United States v. King ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5726
ANDRE CARDELL KING,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5936
CHALMERS LAVETTE HENDRICKS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge; Terrence W. Boyle,
District Judge, sitting by designation.
(CR-94-30)
Argued: June 3, 1997
Decided: July 24, 1997
Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.
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Affirmed in part, reversed in part, and remanded for resentencing by
published opinion. Judge Wilkins wrote the opinion, in which Judge
Niemeyer and Judge Hamilton joined.
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COUNSEL
ARGUED: James Ernest Gronquist, Charlotte, North Carolina; Rob-
ert A. Flynn, LAW OFFICE OF MARCIA G. SHEIN, P.C., Atlanta,
Georgia, for Appellants. Robert James Conrad, Jr., Assistant United
States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Atlanta, Georgia, for Appellant King. Mark T. Calloway, United
States Attorney, Charlotte, North Carolina, for Appellee.
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OPINION
WILKINS, Circuit Judge:
Andre Cardell King and Chalmers Lavette Hendricks appeal their
convictions for various charges related to their narcotics distribution
activities. For the reasons set forth below, we affirm all of King's
convictions and the majority of Hendricks' convictions. However,
because--as the Government concedes--the evidence is insufficient
to support Hendricks' conviction under 18 U.S.C.A.§ 924(c)(1)
(West Supp. 1997), predicated upon a firearm that was found in his
home, we reverse that conviction and remand for resentencing.
I.
Appellants' convictions stem from the investigation of Neville
Smith, who led a cocaine distribution ring in the Charlotte, North Car-
olina area from 1991 until 1994. Beginning in the fall of 1993, Smith
supplied King with kilogram quantities of cocaine, which King then
converted to cocaine base. King stored the cocaine base at Hendricks'
apartment and distributed it with Hendricks' assistance.
On September 27, 1993, law enforcement officers received a tip
from an anonymous informant that King had recently delivered
cocaine to Hendricks' apartment and that the drugs had been trans-
ported in a blue rental vehicle and a Toyota Cressida. Shortly thereaf-
ter, the manager of the apartment complex where Hendricks lived
reported complaints of suspected narcotics activity in and around
2
Hendricks' apartment. Based on this information, Officer R. F.
Busker of the Charlotte-Mecklenburg, North Carolina Police Depart-
ment conducted surveillance of the apartment. Officer Busker
observed heavy traffic flow consistent, in his experience, with narcot-
ics dealing. At Officer Busker's direction, law enforcement personnel
detained and searched two vehicles that had been observed leaving
the apartment, one of which was a blue automobile that had been
rented by King. Neither search revealed narcotics. Thereafter, Officer
Busker observed Hendricks exit the apartment and drive away in a
Toyota Cressida. He stopped the vehicle and, when Hendricks
stepped out of the automobile, observed a bulge under the floor mat
in front of the driver's seat. Upon closer inspection, Officer Busker
found a loaded .357 revolver. A search of the vehicle incident to Hen-
dricks' arrest for possession of the firearm revealed 59 pieces of
cocaine base in the console between the front seats. Based upon these
events, officers obtained a search warrant for Hendricks' apartment.
During execution of the warrant, officers found $999 in cash; a nine
millimeter handgun; a quantity of cocaine base; a digital scale; and
several types of ammunition. Hendricks subsequently moved to sup-
press the weapon and cocaine base found in his automobile and the
items seized during the search of his apartment, arguing that the initial
stop of his vehicle was unlawful and that all of the evidence subse-
quently obtained constituted the tainted fruits of the illegal seizure.
The district court denied the motion.
Hendricks and King were tried jointly. The jury returned a verdict
of guilty as to each defendant for conspiracy to possess with the intent
to distribute cocaine and cocaine base. See 21 U.S.C.A. § 846 (West
Supp. 1997). Additionally, Hendricks was convicted of possessing
with the intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1)
(West 1981); two counts of using or carrying a firearm during and in
relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1); and
being a felon in possession of ammunition, see 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1997). The jury convicted King of possess-
ing with the intent to distribute cocaine, see 21 U.S.C.A. § 841(a)(1);
using or carrying a firearm during and in relation to a drug trafficking
crime, see 18 U.S.C.A. § 924(c)(1); and being a felon in possession
of a firearm, see 18 U.S.C.A. § 922(g)(1). Hendricks and King appeal
their convictions, and we consider their challenges in turn.
3
II.
A.
Hendricks first challenges the legality of his conviction for being
a felon in possession of ammunition. See 18 U.S.C.A. § 922(g)(1).
This charge was predicated on the discovery of several types of
ammunition during the search of Hendricks' apartment and on his
1990 state felony conviction for possession with the intent to sell and
deliver a controlled substance. Hendricks argues that because North
Carolina law permits a convicted felon to possess a firearm (and by
implication, ammunition) in his home, see N.C. Gen. Stat. § 14-
415.1(a) (Michie 1993), federal prosecution for the same conduct was
improper. For the reasons that follow, we disagree.
