United States v. McCloud

303 F. App'x 916
CourtCourt of Appeals for the Second Circuit
DecidedDecember 18, 2008
DocketNo. 07-2242-cr
StatusPublished
Cited by2 cases

This text of 303 F. App'x 916 (United States v. McCloud) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. McCloud, 303 F. App'x 916 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendant McCloud appeals his conviction for unlawful possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(l)(A)(i); unlawful possession with intent to distribute five grams or more of cocaine base (“crack” or “crack cocaine”), see 21 U.S.C. § 841(a)(1), (b)(1)(B); and being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.

1. Evidentiary Challenges

McCloud argues that he was denied a fair trial by the admission of the testimony of expert witness City of Rochester Police Officer John Brennan and by the admission of drugs and weapons discovered pursuant to a no-knock warrant executed on 56 Garfield Street in Rochester. Both arguments are without merit.

A. Testimony of Officer Brennan

McCloud challenges the admission of expert testimony from Officer John Brennan on several grounds. Our already deferential review of a district court’s decision to permit expert testimony, see United States v. Wexler, 522 F.3d 194, 204 (2d Cir.2008), is made more so by McCloud’s failure to object. Accordingly, we review McCloud’s challenges only for plain error, see Fed.R.Crim.P. 52(b); United States v. Johnson, 529 F.3d 493, 501 (2d Cir.2008), and we identify none in this case.

First, McCloud argues that the government did not disclose its intent to elicit expert testimony from Officer Brennan as required by Fed.R.Crim.P. 16(a)(1)(G).1 This argument is belied by the government’s pre-trial August 3, 2006 Supplemental Expert Disclosure, which identified four expert witnesses, including Officer Brennan, and summarized their testimony.

Second, McCloud contends that Officer Brennan should not have been permitted to testify as an expert because he had “no personal knowledge of the defendant, the [918]*918arrest or any investigations involving the defendant,” and his testimony did not help clarify an issue calling for specialized knowledge. As to the latter objection, we have repeatedly held that “the operations of narcotics dealers are a proper subject for expert testimony under Fed.R.Evid. 702 ... where the subject matter of the testimony is beyond the ken of the average juror.” United States v. Mejia, 545 F.3d 179, 191 (2d Cir.2008) (internal quotation marks omitted); United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.2003). As to the former, we have identified a “heightened risk” of prejudice when case agents with personal knowledge of the defendant are permitted to testify as experts. See United States, v. Dukagjini, 326 F.3d at 56; see also United States v. Mejia, 545 F.3d at 196. We therefore identify no error in the district court’s decision to allow Officer Brennan to offer expert testimony as to the price, weight, and distribution methods of crack cocaine in Rochester. See United States v. Garcia, 413 F.3d 201, 216 (2d Cir.2005); United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir. 1994) (“Testimony about the weight, purity, dosages, and prices of cocaine clearly relates to knowledge beyond the ken of the average juror.”).

B. Motion to Suppress

McCloud submits that the district judge erred in denying his motion to suppress the cocaine, marijuana, razor blade, ziploc bags, loaded .22-caliber rifle, assorted ammunition, knife, currency, and utility bill seized pursuant to a no-knock search warrant executed on 56 Garfield Street in Rochester.2 “When reviewing a district court’s ruling on a motion to suppress evidence, we review the court’s factual findings for clear error, viewing the evidence in the light most favorable to the government. The district court’s legal conclusions are reviewed de novo.” United States v. Worjloh, 546 F.3d 104, 108 (2d Cir.2008). We conclude that McCloud’s suppression challenges are without merit.

McCloud asserts principally that officers lacked the “reasonable suspicion” necessary to justify a no-knock entry. See Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The argument fails to support suppression for three reasons. First, the challenged no-knock authority was supported by a reasonable suspicion based on the affiant’s experience that the drug evidence that was the object of the search could be readily destroyed upon notice of entry. See id. at 389, 395, 117 S.Ct. 1416 (agreeing with state court’s conclusion that “the easily disposable nature of the drugs the police were searching for” further justified no-knock entry). Second, even if the affiant’s experience was insufficient to meet the “not high” standard for reasonable suspicion, id. at 394-95, 117 S.Ct. 1416, the defect was not so obvious as to preclude the executing officers’ reliance on the warrant, see United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984). Finally, the Supreme Court has itself made plain that suppression is not warranted where the only defect in a warrant is its authorization for a no-knock entry. See Hudson v. Michigan, 547 U.S. 586, 599, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); see also United States v. Acosta, 502 F.3d 54, 58 (2d Cir.2007).

To the extent McCloud further challenges the seizure of the .22-caliber rifle and ammunition on the ground that those items were not described with particularity in the search warrant, we con-[919]*919elude that the district court properly relied on the plain view exception to the warrant requirement in refusing to suppress these items. See United States v. Gamble, 388 F.3d 74, 76-77 (2d Cir.2004).

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Bluebook (online)
303 F. App'x 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccloud-ca2-2008.