United States v. Ian Watson , 717 F.3d 196 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2013 Decided June 4, 2013
No. 10-3010
UNITED STATES OF AMERICA,
APPELLEE
v.
IAN FITZROY WATSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00268-1)
Edward C. Sussman argued the cause and filed briefs for
the appellant.
Jonathan David Shaub, Attorney, United States
Department of Justice, argued the cause for the appellee.
Ronald C. Machen Jr., United States Attorney, and Elizabeth
Trosman, Assistant United States Attorney, were on brief.
Before: HENDERSON, TATEL and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Ian Fitzroy
Watson (Watson) challenges his conviction on one count of
conspiracy to distribute and possess with intent to distribute
five or more kilograms of cocaine in violation of 21 U.S.C.
§§ 841, 846 on several grounds: improper venue; ineffective
assistance of counsel; inadmissible evidence seized as the
fruit of an illegal vehicle stop; and inadmissible expert
testimony of a non-expert witness. We reject his challenges
and affirm his conviction.
I.
Beginning in late 2001 or early 2002, Elliot Jimmie Reed
began purchasing cocaine from Watson on a regular basis.
Watson sold the cocaine to Reed at New Reflections Auto
Detailing (New Reflections), a Maryland business where
Watson worked. Sometimes, Watson sold to Reed through
Vincent Millhouse, an intermediary. Reed sold the cocaine he
purchased from Watson in Maryland and the District of
Columbia (District).
In 2003, the Federal Bureau of Investigation (FBI) began
investigating Reed on suspicion of selling cocaine in the
District On February 25, 2004, the FBI wiretapped Reed’s
mobile telephones and intercepted a number of calls between
Reed and Watson. FBI agents corroborated the substance of
the calls by observing Reed at New Reflections on the days
Reed’s calls led the agents to believe that he was there to
obtain cocaine from Watson.
In November 2004, the FBI executed a search warrant at
Reed’s residence and found cocaine, marijuana and items
used to “cook crack.” Reed subsequently agreed to cooperate
with the FBI. In January 2005, Reed helped conduct two
controlled purchases of cocaine from Watson and Millhouse.
The government introduced surveillance footage of both
transactions at trial. Before the second transaction, the
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government made a photocopy of the money used in the sale,
some of which was later found at Watson’s Maryland
residence.
In the early morning of February 4, 2005, Maryland
Police Officer Andy Johnson arrested Watson and his
common-law wife, Daisy Torres, after stopping Watson’s van
as Watson was driving on Interstate 95 in Maryland. Inside
the van they found a one-kilogram compressed brick of
powder cocaine. The next day, the Maryland State Police
executed a search warrant on a Maryland residence believed
to be Watson and Torres’s. Inside the residence they found,
among other things, thousands of dollars in cash, firearms, a
digital scale, plastic baggies, razor blades, luxury items, ten
brand new Lazy-Boy massaging chairs and a “poster-sized
picture” of Watson inside a closet; outside and in two garages
at the residence they found a number of different vehicles
(including a Hummer H-2, a Cadillac, a John Deere tractor,
All-Terrain Vehicles and a golf cart) and various watercraft.
A jury convicted Watson after a six-day trial. The district
court subsequently sentenced Watson to 188 months in
prison, followed by five years of supervised release. Watson
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
II.
Watson first challenges his conviction on the ground that
the District Court for the District of Columbia was an
improper venue. His argument fails, however, because venue
is proper in any jurisdiction where any co-conspirator
committed an overt act in furtherance of the conspiracy. See,
e.g., United States v. Brodie, 524 F.3d 259, 273 (D.C. Cir.
2008), cert. denied, 555 U.S. 1204 (2009); see also 18 U.S.C.
§ 3237(a). The evidence establishes that Reed, Watson’s co-
conspirator, committed overt acts in the District in furtherance
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of the conspiracy by selling in the District cocaine sold to him
by Watson. See United States v. Gaviria, 116 F.3d 1498, 1517
n.23 (D.C. Cir. 1997) (“receiving payment” for cocaine sale is
overt act); United States v. Lam Kwong-Wah, 924 F.2d 298,
301 (D.C. Cir. 1991) (negotiating cocaine transaction is overt
act); see also United States v. Trenton Potteries Co., 273 U.S.
392, 404 (1927) (“[E]ffect[ing] sales within the district . . . .
[is an] overt act[ ] sufficient for jurisdictional requirements.”).
We likewise reject Watson’s related argument that his
counsel was constitutionally ineffective by failing to discuss
the venue issue with Watson or raise it before trial. See
Strickland v. Washington, 466 U.S. 668 (1984). To constitute
constitutionally ineffective assistance under Strickland, the
defendant must show his counsel’s performance was both
deficient and prejudiced the defense. Id. at 687. Watson’s
argument fails the first prong of Strickland because counsel
does not perform deficiently by declining to pursue a losing
argument. See, e.g., United States v. Kelly, 552 F.3d 824, 831
(D.C. Cir. 2009) (ineffective assistance claim “plainly fails
inasmuch as his counsel was not obliged to raise a meritless
defense”); see also United States v. Carr, 373 F.3d 1350,
1354 (D.C. Cir. 2004) (“[F]ailure to renew a non-meritorious
motion renders a lawyer’s performance efficient, not
deficient.”).
