US v. Akiba Matthews, No. 08-5027 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5027 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AKIBA MATTHEWS, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00581-CCB-1) Submitted: March 10, 2010 Decided: April 13, 2010 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Cheryl L. Crumpton, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Akiba Matthews appeals his conviction and sentence for knowingly intent and to intentionally distribute § 841(a)(1) & distributing heroin, (b)(1)(C) in (2006) and possessing violation (Count One), of 21 with U.S.C. knowingly and unlawfully possessing a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count Two), and knowingly and unlawfully possessing a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (2006) (Count Three). Finding no reversible error, we affirm. I. A. Shortly before 8 p.m. on November 15, 2007, Detective Shawn Frey, a narcotics officer with the Baltimore City Police Department, received an anonymous call that a black male was selling drugs from a white van at the intersection of Frederick and Collins plainclothes proceeded to surveillance. Avenues. narcotics the All area Detective Frey, accompanied detectives, Tavon McCoy and Yoo Kim, police car to begin in three an unmarked detectives were by experienced, two having each conducted at least 1000 street-level narcotics arrests in Baltimore. 2 Several minutes after arriving in the general area, the detectives observed a white van pull to the side of the road and turn off its lights. The detectives observed a man exit the vehicle and approach a black female standing next to the van. At this point, the man was holding a dark colored bag, which the detectives suspected contained drugs based upon how the man held it and its apparent weight. Detective Frey then witnessed the unidentified female hand paper currency to the man, who reached into the bag, removed an item, and passed it to her. At that point, Detective Kim drove toward the white conversion van and moved to box the van in as the black male opened the driver s side door of the vehicle. As the detectives approached the van, Detective Frey stated that he recognized the black male as Akiba Matthews. The three detectives exited their vehicle, identified themselves, and ordered Matthews to show his hands. the Instead, Matthews began reaching into the area between driver Weapons and passenger drawn, the seats detectives Matthews to show his hands. and kept repeated the van their in gear. request for Detective Frey, who had moved to the driver s side of the van, radioed for backup and waved his flashlight to examine the van s interior. In so doing, Detective Frey saw a handgun protruding from the area between the seats where Matthews was reaching. Matthews also asking Detective Frey, by name, why he was being stopped. 3 began Shortly thereafter, Sergeant Darryl Collins and proceeded to the driver s side of the vehicle. arrived As this backup arrived, Matthews placed his hands on the steering wheel. Sergeant Collins then assisted Detective Frey Matthews from the vehicle without incident. in removing As Matthews was exiting the vehicle, Detective McCoy observed several clear bags with what appeared to be drugs in the door panel. also secured the handgun, a loaded Ruger Detective Frey had seen between the seats. .40 Detective Kim caliber, that The clear bags that Detective McCoy saw contained 60 gel caps of heroin and some marijuana. The detectives also recovered a small amount of marijuana and $274 in cash from Matthews s right pants pocket. B. Prior to November 15, 2007, Detective Frey had two interactions with Akiba Matthews. First, in 2001, Detective Frey asked Matthews to vacate a street corner in a high crime area. After Matthews refused, Frey attempted to arrest him for loitering, but Matthews resisted and a wrestling match ensued. Next, in 2002, Detective Frey witnessed Matthews complete hand-to-hand drug sale and attempted to arrest him. a Matthews fled the scene on foot, and Detective Frey eventually caught him on a nearby front porch. Another fight occurred, this one ending with both Matthews and Detective Frey suffering bruises and cuts. 4 Matthews was also well known to the Baltimore City Police Department because of his role as the camera-man in the infamous Stop video 1 Snitching that appeared in 2004. As defense counsel described it, that video featured inner-city gangster types threatening. doing a lot of talking and bragging and The video also gained traction in the national media because of an appearance by NBA star Carmelo Anthony. In response, the Baltimore Police Department created its own video, Keep Talking. This video included footage of Matthews with his name in bold letters and described him as the so-called cameraman for Stop Snitching. C. Prior indictment, to trial, contending Matthews that the moved to Government dismiss had destroyed exculpatory evidence a videotape recording of his stop. Baltimore City Police Department operates, at the The locations throughout the city, a system of surveillance cameras, commonly called PODSS TV cameras, 2 or blue light camera[s]. PODSS cameras are unmanned cameras situated atop poles that record video footage to a removable hard drive located in a box under the cameras. The cameras rotate constantly on a 360 axis. The video footage stays on the hard drive for five days and is then 1 2 The actual film title is Stop F***ing Snitching. PODSS stands for Police Overt Digital Surveillance System. 