US v. Andrew Malcolm


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cr-00232-DCN-1 Copies to all parties and the district court/agency. [998421198] [09-4658]

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US v. Andrew Malcolm Doc. 0 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4658 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDREW JEROME MALCOLM, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:08-cr-00232-DCN-1) Submitted: August 20, 2010 Decided: September 9, 2010 Before MOTZ, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, Georgia, for Appellant. Kevin F. McDonald, Acting United States Attorney, Alston C. Badger, Christopher Coates, Assistant United States Attorneys, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 2 PER CURIAM: Andrew importing into Jerome the in Malcolm was convicted fifty 21 by a or jury more of of United States of grams U.S.C. methamphetamine, violation 952(a), 960(b)(1)(H) (2006), and possession with intent to distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A) (2006). Malcolm's indictment arose from a traffic stop conducted by a South Carolina Highway Patrol trooper that resulted in the discovery of methamphetamine in the sleeper area of the cab of a tractor trailer driven by Malcolm. On appeal, Malcolm first argues that the evidence was insufficient to sustain because his the conviction controlled for importation had of not methamphetamine, substance reached its final destination and the crime was therefore not complete. "The offense of importation of a controlled substance into the United States requires proof (1) that the substance was imported; (2) that it was imported knowingly and willfully; and (3) that the defendant willfully associated himself with the importation venture." 1096 (4th Cir. 1984). United States v. Samad, 754 F.2d 1091, In a case involving marine transport of a controlled substance, the Court held that "[w]hile crossing into United States waters in Palmero [v. United States, 112 F.2d 922 (1st Cir. 1940)] was sufficient to establish importation, that 2 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 3 event is not necessarily also the termination of the act of importation." United States v. MacDougall, 790 F.2d 1135, 1151 We conclude that the elements of importation (4th Cir. 1986). were fulfilled when Malcolm knowingly and willfully drove his truck across the border from Canada and entered the United States with the drugs in his truck. was not completed, it was established. Although the importation Malcolm next argues that the district court erred in finding truck. that he voluntarily a defendant consented has to the search of his to a Whether voluntarily consented search is a factual question determined under the totality of the circumstances and, accordingly, is reviewed under the clearly erroneous standard. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); United States v. Jones, 356 F.3d 529, 533 n.* (4th Cir. 2004). Under the clearly erroneous standard, this court will reverse the district court only when it is "left with the definite and firm conviction that a mistake has been committed." Cir. 2005) United States v. Stevenson, 396 F.3d 538, 542 (4th (internal quotation marks and citation omitted). "[I]f the district court's account of the evidence is plausible in light of the record viewed in its entirety," this court will not reverse the district court's finding despite concluding that it would have "decided the fact differently." Id. (internal In other quotation marks, citation, and alteration omitted). 3 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 4 words, when two views of the evidence them are permissible, be and "the district court's Id. choice between cannot marks clearly citation erroneous." omitted). (internal quotation We accord particular deference "to a district court's credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress." F.3d 210, 232 (4th Cir. 2008) United States v. Abu Ali, 528 (internal quotation marks and citation omitted). When a suppression motion has been denied, this court reviews the evidence in the light most favorable to the Government. Cir. 2009). United States v. Neely, 564 F.3d 346, 349 (4th Our review of the record leads us to conclude that the district court did not err in denying Malcolm's motion to suppress. Malcolm next argues that the district court erred by limiting his re-cross examination of Trooper Laird regarding a previous stop of another truck owned by Malcolm's employer. The truck, which was stopped in New Jersey, contained twice as many pills as were found in Malcolm's truck. moved to prohibit agreed any that mention it would of not Prior to trial, Malcolm this incident, any and the Government introduce evidence "Crossof the regarding the stop. examination should be Fed. R. Evid. 611(b) provides: limited to the subject matter direct examination and matters affecting the credibility of the 4 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 5 witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." The district court "`is vested with broad discretion to control the mode of interrogation and presentation of evidence,'" and this court reviews a district court's ruling under Fed. R. Evid. 611(b) "only to determine whether it has abused its discretion." United States v. McMillon, 14 F.3d 948, 955-56 (4th Cir. 1994) (quoting United States v. Gravely, 840 F.2d 1156 (4th Cir. 1988)); see also United States v. Siegel, 536 F.3d 306, 320 (4th Cir. 2008) (district court is "vested with broad authority to control the manner of trial and the presentation of evidence"). We conclude that the district court properly exercised its discretion in limiting the cross-examination of Laird. Malcolm next argues that the district court erred in allowing the Government to present testimony of statements that he did not make, by way of a description of his reaction to the discovery of the drugs. Malcolm argues that his silence did not constitute an adoptive admission, and thus the testimony was inadmissible hearsay. admission of This court reviews "the district court's for abuse of discretion. United testimony States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010). not object to this testimony, and thus we review Malcolm did for plain error. "To establish plain error, [Malcolm] must show that an error occurred, that the error was plain, and that the error 5 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 6 affected his substantial rights." 