Filed: Jul. 06, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4112 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE MCRAE, a/k/a Dre, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:04-cr-00157-FDW-DCK-1) Argued: May 14, 2009 Decided: July 6, 2009 Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and C. Arlen BEAM, Senior Circuit Judge of the United Stat
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4112 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE MCRAE, a/k/a Dre, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:04-cr-00157-FDW-DCK-1) Argued: May 14, 2009 Decided: July 6, 2009 Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and C. Arlen BEAM, Senior Circuit Judge of the United State..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE MCRAE, a/k/a Dre,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cr-00157-FDW-DCK-1)
Argued: May 14, 2009 Decided: July 6, 2009
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J.
Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Andre McRae (McRae) of numerous drug and
firearm offenses. He challenges several of these convictions on
appeal. We affirm.
I
Following his Spring 2004 guilty plea to federal charges
unrelated to this case, McRae’s best friend, Damon Chamberlain
(Chamberlain), began cooperating with ATF Special Agent Terrell
Tadeo (Agent Tadeo), who was investigating drug and firearm
activity in the Charlotte, North Carolina area. Through
information provided by Chamberlain, Agent Tadeo learned that
McRae regularly carried a .40 caliber firearm and sold both
cocaine and cocaine base (crack).
On April 15, 2004, Chamberlain placed a recorded call to
McRae to set up a drug deal with an undercover police officer,
Detective Rolando Ortiz (Ortiz), from the Charlotte-Mecklenburg
Police Department (CMPD). In the call, McRae discussed selling
marijuana and cocaine and a debt McRae owed to a drug source
from the Dominican Republic.
On April 16, 2004, Ortiz contacted McRae and arranged to
purchase an ounce of crack later that day at a Bi-Lo grocery
store (Bi-Lo) parking lot. Prior to the sale, Agent Tadeo and
CMPD officers set up a surveillance of the parking lot. Ortiz
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and Chamberlain arrived at the Bi-Lo parking lot in Ortiz’s
unmarked vehicle. McRae entered Ortiz’s vehicle and sold an
ounce of crack to Ortiz.
Instead of arresting McRae at that time, Agent Tadeo
decided to try to arrange a drug deal involving a larger amount
of drugs. His attempt to arrange a larger drug deal failed, so
Agent Tadeo decided to see if Chamberlain could arrange a deal
involving the sale of a firearm.
On May 17, 2004, Chamberlain placed a recorded call to
McRae. In the call, Chamberlain asked McRae to get him a “three
pound” or .357 magnum firearm. McRae agreed to do so and
proposed meeting nearby at “Shauna’s house” within an hour.
At this point, Agent Tadeo gathered some CMPD street unit
officers with the intention of directing these officers to stop
McRae en route to Shauna’s house. Agent Tadeo decided not to
stop McRae himself because he did not want McRae to know that a
federal investigation of his drug activities was underway.
Agent Tadeo told the CMPD officers that: (1) McRae was a
convicted felon; (2) he had monitored that day a conversation
between McRae and Chamberlain wherein McRae agreed to furnish
Chamberlain a .357 magnum firearm; (3) McRae regularly carried a
.40 caliber firearm; and (4) there may be drugs in McRae’s
vehicle, as McRae sold crack to an undercover officer on April
16.
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Two CMPD officers present at the meeting stopped McRae on
his way to Shauna’s house. During a search of McRae’s vehicle,
the officers recovered a .357 magnum firearm, a .40 caliber
firearm, and a quantity of crack in excess of five grams.
Marijuana was found on McRae’s person.
McRae was arrested at the scene, taken into custody, and
interviewed by Agent Tadeo. After waiving his Miranda rights,
McRae admitted that the crack and the .40 caliber firearm were
his, but denied owning the .357 magnum firearm. McRae also
outlined an extensive cocaine and crack conspiracy operating in
Charlotte. He identified his drug source from the Dominican
Republic as “Uncle” and named some of his other drug contacts,
including “Cory,” “Trap,” and “Pooh Bear.” McRae admitted that,
between February 2004 and May 17, 2004, he sold twenty-three
kilograms of cocaine.
