IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-30269 _____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ABRAM RECASNER, also known as Abram Racasner
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana (00-CR-72-ALL-K) _________________________________________________________________ January 29, 2002 Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Abram Recasner appeals his conviction
for two counts of cocaine possession. For the following reasons,
we AFFIRM.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. PROCEDURAL HISTORY
On September 21, 2000, Defendant-Appellant Abram Recasner
was charged, pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii),
and (b)(1)(C) (1999), with one count of possession with intent to
distribute fifty grams or more of cocaine base and one count of
possession with intent to distribute less than 500 grams of
cocaine hydrochloride. On November 2, 2000, the district court
denied Recasner’s motion to suppress evidence obtained in a
warrantless search of his vehicle. On November 28, 2000, the
district court denied Recasner’s motion for mistrial based on the
inadvertent introduction of extrinsic material not in evidence
into the jury room. Also on November 28, after a two-day trial,
a jury found Recasner guilty on both counts of cocaine
possession. On February 14, 2001, the district court sentenced
Recasner to 151 months imprisonment on each count, to be served
concurrently. Recasner timely appeals the district court’s
judgment, specifically the denial of his motion to suppress
evidence, the district court’s ruling that the government’s
peremptory strike of an African-American juror was race-neutral,
his conviction by the jury, and the district court’s denial of
his motion for mistrial.
II. MOTION TO SUPPRESS EVIDENCE
Recasner contends that the district court erred in denying
his motion to suppress evidence seized in a warrantless search of
2 his vehicle because Recasner asserts that the detective who
seized the evidence lacked probable cause. On appeal of a motion
to suppress evidence, this court reviews the district court’s
factual findings for clear error and reviews the court’s
“conclusions regarding the constitutionality of a warrantless
search de novo.” United States v. Vega, 221 F.3d 789, 795 (5th
Cir. 2000) (internal citations and quotations omitted). We view
the facts in the light most favorable to the prevailing party,
the government in this case. United States v. Howard, 106 F.3d
70, 73 (5th Cir. 1997).
At the hearing on the motion to suppress, the district court
heard the following evidence. New Orleans Police Department
(“NOPD”) Detective Robert Ferrier testified to the following
version of events. On March 16, 2000, he received a tip from a
confidential informant. The informant told Ferrier that an
African-American male known to the informant as “Abe” would
participate in a narcotics transaction with another unknown
African-American male sometime between 2:00 and 2:30 p.m. on
March 16, 2000, at a specified New Orleans intersection. The
informant offered a description of “Abe” and said that Abe would
be driving a maroon Buick. Ferrier indicated that the informant
was reliable and previously provided information leading to at
least five arrests for drug offenses, but admitted that no
convictions resulted from that informant’s prior tips as of March
16, 2000.
3 On March 16, Ferrier and other NOPD detectives set up
surveillance of the specified intersection at approximately 1:45
p.m. Although Ferrier had an unobstructed view of the
intersection via binoculars, he was the only detective with a
view of the intersection. Ferrier maintained contact with the
other detectives in the vicinity by police radio. At
approximately 2:10 p.m., Ferrier saw a maroon Buick approach the
intersection and park approximately forty feet from it. Ferrier
wrote down the license plate number of the Buick. A blue truck
occupied by two African-American males then approached the
intersection and parked. The driver of the Buick, later
identified as Recasner, exited the Buick, and at the same time,
the two other males exited the blue truck, one carrying a white
and green plastic bag with a “Foot Action” logo. Ferrier
observed Recasner remove a “wad or bundle” of what Ferrier
believed to be currency from the Buick and approach the two males
at the rear of the blue truck. Recasner handed the currency to
one of the males who then handed the Foot Action bag to Recasner
in return. Recasner then opened the Foot Action bag and removed
a brown paper bag, from which he in turn removed a “white
object.” Recasner then replaced the white object in the brown
paper bag and, in turn, replaced the brown bag in the Foot Action
bag. Recasner then returned to the Buick and departed the
intersection. Ferrier indicated that the entire transaction
occurred within approximately twenty seconds and that he believed
4 from his experience as a narcotics officer -- having observed
many “hand-to-hand” drug deals -- that the white object was
contraband. Ferrier testified that he believed he had witnessed
an illegal narcotics transaction between Recasner and the
occupant of the blue truck. Ferrier broadcast the following
information over his radio to the other officers assisting with
the surveillance, including Detective Kyle Hinrichs: a
description of the blue truck, a description of the Buick and its
driver, and the Buick’s license number. Ferrier also broadcast
his belief that the Buick driver was in possession of “contraband
or drugs.” Ferrier admitted that he was the only detective who
observed the blue truck.
