US v. Bruce Winston

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cr-00639-RDB-2 Copies to all parties and the district court/agency. [999849572].. [15-4054]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4054

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRUCE DWAYNE WINSTON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:13-cr-00639-RDB-2)

Argued:

May 10, 2016

Decided:

June 10, 2016

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion.
Judge Duncan wrote
opinion, in which Judge Shedd and Judge Keenan joined.

the

ARGUED: Christopher Alan Suarez, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellant. Peter Jeffrey Martinez, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
ON BRIEF: Joanna Beth Silver, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland; F. Lane Heard III,
WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant.
Rod
J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
On

June

3,

2013,

the

Maryland

State

Police

stopped

Appellant Bruce Winston and discovered 21 kilograms of cocaine
and $30,000 in cash hidden in a compartment in his truck.
jury

convicted

distribute,

Winston

and

of

conspiring

possessing
to

do

cocaine

the

same,

21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.

with
in

A

intent

to

violation

of

On appeal, Winston

challenges the district court’s denial of his motion to suppress
the evidence discovered in his truck.

He also contends that the

district court erred in admitting evidence, under Federal Rule
of Evidence 404(b), that connected Winston to drugs seized by
law enforcement in North Carolina in 2010.

Because the Maryland

State Police had reasonable suspicion to stop Winston under the
collective knowledge doctrine, and because the admission of the
North Carolina evidence was harmless, we affirm.

I.
A.
We begin by providing background on the investigation that
led

to

the

arrest

of

Jorge

Herevia,

Joe

Payne,

and

Bruce

Winston--all three of whom were indicted as co-conspirators in a
cocaine distribution ring.
The investigation began with information from a cooperating
defendant,

Dewon

Nelson.

In

January
2

2013,

Drug

Enforcement

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Agency (“DEA”) agents arrested Nelson in Delaware for possession
of cocaine.
DEA

agents

During subsequent proffer interviews, Nelson told
that

his

operated in Texas.

supplier

was

Juan

Carlos

Flores,

who

According to Nelson, Flores hired men to

drive cocaine to Delaware in vehicles with hidden compartments.
The

scheme

was

coordinated

by

one

of

Flores’s

associates,

identified as “George,” who would travel from Texas to Delaware
to

oversee

the

transactions,

during

which

he

would

drive

a

“white utility style truck with an Entergy label on the side of
it that contained a secret compartment where they would keep the
cocaine.”

J.A. 103-04.

Nelson explained that one of the men who purchased cocaine
from Flores and “George” was an individual named “Tone.”

Tone

was “a light-skinned black male from the Baltimore area that
would

drive

to

Delaware,

meet

with

Flore[s],

Mr. Nelson, and retrieve kilos of cocaine.”
drove “an older model Honda Odyssey.”

George,

J.A. 104.

J.A. 105.

and
Tone

Nelson further

identified several dates in September and October 2012 on which
“George” stayed at the Holiday Inn in Delaware to coordinate
these cocaine transactions.
Using hotel records from the dates Nelson provided, DEA
agents identified “George” as Jorge Herevia from Alton, Texas.
In May 2013, the DEA learned that Herevia had checked into a
Holiday Inn in Baltimore, Maryland, using the same credit card
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he had used in Delaware.

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DEA agents promptly began surveillance

of the hotel.
The

DEA

monitored

June 3, 2013.

Herevia

in

Baltimore

from

May

The first day passed without event.

30

to

However, on

the second day of the surveillance, agents observed Herevia meet
with an individual who matched Nelson’s description of Tone, the
Baltimore-based

drug

dealer.

This

individual

was

driving

a

Honda Odyssey, the same type of car that Nelson said Tone drove.
Two days later, the DEA observed Appellant Winston arrive
at

the

Holiday

Inn

where

Herevia

was

staying.

Winston

was

traveling with a man later identified as Joe Payne, and they
arrived at the hotel driving “a utility style truck with the
word Shale Entergy, that emblem on the side of the truck.” 1
J.A. 115.

Later

that

evening,

after

Payne

and

Winston

had

checked into the hotel, DEA agents observed Payne, Winston, and
Herevia at the hotel bar.

An undercover detective approached

the three men, joined them for a drink, and later accompanied
the group to a bar across the street, where they socialized for
several hours before returning to the hotel.

1

On more than one

At the suppression hearing, a DEA agent explained that
“cartels have been more recently using vehicles . . . like even
mail trucks, UPS trucks, and specifically oil trucks to conceal
their true intent of smuggling drugs and money.
And they feel
that law enforcement will be less likely to pull these vehicles
over if it looks as if they have a purpose.” J.A. 138.

