USA v. Melvin Coleman, Jr., et al

Filing

UNPUBLISHED OPINION FILED. [14-40406 Affirmed] Judge: TMR , Judge: JES , Judge: JEG. Mandate pull date is 06/04/2015 for Appellants Melvin Eugene Coleman Jr. and Lennoard Ray Hare [14-40406]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40406

United States Court of Appeals
Fifth Circuit

FILED
UNITED STATES OF AMERICA,
Plaintiff - Appellee

May 14, 2015
Lyle W. Cayce
Clerk

v.
MELVIN EUGENE COLEMAN, JR.; LENNOARD RAY HARE, also known
as Leo, also known as Griz,
Defendants - Appellants

Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-97
Before REAVLEY, SMITH and GRAVES, Circuit Judges.
PER CURIAM:*
Lennoard Hare and Melvin Coleman were found guilty by a jury of
conspiracy to distribute or possess with the intent to distribute marijuana
and/or cocaine. Both challenge their convictions and Hare challenges his life
sentence. We affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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I. Factual and Procedural Background
A.

Pre-Trial Proceedings

In June 2012, a grand jury returned the first-superseding one-count
indictment against Lennoard Ray Hare, Natasha Williams, Kimberly Brown,
Melvin Coleman, LaTonya Wadlington and LaSonya Hall, charging them with
conspiracy to distribute or possess with the intent to distribute 5 kilograms or
more of cocaine, 1,000 kilograms or more of marijuana, and less than 28 grams
of cocaine base (crack cocaine). 21 U.S.C. §§ 841, 846. All the co-defendants
except Hare and Coleman pleaded guilty.
Before trial, Coleman filed a motion in limine asking the court to exclude
statements he made during a May 2011 traffic stop because of Miranda
violations. This motion effectively served as an untimely motion to suppress.
The district court noted that it was untimely as a motion to suppress but held
a hearing. During the hearing, Greenville Police Department Officer Chris
Rosamond testified that he stopped Coleman’s vehicle for following too closely
and failing to signal a lane change. Rosamond had also received information
from DPS officers that they suspected that Coleman might be involved in a
narcotics violation. At the beginning of the stop, Rosamond asked where
Coleman was traveling from, and Coleman said that he was coming from
Tennessee after visiting with family. The car was rented in the name of a
woman not present, and Coleman was unable to produce a rental agreement.
Rosamond learned that Coleman had a pending arrest warrant for unpaid
child support and began waiting for confirmation that it was still outstanding.
Based on the lack of a rental agreement and what he described as Coleman’s
evasive answers, Rosamond asked for consent to search the vehicle, which
Coleman gave. Rosamond asked Coleman if he had any narcotics, weapons, or
large sums of money in the car and patted Coleman down, all of which he
normally did in similar situations. Coleman responded that he always carried
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money with him. Rosamond asked Coleman how much money he had in the
car, and Coleman replied that he had $80,000. 1 During the search, Rosamond
found approximately $186,000 in cash in the vehicle. Coleman was eventually
arrested on the outstanding warrant.
The district court denied the motion in limine/motion to suppress the
statements made during the stop, concluding that Coleman was never
subjected to custodial interrogation and Miranda warnings were not required.
B.

Trial Evidence

Trial evidence showed that in 2010, Nika Keith became the target of a
drug investigation by the Texas Department of Public Safety, which eventually
led officers to an associate of Keith’s, Defendant-Appellant Hare.

Keith

pleaded guilty and began to cooperate with DPS, including making recorded
phone calls to Hare during which they discussed drug trafficking. DPS officers
began conducting surveillance on Hare. A January or February 2011 search of
a warehouse that Hare frequented resulted in the seizure of large scales,
plastic wrap, remainders of large amounts of marijuana, and a hat that bore
the name “Grizzly Corporation,” a company that belonged to Hare. Officers
also observed Hare frequenting co-defendant Natasha Williams’s house in the
Cedar Valley area of Dallas. An April 2011 search of that house resulted in
the seizure of seven pounds of marijuana, eight empty kilogram wrappers,
wrapping material for drugs and money, 13.58 grams of crack cocaine, and
$20,700 in cash.
In May 2011, pursuant to a court order, Hare’s phone was tracked via
GPS to Kentucky and back to Dallas. On May 13, 2011, the phone was again
There was some discrepancy between Rosamond’s testimony during the hearing on
the motion and his trial testimony regarding whether Coleman “volunteered” that he had
$80,000 or whether he was responding to Rosamond when he made that statement. The
video of the traffic stop clearly shows that Coleman was responding to specific questions from
Rosamond.
1

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tracked traveling between Dallas and Kentucky.

