United States v. Brown , 119 F. App'x 494 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANCE L. BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-153)
Argued: October 29, 2004 Decided: January 11, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Amy Leigh Austin, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Daniel James Bryant, UNITED STATES DEPARTMENT OF JUSTICE, Criminal
Division, Washington, D.C., for Appellee. ON BRIEF: Frank W.
Dunham, Jr., Federal Public Defender, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Charles E. James, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
On the evening of March 28, 2003, Richmond (Virginia)
Police Officer Jack Intagliato arrested the defendant Lance Brown
on an outstanding warrant as Brown was pulling away from a curb
driving an automobile. During the ensuing search of the passenger
compartment and center console of Brown's automobile, Officer
Intagliato recovered $516 in currency, packaging materials
consistent with that used in the distribution of drugs, and a
loaded rifle magazine. And from the automobile's trunk, he
recovered a semiautomatic rifle and a jacket with 28 grams of crack
cocaine in its pocket.
Brown was indicted and convicted for possession with
intent to distribute five or more grams of cocaine base, in
violation of 21 U.S.C. § 841; simple possession of five or more
grams of cocaine base, in violation of 21 U.S.C. § 844; and
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c). The district court
sentenced Brown to 110 months' imprisonment for the drug
trafficking count (of which the simple possession was a lesser
included offense) and 60 months' imprisonment on the firearm count,
to run consecutively.
On appeal, Brown contends (1) that Officer Intagliato
mishandled the jacket containing the crack cocaine -- denying him
an opportunity to prove that it was not his -- and that therefore
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the district court erred in denying Brown's motion to dismiss the
indictment; (2) that the evidence presented at trial was
insufficient for a jury to conclude beyond a reasonable doubt that
Brown knowingly and intentionally possessed crack cocaine; and (3)
that the district court improperly enhanced Brown's sentence based
on a prior conviction for underage possession of alcohol.
For the reasons that follow, we affirm.
I
First, Brown contends that Officer Intagliato violated
his due process rights under Arizona v. Youngblood, 488 U.S. 51(1988), when Officer Intagliato failed to preserve potentially
exculpatory evidence. Brown claims that the jacket with the crack
cocaine in it, which Officer Intagliato found in the trunk of
Brown's automobile, was not his jacket and that Officer Intagliato
denied him the opportunity to prove that fact by having him twice
try on the jacket to see whether it fit. Brown argues that by
trying on the jacket, he probably contaminated the jacket by
leaving evidence of his DNA on the jacket, which otherwise would
not have been there. The circumstances relating to this claim are
not in dispute.
After Officer Intagliato found the rifle ammunition in
the center console of Brown's automobile, he asked Brown whether he
had a firearm. Brown stated that he had a firearm in the trunk of
the car. When Officer Intagliato opened the trunk, he found a
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jacket draped over a box that contained a semiautomatic rifle. In
the jacket pocket, Officer Intagliato found 28 grams of crack
cocaine. Officer Intagliato seized this evidence and transported
Brown to the police station. Once at the station, Brown
acknowledged that the rifle was his, but he claimed that the jacket
and crack cocaine were not. Officer Intagliato expressed disbelief
as to Brown's claim because he recalled having seen Brown in the
jacket, or in one similar to it, on a previous occasion. When
Officer Intagliato invited Brown to try on the jacket to see
whether it fit, Brown agreed to do so. After Officer Intagliato
concluded that the jacket fit Brown, he again asked Brown to put on
the jacket so that he could take a picture with Brown wearing the
jacket, and again Brown agreed to do so. Officer Intagliato then
processed the jacket as evidence in the case.
Brown contends that by twice trying on the jacket, he was
denied the opportunity to test the jacket for his DNA to prove that
the jacket was not his. He asserts that Officer Intagliato
improperly handled the jacket in violation of Richmond Police
Department General Order 202-2, which provides that evidence should
be properly packaged to prevent contamination or destruction by
improper handling, and that this violation denied him due process
under Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). In
Youngblood, the Supreme Court held that the failure to preserve
potentially useful evidence may constitute a denial of due process
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of law if it can be shown that the police acted in "bad faith."
Id.The record in this case does not support a claim that
Officer Intagliato acted in bad faith in having Brown try on the
jacket. During the discussions between Officer Intagliato and
Brown, Brown claimed that the jacket was not his and that it did
not even fit him. In response, Officer Intagliato asked, "Do you
want to try it on?" and Brown willingly did so. This exchange
simply evidences Officer Intagliato's effort to collect evidence
and build a case, which it was his job as a police officer to do.
Mere collection of evidence, even when perhaps not in accord with
local police evidentiary procedures, cannot ipso facto rise to the
level of a due process violation absent some showing of bad faith.
Moreover, there is no evidence to demonstrate that
Officer Intagliato was aware of the possibility that he might be
destroying evidence by having Brown try on the jacket. See
Youngblood, 488 U.S. at 56 n.* (noting that bad faith turns on the
"police's knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed"); Holdren v. Legursky, 16 F.3d 57,
60 (4th Cir. 1994) (same). Indeed, at the motions hearing, Officer
Intagliato testified that he was not aware of any potential DNA
procedure that could be used to exonerate or implicate Brown.
