United States v. Fowler ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60007
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CORNELIUS FOWLER;
REGINALD WAYNE IKNER, also
known as “Reggie,”
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Mississippi
USDC No. 3:98-CR-53-2-LN
_________________________________________________________________
May 19, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Cornelius Fowler and Reginald Wayne Ikner appeal their
convictions for possession with intent to distribute cocaine base
(“crack”) in violation of 21 U.S.C. § 841(a)(1), and Ikner also
appeals his conviction for possession of a firearm in relation to
a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
The government has moved to dismiss Ikner’s appeal as
untimely. Ikner’s amended judgment was entered on January 11,
1998. Ikner did not file a notice of appeal until April 20, 1999.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Fed. R. App. P. 4(b) requires that the notice of appeal in a
criminal case be filed by a defendant within ten days of entry of
the judgment or order from which appeal is taken. A timely notice
of appeal is a mandatory precondition to the exercise of appellate
jurisdiction. United States v. Merrifield, 764 F.2d 436, 437 (5th
Cir. 1985). The tenth day in this case was January 21.
On January 22, 1999, the eleventh day and one day too late for
filing a notice of appeal, Ikner filed a motion for transcript, a
motion to proceed on appeal in forma pauperis (“IFP”), and a motion
for enlargement of time or in the alternative a stay. The district
court denied all three motions. The district court advised Ikner
to consult Fed. R. App. P. 4(1) and (5) if he intended to seek
additional time to file a notice of appeal. This order was entered
on February 16, 1999.
The district court’s reference to Rule 4 concerned the
provision in Rule 4(b), which allows the district court to grant an
additional 30 days in which to file a notice of appeal upon a
showing of excusable neglect. The thirty-day period in which to
seek the district court’s ruling on excusable neglect in this case
expired on February 22. In spite of the district court’s warning,
Ikner took no further action until March 2, 1999, when he filed a
second motion for IFP and a motion for enlargement of time or a
stay. Again, the motion for enlargement of time merely sought
additional time to obtain new counsel.
2
The district court granted IFP but denied the motion for
enlargement of time. The district court stated that even if
Ikner’s first motion for enlargement of time had been construed as
one for extension of time in which to file a notice of appeal, the
court would not have concluded that the reasons given in the motion
constituted excusable neglect. The district court noted that even
to this day, Ikner had not filed a notice of appeal. The district
court noted that Ikner still had time after it had denied his first
motions in which to demonstrate excusable neglect and that he had
not filed his second set of motions until after the thirty-day
period had expired.
Ikner finally filed a notice of appeal on April 20, and he
filed a motion to reinstate his right of appeal on April 22. The
district court did not rule on this motion.
The Supreme Court, in a habeas corpus action instituted by a
pro se inmate, held that a brief may serve as a notice of appeal if
it is filed within the time allotted for filing a notice of appeal
and gives the notice required by Fed. R. App. P. 3. Smith v.
Barry, 502 U.S. 244, 247-50 (1992). Smith v. Barry does not apply
to Ikner’s motions filed on January 22 because they were not filed
within the ten days for filing a notice of appeal. None of the
documents filed by Ikner during the thirty-day period following
sought to extend the time to file a notice of appeal due to
excusable neglect, as the district court so noted in its order of
February 16.
3
The district court applied the appropriate standards for
determining whether excusable neglect existed, United States v.
Clark, 51 F.3d 42 (5th Cir. 1995), and Pioneer Investment Services
Company v. Brunswick, 507 U.S. 380 (1993). The only reason offered
by Ikner in both of his motions for an extension to seek new
counsel, not additional time to file a notice of appeal, was that
his counsel had a number of other commitments demanding of his
time.
In Ikner’s responses to the government’s motion to dismiss, he
offers no reason for the failure to file a timely notice of appeal
other than counsel’s “lack of understanding concerning the deadline
for appeal.” However, counsel’s ignorance of the rules generally
does not constitute excusable neglect. Clark, 51 F.3d at 43-44.
Where the rule at issue is unambiguous, here, the rule being that
a notice of appeal in a criminal case must be filed within ten
days, “a district court’s determination that the neglect was
inexcusable is virtually unassailable.” Halicki v. Louisiana
Casino Cruises, Inc., 151 F.3d 465, 469 (5th Cir. 1998), cert.
denied, 526 U.S. 1005 (1999).
The district court did not abuse its discretion in its
determination of no excusable neglect. Clark, 51 F.3d at 43-44.
The government’s motion to dismiss Ikner’s appeal is GRANTED, and
Ikner’s appeal is DISMISSED for lack of appellate jurisdiction.
Fowler argues that the search and seizure of the automobile
was unconstitutional because the circumstances surrounding the
4
search and seizure exceeded the scope of a routine traffic stop.
