United States v. Fowler

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 25, 2000
• Docket: 99-60007
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60007 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN CORNELIUS FOWLER; REGINALD WAYNE IKNER, also known as “Reggie,”

Defendants-Appellants. _________________________________________________________________

Appeals from the United States District Court for the Southern District of Mississippi USDC No. 3:98-CR-53-2-LN _________________________________________________________________ May 19, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John Cornelius Fowler and Reginald Wayne Ikner appeal their

convictions for possession with intent to distribute cocaine base

(“crack”) in violation of 21 U.S.C. § 841(a)(1), and Ikner also

appeals his conviction for possession of a firearm in relation to

a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

The government has moved to dismiss Ikner’s appeal as

untimely. Ikner’s amended judgment was entered on January 11,

1998. Ikner did not file a notice of appeal until April 20, 1999.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Fed. R. App. P. 4(b) requires that the notice of appeal in a

criminal case be filed by a defendant within ten days of entry of

the judgment or order from which appeal is taken. A timely notice

of appeal is a mandatory precondition to the exercise of appellate

jurisdiction. United States v. Merrifield, 764 F.2d 436, 437 (5th

Cir. 1985). The tenth day in this case was January 21.

On January 22, 1999, the eleventh day and one day too late for

filing a notice of appeal, Ikner filed a motion for transcript, a

motion to proceed on appeal in forma pauperis (“IFP”), and a motion

for enlargement of time or in the alternative a stay. The district

court denied all three motions. The district court advised Ikner

to consult Fed. R. App. P. 4(1) and (5) if he intended to seek

additional time to file a notice of appeal. This order was entered

on February 16, 1999.

The district court’s reference to Rule 4 concerned the

provision in Rule 4(b), which allows the district court to grant an

additional 30 days in which to file a notice of appeal upon a

showing of excusable neglect. The thirty-day period in which to

seek the district court’s ruling on excusable neglect in this case

expired on February 22. In spite of the district court’s warning,

Ikner took no further action until March 2, 1999, when he filed a

second motion for IFP and a motion for enlargement of time or a

stay. Again, the motion for enlargement of time merely sought

additional time to obtain new counsel.

2 The district court granted IFP but denied the motion for

enlargement of time. The district court stated that even if

Ikner’s first motion for enlargement of time had been construed as

one for extension of time in which to file a notice of appeal, the

court would not have concluded that the reasons given in the motion

constituted excusable neglect. The district court noted that even

to this day, Ikner had not filed a notice of appeal. The district

court noted that Ikner still had time after it had denied his first

motions in which to demonstrate excusable neglect and that he had

not filed his second set of motions until after the thirty-day

period had expired.

Ikner finally filed a notice of appeal on April 20, and he

filed a motion to reinstate his right of appeal on April 22. The

district court did not rule on this motion.

The Supreme Court, in a habeas corpus action instituted by a

pro se inmate, held that a brief may serve as a notice of appeal if

it is filed within the time allotted for filing a notice of appeal

and gives the notice required by Fed. R. App. P. 3. Smith v.

Barry, 502 U.S. 244, 247-50 (1992). Smith v. Barry does not apply

to Ikner’s motions filed on January 22 because they were not filed

within the ten days for filing a notice of appeal. None of the

documents filed by Ikner during the thirty-day period following

sought to extend the time to file a notice of appeal due to

excusable neglect, as the district court so noted in its order of

February 16.

3 The district court applied the appropriate standards for

determining whether excusable neglect existed, United States v.

Clark, 51 F.3d 42 (5th Cir. 1995), and Pioneer Investment Services

Company v. Brunswick, 507 U.S. 380 (1993). The only reason offered

by Ikner in both of his motions for an extension to seek new

counsel, not additional time to file a notice of appeal, was that

his counsel had a number of other commitments demanding of his

time.

In Ikner’s responses to the government’s motion to dismiss, he

offers no reason for the failure to file a timely notice of appeal

other than counsel’s “lack of understanding concerning the deadline

for appeal.” However, counsel’s ignorance of the rules generally

does not constitute excusable neglect. Clark, 51 F.3d at 43-44.

Where the rule at issue is unambiguous, here, the rule being that

a notice of appeal in a criminal case must be filed within ten

days, “a district court’s determination that the neglect was

inexcusable is virtually unassailable.” Halicki v. Louisiana

Casino Cruises, Inc., 151 F.3d 465, 469 (5th Cir. 1998), cert.

denied, 526 U.S. 1005 (1999).

The district court did not abuse its discretion in its

determination of no excusable neglect. Clark, 51 F.3d at 43-44.

The government’s motion to dismiss Ikner’s appeal is GRANTED, and

Ikner’s appeal is DISMISSED for lack of appellate jurisdiction.