5 recorded over. If someone requests the footage before the end of a five-day period, a technician in a bucket truck must be sent to physically remove the hard drive from the camera. The intersection where the detectives stopped Matthews, Frederick and Collins Avenues, has a PODSS camera. Matthews s counsel in a state prosecution subpoenaed the PODSS footage on December 7 and December 14, 2007. Because, however, these requests were more than five days after the events in question, the recordings had been taped over and could not be recovered. At a hearing on Matthews s motion to dismiss the indictment, Sergeant Derrick Lee, with the Department s Legal Affairs Office, testified that upon receiving the subpoena he informed counsel that the footage could no longer be retrieved. Sergeant Lee further testified he had never personally viewed any footage November 17, that the and Matthews s stop. he Frederick/Collins did not know if camera the recorded camera on captured Likewise, Detective Jesse Schmidt, a member of the Criminal Intelligence Unit that operates the PODSS system, testified that no one had requested the footage from that camera to see if Matthews s stop was captured. Detectives Frey and McCoy testified that they were aware of the PODSS camera but that they never requested the recordings for their drug arrests because they found them unhelpful standard investigative practice. 6 and not a part of their Detective Kim testified that he had once requested footage from a PODSS camera in a murder investigation but found the footage unhelpful because, on that occasion, the POD camera was going 360. start, but it missed the homicide. It saw the incident When it came back, the suspect was gone. The district court ultimately denied Matthews s motion to dismiss, and the case proceeded to trial. day jury trial, Matthews was convicted of Following a fourall counts. The district court, however, granted Matthews s unopposed motion for a new trial because an unredacted police memo was erroneously submitted to the jury. After a second jury trial, Matthews was again convicted of all counts. The district court ultimately sentenced Matthews to 360 months imprisonment. II. On appeal, Matthews raises three arguments: district court indictment; suppress the erred that the evidence in denying district seized his court during that the motion to dismiss the erred in refusing to the stop; and that district court abused its discretion in sentencing Matthews. the We review each in turn. A. Matthews first argues that the district court erred in denying his motion to dismiss 7 the indictment based on the Government s failure to preserve the PODSS video footage. We review the district court s ruling on a motion to dismiss an indictment de novo. United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). Any factual findings made by the district court are reviewed for clear error. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). Under the Due Process Clause of the Fourteenth Amendment, the Supreme Court developed what might loosely be called the area evidence. of constitutionally guaranteed access to California v. Trombetta, 467 U.S. 479, 485 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). The Constitution Court imposes has a specified duty upon that, the to the government extent to the preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense i.e., evidence that is constitutionally material. 89. To satisfy this standard, evidence must: Id. at 488- (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. evidence could The mere possibility have exculpated a defendant is not sufficient to satisfy Trombetta s requirement that the exculpatory value be apparent to the police before 8 destruction. Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988). Additionally, if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was potentially useful for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence. United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (citing Youngblood, 488 U.S. at 58). [M]ere negligence on the government's part in failing to preserve such evidence is inadequate for a showing of bad faith. Id. at 912. Applying this standard, we believe the district court correctly denied the motion to dismiss the indictment. The district court first held that the PODSS video footage did not rise to the level of Trombetta, that is, that the footage did not possess exculpatory value on its face. The district court found that it takes fairly substantial efforts on the part of the police to extract the hard drive, that PODSS footage is used primarily in the situation where there is not a police officer witness, and that approximately 90% of the time it doesn t capture anything worthwhile. The district court further found that Detectives Frey, McCoy, and Kim never pulled PODSS footage for routine street-level drug arrests, such that there is nothing out of the ordinary about the decision that Detective Frey made in this particular case. Building upon these findings, the district court made the additional finding 9 that [t]here is simply nothing in the evidence in front of me at all, no testimony to show that this would be exculpatory. As the district court explained, [t]o suggest that the PODSS camera would show some different version of events, such as that the drug transaction never took place, on the record in front of me is speculation. There is simply nothing to support it. Continuing, the district court concluded that, even under the Youngblood standard, that is, assuming the evidence was potentially useful, there was not evidence of bad faith on the record. We agree with the district court that this evidence did not satisfy evidence s Three the exculpatory experienced requirements value narcotics was of not detectives events leading to Matthews s arrest. Trombetta apparent because on testified its as to the face. the For this evidence to have apparent exculpatory value, all three detectives had to have fabricated their testimony. In a similar situation, the Tenth Circuit found that neither prong of Trombetta was satisfied when a state trooper accidently erased footage of a traffic stop he conducted. 