Filed: May 19, 2011
Latest Update: Feb. 21, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 19, 2011 Decided May 19, 2011 Before WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 10-2865 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, Hammond Division. v. No. 2:09-cr-32-001 NATHA
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 19, 2011 Decided May 19, 2011 Before WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 10-2865 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, Hammond Division. v. No. 2:09-cr-32-001 NATHAN..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2011
Decided May 19, 2011
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2865
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:09‐cr‐32‐001
NATHANIEL JORDAN,
Defendant‐Appellant. Philip P. Simon,
Chief Judge.
O R D E R
Nathaniel Jordan was convicted after a jury trial of attempting to possess heroin with
intent to distribute. 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 120 months’
imprisonment. He appeals, but his appointed lawyer is unable to identify a nonfrivolous
argument to brief on his behalf and thus moves to withdraw. See Anders v. California, 386
U.S. 738 (1967). Jordan has responded to counsel’s motion with a list of issues he wants
pursued. See CIR. R. 51(b). Confining our review to the potential issues discussed in
counsel’s facially adequate brief and Jordan’s objection, see United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996), we grant counsel’s motion to withdraw and dismiss Jordan’s
appeal.
No. 10‐2865 Page 2
Jordan’s travails began when a package addressed to him at his home in Gary,
Indiana, was inspected by David Mehne, a Customs and Border Protection officer stationed
at a UPS hub at Louisville International Airport in Kentucky. At first glance, Mehne
testified, the package, which had just arrived on a flight from Canada, appeared to contain
only clothing and two stuffed snowmen toys. But the snowmen were suspiciously heavy
and lumpy, Mehne continued, so he cut one open and found 12 brown, plastic‐wrapped
pellets that tested positive for heroin. A forensic chemist confirmed that the substance was
heroin and that the two snowmen contained almost 300 grams of the drug.
Agents in Louisville notified their counterparts at Chicago O’Hare International
Airport, where the package was headed next. In Chicago the package was prepared for a
“controlled delivery” to Jordan. Lee Starks, an agent with Immigration and Customs
Enforcement, concealed in each snowman a transmitter that would emit a radio signal if the
toy was ripped open. Starks also replaced with flour all but a “very slight amount” of the
heroin to minimize the amount of the drug that could reach the streets if the government
lost control of the package. Starks then sealed the snowmen with wire and glue and retaped
the package so that no one could tell it had been opened.
Another agent, Krystal Intoe, borrowed a UPS truck and set out for Gary. Posing as a
UPS employee, she knocked on the door of Jordan’s home and announced that she had a
package for him. Jordan came to the door with Scott Adkins, his codefendant. Adkins took
the package, Jordan signed for it, and Intoe returned to the UPS truck. Moments later, a
radio signal alerted Intoe that a snowman had been opened. She and other agents then
entered the house and executed a search warrant obtained before the delivery.
One of those agents was Robert Nicodemus. He and Agent Intoe interviewed Jordan,
who received Miranda warnings and agreed to speak without a lawyer present. At trial
Nicodemus testified that Jordan acknowledged waiting on a package from Larry, his son‐in‐
law’s brother who lived in Canada. Jordan previously had bought heroin for resale from his
son‐in‐law, who introduced him to Larry by telephone about a month before the controlled
delivery. Jordan said he agreed to accept a package from Larry and sell the contents in
exchange for a share of the profit. Jordan initially told the agents he expected Larry’s
package to contain laptop computers, but eventually he confessed to knowing that heroin
would be inside.
Meanwhile, Agent Terrance McCabe and another agent interviewed Adkins, who
acknowledged opening the package. Adkins, who was tried jointly with Jordan, heard the
agents entering the house after he had ripped open one of the snowmen, so he stashed the
toy in the closet.
No. 10‐2865 Page 3
Two other government witnesses corroborated Jordan’s confession that he knew
about the heroin. Jordan’s daughter Dinabrielle reported that, just after the package had
been delivered, she went to her father’s room and saw Adkins open the box with a kitchen
knife. “We got some goodies,” Dinabrielle overheard Adkins exclaim, as Jordan looked on.
And when Adkins heard the police burst in, Dinabrielle continued, she saw him hide one of
the snowmen in the closet. The second witness, Mitchell Stroud, had shared a cell with
Jordan while he was awaiting trial. Stroud testified that Jordan had discussed his case and
said he was expecting his son‐in‐law to ship heroin from Canada and thought that’s what
was in the package. Finally, an agent from the Drug Enforcement Administration opined,
based on his experience, that 300 grams of heroin is a quantity consistent with distribution.
A user was unlikely to have more than a gram on hand at any time, the agent explained.
Jordan took the stand and denied telling the agents he was expecting heroin. In fact,
he insisted, he thought that his son‐in‐law was sending him two laptops and an iPod to sell.
Jordan also called a fellow prisoner to testify that Stroud was known throughout the facility
as a “shady” and conniving character.