He argues that the consent was thus tainted as the product of the
initial illegality. First, he argues that the stop was invalid
because the obscured tag and weaving were not violations of
Mississippi law. He argues that even if the stop was authorized to
investigate traffic violations, it exceeded that scope and resulted
in a de facto arrest. He contends that Sanders lacked reasonable
suspicion. He contends that the computer check took too long. He
argues that he was under a de facto arrest when he gave consent and
so his consent must be analyzed to evaluate its validity following
an illegal detention.
Fowler contends that Sanders admitted that the obscured tag
was not a violation of Mississippi law. Sanders never testified
that the obstructed tag did not violate Mississippi law. The
portion of the record cited by Fowler was a discussion concerning
whether the bent and beat up condition of the front tag was a
violation, and not the obstructed rear tag, which Sanders clearly
testified was a violation. Fowler also argues that going from one
lane to another on a four lane interstate highway with a central
median is not a violation of Mississippi law. Fowler’s actions in
twice leaving his lane, crossing the center lane and returning to
cross the outer right “fog” lane, clearly violate Mississippi law
and justified the stop. United States v. Thomas, 12 F.3d 1350,
1366 (5th Cir. 1994).
5
Fowler next contends that even if the stop was valid,
Sanders’s questioning, coupled with the extraordinarily long wait
for the computer check of Fowler’s license, extended the scope of
the stop beyond that necessary to investigate the alleged offenses
involved in the initial stop. The defendants’ car was stopped at
11:16 p.m. Sanders returned to his squad car at 11:19 to run a
check on Fowler’s license. While waiting for the identification to
be confirmed, Sanders returned to the defendants’ car at 11:23,
returned their identification, and engaged them in conversation.
Sanders told them that he was having their identification run and
if it checked out they would be free to leave. At 11:24, eight
minutes after the initial stop, Sanders asked them if they had
anything illegal in the car such as guns or drugs, and they said
no. Sanders then asked if they would mind if he checked the car
out. Both defendants consented.
The record shows that the request to search was made and
consent was given while the detention was still justified by the
facts justifying the initial stop. See United States v. Zucco, 71
F.3d 188, 190-91 (5th Cir. 1995) (rejecting argument of de facto
arrest from roadside detention based on elapsed time of nine
minutes from permissible initial stop to the consent to search
while waiting for the computer check); Shabazz, 993 F.2d at 434
(detention did not exceed original scope because officers were
still waiting for results of computer check at the time they
received consent to search the car).
6
Because the initial stop was valid, and because the detention
did not exceed the original scope of the stop, Fowler’s consent to
search the car was not tainted by any prior illegality. Fowler
does not challenge the voluntariness of his consent in and of
itself, but only as part of his argument that the consent was
tainted by the alleged prior illegalities.
Fowler argues that the evidence of his knowledge of the
presence of the cocaine in the car is insufficient. He contends
that the government produced no evidence of nervousness greater
than that of any person stopped by the police; that there was no
evidence of reluctance or hesitancy to answer questions; that there
were no inconsistent or implausible statements; and that his
possession of large sums of cash was consistent with having been
gambling at a casino.
Applying the factors listed in United States v. Ortega-Reyna,
148 F.3d 540, 544 (5th Cir. 1998), the change from lack of
nervousness when Sanders was searching the trunk where Ikner had
directed him, to Fowler’s chest-heaving nervousness when the search
left the “safe” area and turned to the area of the rear quarter
panel provides convincing evidence of Fowler’s guilty knowledge.
The factor of refusal or reluctance to answer questions also
supports the finding of knowledge. Although neither defendant
flatly refused to answer any questions, their hesitation to answer
the question of whose car they were in, and their failure to
identify the owner of the car is indicative of guilty knowledge.
7
Their inconsistent statements also support a finding of
knowledge. Their claim not to have a screwdriver to remove the
material obscuring the tag was proved false when Sanders searched
the trunk and discovered the tool kit. Also, they initially told
Sanders something which he understood to mean they had not had
success at the casino. Sanders confronted them with this statement
when he discovered the large sums of cash in their pockets, and
they claimed that they had said they had just broken even. Sanders
interpreted their statements as inconsistent with possession of the
$6,274 he found on them.
The implausible explanation of how they came to be in
possession of a car containing half a million dollars worth of
cocaine base also supports a finding of knowledge. The defendants’
story to Sanders was that they were in a friend’s car and had
driven from Fort Worth to gamble at a casino in Tunica,
Mississippi, had dropped this friend off in Durant, and were going
to return to Fort Worth the next day. For the story to be true,
they would have to have a friend who was willing to loan them a car
containing $500,000 of cocaine base, to drive a thousand miles
round trip across several state lines. When pressed by defense
counsel to state what he had seen in the car to indicate that the
defendants knew there were drugs in the car, Sanders testified that
he “thought it was kind of odd that someone would loan out a car
with that much crack in it.”