Section 922(g)(1) prohibits, inter alia, the possession in or affect-
ing interstate commerce of any firearm or ammunition by "any person
... who has been convicted in any court of[ ] a crime punishable by
imprisonment for a term exceeding one year." The term "crime pun-
ishable by imprisonment for a term exceeding one year" excludes,
however, "[a]ny conviction which has been expunged, or set aside or
for which a person has been pardoned or has had civil rights restored
... unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess, or
receive firearms." 18 U.S.C.A. § 921(a)(20) (West Supp. 1997). Hen-
dricks essentially maintains that N.C. Gen. Stat.§ 14-415.1(a)
restored his civil right to possess a firearm in his home immediately
upon his release from state prison for the 1990 drug conviction,
thereby rendering this conviction an improper basis for the federal
felon-in-possession charge. Whether a defendant's civil rights have
been restored is a legal question, which we review de novo. See
United States v. Morrell, 61 F.3d 279, 280 (4th Cir. 1995).
In determining whether a defendant's civil rights have been
restored, we "look to `the whole of state law'" to determine whether
the state has returned to the defendant the rights to vote, to hold pub-
lic office, and to serve on a jury. United States v. Hassan El, 5 F.3d
726, 734 (4th Cir. 1993) (quoting United States v. McLean, 904 F.2d
216, 218 (4th Cir. 1990)). And, while the restoration of rights need
not be complete in order to preclude consideration of a conviction
4
under § 922(g)(1), the quantity of rights restored must be more than
de minimis. See id.
Here, Hendricks concedes that because he has not yet been uncon-
ditionally discharged from parole, his civil rights have not been
restored under North Carolina law. See N.C. Gen. Stat. § 13-1(1)
(Michie 1992) (providing for the automatic restoration of civil rights
upon the unconditional discharge of an inmate, probationer, or paro-
lee). Nevertheless, he maintains that the explicit grant of permission
by a North Carolina statute to possess a firearm in his home consti-
tutes a sufficient restoration of rights to preclude prosecution under
federal law. In support of this position, Hendricks points to prior deci-
sions which he asserts have upheld the right of a North Carolina felon
to possess a firearm in his home. See United States v. Shoemaker, 2
F.3d 53, 56 (4th Cir. 1993); United States v. McBryde, 938 F.2d 533,
535-36 (4th Cir. 1991). However, Shoemaker and McBryde provide
little support for Hendricks' position because in each of those cases
the defendant's civil rights had been restored. See Shoemaker, 2 F.3d
at 54; McBryde, 938 F.2d at 534.
We conclude that the fact that state law permitted Hendricks to
possess a firearm in his home despite his status as a convicted felon
whose civil rights had not been restored is not sufficient to insulate
him from federal prosecution under § 922(g)(1).1 A prior felony con-
viction is exempt from use as a predicate offense under § 922(g)(1)
only if the "defendant has had his or her civil rights and his or her
firearm privileges restored." Hassan El, 5 F.3d at 733; see United
States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993). When civil rights
have not been restored, the right to possess a firearm is immaterial.
See United States v. Thomas, 991 F.2d 206, 214 (5th Cir. 1993) ("In
the absence of the restoration of essentially all civil rights of the con-
victed felon ... the felon's isolated right to possess a firearm is of no
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1 The Government also argues that North Carolina law does not bar
federal prosecution because federal law explicitly prohibits the posses-
sion of ammunition, while state law refers only to the right to possess
firearms. In view of our conclusion that the prosecution of Hendricks
was proper because his civil rights had not been restored, we need not
consider whether this distinction between state and federal law is disposi-
tive.
5
import whatsoever."). Accordingly, because Hendricks' civil rights
had not been restored, prosecution under § 922(g)(1) was proper
regardless of whether possession of the ammunition in question was
permitted by state law.
B.
Hendricks next maintains that the district court erred in denying his
motion to suppress, arguing that Officer Busker could not have had
a sufficiently reasonable suspicion of criminal activity in view of the
fact that searches of the first two vehicles failed to uncover any con-
traband. Accordingly, he contends, the stop of his vehicle violated the
Fourth Amendment and all evidence seized as a result of the improper
detention should have been suppressed. See Wong Sun v. United
States, 371 U.S. 471, 484-85 (1963). The Government responds that,
contrary to Hendricks' assertions, the search of the blue rental vehicle
in fact supported a reasonable suspicion of criminal activity because
it corroborated statements made by the anonymous informant.
Whether the stop of Hendricks' vehicle was based on a reasonable
suspicion of criminal activity is a mixed question of law and fact sub-
ject to de novo review. See Ornelas v. United States, 116 S. Ct. 1657,
1662 (1996).
