United States v. Beasley

558 F. App'x 526
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 5, 2014
DocketNo. 13-5417
StatusPublished

This text of 558 F. App'x 526 (United States v. Beasley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Beasley, 558 F. App'x 526 (5th Cir. 2014).

Opinion

SILER, Circuit Judge.

Defendant Melvin Beasley appeals his conviction and sentence for possession of cocaine and crack cocaine with intent to distribute. Beasley challenges the district court’s decisions denying his motion to suppress, permitting a government expert witness to testify as to why drug dealers use latex gloves, ordering drug and alcohol testing and treatment as a special condition of supervised release, and increasing his mandatory minimum sentence without submitting his prior felony convictions to the jury. We AFFIRM.

BACKGROUND

Police officers utilized confidential informant Eurnell Hoyle to purchase crack cocaine from Beasley three times in April 2010. Each time, Hoyle was equipped with an audio/video recording device. Additionally, because the recording device did not have a live feed, Officer Garrison Taylor instructed Hoyle to leave his cell phone on so the officers could monitor the transaction for Hoyle’s safety. On each occasion, Hoyle went to Beasley’s residence, where Beasley sold the crack cocaine to him. During the transaction, Beasley wore gloves, cut the crack cocaine with a razor, weighed it on a digital scale, put it into an ashtray, and poured it into bags. After each purchase, Hoyle returned to the officers and gave Officer Taylor the crack cocaine and audio/video recording. Officer Taylor weighed and field tested the substance. He also reviewed the recordings of the controlled purchases, and discovered that the April 19 recording failed.

On April 20, 2010, Officer Taylor drafted a search warrant affidavit for Beasley’s residence and described his basis for probable cause as follows:

Affiant has received information from police officers and a confidential source concerning possible illegal drug activity at [Beasley’s residence], due to strange activity and a large number of traffic to and from said residence.
Acting on the information Affiant began an investigation into [Beasley’s residence] .... A further check of [ ] Beasley revieled [sic] that [ ] Beasley is currently on federal probation for distribution of crack and has an extensive federal criminal history....
Within the past 72 hours Affiant used a confidential and reliable source to pur[528]*528chase Crack Cocaine from said residence. Affiant met said cs at a location .... Said cs was then equipped with an audio listening device and controlled U.S. currency. Said cs then made contact with [ ] Beasley, via cell phone, and the two arranged to meet at [Beasley’s residence] to conduct a transaction. Said cs then went to [Beasley’s residence] and made contact with a male black [ ] Beasley. Said cs then conducted a transaction in which the controlled U.S. currency was exchanged for Crack Cocaine. Said cs then left and met with Affiant at a predetermined location a short distance from said residence. Said cs then turned over the substance which was positive for Crack Cocaine and weighed approximately 9 grams. [Said cs] was monitored during said controlled buy.1

The affidavit referred to the April 19 transaction, the only purchase where the recording failed.

The search warrant was signed by a state judge and was executed on April 23, 2010. The officers recovered approximately 70 grams of crack cocaine and 5.8 grams of cocaine from Beasley’s truck and house. They also found digital scales, torn baggies, rubber gloves, and an ashtray with white residue in Beasley’s shed.

Beasley was indicted for possession with intent to distribute crack cocaine on April 8 (count 1), April 13 (count 2), April 19 (count 3), and April 23 (count 4), as well as possession with intent to distribute cocaine on April 23 (count 5).

Beasley moved to suppress all items seized and evidence obtained as a result of the search of his residence, and a United States magistrate judge held a hearing on the motion. Beasley argued that there was an issue as to whether the drugs seized were actually cocaine, which the magistrate judge said would require a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The court determined that the parties could continue with the suppression hearing and Beasley could subsequently file a Franks motion; however, Beasley never did so.

The magistrate judge recommended that the motion be denied, finding that the affidavit “sets forth facts and circumstances to provide a sufficient basis for the state court judge to find, based upon the totality of the circumstances, that there was probable cause for the search.” The district court adopted the magistrate judge’s findings and denied Beasley’s motion to suppress.

At Beasley’s trial, Hoyle and Officer Taylor testified as to the facts surrounding the three controlled purchases. Officer Taylor also testified about the items the officers recovered from Beasley’s house, truck, and shed during the search warrant’s execution. The jury submitted a question to Officer Taylor, asking whether the officers monitored Hoyle via Hoyle’s cell phone during the April 19 controlled purchase, and Officer Taylor responded, “As far as I’m aware.”

The government also offered the opinion testimony of Drug Enforcement Agency Task Force Officer Joseph Hoing as to what items and materials he would expect someone engaged in the distribution of crack cocaine to use, and he named plastic bags, scales, and razors or knives as instruments for cutting, weighing, and paek-[529]*529aging crack cocaine. He also identified pictures of crack cocaine found at Beasley’s residence and testified that the amounts were consistent with distribution, not personal use.

The government then asked Officer Ho-ing about the use of gloves in drug activities, and he testified that he had recovered gloves in homes where cocaine or crack cocaine was being distributed and that he believed drug dealers use gloves to keep the drugs off them and to avoid leaving fingerprints on packaging materials. The government then asked why a drug dealer would not want to get crack cocaine or cocaine on his skin, and he replied that the drugs can be absorbed into the skin, which he believed could physically affect the drug dealer. He based his belief on his training where he was told to wear gloves when gathering evidence so he would not be exposed to the drugs. Finally, the government asked Officer Hoing whether it is possible to test positive on a drug test for handling cocaine or crack cocaine without gloves, and he responded that he believed it was very possible. The district court later advised the jury that they were not required to accept Officer Hoing’s opinion.

Beasley also testified, denying that he sold Hoyle crack cocaine during the three controlled purchases and claiming that he actually sold Hoyle an herbal root known as John the Conqueror. He testified that Hoyle conspired against him and had crack cocaine with him when he visited Beasley and that Hoyle gave him the scale and bags. When questioned about wearing gloves in the video recordings, Beasley responded that he had been working on an automobile engine and put the gloves on to keep from contaminating the root with oil.

At sentencing, the district court found that Beasley’s Guidelines range was 360 months to life imprisonment, and increased his mandatory minimum sentence for count 4 based on his prior felony convictions.

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Bluebook (online)
558 F. App'x 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-beasley-ca5-2014.