US v. Al-Lain Norman

Filing 920100525

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4303

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AL-LAIN DELONT NORMAN, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:08-cr-00034-RGD-FBS-1)

Submitted:

April 7, 2010

Decided:

May 25, 2010

Before TRAXLER, Judges.

Chief

Judge,

and

SHEDD

and

DUNCAN,

Circuit

Affirmed by unpublished per curiam opinion.

Andrew A. Protogyrou, PROTOGYROU & RIGNEY, PLC, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Damian J. Hansen, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted Al-lain Delont Norman of possession with intent to distribute fifty or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) (2006) and 18 U.S.C. § 2 (2006) ("Count Two"); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ("Count Three"); and maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) (2006) and 18 U.S.C. § 2 ("Count Six"). 1 to concurrent terms of The district court sentenced Norman imprisonment on Count Two, 360

life

months on Count Three, and 240 months on Count Six.

On appeal,

Norman advances three contentions of error with respect to his convictions. 2 For the reasons discussed below, we reject these

arguments and affirm the district court's judgment.

I.

Denial of Norman's Motion to Suppress

Norman first argues that the search warrant the police obtained prior to his arrest was invalid, and thus that the narcotics seized upon execution of the warrant should have been
1

The jury acquitted Norman of the three charged in the six-count superseding indictment.
2

other

counts

Norman has filed several motions to file pro se supplemental briefs. As Norman is represented by counsel and this appeal has not been submitted pursuant to Anders v. California, 386 U.S. 738 (1967), we deny these motions.

2

suppressed. underlying error and

We review the district court's factual findings its resolution of a motion de to suppress United for clear v.

legal

determinations

novo.

States

Grossman, 400 F.3d 212, 216 (4th Cir. 2005). In reviewing the validity of a search warrant, the relevant inquiry is whether, under the totality of the

circumstances, the issuing judge had a substantial basis for concluding there was probable cause to issue the warrant.

Illinois v. Gates, 462 U.S. 213, 238 (1983); Grossman, 400 F.3d at 217. When a warrant application is based on hearsay, the

issuing court must assess "the veracity and basis of knowledge of persons supplying hearsay information" to determine "whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v.

Servance, 394 F.3d 222, 229 (4th Cir.) (internal quotation marks omitted), vacated on other grounds, 544 U.S. 1047 (2005). "If

such a showing has been made by affidavit, the issuance of a search warrant must be sustained on appeal." affords "great deference" to a judicial Id. This court cause

probable

determination. Cir. 2004). We affidavit

United States v. Hodge, 354 F.3d 305, 309 (4th

reject

Norman's

contention

that

the it

warrant contained

was

legally

insufficient

because

conclusory statements regarding the informant's reliability and 3

failed to demonstrate the veracity of the informant's assertions regarding Norman's criminal activity. facts provided by the informant, Corroboration of salient Lamont Malone, amply

demonstrated Malone's veracity.

See Alabama v. White, 496 U.S.

325, 331-32 (1990); United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993) (holding that, pursuant to Gates, confirmation of "innocent details" provided by the informant, which included the defendant's "address, vehicle, and alias[,] gives credence to the allegations of criminal activity"). The affidavit also established Malone's reliability. In cooperating his own that with the police, actions. highly of Malone The provided Supreme to the information Court has

about

criminal this is

instructed inquiry:

relevant like

reliability against

"[a]dmissions

crime,

admissions

proprietary interests, carry their own indicia of credibility -- sufficient at least to support a finding of probable cause to search." Further, United States v. Harris, 403 U.S. 573, 583 (1971). Malone spoke with the police in person and was

identified by name in the warrant affidavit. explained that "the meeting circumstances alone necessarily certain

This court has surrounding indicia a of

face-to-face

provide

credibility that are lacking when the warrant is based solely on a telephone call from an anonymous, never-to-be-identified

informant."

United States v. Perez, 393 F.3d 457, 464 (4th Cir. 4

2004). officer's

Lastly,

the

affidavit opinion

reflected

the

investigating was

professional

that

Malone's

information

"accurate and reliable." Finally, the warrant affidavit demonstrated the basis for the proffered information: Malone's first-hand observations of Norman's criminal activity the night before his arrest.