1995). United States v. Parker, 72 F.3d 1444 (10th Cir. The stop eventually led to a search of the car that uncovered conclusion narcotics. that the In erasing upholding of the the video district court s did violate not Trombetta, the Tenth Circuit explained, the only way the erased 10 video tape evidence could be apparently exculpatory is if it demonstrated that the events did not occur as [the trooper] related, that is, that he was lying about the events. 1452. Id. at And, [w]hether [the trooper] was telling the truth was essentially a question of credibility for the district court. Id. Likewise, in this case, the district court found the three detectives were credible and made the factual finding that there was nothing to suggest the video would show anything other than Matthews conducting a drug deal with an unknown black female. As to the second prong, whether the evidence is otherwise readily available, the Tenth Circuit in Parker also answered this question in the negative, explaining along with [two additional state troopers], [the] Defendants participated in the recorded events. available source to Thus, Defendants had a readily Id. replace the missing video tape [the trooper s testimony] and their own testimony of the events. Id. Again, narration of in the cross-examination this case events of the the of evidence that evening detectives and Matthews was in sought available Matthews s a in own testimony at the hearing. In the alternative, Matthews contends that the evidence on the PODSS camera was at least potentially useful and that Detective Frey s actions in not requesting the tape 11 were in bad faith. that the record Again, the district court made the finding was devoid of evidence of bad faith. In response, Matthews contends that his prosecution is a set-up by the police, and that such actions are obviously in bad faith. Matthews cannot rebut the fact, however, that failing to request the PODSS footage was in line with the detectives actions in all of their street-level drug arrests. At best, the failure to request the tape for purposes of evidence preservation would appear to be negligence, sufficient to establish and [m]ere negligence is not . . . bad faith in this context. Parker, 72 F.3d at 1452. Accordingly, we find no error in the district court s denial of Matthews s motion to dismiss the indictment. B. Matthews next argues that the district court erred in refusing to suppress the handgun and drugs discovered during the search of Matthews and his van or, in the alternative, failing to grant a judgment of acquittal on those grounds. in In reviewing the denial of a motion to suppress, the court reviews the district court s findings of historical fact for clear error, giving due weight to inferences drawn from those facts by resident judges and local law enforcement officers. v. United States, 517 U.S. 690, 699 (1996). legal conclusions de novo. Id. 12 Ornelas The court reviews And, [b]ecause the district court denied the motion to suppress, we construe the evidence in the light most favorable to the Government. United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004). Our review of the record, however, leads conclude that Matthews did not preserve this claim. trial, Matthews moved for dismissal of the us to Prior to indictment under Trombetta and also filed a motion to suppress statements he made to Detective Frey after his arrest but before Miranda warnings were administered. Matthews never moved to suppress evidence recovered from the stop, and he may not do so now. See Fed. R. Crim. P. 12(b)(3) (noting that motions that must be made before trial include a motion to suppress evidence ); see also United States v. Ruhe, 191 F.3d 376, 386 (4th Cir. 1999) (announcing the general rule . . . that a defendant forfeits a suppression claim if that claim is not timely raised ). Moreover, even assuming Matthews preserved this claim, it is without merit. investigatory based on stops Police officers are permitted to make when articulable, automobile possess particularized reasonable facts, suspicion, that criminal Terry, 392 U.S. 1, 30 (1968). activity may be afoot. the they context, where a suspect is an And, in occupant or recent occupant of a vehicle at the initiation of a Terry stop, and where the police reasonably believe the suspect may be dangerous and that there may be readily-accessible weapons in 13 his vehicle, [Michigan v.]Long authorizes a protective search of the vehicle for weapons. In United States v. Holmes, 376 F.3d 270, 280 (4th Cir. 2004). In this case, the detectives clearly had reasonable suspicion to initiate a traffic stop. Detective Frey received an anonymous tip that a white van in the area of Frederick and Collins Avenues detectives was began being used surveillance, for