United States v. Rashaan Bates

462 F. App'x 244
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 24, 2012
Docket10-4439
StatusUnpublished

This text of 462 F. App'x 244 (United States v. Rashaan Bates) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Rashaan Bates, 462 F. App'x 244 (3d Cir. 2012).

Opinions

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

A federal grand jury returned a four-count indictment against Defendant-Appellant Rashaan Bates (“Bates”). A jury [245]*245found Bates guilty on three of the four counts. Bates appeals his conviction only as to count I, possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1). The District Court denied Bates’s motion for judgment of acquittal because it found the facts were distinguishable from this Court’s prior decisions regarding constructive possession, namely United States v. Brown, 3 F.3d 673 (3d Cir.1993) and United States v. Jenkins, 90 F.3d 814 (3d Cir.1996).

Wholly apart from the fact that the District Court improperly distinguished Brown and Jenkins, there is virtually nothing in this record that even suggests that Bates constructively possessed the heroin, and the District Court erred in concluding otherwise. In broad summary, Bates was seen on but one occasion exiting the house where he had, until recently, lived and to which he still had a key. He then crossed the street and shortly thereafter sold a few packets of crack cocaine, leaving that location a few minutes later and returning to it the following day, when he was arrested. Nothing connects Bates or the packets of crack cocaine he was selling to the heroin or heroin paraphernalia or anything else found in the house. We will, therefore, reverse his conviction on Count I, vacate the sentence, and remand for resentencing.

I. Facts

Officers Richard Woertz and Brian Myers of the Philadelphia Police Department (“PPD”) met with a registered confidential informant (“Cl”) at a staging area on October 7, 2008. The officers instructed the Cl to attempt to purchase drugs on the 1400 block of Lardner Street. The Cl met Woertz just north of Lardner Street and he was given prerecorded buy money. A third PPD officer, Harold Toomer, conducted surveillance of the area that evening by sitting in a vehicle further down the block. Toomer saw Bates exit a residence at 1474 Lardner Street, cross the street, and sit on the steps of 1471 Lardner Street. Shortly thereafter Toomer witnessed the Cl walking down Lardner Street. The Cl stopped to talk to Bates on the steps of 1471 Lardner Street. Toomer saw an exchange between the Cl and Bates, where the Cl gave Bates cash, and Bates gave the Cl an object from his coat pocket. Toomer testified that Bates left the area a short time after the Cl left. The Cl then returned to the staging area where he gave Woertz a red plastic packet that contained crack cocaine.

The next day, October 8, 2008, fourteen PPD officers, including Myers and Toomer, went to execute a search warrant on 1474 Lardner Street. Toomer again saw Bates sitting on the steps of 1471 Lardner Street, this time with another individual, and recognized Bates as the person that sold drugs to the Cl the previous day. Toomer and another officer, Marshall Kelly, approached the two men and searched them. Toomer’s frisk of Bates revealed an Intratec 9mm firearm, which Toomer secured. Kelly proceeded to search Bates and discovered twelve blue packets of crack cocaine in a clear plastic bag. Bates had no money on his person. In addition to the twelve packets of cocaine, the officers found a key on Bates. The officers tested the key on 1474 Lardner Street and it operated the lock.

The house located at 1474 Lardner Street was vacant at the time of the officers’ search, but Myers found over 100 grams of heroin, as well as heroin paraphernalia, in a bedroom on the second floor. Some of the heroin was in bulk form, while the rest was in 360 white glas-sine packets stamped “Chicago.” The heroin paraphernalia included grinders, a scale, a spoon, a strainer, and a credit card with the name “Yajaira Batista.” The [246]*246credit card was covered in heroin residue. The officers discovered a tally book inside the residence, and the words and names in the tally book were largely in Spanish. Myers also found unused blue, white, and clear glassine packets, which were different than the blue packets found on Bates. Bates’s fingerprints were not found in the room containing the drugs, no evidence placed him in the bedroom containing the drugs, he had no heroin on his person, and no heroin residue was found on his clothes or person.

Subsequent investigation revealed that Bates’s driver’s license identified 1474 Lardner Street as his place of residence. Bates’s mother testified that she and Bates had lived in the house at 1474 Lardner Street between August 2007 and September 2008. The property manager for 1474 Lardner Street testified that, to the best of his knowledge, the building was vacant on the day Bates was arrested, October 8, 2008, and had no legal tenants, although tenants were scheduled to move in on November 1, 2008. In the middle of September, after Bates and his mother moved out, the property manager checked 1474 Lardner Street and found it “empty.” At that time the building contained no furniture, trash, or personal possessions.

Bates was charged by a grand jury with four counts: (I) possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1); (II) possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1); (III) distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1); and (IV) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

At trial, the Government called PPD Detective Andrew Callaghan as an expert witness. Callaghan gave his opinion regarding the evidence recovered from 1474 Lardner Street. Callaghan testified that the street value of the heroin seized was over $200,000 and that, in his experience, such a large amount of heroin is kept in a secure location to prevent it from being either detected by law enforcement, or stolen by other individuals. Similarly, such a large volume of heroin led Callaghan to believe an organization involving more than one person was trafficking the drug. Callaghan also testified that members of drug organizations usually do not conduct sales out of locations where they store their drugs because it could draw the attention of law enforcement, as well as “street thugs” looking to steal the stored drugs.

The jury convicted Bates on counts I, II and IV, but acquitted him on count III. Count III was the charge of distribution of crack, arising from the sale to the Cl on October 7, 2008. After the trial, Bates filed a motion for judgment of acquittal under Fed.R.Crim.P. 29, which was denied by the District Court. Bates filed a timely notice of appeal, seeking review only of the District Court’s denial of the motion for judgment of acquittal regarding count I.

II.

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462 F. App'x 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rashaan-bates-ca3-2012.