Detective Hinrichs testified to the following version of
events. Ferrier told him of the information provided by the
confidential informant prior to the surveillance. Hinrichs also
received Ferrier’s radio broadcast regarding the narcotics
transaction between the Buick driver and an occupant of the blue
truck, which broadcast indicated that the driver of the Buick was
in possession of a Foot Action bag containing what Ferrier
believed to be “drugs,” and provided a description of the Buick
and its license number. Hinrichs then spotted the Buick,
verified that its license number matched the number relayed to
him by Ferrier, and, without a warrant, stopped the vehicle and
placed the driver in the back of an NOPD vehicle. Hinrichs
observed a green and white plastic bag on the seat of the Buick
5 that matched the one described to him by Ferrier over the radio.
Then, also without a warrant, Hinrichs removed the bag, examined
its contents, and found an open box of plastic sandwich bags and
packages of white substances, later identified as powder and
crack cocaine, within the green and white bag.
Recasner testified at the hearing and also called two
defense witnesses, Lionell Carter, Jr. and John Elder. Carter
testified that he lived in an apartment near the specified
intersection where the alleged drug transaction took place, that
Recasner visited Carter there on March 16 from approximately
12:30 p.m. to 2:30 p.m., and that Carter observed Recasner drive
off without talking to, or receiving anything from, any other
person. Elder testified that he observed a police car following
Recasner’s Buick, observed an officer place Recasner in the back
of an NOPD vehicle, and observed an officer searching Recasner’s
trunk. Recasner testified that he visited Carter on March 16 and
that, prior to being stopped by Hinrichs, Recasner made no stops,
did not meet or talk with anyone in a blue truck, and that he
never observed any blue truck.
In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court
established that the test for whether a police officer had
probable cause to conduct a warrantless search based on an
informant’s tip looks to the totality of circumstances
establishing the reliability of the tip. See United States v.
Reyes, 792 F.2d 536, 539 (5th Cir. 1986). The district court
6 based its decision that Hinrichs had probable cause to search
Recasner’s vehicle on the “evidence received and the Court’s
assessment of the credibility of the witnesses,” including “the
fact that there was an informant who notified police of the
possible transaction involving narcotics, that there was
surveillance set up in order to corroborate that information, and
in fact, the corroboration took place by Detective Ferrier
observing what was obviously a contraband transaction.”1 While
the trial court noted that the license number for the blue truck
was never obtained and that the blue truck was never found, the
court expressly credited Ferrier’s testimony, finding that he did
not “confabulate” the blue truck and “clearly saw the
transaction.” The facts credited by the district court are
sufficient to support its finding that Hinrichs had probable
cause to conduct a warrantless search of Recasner’s vehicle based
on the information supplied to him by Ferrier. See, e.g., United
States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (finding
probable cause for a warrantless search based on an officer’s
testimony that an informant had supplied reliable information in
the past and that the tip indicated when, where, and how the
transaction would occur, along with the fact that the tip was
1 The district court used the term “proximate cause,” not probable cause. The government explains that Recasner’s attorney misstated the term as “proximate cause” when questioning Ferrier, and for some unstated reason, both parties and the court continued using that incorrect term throughout the proceedings when they meant to refer to “probable cause.”
7 corroborated by an experienced narcotics detective’s independent
observation of the transaction).2
We reject Recasner’s contention that the fact that Ferrier
failed to note the license number of the blue truck renders
Ferrier’s testimony so implausible that the district court
clearly erred in crediting that testimony over contradictory
testimony by Recasner and his two defense witnesses. See United
States v. Gillyard, 261 F.3d 506, 509 (5th Cir. 2001) (“[W]hen a
trial judge’s finding is based on [that judge’s] decision to
credit the testimony of one of two or more witnesses, each of
whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”)
(internal quotation omitted). The district court did not err,
therefore, in finding that Hinrichs had probable cause to conduct
the warrantless search of Recasner’s vehicle. Thus, the court
did not err in denying Recasner’s motion to suppress evidence
seized in that search.
III. PEREMPTORY STRIKE OF THE AFRICAN-AMERICAN JUROR
Recasner contends that the district court erred in ruling
that the government’s peremptory strike of an African-American
female juror, “juror 23,” was race-neutral and therefore proper.