drug observed the deals; the white three van, and watched the driver conduct what all three experienced narcotics detectives believed was a hand-to-hand drug deal. These events created And, reasonable suspicion to stop Matthews. as the detectives approached the car and commanded Matthews to exit, he ducked down toward the area between the seats, where Detective Frey was able to see a handgun. That observation satisfies the requirements of Holmes for a protective search of the car. Matthews was being removed from the car, Detective As McCoy observed what he believed were drugs in the side of the driver s side door, further providing authorization for the search. C. Finally, Matthews months imprisonment. challenges 552 U.S. 38, 51 (2007). the procedural sentence of 360 A sentence is reviewed for reasonableness under an abuse of discretion standard. both his Gall v. United States, This review requires consideration of and substantive 14 reasonableness of a sentence. Id. After determining whether the district court properly calculated the defendant's advisory guideline range, we consider whether the district court considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case . . . and [be] adequate to permit meaningful appellate review ). reasonableness of Finally, the sentence, totality of the circumstances[.] we review taking the into substantive account the United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In this case, a probation officer prepared a Pre- Sentence Report (PSR) after the jury convicted Matthews. The PSR first determined that Matthews was a career offender under USSG § 4B1.1 and adjusted his criminal history category to VI. 3 With the career offender designation, his offense level was adjusted to 33, yielding an advisory guidelines range of 360 months to life, when taking into consideration the mandatory consecutive 60 month sentence imposed on the § 924(c) charge. 3 Indeed, Matthews s criminal history was so extensive that, even absent the career offender designation, his criminal history category was VI. 15 At sentencing, Matthews moved for a downward departure based upon his age (36 years old at sentencing), the time between his prior convictions, the leniency received for past convictions, and his current state Supermax facility. conditions of confinement in a Matthews also contended that he was singled out for prosecution because of his role in the Stop Snitching video. Ultimately, Matthews requested a sentence of 240 months imprisonment. The Government requested a sentence within the advisory guidelines range, focusing upon Matthews s criminal history and his role in the Stop Snitching video. The district court sentenced Matthews to 360 months imprisonment, the low end of the advisory guidelines range. The district court rejected Matthews s argument that his criminal history was overstated, explaining [t]he criminal history that [Matthews] has displayed, the consistency of it, and the sustained period of drug dealing he has been involved in, make it inappropriate to depart downward from the career offender status. The district court next recounted the factors under § 3553(a) and concluded Guidelines sentence. that they did not support a below- In particular, the district court noted that Matthews was still not accepting responsibility for any of the activities in November of 2007, which I think were quite thoroughly proved twice to a jury. weighing whether a downward variance 16 The district court, in was appropriate, also considered Matthews s presence in the Stop Snitching video, remarking that that video and his involvement was perpetuating one of the most pernicious, dangerous aspects of Baltimore s criminal culture. Thus, while it is not something that he should be punished for, it is certainly something that is . . . a legitimate factor to consider when being asked to vary and go below what is otherwise the guideline range in this case. We believe the district discretion in sentencing Matthews. reasonable: criminal the history district category court not abuse its The sentence is procedurally court and did correctly offense calculated level identified the advisory guidelines range. and the correctly The district court stated that it considered the § 3553(a) factors, and it included a lengthy statement of reasons as to why a sentence at the low end of the guidelines was appropriate but a downward variance was not. The district court s decision to consider Matthews s role in the Stop Snitching video was not improper; Matthews alluded to the video throughout trial, detective on their familiarity with the video. role with the circumstances video and is certainly history. As relevant the questioning each And, Matthews s to district his personal court aptly explained, while Matthews did not deserve additional punishment for his role as the cameraman, it was certainly a legitimate 17 factor to consider when being asked to vary and go below what is otherwise the guidelines range. The sentence is also substantively reasonable. Because the sentence was within the advisory guidelines range, it is presumptively reasonable. F.3d 210, 261 (4th Cir. 2008). in his brief as to why United States v. Abu Ali, 528 And, Matthews makes no arguments the sentence is substantively unreasonable. III. For the foregoing court s judgment. facts and materials legal before reasons, we affirm the district We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 18

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