Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2003

USA v. Armstrong
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2036




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Armstrong" (2003). 2003 Decisions. Paper 494.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/494


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 2003 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                                                               NOT PRECEDENTIAL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. 01-2036




                          UNITED STATES OF AMERICA

                                           v.

                              MICHAEL ARMSTRONG,
                                            Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 99-cr-00603
                           (Honorable James McGirr Kelly)




                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 25, 2003

           Before: BECKER, Chief Judge*, and SCIRICA**, Circuit Judges,
                        and SHADUR, District Judge***

                                 (Filed: May 29, 2003)




   *Judge Becker completed his term as Chief Judge on May 4, 2003.

   **Judge Scirica succeeded to the position of Chief Judge on May 4, 2003.

   ***The Honorable Milton I. Shadur, United States District Judge for the Northern
District of Illinois, sitting by designation.
                                 OPINION OF THE COURT


SCIRICA, Chief Judge.

          A jury found Michael Armstrong guilty of conspiracy to possess with intent to

distribute cocaine and cocaine base, possession with intent to distribute cocaine and

cocaine base, and attempted possession and distribution of cocaine and cocaine base.1

Armstrong raises six issues on appeal, the most salient of which is that the District Court

erred in denying his motion to suppress his statements and evidence obtained after his

arrest on the ground that the arresting officers lacked probable cause.2

                                              I.

          In 1997, Armstrong approached Terry W. Dillard to join his enterprise of dealing

cocaine in Philadelphia. Dillard initially refused but eventually agreed and located a

cocaine source in California. Under their agreement, Dillard purchased the cocaine in

California and shipped it via United States Express mail to either his own or Armstrong’s

Philadelphia address. When a shipment was sent to Dillard’s, he would telephone

Armstrong to pick up the cocaine for resale in Philadelphia.3 Armstrong was to remit to



   1
       18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 846.
   2
   The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
   3
    Armstrong did all the reselling. Dillard did not know any prospective purchasers in
Philadelphia.

                                               2
Dillard $20,000 per kilogram and retain as profit the difference between that and the

selling price.

       On August 12, 1999, United States postal inspectors intercepted and obtained

search warrants for packages mailed by Dillard. Each package contained approximately

one kilogram of cocaine. Inspectors removed the cocaine, replaced it with a sham

substance, inserted a remote alarm to go off when the package was opened, and arranged

for a controlled delivery to Dillard’s address.

       On August 13, 1999, an undercover postal inspector delivered the package to

Dillard’s home. Seven minutes later, Armstrong arrived and went inside. After twenty

minutes the package was opened, sounding the alarm. Postal inspectors entered the

residence and found both Armstrong and Dillard on the second floor together with the

opened package. They were arrested and Armstrong was found with $7,410 during a

search incidental to his arrest.

       Armstrong was taken to the postal inspectors’ office where he was read his rights

and given a written list of rights with a waiver form. After executing the waiver

Armstrong said that on August 13, 1999, he went to Dillard’s house to purchase cocaine

and went upstairs to open the package of cocaine. He stated that for a few months he and

Dillard had been selling cocaine, most recently in kilogram form that Dillard purchased in

California. He also said he picked up fifteen ounces of cocaine from Dillard the week

before and sold it in Philadelphia.



                                              3
         Consistent with these admissions, express mail labels showed deliveries to

Dillard’s address on August 6, 1999 and July 23, 1999. Additional single deliveries were

made to Dillard’s address on June 30, July 8, and July 16, and to Armstrong’s address on

July 15, 1999. Telephone records of Dillard’s telephone in California and Armstrong’s

cellular telephone indicated several calls between the two. Based on this evidence, the

government charged Armstrong with drug violations. Armstrong initially agreed to

cooperate with the government, but later renounced his plea agreement and proceeded to

trial.

         Prior to trial, Armstrong filed a motion to suppress money seized incidental to his

arrest and certain admissions he made to postal inspectors regarding his role in the

cocaine distribution scheme. The District Court denied the suppression motion, stating:

         I believe there was probable cause. You have a known delivery of drugs in
         a sealed package that has an alarm of some kind and shortly after the
         package is delivered to this residence, Mr. Armstrong shows up and then,
         there is a period of time and we’ll say the package is opened or at least the
         alarm is sounded and that’s when the police move in. He is upstairs with
         the known drug dealer, a[nd] an officer said, “within arm’s length” of an
         opened package and the idea he was visiting with a friend does not add up
         and I think they had probable cause and therefore, I am not going to
         suppress the statement obtained by the postal inspectors.

