United States v. Strachan , 5 F. App'x 169 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4119
MARIO STRACHAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4426
MARIO KIKIVARAKIS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-98-835-DWS)
Argued: November 3, 2000
Decided: March 2, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
2 UNITED STATES v. STRACHAN
COUNSEL
ARGUED: Debra Yvonne Chapman, Columbia, South Carolina, for
Appellant Strachan; Robert Allen Ratliff, Cincinnati, Ohio, for Appel-
lant Kikivarakis. Jane Barrett Taylor, Assistant United States Attor-
ney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene
Josey, United States Attorney, Columbia, South Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mario Strachan and Mario Kikivarakis challenge their convictions
for conspiracy to possess and distribute cocaine and possession with
intent to distribute cocaine, and the resulting sentences. We affirm in
part, vacate in part, and remand for the resentencing of Strachan.
I.
On August 26, 1998, two sheriff’s deputies in Morgan County,
Georgia, stopped a Ford Taurus for a series of traffic violations. The
driver of the Taurus was Strachan and the sole passenger was Denver
Pratt. The deputies observed that Strachan and Pratt were acting ner-
vous and providing conflicting answers to questions. After he was
issued a ticket and informed that he could leave, Strachan inquired
about a storm off the Atlantic coast. The deputy chatted with Strachan
about the storm and then asked Strachan for permission to search the
vehicle. Strachan refused and the other deputy then walked his drug
dog around the car. The actions of the dog indicated that drugs were
in the trunk, a search ensued, and the deputies discovered a duffle bag
containing approximately fifteen kilograms of cocaine. Pratt and Stra-
chan were arrested and transported to the Morgan County Sheriff’s
UNITED STATES v. STRACHAN 3
Department where they were interviewed by agents from the Drug
Enforcement Administration.
Pratt and Strachan told the agents that they were delivering the
cocaine to Theotis Brannon, a resident of Columbia, South Carolina.
Pratt and Strachan agreed to call Brannon and attempt to make a con-
trolled delivery of the cocaine in Columbia. At the appointed time,
Brannon and Kikivarakis arrived to meet Pratt and Strachan. The men
gathered at the trunk of the vehicle and Kikivarakis retrieved the duf-
fle bag containing the cocaine. Police officers surrounded the vehicle
and placed Brannon and Kikivarakis under arrest.
Count One of the grand jury’s indictment charged the four with
conspiracy to possess and distribute cocaine. See 21 U.S.C.A.
§§ 841(a)(1), 846 (West 1999). Count Two charged Kikivarakis and
Brannon with possession with intent to distribute. A jury found Stra-
chan guilty on Count One and Kikivarakis guilty on Counts One and
Two. Strachan and Kikivarakis now raise numerous issues regarding
the initial search and seizure, the conduct of the trial, and the sentenc-
ing.
II.
A.
Strachan argues that the search of his vehicle during a routine traf-
fic stop violated the Fourth Amendment and that all evidence
obtained as a result of the search should have been suppressed. Stra-
chan contends that after the deputy issued the traffic citation, Strachan
was impermissibly detained while a drug dog sniffed the vehicle. We
review the district court’s findings of fact on a denial of a motion to
suppress for clear error and its legal conclusions de novo. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In addition, we
construe the evidence in the light most favorable to the government,
the party who prevailed below. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998).
Under the Fourth Amendment, a person has been seized when "in
view of all the circumstances surrounding the incident, a reasonable
4 UNITED STATES v. STRACHAN
person would have believed that he was not free to leave." United
States v. Mendenhall, 446 U.S. 544, 554 (1980). The Mendenhall
standard is an objective one, see United States v. Analla, 975 F.2d
119, 124 (4th Cir. 1992), and an "encounter does not become a sei-
zure merely because the officers do not tell the defendant that he is
free to leave or to refuse to comply with their requests," id. In the
present case, after the deputy gave Strachan the traffic ticket and
explained its significance, he told Strachan to "go ahead." J.A. 254.
Rather than driving away, Strachan inquired about a hurricane off the
coast of South Carolina and expressed a fear that he would be travel-
ing into the heart of the storm. The deputy assured Strachan that
Columbia was far enough from the coast that he and Pratt would not
be in danger. At this point the deputy asked Strachan for permission
to search the vehicle for weapons and contraband. Strachan asked
what his options were, and the deputy informed him that he could say
yes or no. Strachan refused permission to search and the other deputy
retrieved the drug dog to sniff the car. The dog reacted to the trunk
of the vehicle and a search revealed a duffle bag containing cocaine.
We can find nothing in the record to indicate that Strachan had an
objective reason to believe that he was not free to go after the deputy
explained the ticket and told Strachan he could "go ahead." See Men-
denhall, 446 U.S. at 554. The remainder of the encounter was volun-
tary with Strachan making conversation about the weather and the
dangers of traveling in close proximity to the hurricane. The Supreme
Court has held that a dog sniff alone does not constitute a search
under the Fourth Amendment, see United States v. Place, 462 U.S.
