UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM QUINZEL THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-02-20)
Argued: March 18, 2005 Decided: April 27, 2005
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Krysia Carmel Nelson, Charlottesville, Virginia, for
Appellant. William Frederick Gould, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Quinzel Thomas, convicted by a jury of conspiracy to
knowingly and intentionally distribute and possess with intent to
distribute 50 grams or more of cocaine base or crack, appeals. He
asserts pretrial, trial, and sentencing errors. We vacate his
sentence and remand the case for resentencing; in all other
respects, we affirm.
I.
Around 10:00 am on September 8, 2001, Officer Mark Warner of
the Front Royal Police Dept. responded to a dispatch report of drug
dealing on Pine Street in an area of Front Royal known to be a
hotbed of drug activity. The tip identified four black males in a
tan van. When Officer Warner arrived in the area, he saw three
black males in a gold SUV parked in front of 327 Pine Street, a
house reputed to be the site of frequent drug-dealing. He
approached the vehicle and asked the three men to identify
themselves. They each gave the officer a name, one of which turned
out to be false, but said they had no identification. None
admitted to being the driver of the vehicle.
A man then exited 327 Pine Street. He identified himself as
William Thomas, said he was the driver of the vehicle, and gave
Officer Warner a Maryland driver’s license. Officer Warner called
dispatch to check the license through the Maryland DMV, which
2
reported that it was suspended. Still another person then came out
of the house and said that he owned the car. When Officer Warner
asked him for identification, he said he had none, but he gave a
name and date of birth, which the officer ran through the DMV.
After the name and date of birth did not match any records in
Maryland, the individual admitted he had lied, and gave the Officer
his driver’s license, which identified him as Arnold Jackson. In
response to Jackson’s question, Officer Warner informed Jackson
that he was investigating a report of drug dealing. (JA 74).
Jackson denied that he was dealing, and proposed that the officer
search the car.
The three men in the car exited it. Officer Warner found
$1500 in the glove compartment and an electronic scale with white
residue on it. Officer Warner then searched all five of the men.
He found over $2500 in various pockets of Jackson’s pants, over
$350 on another of the men, and less than $10 each on Thomas and
the remaining two men. Warner then took photographs of each of the
men and told them they were free to go.
On March 11, 2003, authorities arrested Thomas and charged
him, pursuant to 21 U.S.C.A. § 846 (West 1994), with conspiracy to
distribute and possess with intent to distribute 50 grams or more
of crack in violation of 21 U.S.C.A. § 841(a)(1) (West 1994).
Before trial, Thomas applied, pursuant to 18 U.S.C.A. 3006A(e)
(West 2000 & Supp. 2004), for the court to appoint a medical
3
expert. The court denied the request. Thomas also moved to
suppress evidence obtained as a result of the September 8, 2001
search; the court denied that motion, as well.
At trial, several convicted, crack-using co-conspirators --
Charles Hackley, Patrick Robinson, Michael Robinson, Barry
Thompson, Aurelio Lopez, and Percola Fitzhugh -- identified and
testified against Thomas. Authorities had apparently shown each of
them the September 8 photograph Officer Warner had taken of Thomas.
Thomas objected to the in-court identifications, asserting that the
out-of-court identifications were impermissibly suggestive, but the
district court overruled his objections. In addition, Thomas
unsuccessfully objected to admission into evidence of car rental
records that purported to show that the gold SUV, had been rented
to Jackson’s wife.
After a three day trial, the jury convicted Thomas of the
charged conspiracy. The district court found that Thomas was
responsible, as a member of the conspiracy, for at least 500 grams
of crack, and therefore sentenced him under the then-mandatory U.S.
Sentencing Guidelines to 330 months in prison, 60 months supervised
release, and a $100 special assessment.
4
II.
Thomas argues that the district court erred in two pretrial
rulings: (1) denial of his request to appoint a medical expert and
(2) denial of his suppression motion. Both arguments fail.
A.
Thomas sought authorization to obtain a medical expert to
testify on the effect of drug addiction on perception and memory,
in order to attack the credibility of the six drug addicts who
testified against him.
Federal law entitles indigent defendants to expert services
that are “necessary for adequate representation.” 18 U.S.C.A.
3006A(e)(1). We review for abuse of discretion a district court’s
decision regarding the necessity of the services. United States v.
Hartsell, 127 F.3d 343, 349 (4th Cir. 1997). “To show reversible
error in a district court’s refusal to appoint an expert, a
defendant must demonstrate that the court’s refusal was prejudicial
to his defense.” United States v. Perrera, 842 F.2d 73, 77 (4th
Cir. 1988).
In this case, Thomas has not demonstrated prejudice from
denial of his request. As the Government notes, Thomas’ counsel
ably cross-examined the witnesses on their addiction and their
memory. Moreover, the court instructed the jury that “the
testimony of one who is shown to have used addictive drugs during
the period of time about which he testified . . . must always be
5
examined and weighed . . . with greater care and caution than the
testimony of ordinary witnesses.”