478 F.3d 247, 249 (4th Cir. 2007). United States v. Muhammad, Even if Malcolm satisfies these requirements, "correction of the error remains within [the court's] discretion, which [the court] should not exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted). "The adoptive-admission doctrine permits statements of others to be treated by the jury as statements of the party -- it is as if the party himself made the statement." United In order the States v. Williams, 445 F.3d 724, 735 (4th Cir. 2006). to be admissible as an adoptive admission, however, statement to which the defendant's response is relevant must be at least implicitly accusatory to the degree that failure to answer is an Id. adoption of the accusatory statement by the defendant. Assuming, without deciding, that the district court erred in allowing the testimony in question, we conclude that, in light of the significant other evidence of Malcolm's guilt, such error did not affect Malcolm's substantial rights, and thus he is not entitled to relief on this claim. Malcolm next argues that his due process rights were violated by the Government's failure, despite three requests, to produce his trucker's logbook. He asserts that evidence in the logbook could have been used to impeach the trooper's testimony 6 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 7 regarding his suspicions during the traffic stop, allowing To the Malcolm to more fully litigate his motion to suppress. extent the Constitution imposes a duty upon the government to preserve evidence, "that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense." To satisfy California v. Trombetta, 467 U.S. 479, 488-89 (1984). this standard, evidence must: (1) "possess an exculpatory value that was apparent [to the police] before the evidence was destroyed," and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." that lost or destroyed Id. at 489. could The mere possibility have exculpated a evidence defendant is not sufficient to satisfy Trombetta's requirement that the exculpatory value be "apparent" to the police before its loss or destruction, which is required to establish that the police acted in bad faith. 56 n.* (1988). Arizona v. Youngblood, 488 U.S. 51, Our review of the record leads us to conclude that Malcolm fails to establish that the logbook was clearly exculpatory, or that the Government acted in bad faith. Malcolm asserts counsel failed to properly introduce exculpatory cell phone records, failed to present evidence that another employee of Malcolm's employer had been arrested for trafficking ecstasy, and failed to obtain his logbook. of ineffective assistance of 7 counsel are Claims not generally Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 8 cognizable on direct appeal. 290, 295 (4th Cir. 1997). United States v. King, 119 F.3d Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. 2255 (West Supp. 2010) motion. See id.; United An exception ineffective States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). exists when the record conclusively establishes assistance. United States v. Richardson, 195 F.3d 192, 198 (4th In this case, the record Cir. 1999); King, 119 F.3d at 295. does not conclusively show that counsel performed deficiently, or that any failure by counsel prejudiced Malcolm. Malcolm next argues that the district court did not sufficiently examine his testimony and explain its determination that he committed perjury in imposing a sentencing enhancement for obstruction of justice. a district court's This court reviews for clear error that a defendant obstructed determination justice. 2005). United States v. Hughes, 401 F.3d 540, 560 (4th Cir. The district court summarized Malcolm's false testimony regarding his knowledge that the drugs were in his truck, and made the required findings that the testimony was material and was given with an intent to deceive. The court's explanation was sufficient, and the enhancement was properly applied. Malcolm's final argument is that the evidence relied on by the district court to determine drug quantity was too speculative and unreliable. This court reviews the district 8 Case: 09-4658 Document: 39 Date Filed: 09/09/2010 Page: 9 court's calculation of the quantity of drugs attributable to a defendant for sentencing purposes for clear error. United The States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Government must establish the quantity of drugs attributable to a defendant by a preponderance of the evidence and may do so through the introduction of relevant and reliable evidence. United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). "The district to Cook, court is afforded in making 596, 604 broad its discretion as to what information States v. credit 76 calculations." Cir. 1996) United (internal F.3d (4th quotation marks omitted). We conclude that the method utilized by the forensic chemist and adopted by the district court to estimate the to quantity the of drugs in possessed by The Malcolm court's was drug appropriate evidence question. quantity determination is therefore supported by the evidence. Accordingly, sentence. legal before we affirm Malcolm's convictions and We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED 9

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