The Fourth Amendment to the United States Constitution prohibits
"unreasonable searches and seizures." U.S. Const. amend. IV. And, it
is well settled that a search conducted without a warrant is per se
unreasonable unless it falls within one of the "well-delineated excep-
tions" to the warrant requirement. Katz v. United States, 389 U.S. 347,
357 (1967). One such exception is the authority of law enforcement
officers to effect a limited investigatory detention when they possess
"a reasonable and articulable suspicion that the person seized is
engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 440
(1980) (per curiam); see Terry v. Ohio, 392 U.S. 1, 21-22 (1968). A
reasonable, articulable suspicion is "`a particularized and objective
basis' for suspecting the person stopped." Ornelas, 116 S. Ct. at 1661(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). In deter-
mining whether a detention is supported by reasonable suspicion, we
look to the circumstances known to the officer and"the specific rea-
sonable inferences which he is entitled to draw from the facts in light
of his experience." Terry, 392 U.S. at 27.
6
We hold that the initial stop of Hendricks' vehicle was justified
under Terry. The surveillance of Hendricks' apartment was prompted
by an anonymous tip informing law enforcement officers that King
had delivered cocaine to the residence and that the narcotics were
transported in a blue rental vehicle and a Toyota Cressida. Officer
Busker's observation of heavy traffic in and out of the apartment con-
firmed the report from the manager of the complex and was consistent
with drug activity. Further, although no cocaine was discovered dur-
ing the search of the blue rental vehicle, officers did confirm that it
had been rented by King. Additionally, Officer Busker observed Hen-
dricks leave the apartment and enter a Toyota Cressida. Thus, the
anonymous tip, the details of which were substantially confirmed by
the observations of Officer Busker and others, provided a reasonable
and articulable suspicion that contraband was contained in Hendricks'
automobile, thereby justifying the investigatory detention of the vehi-
cle. See Alabama v. White, 496 U.S. 325, 329-31 (1990). Accord-
ingly, we conclude that the district court did not err in denying the
motion to suppress.2
III.
The issues raised in King's appeal do not merit extended discus-
sion. King first argues that the district court improperly questioned
witnesses, thereby denying him a fair trial. We disagree. While the
district court must maintain "`a general atmosphere of impartiality'"
during the course of a trial, it nevertheless may interrogate witnesses
as necessary to ensure the proper development of the facts. United
States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995) (quoting United
States v. Cassiagnol, 420 F.2d 868, 878 (4th Cir. 1970)). Here, King
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2 Hendricks also challenges the sufficiency of the evidence supporting
his convictions on two counts of using or carrying a firearm during and
in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1), and
one count of conspiracy to possess with the intent to distribute cocaine
and cocaine base, see 21 U.S.C.A. § 846. The Government concedes that
in light of Bailey v. United States, 116 S. Ct. 501 (1995), the evidence
is insufficient as to the § 924(c)(1) count based on Hendricks' possession
of a firearm in his home. We agree and accordingly reverse that convic-
tion. However, we conclude that sufficient evidence supports Hendricks'
convictions on the remaining § 924(c)(1) count and on the conspiracy
charge, and we therefore affirm them.
7
challenges attempts by the district court to clarify the testimony of
two witnesses, asserting that these "clarifications" actually aided the
Government's case. Having reviewed the two colloquies in question,
we conclude that the district court did not abuse its discretion. See id.
Next, King maintains that his trial counsel was constitutionally
ineffective for failing to move to dismiss the indictment based upon
a violation of his right to a speedy trial and for failing to file timely
objections to the presentence report. However, it is well settled that
"a claim of ineffective assistance should be raised in a 28 U.S.C.
§ 2255 motion in the district court rather than on direct appeal, unless
the record conclusively shows ineffective assistance." United States
v. Williams, 977 F.2d 866, 871 (4th Cir. 1992). Because the record
does not conclusively show that King's trial counsel was ineffective,
we reject this claim.3
IV.
We hold that North Carolina law permitting, under certain circum-
stances, the possession of a firearm by a convicted felon whose civil
rights have not been restored does not preclude federal prosecution
for the same conduct. Additionally, we determine that law enforce-
ment personnel possessed a reasonable and articulable suspicion that
Hendricks' vehicle contained contraband and that the district court
did not err in denying his motion to suppress. And, with the exception
of one § 924(c)(1) conviction as to which the Government properly
has confessed error, we conclude that the evidence is sufficient to
support Hendricks' convictions. Because we conclude that King's
challenge to the questioning of witnesses by the trial judge is without
merit and his assertion of ineffective assistance of counsel is prema-
ture, we affirm as to him. Accordingly, we affirm in part, reverse in
part, and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED FOR RESENTENCING
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3 King also raises numerous challenges in a pro se supplemental brief.
We have carefully considered these allegations of error and find them to
be without merit.
8