At sentencing the district court calculated a total offense level of 28 and criminal‐
history category of V, which yielded an imprisonment range of 130 to 162 months. But the
court agreed with both parties that, because Jordan was 67 years old and suffering from
end‐stage kidney disease, a below‐guidelines sentence of 120 months was appropriate. That
was the statutory minimum given the amount of heroin and Jordan’s prior conviction for a
felony drug offense. 21 U.S.C. § 841(b)(1)(B)(i).
Jordan’s lawyer has identified two possible issues to raise on appeal, but we agree
with his assessment that either would be frivolous. Any suggestion that the government did
not present sufficient evidence to convict Jordan would be farfetched. He accepted Larry’s
package and confessed to knowing that it contained heroin for him to sell; that was enough
for a rational jury to find him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Dennis, 115 F.3d 524, 534‐35 (7th Cir. 1997). As for
Jordan’s prison sentence, we would be hard‐pressed to label as unreasonably harsh a term
below the guidelines range, see Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Curb, 626 F.3d 921, 927 (7th Cir. 2010), but in this instance greater leniency was foreclosed
by statute.
Jordan has drawn our attention to a number of points he wanted his lawyer to
pursue, but we conclude that it would be frivolous to press any of them. Jordan, who
observes that his indictment omits reference to § 846, insists that he was charged with a
substantive violation of § 841(a)(1) but convicted of an attempt. Yet the indictment charges
No. 10‐2865 Page 4
that he “did knowingly and intentionally attempt to possess” heroin with the intent to
distribute, and the jury was instructed accordingly. The missing reference to § 846, which
criminalizes attempts to violate the Controlled Substances Act, did not matter because the
record shows unequivocally that Jordan knew he was defending against a charge of attempt
rather than a charge of actual possession. See FED. R. CRIM. P. 7(c)(2); United States v.
Buchanan, 574 F.3d 554, 565‐66 (8th Cir. 2009); United States v. Brumley, 217 F.3d 905, 913 (7th
Cir. 2000). Likewise it does not matter that the judgment mistakenly states that Jordan was
convicted of possession rather than attempt; the inaccuracy is a clerical error that the district
court may fix at any time. FED. R. CRIM. P. 36; United States v. Crowder, 588 F.3d 929, 938 (7th
Cir. 2009).
Nor would we conclude that the Fourth Amendment required Inspector Mehne to
obtain a warrant to search Jordan’s package at the Louisville airport. A search at an
international border need not be supported by a warrant or even by any particularized
suspicion, United States v. Flores‐Montano, 541 U.S. 149, 152‐53 (2004); Rahman v. Chertoff, 530
F.3d 622, 624 (7th Cir. 2008), and in this case the UPS hub in Louisville was the functional
equivalent of an international border because it was where the Canadian package first
touched American soil, see United States v. Abbouchi, 502 F.3d 850, 854‐56 (9th Cir. 2007).
Jordan would fare no better pursuing his concern about the government’s pretrial
destruction of the heroin. He apparently believes that none of the heroin was retained, but in
fact only the undelivered portion was destroyed. In any event, at trial Jordan did not
challenge the testimony of numerous agents who said the heroin had been destroyed
inadvertently, see Arizona v. Youngblood, 488 U.S. 51, 57‐58 (1988); United States v. Fletcher,
634 F.3d 395, 407 (7th Cir. 2011), nor does he suggest now that a factual basis existed from
which to infer intentional misconduct, see Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir.
1992). And even if he could establish that the government maliciously destroyed the drugs,
it would be impossible to show prejudice because actual contraband is not necessary either
to support a conviction for attempted possession or to trigger a statutory minimum
sentence. United States v. Macias‐Valencia, 510 F.3d 1012, 1016 (9th Cir. 2007); United States v.
Kottmyer, 961 F.2d 569, 574 (6th Cir. 1992).
Jordan also hints that his Sixth Amendment right to confrontation was violated by
the admission of Agent McCabe’s testimony that Adkins had confessed to “working with”
Jordan to sell the heroin. See Bruton v. United States, 391 U.S. 123, 126 (1968). In fact the agent
let this slip while being prodded by Adkins’ lawyer on cross‐examination, and the district
court immediately quieted the agent and told the lawyer to move on to something else. We
would find that this minor gaffe was harmless because, in light of the substantial evidence
the government presented against Jordan, his conviction “cannot plausibly be traced” to
Agent McCabe’s stray remark. See United States v. Hoover, 246 F.3d 1054, 1059‐60 (7th Cir.
No. 10‐2865 Page 5
2001). Finally, we would reject Jordan’s assertion that the government committed
prosecutorial misconduct during closing argument. The “improper” statements that Jordan
has identified are permissible references to Agent Nicodemus’s testimony about Jordan’s
confession.
We note in closing that Jordan has lodged numerous complaints about his trial
lawyer, who also represents him on appeal. As Jordan concedes, however, an ineffective‐
assistance claim is best raised on collateral review, where a complete record can be
developed. Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Isom, 635
F.3d 904, 909 (7th Cir. 2011). Indeed it would be inappropriate for Jordan’s lawyer to
challenge his own performance. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.