During the interview, McRae agreed to assist Agent Tadeo in
gathering evidence regarding the drug conspiracy. Agent Tadeo
immediately had McRae place a recorded call to Trap, whom Agent
Tadeo knew from a prior federal drug investigation. In the
call, McRae discussed Uncle and the quality of drugs. In fact,
Trap complained about Uncle being a difficult supplier, and
McRae offered to intercede on Trap’s behalf.
Because McRae was showing signs of being a valuable asset,
he was released on the day of his arrest with the understanding
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that he would continue to cooperate with law enforcement. In
the ensuing days, however, McRae completely ignored Agent
Tadeo’s efforts to contact him. Following the issuance of an
arrest warrant, Agent Tadeo stopped McRae’s vehicle on May 26,
2004. McRae fled the vehicle only to be chased down and tackled
by Agent Tadeo. McRae was arrested and brought back to his
vehicle. McRae’s vehicle was searched by CMPD officers pursuant
to both his arrest and his consent. During the search, the CMPD
officers recovered a 9 mm firearm and approximately an ounce of
crack.
The following day, Agent Tadeo transported McRae to his
initial appearance before the United States District Court for
the Western District of North Carolina. Along the way, McRae
pleaded with Agent Tadeo for a second chance. Agent Tadeo
decided that McRae could still provide valuable assistance in
gathering evidence on the extensive drug conspiracy, so he asked
the Assistant United States Attorney to seek McRae’s release on
bond, which the district court granted.
After McRae was released on May 27, Agent Tadeo instructed
McRae to contact Uncle and set up a drug deal involving one to
two kilograms of cocaine. McRae contacted Uncle, and the pair
agreed to meet at the Landmark Restaurant at 3:00 p.m. At the
videotaped and recorded meeting, McRae and Uncle discussed the
fact that McRae owed Uncle money from a prior drug deal, but
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Uncle nevertheless agreed to consummate a drug deal with McRae
that night. Uncle instructed McRae to call him around 7:30 p.m.
so that they could decide upon a location for the drug deal.
The deal was never consummated because McRae refused to contact
Uncle that evening.
On June 29, 2004, a federal grand jury sitting in the
United States District Court for the Western District of North
Carolina indicted McRae on eight counts. Count One charged
McRae with conspiracy to possess with the intent to distribute
five kilograms or more of cocaine and fifty grams or more of
crack, 21 U.S.C. §§ 841 and 846. Count One named Uncle and
Trap, among others, as coconspirators, and alleged that the
conspiracy began on or about January 1, 2004 and ended on or
about May 17, 2004. Counts Two, Three, and Six charged McRae
with possession with the intent to distribute five grams or more
of crack, id. § 841, relating to the crack recovered on April
16, May 17, and May 26, 2004. Counts Four and Seven charged
McRae with possession of a firearm during and in relation to a
drug trafficking crime, 18 U.S.C. § 924(c), relating to the
firearm seizures on May 17 and May 26, 2004. Counts Five and
Eight charged McRae with possession of a firearm by a convicted
felon,
id. § 922(g), again relating to the firearm seizures on
May 17 and May 26, 2004.
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After McRae’s indictment, Agent Tadeo met with McRae on at
least two occasions. In each of these meetings, McRae described
the large scale conspiracy in which he participated, changing
only the drug amounts during these interviews. At a status-of-
counsel hearing on December 7, 2005, however, McRae sang a
completely different tune. He claimed the names of his
coconspirators that he had provided to Agent Tadeo were all
“make believe.” McRae said he lied because he was “scared” of
being “ke[pt] in jail.” In light of McRae’s testimony at the
hearing, a superseding indictment was obtained, omitting the
coconspirators’ names.
Prior to trial, McRae filed a motion to suppress the
evidence obtained at the May 17, 2004 stop of his vehicle, which
was denied. The case proceeded to trial, and a jury convicted
McRae on all counts. On December 11, 2007, he was sentenced to
a total of 687 months’ imprisonment. McRae received concurrent
327-month sentences on the conspiracy and the possession with
the intent to distribute crack counts; two concurrent 120-month
sentences on the § 922(g) counts; and consecutive sentences of
sixty and 300 months on the § 924(c) counts. He noted a timely
appeal.
