United States v. William Brock, IV , 602 F. App'x 679 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10123
Plaintiff - Appellee, D.C. No. 2:12-cr-00258-MCE-1
v.
MEMORANDUM*
WILLIAM E. BROCK, IV,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted April 15, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.
William Brock IV appeals his convictions and sentences for conspiracy to
distribute at least 100 kilograms of marijuana and for possession with intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court did not err by denying Brock’s motion to suppress.
The tracking order issued by the Will County Circuit Court satisfied the Fourth
Amendment requirements for a valid search warrant. See Dalia v. United States,
441 U.S. 238, 255 (1979). Therefore, application of a tracking device to Brock’s
truck was not a warrantless search. At oral argument, Brock’s counsel conceded
that probable cause existed to issue the order. See United States v. Krupa, 658
F.3d 1174, 1177 (9th Cir. 2011).
Installation of the GPS tracking device at night was proper, because under
applicable Illinois law, a “warrant may be executed at any time of any day or
night.” 725 Ill. Comp. Stat. 5/108-13. Brock has not challenged the
constitutionality of this law. Additionally, the device was installed in a public
place, because Brock’s driveway does not constitute the curtilage of his home. See
United States v. Duenas, 691 F.3d 1070, 1081 (9th Cir. 2012).
The warrant did not limit the Illinois police officers to monitoring the
tracking device only while it remained in the state. Brock has not cited any
controlling authority for the proposition that continuing to monitor the tracker after
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he unexpectedly took it out of the state would violate Brock’s Fourth Amendment
rights.
Brock’s detention by Sergeant Boers did not produce any evidence that was
used by any state entity during his investigation, trial, or sentencing. Thus, even if
the detention were unlawful, it did not lead to any suppressible evidence.
Finally, Brock has not alleged facts sufficient to necessitate a hearing under
Franks v. Delaware, 438 U.S. 154 (1978).
2. The district court did not err by denying Brock’s Rule 29 motion. The
government produced sufficient evidence at trial to convict Brock of both
possession with intent to distribute at least 100 kilograms of marijuana and
conspiracy to distribute a least 100 kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846.
First, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have concluded, beyond a reasonable doubt, that
Brock possessed with intent to distribute at least 100 kilograms of marijuana. See
United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010). Police officers
found 260 kilograms of a green, leafy substance in Brock’s warehouse. Multiple
police officers identified the substance as marijuana based on its appearance and
smell, as well as the police officers’ experience investigating marijuana-related
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crimes. See United States v. Ferguson, 555 F.2d 1372, 1373 (9th Cir. 1977) (“An
experienced officer may identify a substance with which he is familiar.”).
Additionally, Officer Marchi field tested 20 of the 608 bags, chosen at random.
Each of the tests returned presumptively positive for marijuana.
Second, any rational trier of fact could have concluded, beyond a reasonable
doubt, that Brock and co-defendant Calvert were co-conspirators. “To prove
conspiracy, the Government must prove: 1) an agreement to accomplish an illegal
objective; and 2) the requisite intent necessary to commit the underlying
substantive offense.” United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir.
1995). “Agreement may be shown by evidence of coordinated activity between the
defendant and the alleged coconspirators.” Id. “The agreement need not be
explicit, but may be inferred from circumstantial evidence . . . .” United States v.
Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980). Here, substantial evidence,
when taken in a light most favorable to the prosecution, supports the conclusion
that Brock and Calvert conspired to distribute marijuana: (1) both Brock’s storage
unit and Calvert’s van contained a large number of the same type of vacuum-sealed
bags and boxes containing marijuana; (2) the ledger in Brock’s warehouse
contained codes that were the same as those written on some of the bags of
marijuana in Brock’s warehouse as well as those found in Calvert’s van; (3) the
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pay-owe sheet found in Calvert’s pocket also had matching codes; and (4) after
Brock discovered the tracking device on his truck, he chose to abandon his truck
and ride with Calvert to the storage unit where he was keeping his marijuana.
3. The district court did not err when sentencing Brock. Brock’s sentencing
was both procedurally and substantively reasonable. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008).
AFFIRMED.
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