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United States v. Holt

United States Court of Appeals, Eleventh Circuit

January 30, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
NATHANIEL HOLT, JR., SCOTT W. BARNES, ANDRE D. BARBARY, MONICA I. LEWIS, WILLIE J. HARTFIELD, Defendants-Appellants

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Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:12-cr-60011-RSR-5.

For United States of America, Plaintiff - Appellee: Robert G. Davies, Tiffany H. Eggers, David Lance Goldberg, U.S. Attorney's Office, Pensacola, FL; Pamela C. Marsh, U.S. Attorney's Office, Tallahassee, FL.

For Nathaniel Holt, Jr., Defendant - Appellant: Jennifer Daley, Amlong & Amlong, PA, Fort Lauderdale, FL.

For Scott W. Barnes, Defendant - Appellant: Bernardo Lopez, Daryl Elliott Wilcox, Federal Public Defender's Office, Fort Lauderdale, FL; Scott W. Barnes, FPC Pensacola - Inmate Legal Mail, Pensacola, FL; Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL.

For Andre D. Barbary, Defendant - Appellant: Thomas John Butler, Thomas Butler, Esq., Miami Beach, FL.

For Monica I. Lewis, Defendant - Appellant: Humberto Dominguez, Humberto R. Dominguez, PA, Miami, FL.

For Willie J. Hartfield, Defendant - Appellant: John Lance Armstrong, Law Office of John Lance Armstrong, Hollywood, FL.

Before HULL, JULIE CARNES and WALKER[*], Circuit Judges.

OPINION

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HULL, Circuit Judge:

After a jury trial, defendants Nathaniel Holt, Scott Barnes, Andre Barbary, and Monica Lewis appeal their convictions for

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(1) conspiracy to distribute and possess with intent to distribute oxycodone and/or cocaine and (2) conspiracy to use a communication facility to facilitate a narcotics crime. Defendant Willie Hartfield also appeals his conviction for conspiracy to distribute and possess with intent to distribute oxycodone. Defendant Barnes also appeals his total 151-month sentence. After careful review of the entire record, and with the benefit of oral argument, we affirm.

I. BACKGROUND

In January 2012, a federal grand jury returned an indictment against nine defendants: Andre Barbary, Scott Barnes, Kim Carswell, Willie Hartfield, Nathaniel Holt, Robert Jackson, Tamika Jasper-Barbary, Robert Lespinasse, and Monica Lewis.

The indictment charged the defendants with one count of conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine and oxycodone, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A), (b)(1)(C), and 846 (Count 1); and one count of conspiring to use a communication facility to facilitate a narcotics crime, in violation of 21 U.S.C. § § 841(a)(1) and 846 (Count 2).

The indictment alleged that the defendants committed Count 1 beginning on or about January 1, 2000, and continuing through on or about the January, 2012 date of the indictment, and committed Count 2 on or about February 1, 2010, and continuing through on or about the January, 2012 date of the indictment.

Four defendants--Carswell, Jackson, Jasper-Barbary, and Lespinasse--pled guilty to one or both counts. The remaining five defendants--Barbary, Barnes, Hartfield, Holt, and Lewis--proceeded to a nine-day jury trial in November 2012. Cooperating codefendants Carswell and Lespinasse testified at trial.

At trial the jury found all five defendants guilty of Count 1, with the following findings as to the type of drugs each defendant conspired to distribute and possess with intent to distribute, including, if applicable, the quantity of cocaine: (1) as to Holt, oxycodone and between 500 and 5,000 grams of cocaine; (2) as to Barbary, oxycodone and five kilograms or more of cocaine; (3) as to Barnes, oxycodone and between 500 and 5,000 grams of cocaine; (4) as to Hartfield, oxycodone; and (5) as to Lewis, between 500 and 5,000 grams of cocaine. The jury also found Holt, Barnes, Lewis, and Barbary guilty of Count 2, but found Hartfield not guilty of that count.

This appeal concerns Barbary's, Barnes's, Hartfield's, Holt's, and Lewis's convictions and Barnes's sentence.[1] We begin with a summary of the procedural and factual history of the case, and then discuss the issues raised on appeal.

II. PRE-TRIAL MOTIONS

A. Holt's Motions to Suppress Currency Evidence

Before trial, defendant Holt filed motions to suppress currency evidence seized during two different traffic stops, in June 2007 and January 2010, on grounds that the officers allegedly had unreasonably prolonged the duration of both stops to allow time for a canine unit to arrive with a drug dog. A magistrate judge held an evidentiary hearing as to both motions to suppress. Below we outline the testimony presented at the hearing as to each traffic stop.

B. Testimony as to June 2007 Traffic Stop

On June 27, 2007, Lee County Sheriff's Office Deputy Raul Fernandez was patrolling

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a high-crime area " frequented by people with narcotics" in Fort Myers, Florida. At approximately 4:06 p.m. that day, he initiated a traffic stop of a 2007 Chrysler 300 that was speeding at 59 miles per hour in a 30-mile-per-hour zone.

The Chrysler's driver and sole occupant was defendant Holt. When Deputy Fernandez requested Holt's driver's license, Deputy Fernandez observed that Holt was " very nervous," was " breathing very heav[ily]," was " catching his breath," was " sweating profusely," and failed to maintain eye contact. Deputy Fernandez testified that Holt's hands were shaking when he handed his driver's license. Deputy Fernandez asked Holt where Holt was coming from and going to, but Holt did not answer either question and simply " mumbl[ed] some words." Deputy Fernandez recognized Holt from Fernandez's time working in the narcotics unit of another police department, and Holt indicated that he recognized Fernandez, calling Fernandez by his " street name," " Pacman."