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II
McRae contends that the May 17, 2004 stop of his vehicle
was unreasonable under the Fourth Amendment and, thus, the
evidence obtained following the stop should have been suppressed
by the district court. 1 According to McRae, although a traffic
stop may be based on the collective knowledge of the officers
involved in the investigation, an officer conducting a traffic
stop can rely on information provided to him by another officer
only when exigent circumstances make it impractical for the
officer providing the information to effectuate the stop. Thus,
McRae posits that, although Agent Tadeo could have stopped his
vehicle, the CMPD officers could not. 2
In examining a district court’s ruling on a motion to
suppress, we review the district court’s findings of fact for
clear error and its legal conclusions de novo. United States v.
Parker, 262 F.3d 415, 419 (4th Cir. 2001). Moreover, the
evidence must be construed in the light most favorable to the
government, the prevailing party below. United States v.
Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
1
This issue relates to McRae’s convictions on Counts One,
Three, Four, and Five.
2
Of note, McRae challenges only the initial stop of his
vehicle, conceding that, if the stop was constitutionally
permissible, the ensuing search was as well.
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The Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Although a traffic stop is typically brief, it is a “seizure”
within the meaning of the Fourth Amendment. Delaware v. Prouse,
440 U.S. 648, 653 (1979). Because routine traffic stops are
more analogous to an investigative detention than a custodial
arrest, the principles set forth in Terry v. Ohio,
392 U.S. 1
(1968), guide this court’s analysis of the reasonableness of the
traffic stop. United States v. Rusher,
966 F.2d 868, 875 (4th
Cir. 1992). Thus, we examine whether the traffic stop was
“justified at its inception” and “reasonably related in scope to
the circumstances which justified the interference in the first
place.”
Terry, 392 U.S. at 20.
“[A]n officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). There
must be “at least a minimal level of objective justification for
making [a Terry] stop.”
Id. Reasonable suspicion requires more
than a hunch but less than probable cause.
Id. at 123-24.
Moreover, under the collective knowledge doctrine (also known as
the fellow officer rule), reasonable suspicion may be based on
the collective knowledge of the officers involved in an
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investigation. United States v. Hensley, 469 U.S. 221, 232
(1985). Thus, law enforcement officers cooperating in an
investigation are entitled to rely upon each other’s knowledge
of facts when forming the conclusion that a suspect has
committed or is committing a crime. See United States v. Wells,
98 F.3d 808, 810 (4th Cir. 1996) (“And, although the agent who
actually seized the weapon pursuant to the supervising agent’s
instructions had no personal knowledge that Wells was a
convicted felon, it is sufficient that the agents collectively
had probable cause to believe the weapon was evidence of a crime
at the time of the seizure.”); see also United States v.
Whitaker,
546 F.3d 902, 905 (7th Cir. 2008) (noting that, under
the collective knowledge doctrine, “law enforcement officers are
considered to possess information known to other officers but
not known to them.”); United States v. Ramirez,
473 F.3d 1026,
1037 (9th Cir. 2007) (“Where one officer knows facts
constituting reasonable suspicion or probable cause (sufficient
to justify action under an exception to the warrant
requirement), and he communicates an appropriate order or
request, another officer may conduct a warrantless stop, search,
or arrest without violating the Fourth Amendment.”); United
States v. Williams,
429 F.3d 767, 771-72 (8th Cir. 2005) (“[W]e
also hold that the collective knowledge of the DEA team was
sufficient to provide reasonable suspicion to stop [the
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codefendant’s] vehicle, and such knowledge was imputed to the
officer at the scene when he received [another officer’s]
radioed request.”); United States v. Burton, 288 F.3d 91, 99 (3d
Cir. 2002) (“[T]he arresting officer need not possess an
encyclopedic knowledge of the facts supporting probable cause,
but can instead rely on an instruction to arrest delivered by
other officers possessing probable cause.”); cf. United States
v. Ventresca,
380 U.S. 102, 111 (1965) (“Observations of fellow
officers of the Government engaged in a common investigation are
plainly a reliable basis for a warrant applied for by one of
their number.”).
