United States v. McCoy , 348 F. App'x 900 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STANAUS MCCOY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cr-00208-GBL-1)
Argued: September 23, 2009 Decided: October 27, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jenny C. Ellickson, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Jonathan L. Fahey, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Defendant, Stanaus McCoy, appeals the district court’s
denial of a motion to reopen a suppression hearing in light of
new evidence that he claims the Government withheld in violation
of Brady v. Maryland, 373 U.S. 83 (1963). Because McCoy cannot
show that the evidence was material to the suppression hearing’s
outcome, we affirm the district court’s denial of the motion to
reopen the hearing and affirm McCoy’s conviction.
I.
McCoy was charged with three counts of possession with
intent to distribute crack cocaine, pursuant to 21 U.S.C.
§ 841(a)(1) (2006), and two counts of being a convicted felon in
possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and
924(e) (2006). The charges arose from an incident in a Loudon
County, Virginia parking lot in which a police officer observed
a drug deal between McCoy and another individual in a tow truck.
Prior to trial, McCoy moved to suppress guns and drugs that the
police found in his possession on the grounds that the officer
lacked reasonable suspicion to search and detain him under the
Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968).
The district court initially granted McCoy’s motion, but was
reversed by a divided panel of this Court. United States v.
McCoy, 513 F.3d 405, 407 (4th Cir. 2008).
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In that opinion, we held that several factors leading up to
the police stopping and then arresting McCoy gave rise to the
requisite, reasonable suspicion: (1) the observing-officer knew
that almost half of drug deals in Loudon County occur in public
parking lots, like the one in which McCoy was arrested; (2) the
specific parking lots in which the officer observed McCoy were
frequent meeting places for drug deals; (3) drug dealers
frequently change transaction locations at the last minute, just
as McCoy did; (4) the officer saw McCoy arrive with his
girlfriend at the parking lot and wait in his car for several
minutes; (5) the officer saw McCoy point in “a southerly
direction” when the tow-truck driver asked him where he wanted
to meet; (6) both McCoy and the tow-truck driver went to another
supermarket parking lot and neither went inside; (7) the officer
saw McCoy enter the tow-truck for less than a minute; (8) the
tow-truck driver “performed no towing services” and then left
after McCoy exited the truck; and finally, the factor relevant
to this appeal, (9) that when the officer ordered the tow-truck
driver to pull over, he “responded by driving away at a high
rate of speed.” Id. at 412-13. One panel member wrote
separately to emphasize that he found “the tow-truck driver’s
flight to be highly suspicious” and a key factor in the
reasonable-suspicion calculus. Id. at 416 (Wilson, J.,
concurring).
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Before trial, the Government disclosed to McCoy’s counsel
grand jury testimony by the tow-truck driver to whom McCoy sold
the drugs. The tow-truck driver testified that rather than
speed away from the parking lot, he merely “eased on out the
road. [He] didn’t speed away or nothing like that, just—the
lights were green. [He] just eased on out like nothing ever
happened.” (J.A. 786.) Defense counsel moved to reopen the
suppression hearing on the grounds that it undermined and
impeached the officer’s claim that when he told the tow-truck
driver to pull over, the tow-truck driver “responded by driving
away at a high rate of speed.” The district court denied the
motion, because it found that even if the tow-truck driver eased
away, he still drove away to elude police. The officer,
therefore, would still have had reasonable suspicion to stop
McCoy.
A jury subsequently convicted McCoy of all-but one count in
the indictment: three counts of possession with intent to
distribute crack cocaine and one count of being a convicted
felon in possession of a firearm. The district court sentenced
him to 216 months in prison, and McCoy timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291 (2006).
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II.
A.
We review a district court’s denial of a motion to reopen a
suppression hearing for abuse of discretion. United States v.
Dickerson, 166 F.3d 667, 678 (4th Cir. 1999), rev’d on other
grounds, 530 U.S. 428 (2000).
B.
To show that the district court abused its discretion when
it refused to reopen the suppression hearing, McCoy must
establish that the Government violated Brady by withholding the
tow-truck driver’s testimony. See United States v. Stokes, 261
F.3d 496, 502 (4th Cir. 2001). To establish a Brady violation,
a defendant must show that the new evidence was (1) favorable to
him for exculpatory or impeachment purposes; (2) that it was
intentionally or unintentionally withheld by the Government; and
(3) that the evidence was material. Strickler v. Greene, 527
U.S. 263, 282 (1999); Moseley v. Branker, 550 F.3d 312, 318 (4th
Cir. 2008). McCoy cannot do so here.
Assuming, without deciding, that the tow-truck driver’s
grand jury testimony was both favorable and withheld under
Brady, McCoy failed to prove that the new evidence was material.
For new evidence to be material, a defendant must show that
“there is a reasonable probability that had the evidence been
disclosed to the defense, the result of the proceeding would
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have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985); Stokes, 261 F.3d at 502. It is quite clear that
evidence that merely contradicts a legally-insignificant witness
statement or fact offered by the Government is, by definition,
immaterial. See Hoke v. Netherland, 92 F.3d 1350, 1356-57 (4th
Cir. 1996) (evidence of victim’s past consensual, sexual
activity, which contradicted prosecution’s portrayal of victim
as a virtuous woman not material to determining whether
defendant raped the victim); United States v. Williams, 10 F.3d
1070, 1078 (4th Cir. 1993) (evidence that contradicted a
witness’s testimony that she had seen the defendant’s car twice
was not material because whether the witness personally saw the
car twice was not relevant to the court’s finding probable
cause).
The tow-truck driver’s testimony here contradicts an
irrelevant factor in the reasonable suspicion analysis: whether
the tow-truck driver sped or simply “eased away” when he refused
a police officer’s order for him to stop. Nothing in any of
this Court or the district court’s prior analyses of reasonable
suspicion in this case identify the speed at which the tow-truck
driver eluded police as a relevant factor. And in our view,
whether a subject speeds or eases away from a police officer’s
order to stop does little to mitigate the individual’s flight in
the first instance.
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Contrary to McCoy’s contention, the testimony also does not
rebut the officer’s testimony that the tow-truck driver fled
after the officer told him to stop — a fact corroborated by
other witnesses, including McCoy when he testified at the
suppression hearing. Defense counsel’s argument that the
testimony - in light of McCoy’s own statement that the tow-truck
driver did not look at the officer as he left the parking lot -
shows that the tow-truck driver did not respond to the officer’s
command is overly-speculative and is not proof of materiality.
In any event, whether or not the tow-truck driver subjectively
responded to the officer’s command is unavailing, because Terry
requires the court to look only at what an objective officer
would believe an individual to be doing, not to what that
individual secretly intended. 392 U.S. 1, 27 (1968). McCoy
cannot show that the new evidence contradicts the district court
and this Court’s finding that he refused to stop.
III.
For the above reasons, the district court did not clearly
err when it denied McCoy’s motion to reopen the suppression
hearing. We therefore affirm McCoy’s conviction.
AFFIRMED
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