         After a four-day trial, Armstrong was convicted on all counts. The District Court

sentenced him to 300 months imprisonment, ten years supervised release, a $5,000 fine,

and a $100 special assessment. At the sentencing hearing, the District Court found

Armstrong was an organizer or leader of the cocaine conspiracy and was subject to a two-



                                               4
point enhancement in his base offense level under U.S.S.G. § 3B1.1(c). The court also

imposed a two-point obstruction of justice enhancement under U.S.S.G. § 3C1.1 for

testifying falsely at the suppression hearing when he denied under oath that he signed a

waiver of his rights. This appeal followed.

                                              II.

         Armstrong contends the District Court erred in denying his motion to suppress

because there was no probable cause for his arrest. We review factual findings for clear

error and questions of law de novo. United States v. Perez, 

, 336 (3d Cir.

2002).

         The record of the suppression hearing shows the postal inspectors had probable

cause to arrest Armstrong.4 Surveillance photographs showed Dillard mailing packages to

his own address the day before he and Armstrong were arrested. Examining those

packages, inspectors found two kilograms of cocaine and one ounce of crack. On the day

of his arrest, Armstrong arrived at Dillard’s residence seven minutes after the controlled

delivery of one of the packages. The package was opened while Armstrong was in

Dillard’s home. Entering the home, inspectors found Armstrong upstairs in close

proximity to Dillard and the open package. These facts led the inspectors to reasonably




   4
    There is probable cause to arrest if, at the moment the arrest is made, the facts and
circumstances within an officer’s knowledge, and reasonably trustworthy information,
were sufficient to warrant a prudent man in believing that the suspect had committed or
was committing an offense. Beck v. Ohio, 

, 91 (1964).

                                               5
believe Armstrong was there to obtain drugs. Certainly, there was probable cause to arrest

Armstrong and seize the incriminating evidence.

                                              III.

          Armstrong also contends the District Court erred in denying his Batson challenge to

the government’s peremptory strikes of two African-American jurors. Batson v.

Kentucky, 

(1986). But the government offered race-neutral reasons for

striking the jurors: the first juror slept through much of the voir dire and was unmarried;

and the second juror’s uncle and cousin had been charged with drug trafficking. The

District Court properly rejected Armstrong’s challenge.

                                              IV.

          Armstrong argues for the first time that his convictions should be vacated because

of alleged prosecutorial use of false testimony. Armstrong contends there were

inconsistencies in Inspector Thomas Henderson’s grand jury testimony and suppression

hearing testimony. In his grand jury testimony, Henderson testified that Armstrong and

Dillard were found in the upstairs bedroom with the open package of cocaine.5 At the

suppression hearing, he testified that he first saw Armstrong when he was brought

downstairs with Dillard.6 These statements are not necessarily inconsistent, much less

   5
    Before the grand jury, Henderson was asked, “Where did you find Michael
Armstrong?” Henderson replied, “M ike Armstrong was upstairs, they were all upstairs in
the bedroom and that’s where the package was found to be in the open condition.”
   6
       At the suppression hearing, Henderson was asked, “Where did you first see the
                                                                               (continued...)

                                               6
false. The grand jury testimony refers to where postal inspectors found Armstrong and the

suppression testimony refers to when Henderson first saw Armstrong. We see no error.

                                             V.

       Armstrong contends he was not permitted to cross-examine Inspector Henderson

about the location of the cocaine and his proximity to it. But the record shows that

Armstrong cross-examined Henderson on both issues. The cross-examination was neither

objected to by the government nor restricted by the District Court. The District Court

refused Armstrong’s request to recall Henderson a second time to present redundant and

cumulative testimony regarding the location of the package. We see no error.

                                             VI.

       Armstrong argues the District Court erred when it increased his offense level under

U.S.S.G. § 3B1.1(c) because he was an organizer or leader of the cocaine conspiracy. But

the record supports the finding that Armstrong organized and led the conspiracy.

Armstrong decided who would purchase the cocaine and what price to charge. He

recruited Dillard, handled the proceeds and drugs in all of the transactions, told Dillard

when to increase the quantity of cocaine, and had virtually complete control over the

customer end of the transactions. We see no error.




   6
    (...continued)
defendant?” He replied, “When he was first brought downstairs with Terry Dillard.”

                                              7
                                             VII.

         Finally, Armstrong contends that he did not obstruct justice, under U.S.S.G. §

3C1.1, because his false testimony at the suppression hearing was not willful or material.

He also maintains the District Court’s findings were inadequate. But the District Court

specifically ruled upon Armstrong’s only challenge to the enhancement: materiality.

Armstrong’s testimony was material because he sought suppression of his statement on the

ground that he was not warned of his rights. Yet the record shows that he was read his

rights and given a written list of his rights with the waiver form. The waiver form contains

Armstrong’s signature in two places and his initials in several places. Again, we see no

error.

                                             VIII.

         For the reasons outlined, we will affirm the judgment of conviction and sentence.




TO THE CLERK:

               Please file the foregoing opinion.




                                           /s/ Anthony J. Scirica
                                                         Chief Judge




                                               8