In this case, McRae does not dispute, nor could he, that
Agent Tadeo had reasonable suspicion to stop his vehicle on May
17, 2004. To be sure, the following facts known to Agent Tadeo
clearly supported a stop based upon reasonable suspicion: (1)
McRae was a convicted felon; (2) Agent Tadeo had monitored on
May 17 a conversation between McRae and Chamberlain wherein
McRae agreed to furnish Chamberlain a .357 magnum firearm; (3)
McRae regularly carried a .40 caliber firearm; and (4) there may
be drugs in McRae’s car, as McRae sold crack to an undercover
officer on April 16. Thus, one officer here (Agent Tadeo) had
all the reasonable suspicion components; the question then is
whether that information can be imputed to the CMPD officers.
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As explained above, the case law, including our own, permits
such imputation under the collective knowledge doctrine.
McRae seeks to distinguish Hensley and the case law cited
above on the basis that, in this case, there were no exigent
circumstances present that made it impractical for Agent Tadeo
to effectuate the stop himself. However, no court has engrafted
an exigent circumstances requirement on the collective knowledge
doctrine and to do so would make little sense. The potential
abuse of the collective knowledge doctrine, in the reasonable
suspicion traffic stop context, lies where the stop order is
based upon nothing more than the hope that the unevaluated bits
and pieces of information in the hands of several different
officers may turn out to add up to reasonable suspicion.
Engrafting an exigent circumstances requirement simply would not
encourage officers to pool the information they have in their
possession.
Moreover, Agent Tadeo understandably wanted to keep McRae
from knowing that a federal drug investigation was underway.
Where one officer has reasonable suspicion to effect a stop and
orders another officer to do so in order to preserve the ongoing
drug investigation, regardless of whether the officer possessing
reasonable suspicion can effect the stop, the law enforcement
interests at that point are “considerable” and the “intrusion on
personal security is minimal.” Hensley, 469 U.S. at 232.
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In sum, there was no error in the district court’s denial
of McRae’s motion to suppress the evidence obtained following
the May 17, 2004 stop.
III
The government built its case on Count One, the drug
conspiracy count, around McRae’s admissions during his
interviews with Agent Tadeo. In those interviews, McRae
outlined his participation in an extensive drug conspiracy, with
Uncle being his cocaine source. McRae’s statements throughout
these interviews were consistent, except that, over time, McRae
reduced the drug amounts involved, which, according to Agent
Tadeo, was not uncommon for a target under federal investigation
who would ultimately be sentenced under the United States
Sentencing Guidelines. The veracity of McRae’s admissions was
supported by numerous recorded phone conversations and the
videotape of his meeting with Uncle on May 27, 2004, wherein the
two discussed their ongoing drug dealing relationship.
McRae’s defense to the government’s case was that he lied
during all of his conversations with Agent Tadeo about the
existence of the conspiracy. According to McRae, the conspiracy
was make believe, invented solely because, without the ruse,
Agent Tadeo would never have sought his release following his
May 17 and May 26 arrests. The problem for this defense was
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that it necessarily required either the testimony of McRae or
other proof of the conspiracy’s nonexistence. As of result of
his prior felony convictions, McRae declined to testify,
choosing instead to demonstrate the conspiracy’s nonexistence by
attacking the adequacy of Agent Tadeo’s investigation.
Faced with McRae’s defense of attacking Agent Tadeo’s
investigation, the district court gave McRae substantial
latitude, allowing his counsel to ask whether certain statements
made by McRae to Agent Tadeo turned out to be truthful or
untruthful. The district court, however, sustained the
government’s objection when counsel for McRae asked Agent Tadeo
on cross-examination if he recalled McRae’s statements of
recantation made at the December 7, 2005 status-of-counsel
hearing, opining that such a question would elicit hearsay
testimony. Within these confines, on cross-examination, counsel
for McRae was able to establish that Agent Tadeo did not pursue
coconspirators named by McRae or arrest them based on things he
told Agent Tadeo. During closing argument, counsel for McRae
hammered this point home, arguing to the jury that Agent Tadeo
could not verify any information concerning McRae’s alleged
coconspirators and that McRae’s words were not “good enough to
even arrest somebody.”
On appeal, McRae contends that the district court erred
when it sustained the government’s hearsay objection after
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counsel for McRae asked Agent Tadeo on cross-examination if he
recalled the recantation statements McRae made at the December
7, 2005 status-of-counsel hearing. We review the district
court’s ruling for an abuse of discretion. See United States v.
