United States v. Kevin Felder , 440 F. App'x 137 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1567
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UNITED STATES OF AMERICA
v.
KEVIN FELDER,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2:08-cr-00272-001)
District Judge: Honorable Eduardo C. Robreno
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Submitted Under Third Circuit LAR 34.1(a)
July 15, 2011
Before: RENDELL, SMITH and ROTH, Circuit Judges.
(Opinion Filed July 28, 2011 )
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Kevin Felder appeals his conviction for distribution and possession of cocaine
base (“crack”), arguing that insufficient evidence supported the jury‟s finding that Felder
was guilty of distribution and possession with intent to distribute crack cocaine. Where,
as here, defendant did not move in the district court for a judgment of acquittal based on
sufficiency of the evidence, we review the claim for plain error. United States v. Gordon,
290 F.3d 539, 547 (3d Cir. 2002). “Under plain error review, the defendant bears the
burden of establishing that the error prejudiced the jury‟s verdict.” United States v.
Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). Plain error requires the defendant to establish
that the verdict “„constitutes a fundamental miscarriage of justice.‟” Untied States v.
Thayer, 201 F.3d 214, 218-19 (3d Cir. 1999) (quoting United States v. Barel, 939 F.2d
26, 37 (3d Cir. 1991)). Felder does not meet this high burden. Accordingly, we will
affirm Felder‟s conviction.1
I.
Felder was arrested in mid-December 2007 after a day-long surveillance revealed
that he was selling crack on a Philadelphia street corner. Officers‟ surveillance of the
area in the Strawberry Mansion section of North Philadelphia began as an investigation
into neighborhood violence and unsolved shootings, but it escalated into a narcotics
investigation as officers saw an unidentified man make an exchange of unknown objects
for cash to a number of pedestrians. The pedestrians approached and departed quickly
after exchanging cash for small objects with the man. Detectives Ralph Domenic and
James Waring,2 sitting in an unmarked surveillance vehicle parked a block and half from
1
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We
exercise jurisdiction on appeal pursuant to 28 U.S.C. § 1291.
2
Both detectives had considerable experience in the police force. Domenic, a police
detective for three years, had formerly conducted narcotics assignments for the
Philadelphia Police Department for five years and had been a police officer for a total of
eighteen years. Waring, a detective for nine years, had been a police officer for twelve
years.
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the street corner, watched the unknown male do this four times in thirty minutes. Their
view of the exchanges was aided by a pair of binoculars and the telephoto lens of a video
camera. Detective Domenic kept a running log of the events he and Detective Waring
observed throughout the surveillance.
As recorded in the log, the detectives observed a pattern of behavior over the
course of three hours in which defendant Felder or a man later identified as Wendell
Whitaker was approached by a pedestrian, engaged in a brief conversation, then walked
to a nearby vacant lot and came back moments later to the waiting pedestrian. Felder or
Whitaker then accepted money from the pedestrian and, in exchange, gave the pedestrian
an object, which the observing officers believed to be narcotics. The pedestrian then
immediately left the area. The detectives observed Felder participate in seven or eight
drug transactions – each following this pattern – over a three-hour period. After one of
these transactions, a buyer stopped by backup officers was found to be in possession of
four pink-tinted packets of crack.
Following this stop and based on detectives‟ observations, backup officers were
summoned to arrest Whitaker and defendant Felder. The vacant lot Whitaker and Felder
had been frequenting was searched and police recovered one clear plastic bag containing
seventy-three pink-tinted packets of crack; the bag was found in a hole covered by a rock
in the façade of a building at the edge of the vacant lot. Shortly thereafter, a search
warrant was executed for the 2006 Chevrolet Felder was seen walking to after one of the
drug transactions. The officers who conducted the automobile search found a photo of
Felder and a girlfriend in the car‟s interior, about 100 pages of paperwork containing
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Felder‟s name in the trunk, and one clear plastic bag on the left side of the trunk. The
bag contained a large chunk of crack, weighing 6.1 grams.
Felder was then placed under arrest and charged with offenses related to the 15.64
grams of crack found in the lot, seized from the buyer, and found in the trunk of his car.
Sixty-seven dollars in cash was eventually taken from Felder‟s pockets and recorded on a
property receipt during arrest processing. However, no cash was recovered from the
trunk of the Chevrolet, despite Detective Domenic‟s observation during surveillance that
he saw Felder approach the car with money in his hand, open the trunk briefly and that,
when Felder closed the trunk, there was no longer money in his hand. When asked about
this discrepancy, Detective Domenic explained that his view of Felder was largely
blocked by the raised trunk lid and that he could not say with certainty where defendant
had placed the cash. Detective Waring shared the same view and made essentially the
same observation.
A jury convicted Felder of four counts: distribution of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (Count One); distribution of crack in or near a school, in
violation of 21 U.S.C. § 860 (Count Two); possession of five grams or more of crack
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Three); and
possession of five grams or more of crack in or near a school, with intent to distribute, in
violation of 21 U.S.C. § 860 (Count Four). Felder filed a motion to suppress evidence
prior to trial, which the District Court denied without prejudice. He did not move for
acquittal in the District Court based on the sufficiency of the evidence.
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II.
Felder contends that the evidence in this case was insufficient to support his
conviction, arguing that the case presents glaring inconsistencies which constitute a
fundamental miscarriage of justice. Specifically, he points to the following
inconsistencies: (1) Detective Domenic testified that Felder placed money in the trunk of
his vehicle, but the car contained no money when searched; (2) Domenic testified that his
observations were assisted by the use of a video camera telephoto lens, but his
observations were not videotaped; and (3) Sixty-seven dollars in cash was seized from
Felder‟s pockets during a search incident to arrest, and the crack seized from the buyer
were in ten-dollar packets, so the money seized from Felder does not support the number
of sales officers said they observed him conduct.
The minor objections raised by Felder do not overcome the large amount of
relevant evidence supporting Felder‟s conviction. Moreover, these “inconsistencies”
were, as the Government points out, within the province of the jury to resolve. See
United States v. Iafelice, 978 F.2d 92, 97 n.3 (3d Cir. 1992) (“[T]here is no requirement .
. . that the inference drawn by the jury be the only inference possible or that the
government‟s evidence foreclose every possible innocent explanation.”). We have no
doubt that the jury could find that the essential elements of distribution of crack cocaine
with intent to distribute were proven to the jury beyond a reasonable doubt here,3 and
3
A conviction for distribution and possession of crack cocaine with intent to distribute
requires proof that: (1) the defendant possessed a mixture and substance containing a
controlled substance; (2) the defendant possessed the controlled substance knowingly and
intentionally; (3) the defendant intended to distribute or knowingly and intentionally
5
Felder fails to meet the high burden of establishing that the jury‟s verdict “„constitutes a
fundamental miscarriage of justice.‟” Thayer, 201 F.3d at 218-19 (quoting Barel, 939
F.2d at 37). Accordingly, we will affirm Felder‟s conviction.
distributed the controlled substance; and (4) the controlled substance was cocaine base
(crack). See Third Circuit Model Criminal Jury Instructions 3.10 and 6.21841A; 21
U.S.C. § 841(a)(1).
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