4

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occasion

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that

evening,

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Herevia

bragged

to

the

undercover

detective that he had a large amount of cash with him.
The next morning, Herevia drove the Shale Entergy truck to
a Wal-Mart store, where he purchased a heat sealer.
significant

to

the

DEA

because,

as

one

DEA

agent

This was
explained,

“[d]rug traffickers often use heat sealers to compact drugs and
drug money.

It’s also used as a way to lessen the amount of

odor that can emanate from drugs.”

J.A. 118.

The DEA agents,

however, lost track of Herevia for a period of time between his
purchase of the heat sealer and his return to the hotel.

Within

fifteen minutes of Herevia’s return, Winston and Payne came out
of the hotel with their luggage and drove off in the Shale
Entergy

truck

wearing

shirts

bearing

“Shale

Entergy”

logos.

Herevia remained at the hotel.
At

this

point,

the

DEA

agents

believed

that

the

truck

likely contained drugs and drug money, and they directed the
Maryland State Police to stop the truck as it traveled on the
highway out of Baltimore.
marked,

local

law

The DEA’s purpose behind directing a

enforcement

unit

to

conduct

the

stop

was

twofold: first, it was safer than using an undercover vehicle to
stop suspected drug traffickers, and second, the Maryland State
Police could stop the car without alerting the suspects that
they were part of a federal investigation.

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Shortly after state police officers stopped the truck, a
canine team detected the odor of narcotics emanating from the
truck bed.

A subsequent search of the truck uncovered $30,000

in cash and 21 kilograms of cocaine within a hidden compartment
in the truck bed.

The truck was registered to Winston.
B.

A federal grand jury indicted Winston, Payne, and Herevia
on two counts: conspiring to possess and distribute over five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846,
and possessing five kilograms or more of cocaine with intent to
distribute,

in

violation

of

21

U.S.C.

§ 841(a)(1).

Herevia

pleaded guilty on May 1, 2014, and Payne and Winston proceeded
to trial.
In

addition

to

filing

other

pre-trial

motions,

Winston

moved to suppress the evidence seized from his truck, arguing
that the stop was not supported by reasonable suspicion.
government

opposed

the

motion

and

filed

a

motion

in

The

limine,

seeking to admit trial evidence related to a 2010 incident under
Federal Rule of Evidence 404(b).

In that incident, an employee

on Winston’s farm was stopped in North Carolina driving a horse
trailer

with

$1.1

million

in

cash

6

and

over

a

half-ton

of

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marijuana

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hidden

in

a

secret

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compartment.

The

trailer

was

registered to Winston. 2
The district court held hearings on the motions and issued
a

written

opinion

suppression

on

motion

September

and

23,

granting

the

2014,

denying

government’s

Winston’s
motion

in

limine.
C.
Winston and Payne were jointly tried in October 2014.

The

primary issue at trial was whether Winston was a knowing and
active participant in the conspiracy.
At trial, the government introduced as evidence the cocaine
and

money

seized

from

Winston’s

car,

and

the

jury

testimony about the 2010 incident in North Carolina.

heard

The focus

of the government’s case, however, was the testimony of Herevia,
who detailed Winston’s involvement in the cocaine distribution
conspiracy.

According to Herevia, Winston was a drug courier

for

and

Flores,

compartment
enforcement.

in

it
his

was

Winston’s

pickup

truck

idea
to

to

avoid

install

a

detection

secret
by

law

Herevia testified that, in the spring of 2012, he

traveled with Flores to Winston’s farm in Arkansas and installed
the compartment.

Flores and Herevia performed the installation

2

Winston himself was not present during this incident. He
later retrieved the vehicle from the police, but he was not
charged with any crimes.

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work in Winston’s shed, welding a box underneath the truck bed
to make the compartment.

Winston assisted them by maneuvering

the truck with his tractor to provide access to the underside of
the bed. 3

Herevia testified that Winston and Payne used the

modified truck on multiple occasions to transport drug shipments
to Delaware and Maryland for Flores.

Herevia’s role in the

conspiracy was to unload the truck and deliver the drugs at the
point of sale.
Winston testified that he was an unknowing participant in
the scheme, and that he believed he had been taking trips to
Delaware and Baltimore to work for a legitimate company, “Shale
Entergy.”
that

he

Winston testified that he was a company employee,
reported

to

Herevia,

and

that

he

drove

his

truck--

bearing Shale Entergy’s logo--to job sites for the company.

But

Winston ultimately conceded that the company did not exist, and
Herevia told the jury that neither he nor Winston ever worked
for Shale Entergy.

And Herevia further testified that it was

Winston’s idea to put the Shale Entergy logo on his truck and
wear

logo-bearing

shirts

to

appear

less

suspicious

to

law

enforcement.
3

Winston himself testified that he helped Herevia install a
new bed on his truck. However, he claimed that Herevia told him
they were installing a new bed with tool compartments. Winston
denied seeing a trap door or secret compartment in the new truck
bed when he installed it.