Watson next argues that the district court erred by failing
to suppress the cocaine seized from his van because the initial
stop of the van was unlawful and therefore the subsequent
search and seizure was tainted by the unlawful stop. We
disagree. The police may stop a vehicle if “it was objectively
reasonable for the officer[ ] who observed [the] vehicle to
conclude that a traffic violation had occurred.” United States
v. Southerland, 486 F.3d 1355, 1358 (D.C. Cir. 2007).
Moreover, “[t]he police may initiate a stop even if the traffic
violation is a minor one.” Id. at 1359 (traffic stop did not
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violate Fourth Amendment when officers believed vehicle’s
license plate was improperly displayed). Here, Officer
Johnson, who stopped Watson’s van, testified that he
observed that the van (1) was traveling too close to the
vehicle ahead of it; and (2) had a “tinted tag cover” that
obscured its license plate number. These two facts gave him
reason to believe that Watson was violating at least two
Maryland traffic laws. See MD. CODE ANN., TRANSP. § 21-
310(a) (“The driver of a motor vehicle may not follow another
vehicle more closely than is reasonable and prudent . . . . ”);
id. § 13-411(c)(1) (“At all times, each registration plate shall
be . . . [m]aintained free from foreign materials, including
registration plate covers . . . . ”). Because “it was objectively
reasonable for [Officer Johnson] to conclude that a traffic
violation had occurred,” his stop of Watson’s van was lawful.
Southerland, 486 F.3d at 1358. Further, Watson’s argument
that Johnson’s subjective motivation was improper is nihil ad
rem because, in determining whether a law enforcement
officer can stop a vehicle, subjective motivations are
irrelevant. See id. at 1358-59; United States v. Washington,
559 F.3d 573, 575 (D.C. Cir. 2009) (“[T]he officers’ actual
subjective motives . . . are irrelevant to the Fourth
Amendment analysis of the traffic stop . . . .”).1
Finally, Watson contends that the district court erred in
allowing Michael Margulis, a police officer who was not
qualified as an expert witness, to offer expert testimony that
he found “cocaine residue” on various objects recovered from
Watson’s residence, including a cheese grater, digital scale
1
In his brief, Watson emphasized that he challenged only the
initial stop of the van and not a subsequent dog sniff and vehicle
search.
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and plastic baggies.2 Because Watson failed to raise this
objection at trial, our review is for plain error. United States v.
Mahdi, 598 F.3d 883, 888 (D.C. Cir. 2010). Under plain error
review, Watson “must show there is error that is clear or
obvious, and the error affected his substantial rights, which in
the ordinary case means it affected the outcome of the trial,
and the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Guerrero,
665 F.3d 1305, 1309 (D.C. Cir. 2011).
Assuming arguendo that the district court erroneously
admitted Margulis’ testimony, cf. United States v. Smith, 640
F.3d 358, 365 (D.C. Cir. 2011) (“knowledge derived from
previous professional experience falls squarely within the
scope of Rule 702” (quotation marks omitted)), the admission
caused no prejudice because the testimony was cumulative of
the properly admitted testimony of an expert witness. See Fed.
R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”).
Specifically, a chemist also testified on behalf of the
government that the substance on the scale, plastic baggies
and cheese grater was cocaine. The chemist was duly
qualified as an expert witness and Watson does not challenge
2
Watson also contends that Margulis offered improper opinion
testimony that (1) men’s clothing he found in Watson and Torres’s
residence would approximately fit Watson and women’s clothing
he found there would approximately fit Torres; and (2) a notepad he
also found there “contains money prices on there and added up as
it’s a tally sheet.” Margulis’ testimony regarding the clothing sizes
was proper lay opinion testimony, see Fed. R. Evid. 701, and,
assuming arguendo that Margulis should not have characterized the
notepad as a “tally sheet,” we fail to see any prejudice arising from
that testimony, see United States v. Brinson-Scott, No. 09-3017,
2013 WL 1876242, at *3 (D.C. Cir. May 7, 2013).
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the admissibility of his testimony. Margulis’ challenged
testimony is merely cumulative of the chemist’s properly
admitted testimony and its admission was not prejudicial. See,
e.g., United States v. Smith, 964 F.2d 1221, 1224 (D.C. Cir.
1992) (admission of report alleged to be inadmissible hearsay
was, at worst, harmless error because the report “merely
reinforced the identical opinion [the chemist who testified as
an expert] had already properly offered”); see also United
States v. Powell, 334 F.3d 42, 47 (D.C. Cir. 2003).
Accordingly, Watson cannot establish plain error.
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.