DPS agents set up

surveillance on Hare’s route back to Dallas. Two vehicles were observed. One
was a black Lexus belonging to co-defendant Kimberly Brown, which Brown
was driving with Hare as a passenger. The other was a 2011 white Ford
Explorer driven by Defendant-Appellant Coleman. Agents observed the two
vehicles traveling together, including getting on and off of the highway
together, and receipts indicated they purchased gas together. Both vehicles
were stopped by local law enforcement officers in Texas for traffic violations.
During the stops, officers found approximately $111,000 in Brown’s car and
$186,000 in Coleman’s Explorer.
Following these traffic stops, DPS officers executed a search warrant for
Brown’s residence in Duncanville, Texas. They found food saver bags and food
saver machines that seal up the bags, which are materials commonly used for
packaging narcotics. An arrest warrant for Hare and a search warrant for his
residence in Midlothian, Texas, were executed by officers in January 2012.
During that search, officers found approximately $21,000 in coins in a fountain
in front of Hare’s house, a money counter box, and a .44 magnum pistol.
Keith, Williams, Brown, and co-defendant LaSonya Hall each testified
at trial. Nika Keith testified that Hare sold him about 50 pounds of marijuana
per week from 2004 through Keith’s arrest in 2010, for a total of approximately
4,000 pounds of marijuana. Keith further testified that Hare sold him between
20 and 50 kilograms of cocaine from 2007 through 2010.

Keith also stated

that he saw bags of drugs in a Glenn Heights house that belonged to Hare’s
girlfriend, “Tasha, Natasha, something like that.”
Natasha Williams testified that Hare was her boyfriend and that he used
her two houses to store substantial amounts of cocaine, marijuana, and money.
She testified that Keith came to her house in Glenn Heights to buy marijuana
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from Hare. Williams testified that the marijuana, kilogram wrappers, and
money found in the April 13, 2011, search of her house belonged to Hare.
Kimberly Brown testified that she, Hare, and Coleman took two trips to
Louisville, Kentucky, selling 10 kilograms of cocaine each time. On each trip,
Coleman transported the cocaine in a separate vehicle. On both trips, Brown,
Hare, and Coleman stayed at the Galt House Hotel in two different rooms.
Records from the Galt House Hotel confirmed that Coleman was registered on
April 21, 2011, for one night and that both Coleman and Brown were registered
to stay at the hotel from May 11 through May 13, 2011. Brown testified that
Coleman kept the cocaine in his room, brought it to Hare and Brown’s room to
sell, took the money from the sales back to his room, and drove back to Texas
with all or most of the money. Phone records obtained and analyzed by the
DEA showed 104 calls between Hare’s phone and Coleman’s phone between
May 11 and May 13, 2011. Brown testified that she and Hare subsequently
made a third trip to Kentucky to sell 300-400 pounds of marijuana, and a
fourth trip to sell 10 kilograms of cocaine.
LaSonya Hall testified that she transported marijuana from Dallas to
Oklahoma for Hare multiple times. Hall testified that she would also transport
the money for the marijuana from Oklahoma to Hare in Dallas. On one of
those occasions, she was stopped by law enforcement with eight pounds of
marijuana. In her plea agreement, she accepted responsibility for transporting
a total of 250 pounds of marijuana for Hare.
Hare and Coleman were both convicted after a joint jury trial. The jury
found Hare guilty of conspiracy to distribute or possess with intent to
distribute 1,000 kilograms of marijuana and 5 kilograms of cocaine. The jury
found Coleman guilty of conspiracy to distribute or possess with intent to
distribute 5 kilograms of cocaine.
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Coleman filed a written motion for new trial, based on the admission of
the statements he made during the traffic stop. The district court found that
Coleman had waived his arguments for suppression by not raising them before
trial, and that the motion should be denied on the merits for the same reasons
it denied the untimely motion to suppress.
Hare was sentenced to life imprisonment and five years of supervised
release. Coleman was sentenced to a mandatory minimum 120 months of
imprisonment and five years of supervised release. Both Hare and Coleman
appeal their convictions, and Hare appeals his sentence.
II. Discussion
Coleman and Hare each raise three issues on appeal. Coleman argues
that the district court should have suppressed statements he made during the
May 13, 2011, traffic stop, and that the court abused its discretion by denying
his motion for new trial based on the admission of those statements. Both Hare
and Coleman claim that the evidence presented at trial was insufficient to
support their convictions. Hare also argues that the district court abused its
discretion in calculating the drug weight attributable to him at sentencing, and
that that his life sentence constitutes a violation of the Eighth Amendment.
We address each issue in turn.
A.