8
The defendants’ possession of a large amount of cash supports
a finding of guilty knowledge. As Sanders testified, the cash was
bundled in a manner utilized by drug dealers to facilitate quick
counting of the money. Although they claimed that it was money
they won at the casino, they never claimed an interest in it after
given notice of seizure.
The evidence was sufficient to support Fowler’s conviction for
possession with intent to distribute cocaine base.
Fowler argues that Sanders’s testimony about the money being
wrapped in rubber bands like drug dealers do, about it seeming odd
to him that someone would loan out the car containing that much
crack, and the testimony of Cox (the backup officer) about the
street value of the cocaine and his observations of nervousness
amounted to inadmissible criminal profile evidence and improper
expert testimony.
Fowler’s evidentiary arguments are reviewed for plain error
because he did not make these specific arguments in his objections
in the district court. United States v. Polasek, 162 F.3d 878, 883
(5th Cir. 1998).
The testimony in this case is distinguishable from that in
United States v. Williams, 957 F.2d 1238 (5th Cir. 1992), cited by
Fowler. The government merely told the jury that the defendants
banded a portion of their money in a manner consistent with drug
dealers and appeared to become nervous when the search focused on
the area of the car containing the drugs. Such testimony is not
9
drug courier profile evidence and is properly admitted. See United
States v. Buchanan, 70 F.3d 818, 833 n.16 (5th Cir. 1995); United
States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995); United
States v. Speer, 30 F.3d 605, 610 n.3 (5th Cir. 1994).
Fowler argues that there was no evidence that the witnesses
followed a “process or technique,” and that there was no finding by
the trial court that the probative value outweighed the prejudicial
impact and whether the opinion was “helpful to the jury.” No
scientific “process or technique” is involved in observing an
individual’s behavior; just training and experience. Evidence that
drug dealers band money in $1,000 stacks is more probative than
prejudicial and is helpful to the jury since their common
experience would not include such a fact. See Buchanan, 70 F.3d at
832-33.
Fowler argues that Sanders made a non-responsive answer during
cross-examination in which he stated that the car was not Ikner’s
and “[t]hat’s why it would seem odd to me to loan a car out with
that much crack cocaine in it.” No objection was made. This
statement was preceded by defense counsel pressing Sanders to give
any evidence, including how he “felt” and his “opinion” and asking
what about the situation would lead him to conclude that “laymen”
would know there were drugs in the car. This testimony was an
opinion demanded by defense counsel, nor is it any different from
an opinion that persons engaged in a $30,000 crack deal would not
have an uninvolved spectator present. Buchanan, 70 F.3d at 832.
10
Fowler challenges Officer Cox’s testimony about the street
value of the crack cocaine seized from the car. Cox testified,
without specific objection by Fowler, that he was specially trained
in drug investigations, including undercover cocaine buys, and had
bought cocaine just a week and a half prior to testifying. “[A]n
experienced narcotics agent may testify about the significance of
certain conduct or methods of operation unique to the drug
distribution business.” Washington, 44 F.3d at 1283 & n.45.
The trial court did not plainly err in permitting any of the
challenged expert testimony.
Fowler argues that in closing argument, the prosecutor
improperly commented upon his failure to testify at trial and made
an improper appeal to passion and prejudice.
In his opening statements, Ikner’s counsel promised proof
about the friend who loaned them the car in opening statement. The
prosecutor was merely pointing out that the defense story promised
in opening had not been delivered. A prosecutor may comment on the
failure of the defense to follow through on opening statement
promises. United States v. Zanabria, 74 F.3d 590, 592-593 (5th
Cir. 1996); United States v. Mackay, 33 F.3d 489, 495-96 (5th Cir.
1994). The prosecutor’s argument was not an impermissible comment
on Fowler’s failure to testify.
Fowler argues that the government made an impermissible
inflammatory argument. “[A]ppeals to the jury to act as the
conscience of the community are permissible, so long as they are
11
not intended to inflame.” United States v. Fields, 72 F.3d 1200,
1208 (5th Cir. 1996). This court held that it was not improper for
the prosecutor to argue about the drug problem the defendants’
action were creating in the neighborhood. Id. In United States v.
Brown, 887 F.2d 537, 542 (5th Cir. 1989), this court held that the
prosecutor’s argument that drugs were a terrible thing and were
ruining society and that it was up to the jury to do something
about it by returning a verdict of guilty did not rise to the level
of an improper law and order appeal.
MOTION TO DISMISS IKNER’S APPEAL GRANTED AND IKNER’S APPEAL
DISMISSED; FOWLER’S CONVICTION AFFIRMED.
12