2 Recasner does not contest that Hinrichs could form probable cause based on information communicated to him by Ferrier that was sufficient for Ferrier to form probable cause.
8 In a challenge to a peremptory strike made pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986), we analyze whether a party
exercised the strike in a discriminatory manner in three steps:
(1) the opponent of a strike must make a prima facie showing that
the strike was exercised on the basis of race, (2) the burden
then shifts to the party exercising the strike to articulate a
race-neutral explanation, and (3) the burden shifts back to the
opponent of the strike to prove purposeful discrimination.
United States v. Williams, 264 F.3d 561, 571 (5th Cir. 2001)
(quotation and citation omitted). We review the district court’s
determination that the government’s strike of juror 23 was not
racially motivated for clear error. Id. When a trial court
accepts a plausible, race-neutral explanation offered by a party
and thus allows a challenged strike to stand, this court will
rarely disturb that decision because “ultimately the inquiry
boils down to whether the [party] should be believed,” which is
“quintessentially a question of fact which turns heavily on
demeanor and other issues not discernable from a cold record,
such that deference to the trial court is highly warranted.” Id.
at 572.
In this case, the government prosecutor furnished two such
plausible, race-neutral reasons, stating: “I don’t let teachers
on juries. The second reason is she was a character witness for
a defendant in a murder trial,” and thus that he felt juror 23
9 had “a favorable bent toward the defense.”3 The prosecutor
further explained, “My experience as a prosecutor is I have
always found that teachers tend to be more liberal, more
forgiving.” Although the district court indicated that the
composition of the jury disturbed that court because the jury
included only one African-American in its final total of twelve
jurors, the court stated that it would be more disturbed if
“there were no African-Americans on this jury.” The court thus
allowed the strike. Given that the district court had the
opportunity to observe the demeanor of the prosecuting attorney
when that attorney offered a race-neutral explanation for the
challenged strike, we cannot say that the district court clearly
erred in accepting that explanation. Moreover, Recasner offers
no rebuttal evidence of any discriminatory intent on the part of
the government beyond his original assertion that the jury
composition was facially suspect. The district court did not
clearly err, therefore, in ruling that the peremptory strike of
juror 23 was not racially motivated.
IV. JURY VERDICT
Recasner contends that the jury erred when it found him
guilty of two counts of cocaine possession. Recasner reasserts
his contention that Ferrier’s testimony regarding the existence
3 The prosecutor then admitted that he knew that juror 23 had never testified in any murder trial but had only “agreed” to testify.
10 of the blue truck is implausible. He also contends that
Ferrier’s testimony regarding the drug transaction is likewise
implausible because that testimony does not indicate that Ferrier
observed either Recasner or the alleged occupants of the blue
truck weighing contraband or counting money. Recasner further
contends that the real motive behind his arrest and conviction
was animosity arising from a prior incident after which Recasner
claims he complained to the NOPD that Ferrier and Hinrichs
assaulted Recasner while arresting him. Recasner thus contends
that the implausibility of Ferrier’s testimony along with
Recasner’s testimony regarding improper motives on the part of
Ferrier and Hinrichs render the jury verdict irrational. Because
Recasner failed to renew his motion for acquittal at the close of
evidence, this court reviews the jury verdict for plain error.
United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001). On
review for plain error, “a conviction may be reversed only to
avoid a manifest miscarriage of justice .... Such a miscarriage
would exist only if the record is devoid of evidence pointing to
guilt, or ... because the evidence on a key element of the
offense was so tenuous that a conviction would be shocking.” Id.
(internal quotation and citations omitted).
As to Count One, the government was required to prove four
elements beyond a reasonable doubt, including Recasner’s
(1) knowing, (2) possession of a controlled substance,
11 (3) containing over fifty grams of cocaine base, and (4) with
intent to distribute. See 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). As to Count Two, the government was required to
prove Recasner’s (1) knowing, (2) possession of a controlled
substance (cocaine hydrochloride), (3) with intent to distribute.
See 21 U.S.C. § 841(a)(1). At trial, the government presented
essentially the same testimony by Ferrier and Hinrichs that was
presented to the district court in opposition to Recasner’s
motion to suppress –- including, Ferrier’s description of
witnessing a drug transaction involving Recasner, Hinrich’s
description of the information relayed to him by Ferrier,
Hinrichs’s description of his search of Recasner’s vehicle, and
Hinrichs’s description of seizing the Foot Action bag with
cocaine inside. See supra Part II. The jury likewise heard
essentially the same contradictory testimony by Recasner and his
two defense witnesses, Carter and Elder, that was presented to
the district court in support of his motion to suppress. See id.