Motion to Suppress and Motion for New Trial (Coleman)

Coleman argues that statements he made during the May 13, 2011
traffic stop should have been suppressed because they were made without
Miranda warnings. He raises this issue both as a challenge to the denial of his
motion in limine, which was effectively an untimely motion to suppress, and
as a challenge to the denial of his motion for a new trial. Coleman asserts that
two statements should be suppressed: the statement he made to Rosamond
that he was returning from Tennessee and the statement that he had $80,000
in the car. Rosamond testified about the statements, and the prosecution
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referenced both statements at trial to argue that Coleman was untruthful with
Rosamond because he was trying to cover up his drug trafficking.
Coleman suggests that, in considering the denial of his motion in limine,
we should review factual findings for clear error and legal conclusions de novo,
because the district court actually reached the merits of the motion. See United
States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010); United States v. Marx, 635
F.2d 436, 441 (5th Cir. Unit B Jan. 1981). The government argues that plain
error review is appropriate, because Coleman forfeited the error by failing to
raise it by the pre-trial deadline for a motion to suppress. 2 The district court’s
denial of a motion for new trial is reviewed for an abuse of discretion. United
States v. Villareal, 324 F. 3d 319, 325 (5th Cir. 2003).
We need not resolve the standard of review applicable to the denial of
Coleman’s untimely motion to suppress. Even reviewing the facts for clear
error and the law de novo, the district court committed no error.
“Miranda

warnings

must

be

administered

prior

to

‘custodial

interrogation.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988)
(en banc) (quoting Miranda v. Arizona, 384 U.S. 436, 479 (1966)). “A suspect
is . . . ‘in custody’ for Miranda purposes when placed under formal arrest or
when a reasonable person in the suspect’s position would have understood the
situation to constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.” Id. at 596. “Two discrete [inquiries] are
essential to the determination: first, what were the circumstances surrounding
the interrogation; and second, given those circumstances, would a reasonable
person have felt he or she was at liberty to terminate the interrogation and

Federal Rule of Criminal Procedure 12 has been amended to no longer provide that
failure to file a motion to suppress by the pre-trial deadline results in waiver, instead
providing that a court may consider an untimely motion “if the party shows good cause.” Fed.
R. Crim. P. 12(c).
2

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leave.” United States v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012) (quoting
J.D.B. v. N. Carolina, 131 S.Ct. 2394, 2402 (2011)).

A determination of

whether a defendant is “in custody” for Miranda purposes depends on the
“totality of circumstances.” Id. Some important factors include: (1) the length
of the questioning; (2) the location of the questioning; (3) the accusatory, or
non-accusatory, nature of the questioning; (4) the amount of restraint on the
individual’s physical movement; and (5) statements made by officers regarding
the individual’s freedom to move or leave. United States v. Wright, 777 F.3d
769, 775 (5th Cir. 2015). Custody for Miranda purposes requires a greater
restraint on freedom than seizure under the Fourth Amendment. Bengivenga,
845 F.2d at 598. It is well-established that ordinary traffic stops do not place
a person “in custody” for purposes of Miranda. Berkemer v. McCarty, 468 U.S.
420, 437-39 (1984) (finding brevity, spontaneity, and public nature of normal
traffic stop, and small number of officers involved, renders stop non-custodial).
We conclude that Coleman was not “in custody” for purposes of Miranda
when he made any of the challenged statements. Up to the time he was
actually arrested on the unrelated warrant at the end of the stop, the
surrounding circumstances and degree of restraint never meaningfully
advanced beyond what is typical during an ordinary traffic stop. See id. The
stop was conducted on the side of a public roadway, where a traffic stop is
normally conducted; Rosamond never engaged Coleman in specific, lengthy or
accusatory questioning about any suspected offense; and Coleman was either
sitting in his car or standing outside it, unrestrained, during the entire stop.
See id.; Wright, 777 F.3d at 775 (discussing these as factors to be considered).
While the 30-minute stop was arguably somewhat longer than a typical traffic
stop, the length was extended primarily because reasonable suspicion had
arisen regarding a different offense—Rosamond was waiting for confirmation
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on the unrelated warrant—and because Coleman consented to a search, not
because of any extended questioning.
Because the stop was non-custodial, Miranda warnings were not
required.

The district court did not err when it denied the motion in

limine/motion to suppress or the motion for a new trial.
B.

