Filed: Dec. 11, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-11-2006 USA v. Cubbage Precedential or Non-Precedential: Non-Precedential Docket No. 05-3652 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Cubbage" (2006). 2006 Decisions. Paper 111. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/111 This decision is brought to you for free and open access by the Opinions of the United Sta
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-11-2006 USA v. Cubbage Precedential or Non-Precedential: Non-Precedential Docket No. 05-3652 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Cubbage" (2006). 2006 Decisions. Paper 111. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/111 This decision is brought to you for free and open access by the Opinions of the United Stat..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-11-2006
USA v. Cubbage
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3652
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Cubbage" (2006). 2006 Decisions. Paper 111.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/111
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3652
UNITED STATES OF AMERICA
v.
DEMETRIUS CUBBAGE,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 02-cr-00044)
District Judge: Honorable Joseph J. Farnan, Jr.
Submitted Under Third Circuit LAR 34.1(a)
December 4, 2006
Before: RENDELL and AMBRO, Circuit Judges
and BAYLSON*, District Judge.
(Filed: December 11, 2006)
OPINION OF THE COURT
* Honorable Michael M. Baylson, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
Demetrius Cubbage was convicted by a jury of possession with intent to distribute
more than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(A)(iii). The District Court sentenced him to 210 months imprisonment, 5 years
supervised release, and a $100 special assessment. Cubbage appeals both his conviction
and sentence. He argues that the District Court improperly admitted evidence and
statements obtained through a police search of Cubbage’s apartment, improperly
instructed the jury on the concept of joint possession, and erred in sentencing Cubbage
based on a judicial finding that Cubbage possessed more than 700 grams of “crack”
cocaine. We have jurisdiction over Cubbage’s appeal pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742 and we will affirm.
I.
Cubbage first challenges the District Court’s denial of his motion to suppress
evidence obtained from a police search of his apartment on the ground that the police did
not comply with the knock and announce requirements of the Fourth Amendment. The
District Court found that the police were justified in dispensing with the knock and
announce requirement in this case because there was a reasonable probability that the
people inside Cubbage’s apartment were armed and that the police officers could be in
danger of physical peril. The Court reached this conclusion based on the awareness of the
police officers, prior to the execution of the warrant, of the facts that: (1) Cubbage had
been previously convicted of carrying a concealed deadly weapon, (2) high level drug
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dealers were in the apartment earlier on the day of the search, (3) when the officers exited
their vehicle, people in the apartment complex in the area of Cubbage’s apartment began
to scream “5-0 is here, 5-0 is here,” (4) when the officers were exiting their vehicle, a
woman on a cellular phone outside the apartment complex said, “Girl, the police out here.
They are getting ready to go into somebody’s house,” and (5) a half wall at the top of the
stairs in Cubbage’s apartment obscured the officers’ view into the living room as they
stood in the entryway at the bottom of the staircase. Cubbage does not challenge the
District Court’s determination that these circumstances were known to the officers at the
time of the search, but rather argues that these circumstances did not justify dispensing
with the knock and announce requirement.
We review the District Court's factual findings for clear error and exercise plenary
review over the District Court's application of law to the facts of this case. United States
v. Robertson, 305 F.3d 164, 168 (3d Cir. 2002). “In order to justify a ‘no-knock’ entry,
the police must have a reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile, or that it would inhibit
the effective investigation of the crime by, for example, allowing the destruction of
evidence.” Richards v. Wisconsin,
520 U.S. 385, 394 (1997). We agree, under the
totality of the circumstances known to the officers executing the warrant, that the officers
had a reasonable suspicion that knocking and announcing their presence prior to
executing the warrant at Cubbage’s apartment would be dangerous. The warnings
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shouted by Cubbage’s neighbors prior to the search, Cubbage’s prior conviction for
possession of a deadly weapon, the presence of known drug dealers in the apartment
earlier in the day, and the unfavorable physical layout of the apartment together gave rise
to a reasonable suspicion that knocking and announcing prior to execution of the warrant
would be dangerous. See United States v. Cline, 349 F.3d 1276, 1290 (10th Cir.
2003)(affirming finding of exigent circumstances where (a) prior search of defendant’s
residence had revealed firearms, (b) there was likelihood that defendant used counter-
surveillance equipment and could be aware of their approach, (c) the police approach had
taken longer than anticipated, and (d) people in the vicinity had observed the police
approach and might have warned defendant). Therefore, we find no error in the District
Court’s denial of Cubbage’s motion to suppress the evidence obtained from the search of
his apartment.
II.
Next, Cubbage argues that the District Court erred by instructing the jury on the
concept of joint possession. Cubbage contends that there was insufficient evidence in the
record to justify an instruction on joint possession because the evidence, if believed,
established that Cubbage possessed the cocaine base exclusively and not jointly with
anyone else. We note that it is counterintuitive for a defendant to seek reversal of his
conviction based on the argument that the evidence presented at trial, if believed,
established that he possessed the drugs recovered from his apartment solely, rather than
jointly. Cubbage contends, however, that the giving of a joint possession instruction
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under these circumstances is reversible error. Cubbage objected to the instruction at the
charge conference and after the District Court instructed the jury.
In reviewing jury instructions, we review the trial court's charge for abuse of
discretion, considering whether, in light of the evidence, the charge as a whole fairly and
adequately submitted the issues in the case to the jury. United States v. Zehrbach, 47
F.3d 1252, 1264 (3d Cir. 1995)(en banc). We will reverse if “the instruction was capable
of confusing and thereby misleading the jury.” Id.(quoting Bennis v. Gable,
823 F.2d
723, 727 (3d Cir. 1987)). At Cubbage’s trial, witnesses testified that the cocaine base
seized from Cubbage’s apartment was found in two locations: inside Cubbage’s pant
pocket and inside a helmet cover that Cubbage was seen removing from the trunk of his
car prior to the search and that was later found under a cushion of the love seat in
Cubbage’s living room. Cubbage is correct that the evidence presented at trial could
support a finding that he alone possessed the drugs, since the drugs were found in his
clothing and concealed in the furniture of his living room.