Deputy Fernandez then ran routine records checks to ensure that Holt's driver's license and the Chrysler's tag were valid and that Holt had no outstanding warrants. Additionally, based on Holt's behavior, Deputy Fernandez requested a canine unit to respond to the scene. During the records checks, for safety reasons, Deputy Fernandez asked Holt to stand outside the Chrysler. At that time, Deputy Fernandez asked Holt for permission to search the Chrysler, and Holt stated that Fernandez could " search the whole car."

While still waiting on the records check, Deputy Fernandez proceeded to search the Chrysler. However, when Deputy Fernandez attempted to open the locked glove box and requested Holt to unlock it, Holt declined. Deputy Fernandez stopped the search and began " writing the paperwork" for the traffic stop (including the speeding citation for 59 miles per hour in a 30-mile-per-hour zone). At this time, Deputy Fernandez observed that Holt " was pacing back and forth in front of [Fernandez's] vehicle," " appeared to be agitated," and " was closing his fist." Concerned that Holt wished either to engage him or to flee, Deputy Fernandez asked Holt to sit in the back of his patrol car, and Holt agreed.

Before Deputy Fernandez had completed the paperwork associated with the traffic stop, including the speeding citation, the canine unit responded to the scene. At 4:33 p.m., Corporal Keith Dunn deployed his drug dog, which was experienced and qualified in detecting the odor of narcotics, to sniff around the exterior of the Chrysler. The dog alerted on the car's front passenger door. Deputy Fernandez retrieved the Chrysler's keys from Holt and unlocked the glove box in the dashboard in the passenger side, where Fernandez found rubber-banded bundles of cash totaling $45,940. The officers seized the cash. Thus, 27 minutes passed between the traffic stop at 4:06 and the drug dog's arrival at 4:33 p.m.

C. Testimony as to January 2010 Traffic Stop

On January 7, 2010, at approximately 11:17 p.m., Detective Stephen Kirkby of the Lee County Sheriff's Office pulled over a silver Honda SUV on Interstate 75 because one of its tag lights was not working properly. Holt was the driver of the SUV, and he had one passenger, Michael Mitchell. When Detective Kirkby approached the SUV's passenger's side window, Mitchell was staring at the floorboard, while Holt had his driver's license in hand and faced straight ahead without looking at Kirkby. Holt's hands were shaking as he handed his license to Detective Kirkby.

Consistent with standard procedure, Detective Kirkby asked Holt to exit the SUV

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and come back to stand near Kirkby's patrol car. Before Holt got out of the SUV, he leaned over the middle console and whispered something to Mitchell that Detective Kirkby could not hear. Once Holt exited the SUV, Detective Kirkby showed him the defective tag light, and Holt responded that the owner of the car, Mitchell, would fix it.

Detective Kirkby then ran routine records checks to ensure that Holt had a valid driver's license and no outstanding warrants.[2] Detective Kirkby also requested a nearby canine unit to respond to the scene. As Detective Kirkby was writing Holt a warning for the defective tag light and waiting on the records checks, he and Holt joked about Holt's outfit, a leather suit covered in " dollar signs." Detective Kirkby also asked Holt about Holt and Mitchell's travel plans, and Holt responded that they had come from Opa-locka, Florida, the day before for the birth of Holt's nephew's son and had stayed off of Ballard Road in Fort Myers. Detective Kirkby asked Holt the baby's name, but Holt could not remember it. Detective Kirkby noticed that Holt's answers to his questions were " very short and vague" and that Holt did not make eye contact with him.

After that exchange, Detective Kirkby walked back to the SUV and requested the SUV's registration papers from Mitchell. As Mitchell opened the middle console to look for the registration, Detective Kirkby observed that the console contained items normally stored by motorists in the glove box, such as the SUV's owner's manual. While Mitchell was looking for the registration in the middle console, Detective Kirkby asked him about his and Holt's travel plans, and Mitchell stated that they had come up to the area late that day to hang out with some friends for a few hours. Detective Kirkby asked whether they had come for a wedding, birth, party, or anything similar, and Mitchell responded in the negative, again stating that they had come that day to spend time with friends.

Once Mitchell handed Detective Kirkby the registration, Kirkby returned to his patrol car and again asked Holt about his stay in Fort Myers, and Holt repeated his claim that he had come up the day before for the birth of his nephew's child. However, Holt admitted that he had not brought a change of clothes and was wearing the same outfit as the day before. Holt also indicated that he and Mitchell had stayed at Holt's nephew's house. Detective Kirkby then asked Holt for permission to search the SUV, but Holt said that he was not going to give permission to search the SUV because it did not belong to him.

The traffic stop started at 11:17 p.m., and at around 11:20 p.m., the canine unit arrived with a drug dog that was experienced and qualified in detecting the odor of narcotics. At the time of the canine unit's arrival, Detective Kirkby was still waiting on some of his records checks and had not yet completed the written warning. Sergeant Steven Brady of the canine unit took the drug dog to the SUV, and the dog alerted to the SUV's driver's side door. Detective Kirkby and Sergeant Brady searched the SUV and seized from the glove box on the passenger's side $31,260 in cash, rubber-banded and contained in trash bags.

D. District Court's Ruling on Holt's Suppression Motions

The magistrate judge issued a report and recommendation (" R& R" ) ...


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