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The jury also heard about incriminating statements Winston
made during a post-arrest interview with several DEA agents and
two officers from the Maryland State Police.
his

activities

leading

up

to

his

arrest,

When asked about
Winston

told

the

officers that he had traveled to a Shale Entergy job site in New
Holland, Pennsylvania, but he was turned away due to rain and
returned to Baltimore.

To demonstrate that this statement was

false, the government introduced weather reports and cell-site
location data from Winston’s phone, showing that Winston never
went to New Holland, and that it had not rained there over the
weekend.

Special Agent Fitzpatrick of the DEA further testified

that, during this interview, he confronted Winston about his
account of events, telling him that his story “didn’t make any
sense,

and

J.A. 818.
story.”

that

he

wasn’t

telling

[the

DEA]

the

truth.”

Winston eventually conceded: “I don’t believe my own
J.A. 819.

At the conclusion of the trial, the jury returned a verdict
acquitting Payne and convicting Winston on both counts.

The

district court sentenced Winston to 120 months’ imprisonment.
This timely appeal followed.

II.
On appeal, Winston argues that the district court erred in
denying his motion to suppress the evidence discovered in his
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truck.

He

discretion

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also
in

asserts

admitting

Carolina incident.

that

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the

evidence

district

relating

court

to

the

abused
2010

its

North

We address each of these contentions below.
A.

Winston challenges the district court’s conclusion that the
DEA had reasonable suspicion to direct the stop that led to the
discovery of the cocaine in his truck. 4

We review the district

court’s legal conclusions de novo, viewing the evidence in the
light most favorable to the government.

United States v. Green,

740 F.3d 275, 277 (4th Cir. 2014).
When a police officer stops a vehicle, the stop constitutes
a seizure under the Fourth Amendment, which mandates that any
seizure be reasonable.
Digiovanni,
Amendment

650

F.3d

permits

U.S. Const. amend.
498,

a

506

police

(4th
officer

Cir.
to

IV; United States v.
2011).

The

“initiate

a

Fourth
brief

investigatory stop if the officer has reasonable suspicion to
believe that ‘criminal activity may be afoot.’”

United States

v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)).
motion,

the

reasonable

In the context of a suppression

suspicion

4

standard

requires

courts

to

Winston
argues
only
that
the
initial
stop
was
unconstitutional.
He does not claim that the canine sniff or
the search of the truck was unlawful.
He seeks suppression of
the evidence found in the truck only because the search flowed
from an allegedly impermissible stop.

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“view the totality of the circumstances to determine whether the
officer had ‘a particularized and objective basis for suspecting
the

particular

person

stopped

of

criminal

activity.’”

Id.

(quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
However,

“reasonable

standing

alone

is

suspicion
susceptible

may

exist

to

an

even

innocent

if

each

fact

explanation.”

United States v. McCoy, 513 F.3d 405, 413-14 (4th Cir. 2008)
(citing United States v. Arvizu, 534 U.S. 266, 277-78 (2002)).
In this case, the Maryland State Police stopped Winston
based

on

instructions

from

the

DEA.

Under

the

collective

knowledge doctrine, “[w]hen an officer acts on an instruction
from another officer, the act is justified if the instructing
officer had sufficient information to justify taking such action
herself; in this very limited sense, the instructing officer’s
knowledge is imputed to the acting officer.”

United States v.

Massenburg, 654 F.3d 480, 492 (4th Cir. 2011).

Therefore, the

question before us is whether Special Agent Fitzpatrick of the
DEA--who

led

the

investigation

and

directed

the

stop--had

reasonable suspicion to believe that Winston was involved in
criminal activity.

Given the totality of the circumstances, we

conclude that he did.
Here, a team of DEA agents witnessed Winston participating
in

conduct

cocaine

that

closely

trafficking

ring,

tracked

the

according
11

patterns
to

of

the

information

Flores

the

DEA

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received

from

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a

cooperating

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defendant.

As

discussed

above,

Special Agent Fitzpatrick learned during his investigation that
Flores’s couriers typically transported drugs in a white truck
marked “Entergy,” and delivered drugs--with the assistance of
Jorge Herevia--to a Baltimore man named Tone.

After learning

this and tracking down Herevia, a team of DEA agents observed
Herevia, Winston, and Payne engage in a suspicious sequence of
events.
man

First, Herevia (the suspected drug seller) met with a

matching

purchaser).

the

description

of

Tone

(the

suspected

drug

Then, Winston arrived at Herevia’s hotel, driving a

white truck marked “Shale Entergy,” just like the drug courier’s
vehicle
Winston’s
commonly

the

informant

vehicle
used

in

on
drug

had
a

described.

shopping

Next,

excursion

trafficking,

and

he

to

Herevia
buy

took

equipment

disappeared

period of time before returning the truck to the hotel.

for

a

Winston

then immediately checked out of the hotel and left in the same
vehicle.
Having considered the totality of the circumstances, based
on all of the information known to Special Agent Fitzpatrick at
the time he directed the stop, we agree with the district court
that Special Agent Fitzpatrick reasonably suspected that Winston
was carrying drugs and drug money in his truck.