Fowler argues that the search and seizure of the automobile

was unconstitutional because the circumstances surrounding the

4 search and seizure exceeded the scope of a routine traffic stop.

He argues that the consent was thus tainted as the product of the

initial illegality. First, he argues that the stop was invalid

because the obscured tag and weaving were not violations of

Mississippi law. He argues that even if the stop was authorized to

investigate traffic violations, it exceeded that scope and resulted

in a de facto arrest. He contends that Sanders lacked reasonable

suspicion. He contends that the computer check took too long. He

argues that he was under a de facto arrest when he gave consent and

so his consent must be analyzed to evaluate its validity following

an illegal detention.

Fowler contends that Sanders admitted that the obscured tag

was not a violation of Mississippi law. Sanders never testified

that the obstructed tag did not violate Mississippi law. The

portion of the record cited by Fowler was a discussion concerning

whether the bent and beat up condition of the front tag was a

violation, and not the obstructed rear tag, which Sanders clearly

testified was a violation. Fowler also argues that going from one

lane to another on a four lane interstate highway with a central

median is not a violation of Mississippi law. Fowler’s actions in

twice leaving his lane, crossing the center lane and returning to

cross the outer right “fog” lane, clearly violate Mississippi law

and justified the stop. United States v. Thomas, 12 F.3d 1350,

1366 (5th Cir. 1994).

5 Fowler next contends that even if the stop was valid,

Sanders’s questioning, coupled with the extraordinarily long wait

for the computer check of Fowler’s license, extended the scope of

the stop beyond that necessary to investigate the alleged offenses

involved in the initial stop. The defendants’ car was stopped at

11:16 p.m. Sanders returned to his squad car at 11:19 to run a

check on Fowler’s license. While waiting for the identification to

be confirmed, Sanders returned to the defendants’ car at 11:23,

returned their identification, and engaged them in conversation.

Sanders told them that he was having their identification run and

if it checked out they would be free to leave. At 11:24, eight

minutes after the initial stop, Sanders asked them if they had

anything illegal in the car such as guns or drugs, and they said

no. Sanders then asked if they would mind if he checked the car

out. Both defendants consented.

The record shows that the request to search was made and

consent was given while the detention was still justified by the

facts justifying the initial stop. See United States v. Zucco, 71

F.3d 188, 190-91 (5th Cir. 1995) (rejecting argument of de facto

arrest from roadside detention based on elapsed time of nine

minutes from permissible initial stop to the consent to search

while waiting for the computer check); Shabazz, 993 F.2d at 434

(detention did not exceed original scope because officers were

still waiting for results of computer check at the time they

received consent to search the car).

6 Because the initial stop was valid, and because the detention

did not exceed the original scope of the stop, Fowler’s consent to

search the car was not tainted by any prior illegality. Fowler

does not challenge the voluntariness of his consent in and of

itself, but only as part of his argument that the consent was

tainted by the alleged prior illegalities.

Fowler argues that the evidence of his knowledge of the

presence of the cocaine in the car is insufficient. He contends

that the government produced no evidence of nervousness greater

than that of any person stopped by the police; that there was no

evidence of reluctance or hesitancy to answer questions; that there

were no inconsistent or implausible statements; and that his

possession of large sums of cash was consistent with having been

gambling at a casino.

Applying the factors listed in United States v. Ortega-Reyna,

148 F.3d 540, 544 (5th Cir. 1998), the change from lack of

nervousness when Sanders was searching the trunk where Ikner had

directed him, to Fowler’s chest-heaving nervousness when the search

left the “safe” area and turned to the area of the rear quarter

panel provides convincing evidence of Fowler’s guilty knowledge.

The factor of refusal or reluctance to answer questions also

supports the finding of knowledge. Although neither defendant

flatly refused to answer any questions, their hesitation to answer

the question of whose car they were in, and their failure to

identify the owner of the car is indicative of guilty knowledge.

7 Their inconsistent statements also support a finding of

knowledge. Their claim not to have a screwdriver to remove the

material obscuring the tag was proved false when Sanders searched

the trunk and discovered the tool kit. Also, they initially told

Sanders something which he understood to mean they had not had

success at the casino. Sanders confronted them with this statement

when he discovered the large sums of cash in their pockets, and

they claimed that they had said they had just broken even. Sanders

interpreted their statements as inconsistent with possession of the

$6,274 he found on them.

The implausible explanation of how they came to be in

possession of a car containing half a million dollars worth of

cocaine base also supports a finding of knowledge. The defendants’

story to Sanders was that they were in a friend’s car and had

driven from Fort Worth to gamble at a casino in Tunica,

Mississippi, had dropped this friend off in Durant, and were going

to return to Fort Worth the next day. For the story to be true,

they would have to have a friend who was willing to loan them a car

containing $500,000 of cocaine base, to drive a thousand miles

round trip across several state lines. When pressed by defense

counsel to state what he had seen in the car to indicate that the

defendants knew there were drugs in the car, Sanders testified that

he “thought it was kind of odd that someone would loan out a car

with that much crack in it.”