However, the jury could have also concluded from the evidence presented that
some of the drugs were possessed jointly by Cubbage and other people in the apartment.
Seven other men were in the apartment at the time that the drugs were seized, including
one man sitting on the couch near to the love seat in which a package of drugs was
concealed. There was also a blue coat found on the love seat, which was not identified as
belonging to Cubbage. At the time that the search was conducted, the drugs found in the
love seat were in closer proximity to the men in the living room than they were to
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Cubbage, who was showering in a locked bathroom in the apartment. The close physical
proximity of these other people, and of personal property not identified as belonging to
Cubbage, to the drugs in the love seat could have led the jury to conclude that Cubbage
was not in exclusive possession of the drugs in the love seat at the time of the seizure.
See Johnson v. United States, 506 F.2d 640, 643-44 (8th Cir. 1974)(finding no error in
joint possession instruction because drugs were found in apartment that defendant shared
with his sister and because another man was present in apartment and had access to drugs
at the time they were seized). Considering the jury charge as a whole and the capacity of
the joint possession instruction to confuse or mislead the jurors, we find no error in the
District Court’s instructing the jury on the theory of joint possession in this case.
III.
Finally, Cubbage argues that the District Court erred by sentencing him based on
facts that were proved to the judge by a preponderance of the evidence, rather than proved
to a jury beyond a reasonable doubt. In the alternative, Cubbage argues that the
government failed to prove by a preponderance of the evidence that the cocaine base
Cubbage possessed was “crack” cocaine. After Booker, we review a district court’s
calculation of the sentencing range under the Guidelines for legal error, as part of our
review of the reasonableness of the sentence imposed. United States v. Jackson, __ F.3d
__, 2006 WL 3247919, at *4 (3rd Cir. Nov. 9, 2006).
Cubbage argues that the District Court was not permitted to make findings as to
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the weight and nature of the drugs by a preponderance of the evidence because these
judicial findings resulted in a massive jump in Cubbage’s sentencing range under the
Guidelines. We disagree. Because the Sentencing Guidelines are now advisory, rather
than mandatory, judicial fact finding that results in an increase in a defendant’s maximum
sentence under the Guidelines is not unconstitutional. “[T]he clear intent of the remedial
opinion in Booker was for the process of calculating the Guidelines to continue operating
as before.” Jackson, 2006 WL 3247919, at *3.
We also reject Cubbage’s argument that the government failed to prove by a
preponderance of the evidence that the “cocaine base” he possessed was “crack” cocaine.
Although the government has the burden to prove that the particular form of cocaine base
possessed by Cubbage was “crack” in order to trigger the enhanced Guidelines penalties
for “crack” possession, United States v. James, 78 F.3d 851, 855 (3d Cir. 1995), the
testimony of an experienced law enforcement officer can be sufficient to prove that the
substance is “crack” cocaine, United States v. Roman,
121 F.3d 136, 141 (3d Cir. 1997).
At Cubbage’s trial, four law enforcement officers testified that the drugs found in
Cubbage’s apartment were, or appeared to be, “crack cocaine.” Detective Pires testified
that he found “a clear plastic bag that contained a yellowish-white rocklike substance that
appeared to be crack cocaine” in Cubbage’s pants pocket. Detective Mailey described the
package of drugs found in the love seat in Cubbage’s living room as “crack cocaine.”
Detective Boney also testified that the drugs found in Cubbage’s love seat “appeared to
me to be crack cocaine.” Finally, Detective Matthews described the drugs seized from
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the love seat and from Cubbage’s pants pocket as “crack cocaine.” Detective Pope, who
testified for the government as an expert on the distribution, price and packaging of
“crack cocaine base,” also identified the drugs found in the apartment as “crack cocaine.”1
In addition, the government presented the testimony of a forensic chemist, who stated that
the drugs found in Cubbage’s apartment contained a mixture of “cocaine in the base form
also known as crack” and cocaine hydrochloride. Cubbage challenged the chemist’s
testimony with the testimony of another forensic chemist, who concluded that it could not
be determined from the tests performed by the government chemist whether the cocaine
tested was cocaine salt or cocaine base.
At sentencing, the District Court credited the trial testimony of the police
detectives and, based on their testimony, found that the government had met its burden to
prove that the cocaine base recovered from the apartment was “crack” cocaine. Cubbage
objected to this finding prior to and at the time of sentencing. Given the detectives’ years
of experience with the appearance and packaging of crack cocaine and the lack of
evidence presented to contradict their testimony that the substances recovered were, or
appeared to be, “crack” cocaine, we find no error in the District Court’s finding that the
1
Detective Pope was asked at trial to identify the substance “in Government
Exhibits 1 and 15.” It appears that the transcript contains an error and that the question
actually posed was as to the identity of the substances in Government Exhibits 6 and 15,
which were the cocaine substances recovered from Cubbage’s apartment. All of the prior
questions in this line of inquiry related to Government Exhibits 6 and 15, and it would
make little sense to ask Detective Pope to identity the substance in Government Exhibit 1,
which was a Tanita digital scale.
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government met its burden to prove that the cocaine base possessed by Cubbage was
“crack” cocaine.
IV.
Accordingly, for the reasons set forth above, we will affirm Cubbage’s conviction
and sentence.
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