrest a defendant is a legal issue subject to de novo review. See United States v.
Springfield, 196 F.3d 1180, 1182 (10th Cir. 1999), cert. denied, 529 U.S. 1029, 120 S.Ct.
1444, 146 L.Ed.2d 331 (2000).
Gregory alleges that the police arrested him merely because his brother Millard
was found with drugs and the two of them were traveling together. He argues that
proximity to drugs and association with criminals do not establish probable cause and that
the trial court should have suppressed the drugs that Officers Salazar and Sanchez found.
In ruling on Gregory's motion to suppress, the trial court applied the "totality of the
circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,
2332, 76 L.Ed.2d 527 (1983). In doing so, the trial court correctly stated that Gregory
and Millard's association, by itself, was not sufficient to establish probable cause. See,
i.e., Vazquez-Pulido, 155 F.3d at 1216-17 (citing United States v. Hillison, 733 F.2d 692(9th Cir. 1984)("In order to find probable cause based on association with persons
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engaging in criminal activity, some additional circumstances from which it is reasonable
to infer participation in a criminal enterprise must be shown.")). Thus, the trial court
looked to other factors in order to make a probable cause determination. It considered the
fact that Gregory paid cash for a one-way ticket from a city that was a drug source and
shared a room with Millard. It also relied on Gregory’s conduct on the train. In
particular, it noted his deliberate presence in the doorway during Officer Salazar's search
of Millard's train compartment and the "keen interest" he showed in the stereo as Officer
Salazar searched it for drugs. These facts are enough to establish probable cause under
Gates.
In making its determination that probable cause existed to arrest Gregory, the trial
court emphasized Gregory's attempt to conceal his identity from police. Probable cause,
however, must exist “at the moment the arrest was made”; it cannot be established by
evidence made known to the police after the arrest is made. See Beck v. State of Ohio,
379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)(citations omitted). Here,
Gregory was booked as Michael Lacy and made his initial appearance under that name.
Since the police were not aware that he concealed his identity at the time they arrested
him, this factor cannot be used to establish probable cause. See Id. However, the totality
of circumstances clearly show that the officers had probable cause to arrest Gregory.
Denial of the Motion for New Trial
The Court reviews a trial court's denial of a motion for a new trial for abuse of
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discretion. See United States v. Garcia, 182 F.3d 1165, 1169 (10th Cir. 1999). A trial
court must grant a new trial only if the weight of the evidence produced at trial
"preponderates heavily against the verdict, such that it would be a miscarriage of justice
to let the verdict stand." See United States v. Washington, 184 F.3d 653, 657 (10th Cir.
1999) (citation omitted).
Gregory does not make any argument to support a motion for a new trial other than
the arguments he raised on his motion to suppress. He merely reasserts that his arrest was
unlawful because it was based exclusively on his association with his brother Millard. As
the Court has explained, Gregory and Millard’s association was merely one factor in the
"totality of circumstances" that supported Gregory's arrest. See Gates, 462 U.S. at 238. It
was Gregory's association with Millard, his cash purchase of a one-way ticket from a city
that was a drug source, his sharing of a room with Millard, his deliberate presence at
Millard's room during the search, and his "keen interest" in Officer Salazar's examination
of Millard's stereo that established probable cause to arrest Gregory. Given the presence
of these factors, the police had probable cause to arrest Gregory. See Id. at 238. As such,
the trial court properly denied
Sentencing for Possession of Cocaine Base
The United States Sentencing Guidelines allow district courts to consider as
relevant conduct any drug amounts which were part of the same course of conduct or
common scheme or plan as the offense of conviction, whether or not the defendant was
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convicted of offenses connected to the additional drug amounts. See U.S.S.G. § 1B1.3;
United States v. Roederer, 11 F.3d 973, 978-79 (10th Cir. 1993). The government must,
by a preponderance of the evidence, establish the additional amounts of drugs to be
considered at sentencing. See United States v. Rios, 22 F.3d 1024, 1027 (10th Cir. 1994).