Sufficiency of the Evidence (Hare and Coleman)

Coleman and Hare preserved these objections by moving for acquittal;
we thus review the sufficiency of the evidence de novo. United States v. Grant,
683 F.3d 639, 642 (5th Cir. 2012). We view all evidence in the light most
favorable to the jury’s verdict and “determine whether a rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (quotation omitted).
To support a drug conspiracy conviction, the government must establish
“(1) the existence of an agreement between two or more persons to violate
narcotics law; (2) the defendant’s knowledge of the agreement; and (3) the
defendant’s voluntary participation in the agreement.” United States v.
Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996). “A jury may infer the elements
of a conspiracy conviction from circumstantial evidence: An agreement to
violate narcotics laws may be inferred from concert of action. Knowledge of the
conspiracy may be inferred from a collection of circumstances.” United States
v. Leal, 74 F.3d 600, 606 (5th Cir. 1996) (quotations and citations omitted).
Even uncorroborated accomplice testimony may be sufficient to support a
conviction, if it is not “incredible or otherwise unsubstantial on its face.”
United States v. Morales, 477 F.2d 1309, 1312 (5th Cir. 1973) (quoting Tillery
v. United States, 411 F.2d 644, 647 (5th Cir. 1969)).
1.

Coleman

Coleman challenges the credibility of the testimony of co-defendant
Kimberly Brown. Brown’s testimony was the primary evidence tying Coleman
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to the conspiracy. The other co-defendants testified that they did not know
Coleman. However, Brown testified that she, Hare, and Coleman took two
trips to Louisville, Kentucky, selling 10 kilograms of cocaine each time. She
testified about how the three transported the cocaine and the money, that they
all stayed at the Galt House Hotel, how they conducted drug transactions in
the hotel, and how they transported the money back to Dallas. Additional
evidence corroborated Brown’s testimony. Records from the hotel confirmed
Coleman was registered for a night in April 2011, and that both Coleman and
Brown were registered May 11 through May 13, 2011. Telephone records
showed 104 calls between Hare’s phone and Coleman’s phone between May 11
and May 13, 2011. Officers observed Brown’s car and Coleman’s car traveling
together on the route back from Kentucky. Further, during the traffic stops,
officers found $111,000 cash in Brown’s car and $186,000 in cash in Coleman’s
car, which aligned with the testimony that 10 kilograms of cocaine sold for
approximately $300,000.
This evidence was sufficient for the jury to find that Coleman agreed to
participate in a conspiracy to distribute at least 5 kilograms of cocaine. The
jury was properly instructed about accomplice testimony, and the jury was
informed that Brown had pleaded guilty and was cooperating with the hope of
a reduced sentence. The jury found Brown’s testimony to be credible, and other
evidence corroborated her testimony. There is no basis to overturn the jury’s
verdict.
2.

Hare

Hare likewise challenges the sufficiency of the evidence by attacking the
credibility of the co-defendants, arguing that they had every incentive to lie
and attribute the drug trafficking to him. Four separate individuals testified
that Hare sold substantial amounts of cocaine and marijuana, possessed
substantial amounts of cocaine and marijuana, and directed their trafficking
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of cocaine and marijuana, over multiple years and in multiple states. Keith
testified that between 2004 and 2010, he bought 50 pounds a week of
marijuana from Hare, for a total of 4,000 pounds, and from 2007 to 2010,
bought between 20 and 50 kilograms of cocaine from Hare. Williams testified
that the marijuana, cocaine, packaging materials, and money found in her
house were Hare’s, and that Hare regularly used her houses to store large
amounts of marijuana, cocaine and money. Brown testified that she and Hare
traveled to Kentucky four times to sell marijuana and cocaine, totaling 400
pounds of marijuana and 30 kilograms of cocaine. Hall testified that she
transported marijuana from Dallas to Oklahoma at Hare’s direction multiple
times, and that she transported a total of 250 pounds of marijuana for Hare.
Other evidence corroborated the testimony of the witnesses and co-defendants,
including surveillance and the money, packaging materials and weapons found
during the various searches of the co-defendants’ houses and other locations
involved in the conspiracy
This evidence was sufficient for the jury to find that Hare agreed to
participate in a conspiracy to distribute at least 1,000 kilograms of marijuana
and 5 kilograms of cocaine. Again, the jury was properly instructed about
accomplice testimony and was informed about the pleas of the co-defendants
and that they were testifying with the hope of a reduced sentence. The jury
found the testimony credible. There is no basis to overturn the jury’s verdict.
C.

Drug Weight (Hare)

Hare next argues that the district court erred in its determination of the
drug weight attributable to him at sentencing.