Moreover, it would appear to be self-evident that the absence of an
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individual's DNA on a garment would not necessarily prove that the
individual never wore the garment.
In the absence of any evidence of bad faith, the district
court properly denied Brown's motion to dismiss the indictment.
II
Brown also contends that the evidence presented at trial
was insufficient for a jury to conclude beyond a reasonable doubt
that Brown knowingly and intentionally possessed crack cocaine.
Of course, such a challenge must overcome a heavy burden.
See, e.g., Burks v. United States, 437 U.S. 1, 17 (1978) (reversal
for insufficient evidence is reserved for the rarest of cases
"where the prosecution's failure is clear"). "When reviewing the
evidence that resulted in a conviction, we take the evidence in the
light most favorable to the government to determine whether the
jury's verdict was supported by substantial evidence." United
States v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001).
In order to prove that a defendant possessed crack
cocaine, the government must prove that the defendant either had
custody of the crack cocaine or had both the power and intention to
exercise dominion and control over it. See United States v.
Jackson, 124 F.3d 607, 610 (4th Cir. 1997). In this case, we
conclude that the government carried that burden. The government
presented evidence (1) that Brown was arrested while driving an
automobile; (2) that in the passenger compartment of the automobile
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was $516 in cash and packaging materials consistent with drug
distribution; (3) that Brown admitted to ownership of a firearm
that was in a box in the automobile's trunk; (4) that draped over
the firearm was a jacket containing crack cocaine; (5) that Officer
Intagliato recalled having seen Brown at an earlier time wearing
that jacket or one similar to it; and (6) that the jacket
apparently fit Brown. Brown contended that the jacket was not his
but belonged to a friend, Javone Broaddus, and that Broaddus had
placed the jacket in the trunk. Even though Brown presented some
evidence to show that the jacket and the cocaine in it were not
his, this evidence alone does not compel us to conclude that the
jury's conclusion to the contrary was clear error. Deferring to
the jury, as we must when its verdict is supported by substantial
evidence, we affirm the verdict.
III
Finally, Brown claims that the district court erred in
assessing one criminal history point under U.S.S.G. § 4A1.2(c) for
his prior conviction for underage possession of alcohol. He
contends that this prior conviction is not to be counted in
determining criminal history because it falls within the list of
excluded offenses, which also includes offenses "similar to" the
enumerated excluded offenses. See U.S.S.G. § 4A1.2(c)(1). In
particular, Brown argues that his underage possession of alcohol
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conviction is "similar to" a conviction for public intoxication or
for driving without a license.
As a general proposition, U.S.S.G. § 4A1.1 provides for
the enhancement of a sentence when a defendant has a prior criminal
history. Section 4A.1.2(c), which describes the prior offenses
that apply, states that "sentences for all felony offenses are
counted." U.S.S.G. § 4A1.2(c). Likewise, it states that
"sentences for misdemeanor and petty offenses are counted," except
as expressly listed. Id. Included in the list of excepted
offenses are convictions for public intoxication, driving without
a license, and "offenses similar to them, by whatever name they are
known." U.S.S.G. § 4A1.2(c)(1) (emphasis added).
In United States v. Harris, 128 F.3d 850 (4th Cir. 1997),
we held that when determining whether offenses are "similar" for
purposes of § 4A1.2(c), recourse must be made to the elements of
the crimes. "After all, offenses do consist of the essential
elements of the crime. An emphasis on the elements comports with
the plain meaning of 'similar.' When two items are 'similar,' they
are '[n]early corresponding; resembling in many respects.'" Id. at
854 (citation omitted). Applying this standard to the question of
whether underage possession of alcohol is "similar to" public
intoxication or driving without a license, we conclude that it is
not.
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The elements of underage possession of alcohol are the
possession or purchase of alcohol by a person under 21 years of
age, unless the person does so by reason of making a delivery of
alcoholic beverages in pursuance of his employment or by order of
his parent. Va. Code Ann. §§ 4.1-304, 4.1-305. We can find no
similarity between the elements of this offense and public
intoxication except that alcohol is involved in both. Their
similarity certainly cannot be established under the strictures of
Harris.
Brown argues more vigorously that the offense of underage
possession of alcohol is "similar to" driving without a license.
He argues, citing United States v. Webb, 218 F.3d 877, 881 (8th
Cir. 2000), that underage possession is a regulatory offense that
is "similar to" driving without a license. In doing so, however,
Brown urges us to adopt a standard of similarity that is at odds
with the standard established by Harris. When we compare the
elements of an underage possession of alcohol violation and driving
without a license violation, we again find that the essential
elements of each offense are not "[n]early corresponding;
resembling in many respects." See Harris, 128 F.3d at 854(citation omitted).
We thus conclude that the trial court did not err in
assessing Brown one criminal history point for his past conviction
for underage possession of alcohol.
AFFIRMED