8 The defendants’ possession of a large amount of cash supports

a finding of guilty knowledge. As Sanders testified, the cash was

bundled in a manner utilized by drug dealers to facilitate quick

counting of the money. Although they claimed that it was money

they won at the casino, they never claimed an interest in it after

given notice of seizure.

The evidence was sufficient to support Fowler’s conviction for

possession with intent to distribute cocaine base.

Fowler argues that Sanders’s testimony about the money being

wrapped in rubber bands like drug dealers do, about it seeming odd

to him that someone would loan out the car containing that much

crack, and the testimony of Cox (the backup officer) about the

street value of the cocaine and his observations of nervousness

amounted to inadmissible criminal profile evidence and improper

expert testimony.

Fowler’s evidentiary arguments are reviewed for plain error

because he did not make these specific arguments in his objections

in the district court. United States v. Polasek, 162 F.3d 878, 883

(5th Cir. 1998).

The testimony in this case is distinguishable from that in

United States v. Williams, 957 F.2d 1238 (5th Cir. 1992), cited by

Fowler. The government merely told the jury that the defendants

banded a portion of their money in a manner consistent with drug

dealers and appeared to become nervous when the search focused on

the area of the car containing the drugs. Such testimony is not

9 drug courier profile evidence and is properly admitted. See United

States v. Buchanan, 70 F.3d 818, 833 n.16 (5th Cir. 1995); United

States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995); United

States v. Speer, 30 F.3d 605, 610 n.3 (5th Cir. 1994).

Fowler argues that there was no evidence that the witnesses

followed a “process or technique,” and that there was no finding by

the trial court that the probative value outweighed the prejudicial

impact and whether the opinion was “helpful to the jury.” No

scientific “process or technique” is involved in observing an

individual’s behavior; just training and experience. Evidence that

drug dealers band money in $1,000 stacks is more probative than

prejudicial and is helpful to the jury since their common

experience would not include such a fact. See Buchanan, 70 F.3d at

832-33.

Fowler argues that Sanders made a non-responsive answer during

cross-examination in which he stated that the car was not Ikner’s

and “[t]hat’s why it would seem odd to me to loan a car out with

that much crack cocaine in it.” No objection was made. This

statement was preceded by defense counsel pressing Sanders to give

any evidence, including how he “felt” and his “opinion” and asking

what about the situation would lead him to conclude that “laymen”

would know there were drugs in the car. This testimony was an

opinion demanded by defense counsel, nor is it any different from

an opinion that persons engaged in a $30,000 crack deal would not

have an uninvolved spectator present. Buchanan, 70 F.3d at 832.

10 Fowler challenges Officer Cox’s testimony about the street

value of the crack cocaine seized from the car. Cox testified,

without specific objection by Fowler, that he was specially trained

in drug investigations, including undercover cocaine buys, and had

bought cocaine just a week and a half prior to testifying. “[A]n

experienced narcotics agent may testify about the significance of

certain conduct or methods of operation unique to the drug

distribution business.” Washington, 44 F.3d at 1283 & n.45.

The trial court did not plainly err in permitting any of the

challenged expert testimony.

Fowler argues that in closing argument, the prosecutor

improperly commented upon his failure to testify at trial and made

an improper appeal to passion and prejudice.

In his opening statements, Ikner’s counsel promised proof

about the friend who loaned them the car in opening statement. The

prosecutor was merely pointing out that the defense story promised

in opening had not been delivered. A prosecutor may comment on the

failure of the defense to follow through on opening statement

promises. United States v. Zanabria, 74 F.3d 590, 592-593 (5th

Cir. 1996); United States v. Mackay, 33 F.3d 489, 495-96 (5th Cir.

1994). The prosecutor’s argument was not an impermissible comment

on Fowler’s failure to testify.

Fowler argues that the government made an impermissible

inflammatory argument. “[A]ppeals to the jury to act as the

conscience of the community are permissible, so long as they are

11 not intended to inflame.” United States v. Fields, 72 F.3d 1200,

1208 (5th Cir. 1996). This court held that it was not improper for

the prosecutor to argue about the drug problem the defendants’

action were creating in the neighborhood. Id. In United States v.

Brown, 887 F.2d 537, 542 (5th Cir. 1989), this court held that the

prosecutor’s argument that drugs were a terrible thing and were

ruining society and that it was up to the jury to do something

about it by returning a verdict of guilty did not rise to the level

of an improper law and order appeal.

MOTION TO DISMISS IKNER’S APPEAL GRANTED AND IKNER’S APPEAL

DISMISSED; FOWLER’S CONVICTION AFFIRMED.