Furthermore, each of the testifying co-conspirators were well-
acquainted with Williams. The Robinsons had known Thomas since
childhood; Hackley saw Thomas “every time [he] would come down to
Front Royal” and bought from him repeatedly; and Fitzhugh and Lopez
were familiar with Thomas because they had seen him several times.
In light of this evidence of familiarity, the cross-examinations,
and the court’s instruction, it is particularly unlikely that lack
of expert testimony on the effect of crack on memory prejudiced
Thomas.
B.
Thomas also challenges the denial of his motion seeking to
suppress all evidence gathered by Officer Warner on September 8,
2001, in front of 327 Pine Street. He maintains that Officer
Warner illegally stopped the SUV and so the fruit of this illegal
stop must be suppressed.
He argues that Officer Warner’s initial questioning was a
seizure and that it was unsupported by reasonable suspicion. A
seizure occurs when, “in view of all of the circumstances
surrounding the incident, a reasonable person would feel he was not
free to leave.” California v. Hodari D., 449 U.S. 621, 628 (1991)
(quoting United States v. Mendenhall, 446 U.S. 544, 555 (1980)
(opinion of Stewart, J.)). Thomas contends that the fact that
6
Warner “accused Thomas and Jackson of dealing drugs out of the
vehicle” and then took Thomas’ driver’s license and “did not
immediately return it” indicate that Warner’s behavior constituted
“a show of authority sufficient to make it apparent that [Thomas]
[was] not free to ignore [Warner] and proceed on his way.” United
States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989) (internal
quotation marks and citation omitted).
But Gray, which outlines factors courts have examined in
determining whether an officer has made that show of authority does
not assist Thomas. Gray does teach that two factors that bear
examination are (1) an officer’s statement that he “positively
suspect[s] [the defendant] of illegal activity” and (2) an
officer’s failure to promptly return requested identification. Id.
at 322-23.
Contrary to Thomas’ contentions, he produced evidence of
neither of these factors. Officer Warner never stated that he
“positively suspected” Thomas of illegal activity. Rather, the
Officer said, in response to co-conspirator Jackson’s question,
that the police had “received a call, a complaint that there was
possible drug dealing going on through [the] vehicle.” And, Thomas
makes no argument that Officer Warner did not “promptly return”
Thomas’ identification, rather, he complains that it was not
“immediately return[ed].” Brief of Appellant at 26. However,
there is no indication that Officer Warner retained the license any
7
longer than necessary to determine its validity. See United States
v. Analla, 975 F.2d 119, 124 (4th Cir. 1992) (noting that keeping
a license for the amount of time necessary to check it with the
dispatcher does not convert an encounter with police into a
seizure).
Moreover, since the rental records show that Thomas was not an
authorized driver of the rental car, he had no reasonable
expectation of privacy in the vehicle, and thus cannot challenge
the legality of Officer Warner’s search of the vehicle. See United
States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994). Indeed, even
in the absence of the rental records evidence, it is clear Thomas
could not have been a legally authorized driver of the car, because
he did not have a valid driver’s license.
Finally, it is undisputed that Jackson, who said he owned the
car, and whose wife actually rented the car, both consented to
Officer Warner’s search of the vehicle. That search revealed an
electronic scale with “white residue” on it and $1500. Only after
this material was discovered did Officer Warner search Thomas and
take his picture. At that point, the search was supported by
reasonable suspicion.
III.
Thomas also challenges two trial rulings. Specifically, he
argues that the district court erred in permitting six in-court
8
identifications of him and admitting the car rental records. These
challenges, too, are meritless.
A.
The district court overruled Thomas’ objection that the in-
court identifications of Thomas were based on impermissibly
suggestive out-of-court identifications. In the out-of-court
identifications, the witnesses had been shown a single picture of
Thomas or a series of pictures, of which Thomas’ was one, laid out
one at a time.1
The district court addressed the objection only once, prior to
Hackley’s testimony, and found that Hackley’s identification was
based on Hackley’s familiarity with Thomas and was therefore
independent of the out-of-court identification. The extent to
which a witness knew Thomas is a factual question reviewed for
clear error. We review the district court’s legal conclusions
regarding the admissibility of in-court identifications de novo.
United States v. Burgos, 55 F.3d 933, 941 (4th Cir. 1995).
However, the party challenging admissibility bears the burden of
1
Thomas repeatedly asserts in his brief that the officer who
showed the pictures to the witnesses asked them, “What can you tell
me about this guy’s drug dealing?” Brief of Appellant at 9, 36,
40, 43. However, no witness testified to that sort of leading
question. Rather, Thomas’ counsel characterized the question that
way when she cross-examined Hackley. Investigator Coffman, the man
who interviewed the witnesses, simply testified, “I put the picture
down and just said, do you know this person.”
9
proof. United States v. Johnson, 114 F.3d 435, 441 (4th Cir.
1997).
An eyewitness identification at trial following a pretrial
identification by photograph will be suppressed “only if the
photographic identification procedure was so impermissibly
suggestive as to give rise to the very substantial likelihood of
irreparable misidentification.” Simmons v. United States, 390 U.S.
