United States v. Yul Darnell Givan, United States of America v. Wayne Torrence

320 F.3d 452
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 26, 2003
Docket01-2788, 01-2793
StatusPublished
Cited by287 cases

This text of 320 F.3d 452 (United States v. Yul Darnell Givan, United States of America v. Wayne Torrence) 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. Yul Darnell Givan, United States of America v. Wayne Torrence, 320 F.3d 452 (3d Cir. 2003).

Opinions

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This criminal case comes on before this court on appeals from judgments of conviction and sentence entered June 25, 2001. A jury convicted defendants-appellants Yul Darnell Givan and Wayne Torrence on one count of conspiring to distribute and possess with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) and one count of possession with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2.

On appeal, both defendants argue that the district court should have granted their motions to suppress the heroin seized from the vehicle the Pennsylvania state police stopped which Torrence had been driving and in which Givan had been a passenger. They argue in this regard that Torrence did not freely and voluntarily give his consent for the search.

Givan argues that Trooper Jeffrey Taylor violated his Fourth Amendment rights when he continued to question the vehicle’s occupants after the initial reason for the stop had been satisfied. Moreover, he contends that the district court erred when it applied Fed. R. Evid. 404(b) to allow evidence that Givan had been convicted of a felony drug offense in Des Moines County, Iowa, on January 25, 1998. Finally, he contends that the court erred when it allowed Darryl Morgan to testify as to his drug purchases from the defendants as Givan contends that Morgan’s testimony was not relevant to the conspiracy offense charged and was inadmissible under Fed. R.Evid. 404(b).

Torrence contends that his sentence should be vacated because the district court clearly erred in calculating his total offense level in making findings that he was involved in the distribution of between one and three kilograms of heroin and that he possessed a firearm in relation to drug trafficking. Torrence also makes an ineffective assistance of counsel claim, arguing that when deciding to take the case to trial rather than plead guilty, he relied on his counsel’s incorrect calculation of the guideline range that would apply at sentencing after conviction at trial. Finally, Torrence argues that he detrimentally relied upon the government’s statements of what his [456]*456guideline range would be after trial. For the reasons set forth below, we will affirm.

I. BACKGROUND

A. Factual History

On September 8, 1999, at 1:30 p.m., Trooper Taylor pulled over Torrence and his two passengers, John Billings and Gi-van, for speeding on Route 80 in Luzerne County, Pennsylvania, after he clocked their vehicle at 77 miles per hour in a 65 miles per hour zone. In response to Taylor’s request for his driver’s license and registration, Torrence provided a Michigan driver’s license and a rental agreement which indicated that the car had been rented in Michigan less than 24 hours earlier. Taylor asked Torrence to exit the car and accompany him to the patrol car where he showed Torrence the radar reading and wrote Torrence a warning notice for speeding. Taylor then returned Tor-rence’s license and rental agreement and informed him that he was free to leave.

Nevertheless, Taylor then asked Tor-rence if he would mind answering a few questions and Torrence agreed. In response to questions about the destination of his trip, Torrence told Taylor that he had come from New Brunswick, New Jersey, where he visited his sister, who had been in a very bad car accident. By this time a second trooper, Louis Rossi, had arrived to assist Taylor with the stop and Taylor asked Rossi to inquire of Givan and Billings as to from where they had come. Either Givan or Billings told Rossi that they were coming back from New York. Taylor then approached the vehicle, and asked Billings and Givan from where they were coming. Billings, in the front seat, said they were coming from New York. Taylor then asked “Anywere else?” and Givan, in the back seat, leaned forward and said that they came from New York only, where they had been visiting some friends. After hearing the inconsistent explanations describing their travels and observing that Torrence appeared to be nervous, Taylor asked him for his consent to search the vehicle. Torrence said he had nothing to hide and consented to the search whereupon Taylor patted him down.

After obtaining Torrence’s consent to the search, Taylor asked Billings to step from the vehicle. As Billings exited the vehicle, Taylor noticed a tourniquet protruding from his pocket which Taylor then pulled out. Taylor then asked Billings if he was a heroin addict and Billings responded that he had been, but that he was not any more. Taylor asked Billings if he had any needles. Billings responded “yes” and pulled out a needle and put it on top of the vehicle. At that point Taylor observed a white piece of paper protruding from Billings’ front pocket and Taylor pulled the paper out and opened it up. It was a lottery ticket containing a brown powder substance that appeared to be heroin. As Taylor was looking at the substance, Billings grabbed the ticket and threw the substance into the air. The troopers then handcuffed Billings and Torrence. They, however, did not handcuff Givan though they did place him on the ground next to Billings and Torrence.

Rossi and Taylor then searched the vehicle and under its back seat Rossi found a bag of heroin in pellet form. Subsequent laboratory testing revealed that the bag contained 113.5 grams of heroin having a purity level of 43%. The DEA was contacted and Torrence, Givan and Billings were given Miranda warnings and transported to the state police barracks in Ha-zleton, Pennsylvania.

B. Procedural History

After Billings agreed to cooperate in the investigation and entered into a plea [457]*457agreement, a grand jury returned a two-count Second Superseding Indictment against Givan and Torrence on November 30, 1999. Count I charged that on or about and between a date unknown and September 8, 1999, the defendants conspired to distribute and possess with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Count II charged that on or about September 8, 1999, the defendants possessed with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1)

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Bluebook (online)
320 F.3d 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yul-darnell-givan-united-states-of-america-v-wayne-ca3-2003.