White, 405 F.3d 208, 212 (4th Cir. 2005) (noting that abuse of
discretion standard is applied to this court’s review of
evidentiary rulings made by the district court).
As a general rule, hearsay is not admissible in federal
courts. Fed. R. Evid. 802. “‘Hearsay’ is a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). A statement is not hearsay if
it is offered for the limited purpose of explaining why a police
investigation was undertaken. United States v. Love, 767 F.2d
1052, 1063 (4th Cir. 1985).
In this case, the cross-examination question clearly sought
to introduce into evidence an exculpatory statement made by
McRae. This out-of-court statement was hearsay because the
person testifying, Agent Tadeo, was not the declarant and
because the statement was offered to prove the truth of the
matter asserted, namely, that McRae did not confess to Agent
Tadeo. McRae argues that the statement was not offered to prove
the truth of the matter asserted, but it was offered for the
limited purpose of showing that Agent Tadeo’s investigation was
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not thoroughly conducted. However, McRae’s statements reveal
that the investigation was not thorough only if he indeed had
not confessed. Thus, the district court did not abuse its
discretion by sustaining the hearsay objection to McRae’s
counsel’s question. 3
IV
McRae makes two related arguments concerning the expert
testimony component of Agent Tadeo’s testimony. First, he
argues that the district court abused its discretion in
permitting Agent Tadeo to testify as an expert witness to assist
the jury in understanding the drug trade and all of the drug
lingo used in the recorded conversations. He also argues that
the district court erred in allowing Agent Tadeo to testify in a
“dual role,” that is, as both an expert and a fact witness. 4
Like the testimony of a lay witness, this court reviews the
district court’s decision to admit expert testimony under Fed.
R. Evid. 702 for an abuse of discretion. United States v.
3
We also note that, assuming for the sake of argument the
district court erred when it sustained the government’s
objection, any error here did not affect McRae’s substantial
rights. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”).
4
These arguments relate to McRae’s convictions on Counts
One, Four, and Seven.
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Wilson, 484 F.3d 267, 273 (4th Cir. 2007). The district court
must be granted “considerable leeway in deciding in a particular
case how to go about determining whether particular expert
testimony is reliable.”
Id. (internal quotation marks omitted).
If an expert seeks to be qualified on the basis of experience,
the district court must require that he “explain how his
experience leads to the conclusion reached, why his experience
is a sufficient basis for the opinion, and how his experience is
reliably applied to the facts.”
Id. at 274 (citation,
alterations, and internal quotation marks omitted).
Assuming without deciding that the district court abused
its discretion in permitting Agent Tadeo to provide expert
testimony on the drug trade and the meaning of drug lingo, and
assuming that the district court erred in allowing Agent Tadeo
to testify as both an expert and a fact witness, McRae is not
entitled to relief. The consequences of the improper admission
of expert testimony are reviewed under the harmless error
standard. United States v. Forrest, 429 F.3d 73, 81 (4th Cir.
2005). An error in admitting improper expert testimony is
harmless, if viewing the record as a whole, it is clear beyond a
reasonable doubt that the jury would have returned a verdict of
guilty absent the testimony.
Id.
In this case, the jury would have found McRae guilty even
absent Agent Tadeo’s expert testimony. The main evidence
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against McRae came from the physical evidence seized following
his arrests and his many admissions to Agent Tadeo, post-arrest,
which were consistent in all respects except for the drug
amounts involved. None of McRae’s admissions required expert
interpretation. McRae’s admissions set forth clearly and
concisely his role in the offenses charged, and there is no
dispute that Agent Tadeo could testify as a fact witness as to
these party-opponent admissions. Moreover, McRae’s admissions
were corroborated by the contemporaneous phone calls conducted
by McRae, which were played for the jury. The existence of such
calls conclusively demonstrates that McRae was not engaging in
make believe when he confessed to Agent Tadeo, and non-lingo
parts of the calls showed an obvious familiarity between McRae
on the one hand and Uncle and Trap on the other. Thus, they
corroborated McRae’s admissions without any expert
interpretation at all. The district court gave appropriate
cautionary instructions throughout Agent Tadeo’s testimony which
cured any prejudice. In short, Agent Tadeo’s expert testimony
played little or no role in the outcome of the trial.
V
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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