The pre-sentence report

(“PSR”) concluded that Hare was responsible for 5,022 kilograms of marijuana
and 180 kilograms of cocaine (equivalent to 36,000 kilograms of marijuana
pursuant to U.S.S.G. § 2D1.1 cmt. n. 8), for a total of the equivalent of 41,022
kilograms of marijuana. Under the 2013 Sentencing Guidelines, this drug
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weight resulted in a base offense level of 38. U.S.S.G. § 2D1.1(c)(1). After other
enhancements and reductions not at issue on appeal, Hare’s final offense level
was 42. Together with criminal history category II, Hare’s Guidelines range
was 360 months to life. The district court sentenced him to life.
A district court’s determination of the quantity of drugs for which a
defendant is responsible is a factual finding reviewed for clear error. See
United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). The drug weight
includes the drugs for which the defendant is directly responsible and the
drugs that can be attributed to him in a conspiracy. See U.S.S.G. § 1B1.3(a)(1).
For conspiratorial conduct to be attributed to a defendant, the co-conspirator’s
conduct must be “reasonably foreseeable” to the defendant and within the
scope of the defendant’s agreement. United States v. Carreon, 11 F.3d 1225,
1230 (5th Cir. 1994). In determining drug weight to calculate the offense level
under the Guidelines, the court may rely on statements and testimony from
codefendants to calculate an amount higher than the jury’s verdict, provided
the information bears the minimum indicia of reliability. See United States v.
Cantu-Ramirez, 669 F.3d 619, 628-29 (5th Cir. 2012).
On appeal, Hare argues that he should only be held responsible for 2,294
kilograms of marijuana, based on the marijuana that was actually seized from
Williams’ house and Hall’s vehicle, and converting the currency actually seized
from the various searches to its cocaine equivalent.

This barely-briefed

argument clearly fails under the standards described above. The district court
held Hare accountable for the amount of cocaine and marijuana that was
supported by statements and trial testimony from Keith, Williams, Brown, and
Hall, whom it found to be credible, and the amounts of drugs and money found
during searches and traffic stops of Hare and the other co-defendants. Other
than again challenging the credibility of the co-defendants, Hare offers no
argument undermining or rebutting any of the drug weights contained in the
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PSR or testified to by the co-defendants at trial. Thus, we find no error in the
district court’s drug weight calculation.
D.

Eighth Amendment (Hare)

Hare argues that his life sentence for drug trafficking is disproportionate
and constitutes a violation of the Eighth Amendment. Because he raises this
argument for the first time on appeal, we review for plain error. United States
v. Helm, 502 F.3d 366, 367 (5th Cir. 2007).
The

Eighth

Amendment

prohibits

sentences

that

are

grossly

disproportionate to the crime. See United States v. Thomas, 627 F.3d 146, 160
(5th Cir. 2010).

“On review, however, this court does not ‘substitute its

judgment for that of the legislature nor of the sentencing court as to the
appropriateness of a particular sentence; it should decide only if the sentence
is within the constitutional limitations.’” Id. (quoting United States v. Harris,
566 F.3d 422, 436 (5th Cir. 2009).

To do so, we first make a threshold

comparison of the gravity of the offense to the severity of the sentence. Id. If
this review convinces us that the sentence is “grossly disproportionate to the
offense,” we then compare the defendant’s sentence to sentences for similar
crimes in this and other jurisdictions. Id. Our “review of Eighth Amendment
challenges is narrow,” and “successful Eighth Amendment challenges to
prison-term lengths will be rare.” Id.
Hare’s Eighth Amendment argument is conclusory, nonspecific and
unpersuasive. 3 He merely states that the life sentence is disproportionate to

We have noticed that the Eighth Amendment argument in Hare’s brief is copied and
pasted essentially word-for-word from briefs by the attorney, J. Warren St. John, in
numerous other cases before this court, with little to no change made to account for the
specific case being briefed. In fact, Mr. St. John apparently forgot to substitute Hare’s own
name into the argument copied from a brief for another defendant, as the final line of this
section of his brief refers to “Appellant Forester.” Arguments that are not appropriately
tailored to each individual client and the facts of each case not only do the client a grave
disservice, but they also undermine the principle of judicial economy.
3

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the seriousness of the offense, and that the sentence “makes no measurable
contribution to acceptable goals of punishment.” He makes no comparison of
his sentence to sentences for similar crimes in this or other jurisdictions. We
will not consider an issue that is inadequately briefed. See, e.g., Dardar v.
Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions posed for
appellate review but inadequately briefed are considered abandoned.”).
Because Hare does not even attempt to make an argument according to the
well-settled method of determining whether a sentence is unconstitutionally
disproportionate, we deem this issue abandoned. See id.
III. Conclusion
For the foregoing reasons, we AFFIRM Hare’s and Coleman’s convictions
and sentences in all respects.

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