United States v. Lee , 60 F. App'x 425 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4151
THELMIAH LEE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Marvin J. Garbis, District Judge.
(CR-00-477-MJG)
Submitted: February 28, 2003
Decided: March 14, 2003
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Richard D. Bennett, Sean P. Vitrano, Todd M. Reinecker, MILES &
STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, Odessa P. Jackson, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LEE
OPINION
PER CURIAM:
Thelmiah Lee, Jr., was convicted by a jury of three counts of mail
fraud, 18 U.S.C. § 1341 (2000), based on the filing of false tax returns
with agencies in Arizona, Nebraska, and the District of Columbia.
Lee was also convicted of two counts of filing false, fictitious, or
fraudulent claims, 18 U.S.C. § 287 (2000), with the Internal Revenue
Service [IRS] for 1995 and 1996. He was sentenced to a thirty-seven
month term of imprisonment. Lee appeals the denial of his pre-trial
suppression motion and motion in limine. He further claims his due
process rights were violated when George Pope, a defense witness,
was arrested when he appeared to testify and then invoked his Fifth
Amendment privilege through counsel. We affirm the district court’s
denial of the motions and affirm Lee’s conviction.
Agents for the IRS sought and received a search warrant for apart-
ment one at 5515 Second Street, N.W., Washington, D.C. The agents,
in conjunction with the United States Postal Service, investigated
reports from tax agencies that numerous returns requesting refunds
gave the same post office box address in Riverdale, Maryland. Based
on their surveillance of the post office and their investigation, the
agents believed one person used variations of the names Thelmiah
Lee, Jr., and George Pope on the fraudulent tax returns. When the
search warrant for apartment one was executed, it became clear that
two individuals were involved in the tax scheme and one of them, the
man they had observed at the post office box and the residence at
5515 Second Street, was in a second floor apartment in the same
building, apartment three. The agents knocked on the door of apart-
ment three and observed, through the broken panels of the door, dis-
tinctive clothing the suspect had worn during the post office
surveillance. Two District of Columbia police officers were present
in conjunction with the execution of the search warrant within their
jurisdiction. When the suspect in apartment three would not respond
to the officers’ inquiries, the officers unhooked the door and entered
the apartment. The suspect was found in the bedroom and a shotgun
was in the bathroom. The suspect was detained for a short period of
time, questioned at the house, and released.
UNITED STATES v. LEE 3
The agents sought another warrant, presenting the original warrant
application supplemented with information derived before they
entered apartment three: a man they knew as Lee from the post office
surveillance was in apartment three, and clothing worn by the suspect
was in apartment three. They also asserted information derived from
what they characterized as a protective sweep of apartment three:
observation of a diploma issued to Thelmiah Lee and mail addressed
to Thelmiah Lee in the apartment. The magistrate judge issued a
search warrant for apartment three. Evidence seized in the apartment
tended to establish Lee resided there and included evidence of the tax
scheme.
Upon Lee’s arrest, he moved to suppress the evidence from apart-
ment three as seized pursuant to an invalid search warrant. Lee
asserted the agents’ entry into apartment three was not a valid protec-
tive sweep, and the search warrant for apartment three was therefore
based on illegally obtained information. The district court denied the
motion, finding the entry was pursuant to a valid protective sweep. In
the alternative, the court concluded that even if the protective sweep
was illegal, sufficient probable cause to issue the warrant had been
presented even if the information discovered during the protective
sweep was redacted from the warrant application.
This court reviews the factual findings underlying the denial of a
motion to suppress for clear error, while reviewing the legal determi-
nations de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). When a suppression motion has been denied, review of the
evidence is made in the light most favorable to the government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). The
reviewing court should take care to review findings of historical fact
only for clear error and to give due weight to inferences drawn from
those facts by resident judges and local law enforcement officers.
Ornelas v. United States, 517 U.S. 690, 699 (1996). We find it unnec-
essary to address the district court’s finding the protective sweep was
legal because we agree that ample probable cause to issue the search
warrant existed independently of the information garnered during the
protective sweep, that is, observations of the diploma and mail
addressed to Lee. See United States v. Gillenwaters, 890 F.2d 679,
681-82 (4th Cir. 1989).
4 UNITED STATES v. LEE
Lee asserts the district court erred in denying his motion in limine
to exclude evidence of ninety-six federal tax returns and fifty-five
state income tax returns not enumerated in the indictment. This court
reviews a district court’s ruling on a motion in limine for abuse of dis-
cretion. Malone v. Microdyne Corp., 26 F.3d 471, 480 (4th Cir.
1994). We generally review the admission of evidence for abuse of
discretion. United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.
1988). Evidence of uncharged conduct that arises from the same
series of transactions as the charged offense or evidence that com-
pletes the story of the crime on trial is distinguishable from Rule
404(b) evidence. See United States v. Kennedy, 32 F.3d 876, 886 (4th
Cir. 1994); United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991).
We find the district court properly determined the tax returns were not
Rule 404(b) evidence, but were instead intrinsic to the offense
charged. Therefore, the district court properly denied the motion in
limine.
Lee next asserts the arrest of George Pope was improper intimida-
tion of a defense witness. No objection was made at trial. A defen-
dant’s due process right to present witnesses may be violated if
government intimidation of the witness amounts to "substantial gov-
ernment interference with a defense witness’ free and unhampered
choice to testify." United States v. Saunders, 943 F.2d 388, 392 (4th
Cir. 1991) (citation and internal quotation omitted); see also United
States v. MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982). Generally,
errors that have not been preserved by contemporaneous objection are
reviewed only for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). We find no error. The
Government did not intimidate Pope but rather arrested him for par-
ticipation in the tax scheme with Lee when he appeared.
Finally, Lee contends that the district court erred in accepting
Pope’s counsel’s assertion that Pope would invoke his Fifth Amend-
ment Privilege against self-incrimination, and that Pope should have
been required to take the stand in front of the jury and so assert. At
trial, Lee’s counsel willingly accepted the proffer by Pope’s counsel.
Accordingly, the district court did not abuse its discretion by declin-
ing to require Pope to personally assert his privilege before the jury.
United States v. Castro, 129 F.3d 226, 231 (1st Cir. 1997) (citing
Namet v. United States, 373 U.S. 179, 186 (1963)).
UNITED STATES v. LEE 5
Accordingly, we affirm the district court’s denial of the motion to
suppress and the motion in limine. We also affirm Lee’s conviction.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid in the decisional process.
AFFIRMED