Gates, 462 U.S. at 238; United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004). This type of first-hand, direct knowledge See, search

is afforded greater credence than hearsay information. e.g., Perez, 393 F.3d at 462 (affirming issuance of

warrant that was based, in part, on informant's statement that established his first-hand knowledge of relevant facts). For these reasons, we affirm the district court's

denial of Norman's motion to suppress. 3

II.

Admission of Norman's Prior Narcotics Conviction Norman next argues the district court should have

excluded evidence of his 1998 felony conviction for possession with intent to distribute cocaine. We review a district court's United States An abuse of

evidentiary rulings for an abuse of discretion. v. Basham, 561 F.3d 302, 325 (4th Cir. 2009).
3

In light of this ruling, we decline to consider Norman's alternative argument that the district court erred in concluding that the good-faith exception to the exclusionary rule applied.

5

discretion

occurs

when

"the

district

court

judge

acted

arbitrarily or irrationally in admitting evidence." (internal quotation marks omitted). Federal Rule of Evidence 404(b)

Id. at 326

prohibits

the

admission of evidence of "other crimes, wrongs, or acts" solely to prove a defendant's bad character; however, this evidence may be admitted "for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). For

such evidence to be admissible under Rule 404(b), it "must be (1) relevant to an issue other than character; (2) necessary; and (3) reliable." Basham, 561 F.3d at 326. In addition, the Id. (citing

evidence must be more probative than prejudicial. Fed. R. Evid. 403). Here, the district court found the

evidence

of

Norman's prior narcotics conviction was admissible because it demonstrated Norman's knowledge of narcotics distribution,

motive, and intent to distribute cocaine. consistent with the law of this Circuit.

This ruling is wholly See United States v.

Rooks, 596 F.3d 204, 211 (4th Cir. 2010) (affirming admission of evidence of prior narcotics of drug conviction to establish and intent the to

defendant's distribute).

knowledge

trafficking

Accordingly, we conclude the district court did

not abuse its discretion in admitting this evidence. 6

III. Sufficiency of the Evidence Finally, Norman challenges the sufficiency of the

Government's evidence that he constructively possessed the drugs found in his motel room. More particularly, Norman argues the

Government did not demonstrate that he had actual knowledge of and dominion and control over the drugs. In reviewing a challenge to the sufficiency of the Government's evidence, this court determines whether, viewing

the evidence in the light most favorable to the Government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412

F.3d 515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S. 60, 80 (1942). We consider both direct and circumstantial

evidence, and accord the Government all reasonable inferences that may be drawn from the proven facts to those sought to be established. Cir. 2008). United States v. Harvey, 532 F.3d 326, 333 (4th This court will uphold the jury's verdict if

substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007). We have thoroughly reviewed the record and conclude the Government's evidence was more than sufficient to establish Norman's possession of the narcotics. See United States v. United States

Moye, 454 F.3d 390, 395 (4th Cir. 2006). 7

In executing the

search warrant, the police seized 115.6 grams of crack cocaine and 105.3 grams of powder cocaine from the motel room that was rented in Norman's name -- a fact that Norman conceded -- and in which Norman was one of two occupants. Plainly, Norman had

sufficient dominion and control over the premises to establish his constructive possession of the drugs hidden therein. United

States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010) ("A person may have constructive dominion, or possession control of over contraband the if he or has the

ownership,

contraband

premises or vehicle in which the contraband was concealed."). Moreover, there was ample evidence of Norman's actual possession of the seized drugs. motel room testified Both Malone and Norman's companion in his that the drugs belonged to Norman.

Although Norman vigorously disputed their testimony, the jury was well within its province to credit it, and we will not disturb such a credibility determination on appeal. See Harvey,

532 F.3d at 333 ("Where there are conflicts in the testimony, it is for the jury and not the appellate court to weigh the

evidence and judge the credibility of the witnesses.") (internal quotation marks omitted). For these reasons, we affirm Norman's convictions and sentence. legal We dispense with oral argument because the facts and are adequately presented in the materials

contentions

8

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

9