The evidence relied on by the sentencing court must be supported by "some indicia of
reliability." See United States v. Short, 947 F.2d 1445, 1456 (10th Cir. 1991).
Gregory does not dispute that the police discovered 24 grams of crack on him and
44.6 grams on his brother Millard totaling 68.6 grams. Rather, he argues that he should
not be accountable for the 44.6 grams of crack found in Millard's radio because the
government failed to show that he exercised any actual or constructive control over those
drugs. He also contends that the differences in the purity, color, and packaging of his
crack from Millard's shows that the drugs were not part of the same conduct or scheme.
The district court rejected these arguments at sentencing. The court found that the
facts of the case demonstrated that Gregory and Millard were involved in a common
scheme to possess and distribute cocaine base. The evidence which supported this
finding included the brothers buying tickets together, traveling together and sharing a
room. Moreover, Gregory made it a point to be present when Officer Salazar searched
Millard's radio, all the while demonstrating what the district court called a "keen interest"
in the radio. Gregory attempted to conceal his identity and Millard averred to Gregory's
attempted misidentification immediately before Officer Salazar discovered the 44.6 grams
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of crack hidden in Millard's radio. The timing of these events and the actions themselves
demonstrate that Gregory was conscious of guilt and knew that drugs were hidden in
Millard's radio. Given these facts, the trial court had ample evidence to find that the 68.6
grams of crack involved here were part of a common scheme. See U.S.S.G. § 1B1.3;
United States v. Roederer, 11 F.3d 973, 978-79 (10th Cir. 1993). Accordingly, the
preponderance of the evidence supports the district court's decision to sentence Gregory
Lacy for the drugs found on him and the drugs hidden in Millard’s radio.
Mistrial Based on Presentation of Altered Transcripts
The Court employs an abuse of discretion standard when reviewing a trial court's
refusal to grant a mistrial or new trial based on prosecutorial misconduct. See United
States v. Galbaldon, 91 F.3d 91, 93-94 (10th Cir. 1996). To prevail on a motion for new
trial based on prosecutorial misconduct, the appellant must show that the prosecution's
acts were "flagrant enough to influence the jury on grounds other than the evidence
presented." See United States v. Lowder, 5 F.3d 467, 473 (10th Cir. 1993).
Gregory alleges two instances of prosecutorial misconduct arising from items
presented to the jury on the courtroom's video monitors. First, although the district court
had already determined during the motion to suppress that Millard had said, "Well, I don't
want no one to mess up the radio, you know I want to listen to it.", the transcript
displayed on the monitor read, "Well, I wanna one to mess up the radio, you know I want
to listen to it." Second, the transcript the government displayed to the jury stated that
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Millard went to get a drink of water during the search of his compartment and luggage
when Officer Salazar’s report did not indicate that Millard did this.
The only prejudice Gregory claims is that Officer Salazar may have bolstered his
testimony by changing the transcripts. Gregory does not explain how these items
bolstered Officer Salazar's credibility and it is not plain on the face of his argument how
they could do so. The transcripts appeared on the monitor very briefly and it is uncertain
whether the jury ever got to see them since a technical difficulty disrupted the monitor’s
display. In any case, the prosecution submitted a correct copy of the transcript for the
jury to examine and the court told the jury that the transcripts were merely for their use to
help determine what the audio tapes actually said. Thus, determinations about the tapes’
content were left to a jury which as likely as not discredited Officer Salazar's testimony
due to the aforementioned inconsistencies. In any case, the evidence overwhelmingly
supports Gregory’s conviction. His trial may not have been error-free, but it was
undoubtedly fair. A fair trial is all that Gregory Lacy was entitled to and he received one.
See U.S. v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d.
(1983)(stating that “there can be no such thing as an error-free, perfect trial, and that the
Constitution does not guarantee such a trial”). Thus, the district court properly denied
Gregory Lacy’s motion for a mistrial since the errors he complains of were harmless.
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III. CONCLUSION
For the reasons stated above, we AFFIRM Gregory Lacy’s conviction and the
sentence that the district court imposed.
Entered for the Court
Richard Mills
United States District Judge
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