Elder additionally testified, however, that he never saw any
officers remove any items from Recasner’s Buick. Recasner
additionally testified that he had never seen the Foot Action bag
until the trial, that he never possessed any cocaine, that he
never saw any of the officers remove anything from his vehicle
while searching it, and that no officer placed anything in the
trunk of the NOPD vehicle in which Recasner was placed.
12 In addition, the jury heard testimony by a Drug Enforcement
Agency (“DEA”) forensic chemist, Cheryl White, that the cocaine
taken from the Foot Action bag included sixty-one grams of
cocaine base and seventy grams of cocaine hydrochloride. The
jury was entitled to infer intent to distribute from the quantity
of controlled substance seized. See, e.g., United States v.
Sanchez, 961 F.2d 1169, 1176 (5th Cir. 1992). Moreover, a DEA
expert in drug trafficking, Chris Ortiz, testified that the
amount of cocaine seized and the presence of the plastic sandwich
bags, which he testified are commonly used for packaging
narcotics for sale, indicated in his opinion that the cocaine was
intended for distribution. Thus, the government offered evidence
to the jury that establishes all of the elements of both counts
with which Recasner was charged.
The jury was entitled to weigh all of the testimony offered
by both the government and defense witnesses and to choose to
credit witnesses for the government, despite any defense
testimony to the contrary. See, e.g., Greenwood v. Societe
Francaise De, 111 F.3d 1239, 1251 (5th Cir. 1997). Viewing the
evidence in the light most favorable to the verdict, this court
cannot say that the record is devoid of evidence supporting the
verdict or that the government evidence is so tenuous as to
render Recasner’s conviction either shocking or a manifest
miscarriage of justice. Consequently, the jury did not plainly
err in convicting Recasner for two counts of cocaine possession.
13 V. MOTION FOR MISTRIAL
his motion for mistrial based on the inadvertent introduction of
a receipt, which was not in evidence, into the jury room.
Recasner further contends that it was an abuse of discretion for
the district court not to give a curative instruction to the jury
regarding the receipt. The receipt was found by jurors at the
bottom of the Foot Action Bag and given by those jurors to a
court officer who then told them that the receipt was not
evidence and was to be “disregard[ed].” At Recasner’s request,
the district court refrained from instructing the jury
specifically that the receipt was not to be considered by them.
Recasner indicated that he did not want the court to call
attention to the receipt and thus possibly induce the jurors to
improperly consider the receipt in their deliberations. The
district court had already instructed the jury not to consider
any material not properly introduced as evidence at trial by
testimony or as an exhibit. In denying Recasner’s motion, the
district court determined that the receipt was not prejudicial to
Recasner because the receipt failed to denote any transaction and
designated its origin as New Mexico, not Texas where Recasner was
arrested. Thus, the district court found that the receipt
appeared wholly unrelated to Recasner and the drug transaction at
issue.
14 We review the district court’s denial of the motion for
mistrial and any claimed evidentiary error for abuse of
discretion. See United States v. Honer, 225 F.3d 549, 555 (5th
Cir. 2000) (denial of motion for mistrial) (citation omitted);
United States v. Sanchez-Sotelo, 8 F.3d 202, 210-11 (5th Cir.
1993) (evidentiary errors). Recasner is correct that a defendant
is entitled to a new trial when “extrinsic evidence is introduced
into the jury room ‘unless there is no reasonable possibility
that the jury’s verdict was influenced by the material that
improperly came before it’” and that the government bears the
burden of “proving the harmlessness of the breach.” United
States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990) (quoting
Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir. 1980))
(citation omitted). However, this court affords “great weight to
the trial court’s finding that the evidence in no way interfered
with any juror’s decision.” United States v. O’Keefe, 722 F.2d
1175, 1179 (5th Cir. 1983) (citation omitted). There is no
evidence that the receipt is linked to Recasner in any way, that
the jury considered the receipt valuable to its deliberations, or
that the receipt is strongly probative of Recasner’s guilt in
light of the other evidence offered against Recasner. The
district court did not abuse its discretion, therefore, in
denying Recasner’s motion for mistrial based on the inadvertent
introduction of the receipt into the jury room.
15 VI. CONCLUSION
For the foregoing reasons, the district court’s judgment of
conviction and sentence are AFFIRMED.