See McCoy, 513

F.3d

consider

at

totality

414-15
of

(emphasizing

the

that

circumstances”
12

courts
when

must

evaluating

“the

reasonable

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suspicion).

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Taken together, the facts known to Special Agent

Fitzpatrick certainly gave him reasonable suspicion to believe
that criminal activity was afoot at the time he directed the
stop.

Because the officer who directed the stop had reasonable

suspicion, the stop was justified under the collective knowledge
doctrine.

Therefore, the stop was fully consistent with the

requirements of the Fourth Amendment.
B.
We turn now to Winston’s contention that the district court
erroneously admitted trial evidence related to the 2010 North
Carolina incident under Federal Rule of Evidence 404(b).
“We review evidentiary rulings for an abuse of discretion,
affording substantial deference to the district court.”
States

v.

White,

810

F.3d

212,

227

(4th

Cir.

2016)

United
(citing

United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011)).
Under

Federal

Rule

of

Criminal

Procedure

52(a),

rulings are subject to review for harmless error.

evidentiary
“[I]n order

to find a district court’s error harmless, we need only be able
to say ‘with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.’”

United

States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (quoting
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).

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At

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trial,

the

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government

presented

evidence

regarding

a

2010 incident, in which North Carolina officials discovered that
one

of

Winston’s

concealed

employees

drugs.

was

According

driving

to

a

Winston,

trailer
this

containing

evidence

was

inadmissible character evidence under Rule 404(b), because the
incident was unrelated to the conspiracy that was the subject of
the

trial,

Assuming

and

without

it

was

factually

deciding

that

dissimilar

the

and

district

prejudicial.

court

erred

in

admitting the evidence, given the strength of the rest of the
evidence against Winston at trial, we conclude that any such
error was harmless.
The government’s case against Winston was powerful, and the
evidence of his culpability was overwhelming.

The government

presented testimony from Winston’s co-conspirator, Herevia, that
not

only

implicated

Winston

as

a

knowing

participant

in

the

cocaine trafficking conspiracy, but also illustrated Winston’s
active role in concealing the drugs he was transporting at the
time of his arrest.

Most importantly, the cocaine and money

seized from Winston’s own truck were admitted as evidence.
The government also demonstrated that Winston’s account of
events was not credible.
was

carrying

drugs

in

Though Winston denied knowing that he
his

truck

and

claimed

he

was

merely

traveling to a work site, the government introduced as evidence
Winston’s post-arrest statement, in which he conceded: “I don’t
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believe

my

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own

story.”

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J.A.

819.

The

government

also

introduced cell phone data and weather reports that directly
refuted Winston’s account of his travels in the days before his
arrest.

Further still, the government demonstrated that the

“legitimate” company Winston claimed to be working for, Shale
Entergy, was fictitious.
Winston asserts that the jury’s verdict acquitting Payne
reveals that the North Carolina evidence--which implicated only
Winston--tipped the scales against him.

This argument rests

upon Winston’s assertion that the government’s evidence against
Winston and Payne was identical except for the North Carolina
evidence:
Although the evidence and arguments against them
were identical in nearly every respect, the jury
acquitted Mr. Payne and convicted Mr. Winston. It is
not hard to understand why.
Against Mr. Winston
alone, the Government introduced prior “bad acts”
evidence that it used to argue that he must have known
that the truck in which he and Mr. Payne were riding
contained illegal drugs.
Appellant’s Br. at 18.

But this characterization of the trial

ignores significant evidence that implicated only Winston, and
not

Payne.

For

example,

Herevia

testified

that

Winston

was

present during the installation of the secret compartment in the
truck,
Entergy

and

that

decals

the
were

secret

compartment

Winston’s

15

ideas.

and

the

And

sham

Winston

Shale
made

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incriminating statements that were admitted at trial, whereas
Payne remained silent post-arrest.
In

sum,

the

evidence

at

trial

showed

that

Winston

was

caught with a significant amount of cocaine and cash in a secret
compartment built into his own truck.

Both tangible evidence

and Winston’s own statements proved that the version of events
he gave to both law enforcement and the jury was false.

In

light

we

of

the

overwhelming

evidence

of

Winston’s

guilt,

conclude that any error the district court may have made in
admitting evidence of the North Carolina incident was harmless.
We therefore affirm.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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