696, 707-08 (1983), and Strachan was not "seized" while the drug dog
sniffed the car, see Michigan v. Chesternut, 486 U.S. 567, 575 (1988)
(no seizure when police actions "would not have communicated to the
reasonable person an attempt to capture or otherwise intrude upon
respondent’s freedom of movement"). Accordingly, the district court
did not err in refusing to suppress the evidence obtained as a result
of the search of the automobile.
B.
At Strachan’s sentencing, the district court increased Strachan’s
base offense level for obstruction of justice. The court based the two-
level increase on Strachan’s instructions to his counsel to ask law
UNITED STATES v. STRACHAN 5
enforcement officers during trial whether they had threatened Stra-
chan by informing him that Pratt had been shot and that Strachan
would suffer the same fate if he did not cooperate. The district court
viewed the questioning of the officers as an improper attempt by Stra-
chan to influence the jury. We review de novo the district court’s
interpretation of the Guidelines. See United States v. Nale, 101 F.3d
1000, 1003 (4th Cir. 1996).
The Sentencing Guidelines, in pertinent part, provide:
If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of jus-
tice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of
conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1 (2000). In the commentary to this Guideline there
is a list of the types of conduct to which the adjustment applies. See
U.S.S.G. § 3C1.1, comment. (n.4). Although these examples are not
exhaustive, they do provide insight into the nature of the activity by
the defendant contemplated by this section. In reviewing them we
find these illustrations to involve conduct actually much more egre-
gious in character than asking one’s lawyer to question a law enforce-
ment officer about threats allegedly made to obtain a statement. Such
a question, even if motivated by the wrong intent found by the district
court, seems much closer to the list in Application Note Five of those
situations where the adjustment would be inapplicable. See U.S.S.G.
§ 3C1.1, comment. (n.5). Consequently, we agree with Strachan that
the enhancement for obstruction of justice was inappropriate.
In defending the district court’s enhancement, the government
points the court to United States v. Mitchell, 85 F.3d 800 (1st Cir.
1996), in which the First Circuit upheld an obstruction of justice
increase when Mitchell, indicted for arson, sought to introduce a
taped conversation he made after fire destroyed his business. During
this conversation with his business partner, Mitchell professed to have
no idea whether the business was insured. See id. at 808. The district
court permitted only small excerpts from the tapes to be admitted at
6 UNITED STATES v. STRACHAN
trial. See id. at 807. Mitchell was convicted and at his sentencing
hearing the district court increased his sentence for obstruction of jus-
tice after finding that the tapes were made in an effort to deceive the
police, court, and jury. See id. at 814. Affirming the increase, the First
Circuit noted that the tape fell squarely within the Guidelines’ prohi-
bition against "‘producing or attempting to produce a false . . . record
during a . . . judicial proceeding.’" Id. at 815 (quoting U.S.S.G.
§ 3C1.1, comment. (n.4(c))). Key to the First Circuit’s decision was
that "Mitchell d[id] not challenge the district court’s factual finding
that the tapes were made in an attempt to create a false record." Id.
In the present case, the government admits that the events sur-
rounding Strachan’s enhancement are atypical. Mitchell’s efforts at
producing a false record fell squarely within the examples given in
the Guidelines, while Strachan’s conduct, which consisted of inform-
ing his attorneys that the police had threatened him and urging the
attorneys to inquire into the matter on cross-examination, does not
neatly fit into the examples justifying an enhancement provided in the
Guidelines. Also, unlike the Mitchell case, Strachan continues to chal-
lenge the district court’s findings regarding the obstructive conduct—
Strachan does not concede that he instructed counsel to inquire about
the interrogation in an effort to obstruct a judicial proceeding. Hence,
despite the government’s best interpretive efforts, neither case law nor
the Guidelines provide sufficient support for the district court’s two-
level increase.
C.
Next, Kikivarakis contends that it was plain error for the govern-
ment to be permitted to "purchase" the testimony of co-conspirator
Brannon, who testified against Kikivarakis in exchange for leniency.
In support of this contention, Kikivarakis directs the court to 18
U.S.C. § 201(c)(2), which provides:
Whoever . . . directly or indirectly, gives, offers, or promises
anything of value to any person, for or because of the testi-
mony under oath or affirmation given or to be given by such
person as a witness upon a trial, hearing, or other proceed-
ing, before any court . . . authorized by the laws of the
United States to hear evidence or take testimony . . . shall
UNITED STATES v. STRACHAN 7
be fined under this title or imprisoned for not more than two
years, or both.
18 U.S.C. § 201(c)(2) (West 2000). This court has been faced with the
argument that § 201(c)(2) prohibits the government, when acting in
accordance with its statutory authority, from offering immunity or
leniency to obtain testimony and has held that it does not. See United
States v. Richardson, 195 F.3d 192, 197 (4th Cir. 1999) ("In constru-
ing § 201(c)(2) as we do, we join the unanimous conclusion of circuit
courts that have ruled over the past year that the government does not
violate § 201(c)(2) by granting immunity or leniency or entering into
plea agreements to obtain testimony."), cert. denied, 120 S. Ct. 837(2000). Hence, we reject Kikivarakis’ argument that the government
improperly purchased the testimony of a co-conspirator.
D.
Kikivarakis also contends that the district court clearly erred in its
determination of drug amounts properly attributable to him. Kiki-
varakis argues that although 14.86 kilograms of cocaine were found
in the duffle bag seized at the traffic stop, only five kilograms should
be attributable to him because he was expecting five. The other 9.86
kilograms, he contends, were not reasonably foreseeable. See United
States v. Banks, 10 F.3d 1044, 1058 (4th Cir. 1993) (observing that
in drug conspiracy cases each defendant is responsible for the total
amount of drugs involved in the conspiracy so long as those amounts
were reasonably foreseeable and within the scope of the conspiracy).
Kikivarakis’ reliance on Banks and other similar cases is mis-
placed. The drugs the district court attributed to Kikivarakis were not
drugs with which he had no direct personal involvement. Kikivarakis
took possession of the duffle bag at the controlled delivery in South
Carolina. The district court did not attribute to Kikivarakis for sen-
tencing purpose the acts of other members of the conspiracy and
therefore Kikivarakis’ foreseeability argument is without merit.
Accordingly, the district court did not commit clear error in attribut-
ing 14.86 kilograms to Kikivarakis.
In addition to the cocaine in the duffle bag, the district court attri-
buted another kilo of cocaine to Kikivarakis. Co-defendant Brannon
8 UNITED STATES v. STRACHAN
testified that he and Kikivarakis had transported one kilogram of
cocaine to the United States just prior to their arrest. Kikivarakis con-
tends that Brannon was not a reliable witness and therefore the kilo-
gram should not be attributed to him. The district court is best suited
to make credibility determinations, see United States v. D’Anjou, 16
F.3d 604, 614 (4th Cir. 1994), and our examination of the record
reveals no evidence to call this determination into doubt. Therefore,
we hold that the district judge did not commit clear error in attributing
the additional kilogram to Kikivarakis.
E.
Kikivarakis next contends that because of his relative culpability
within the overall conspiracy, the district court clearly erred by
declining to grant at least a two-level downward adjustment based on
the minor role Kikivarakis played in the drug ring. Under § 3B1.2 of
the Sentencing Guidelines, "a minimal participant in any criminal
activity" is entitled to a four-level decrease, and "a minor participant
in any criminal activity" is entitled to a two-level decrease. By way
of example, the Guidelines suggest that a defendant would be entitled
to a four-level decrease if his role in a large drug smuggling operation
was limited to offloading a single drug shipment. See U.S.S.G.
§ 3B1.2, comment. (n.2). The commentary describes a minor partici-
pant as "any participant who is less culpable than most other partici-
pants, but whose role could not be described as minimal." See
U.S.S.G. § 3B1.2, comment. (n.3).
In this case, the evidence indicated that Kikivarakis played more
than a minor or minimal role in the conspiracy. He assisted Brannon
in transporting one kilogram of cocaine to the United States, and later
took possession of a duffle bag containing 14.86 kilograms of cocaine
at the controlled delivery in South Carolina. Perhaps he was not the
mastermind behind the drug conspiracy, but he certainly was deeply
involved with the activities of the conspiracy. Accordingly, the dis-
trict court did not clearly err in refusing to grant at least a two-level
downward adjustment based on Kikivarakis’ role in the greater
scheme.
UNITED STATES v. STRACHAN 9
F.
Finally, Kikivarakis in his supplemental brief argues that the term
of supervised release imposed by the district court—five years—
violates the principles set forth in Apprendi v. New Jersey, 120 S. Ct.
2348 (2000). According to Kikivarakis, the district court should have
sentenced him to no more than three years supervised release—a
period he contends is the maximum term permitted by 18 U.S.C.A.
§ 3583 (West 1994). In United States v. Pratt, No. 99-4424, 2001 WL
101457, at *7 (4th Cir. Feb. 7, 2001), this court held that "[b]ecause
§ 3583 does not apply to § 841(b)(1)(C), [a] five-year term of super-
vised release does not exceed the maximum term of supervised
release permitted by statute." Hence, Kikivarakis’ five-year term of
supervised release does not run afoul of Apprendi.*
III.
For the foregoing reasons, we vacate Strachan’s sentence and
remand for resentencing. The remainder of the district court’s chal-
lenged rulings are affirmed.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
*Kikivarakis also contends that Apprendi v. New Jersey, 120 S. Ct
2348 (2000), renders 21 U.S.C.A. § 841 unconstitutional on its face. We
are unpersuaded by the arguments presented and decline to so rule.