377, 348 (1968). We engage in a two-step analysis, first
determining whether the pretrial identification was impermissibly
suggestive; and, only if it was, assessing whether the
identification was nevertheless reliable based on the totality of
the circumstances. Johnson, 114 F.3d at 441.
The use of a single photograph is disfavored. See, e.g.,
Manson v. Braithwaite, 432 U.S. 98, 117 (1977); Simmons, 390 U.S.
at 383. However, in Burgos, we noted that, if a witness knows the
defendant personally, “the chance of misidentification from a . .
. suggestive photo display is virtually non-existent.” 55 F.3d at
942; see also United States v. Morsley, 64 F.3d 907, 917 (4th Cir.
1995). That is precisely the situation here.
The Government introduced evidence that Hackley had known
Thomas since 2001 and had dealings with him repeatedly when Thomas
came to Front Royal (JA 225, 239). Patrick and Michael Robinson
had known Thomas since they were children and lived in the same
neighborhood. Patrick had bought crack from Thomas seven or eight
10
times, and Michael had repeatedly seen Thomas dealing drugs and had
bought crack from Thomas twice in Front Royal and once in
Washington, D.C. Percola Fitzhugh apparently had the beginnings of
a romantic relationship with Thomas and purchased cocaine from him.
Barry Thompson bought crack from Thomas, then drove Thomas to the
store and took some of Thomas’ crack to sell. Aurelio Lopez, who
knew Thomas through Thomas’ brother Jackson, had seen him “on
different occasions” and bought crack from him once.
Thus, as in Burgos, the “in-court identifications . . . were
based on far more than a brief glimpse, five minutes of study, or
an overly suggestive photograph display.” 55 F.3d at 942. Rather
“[c]lear and convincing evidence exists that the . . . in-court
identifications derived from an independent origin.” Id. at 942-3.
B.
Thomas argues that Enterprise Car Rental records showing,
inter alia, that he was not an authorized driver of the gold SUV
searched on September 8, 2001, should not have been admitted
because they were not properly authenticated.
Federal Rule of Evidence 902(11) sets forth the requirements
for self-authentication of a business record. A domestic record of
regularly conducted business activity must be accompanied by a
declaration certifying that the record
(A) was made at or near the time of the occurrence of the
matters set forth by, or from information transmitted by,
a person with knowledge of those matters; (B) was kept in
the course of the regularly conducted activity; and (C)
11
was made by the regularly conducted activity as a regular
practice.
Federal Rule of Evidence 902(11).2
The Advisory Committee Notes state that the rule is satisfied
by a declaration that comports with 28 U.S.C. § 1746, which states
that an unsworn declaration “in writing of [declarant] which is
subscribed by him, as true under penalty of perjury, and dated” is
sufficient. 28 U.S.C.A. § 1746 (West 1994).
Here, the text of the typewritten declaration met the
requirements of both FRE 902(11) and § 1746 verbatim. Originally,
it was signed and dated by Linda Nelson, who also notarized it. On
the version admitted into evidence, Linda Nelson’s name and
signature had been crossed out, and the declaration was signed and
dated by Timothy Zaff. It does not appear to have been re-
notarized. However, § 1746 does not require a notarized statement.
See 28 U.S.C. § 1746; United States v. Moore, 24 F.3d 624, 626 n.3
2
The rule also requires the party offering the evidence to
provide written notice to the adverse parties of the intention to
use the document and to make the document available to them so that
they can challenge it. Federal Rule of Evidence 902(11). On
appeal, Thomas contends that he was not given sufficient notice of
these records. Thomas raised this objection at the suppression
hearing, and the court marked the records for identification
purposes only, but at trial, Thomas objected to the records solely
because of asserted improper notarization. Even if Thomas had
preserved his objection as to alleged lack of notice, the objection
is meritless. Thomas had notice of the intended use of the records
on the afternoon of Friday, August 15, 2003, at the latest. The
trial began on Monday, August 18, 2003. The records were offered
and entered into evidence on Tuesday, August 19, 2003. Thomas had
sufficient time to test the adequacy of the foundation in the
declaration.
12
(4th Cir. 1994) (noting that FRAP 4(c) is satisfied by a
declaration complying with 28 U.S.C. § 1746 or by a notarized
statement); Summers v. United States Dept. of Justice, 999 F.2d
570, 573 (D.C. Cir. 1993) (noting that requiring notarization
“would render § 1746 essentially a dead letter and end-run
Congress’ clear intent of sparing individuals the cost and hassle
of notarizing routine submissions”). Furthermore, even if the
declaration did not strictly comply with Rule 902(11) or § 1746,
any error in its admission would be harmless given the very
collateral nature of the rental records to the crime charged
against Thomas in this case.
IV.
Finally, Thomas challenges his sentence. We agree that his
sentence was imposed in violation of the Sixth Amendment. See
United States v. Booker, 125 S. Ct. 738, 746 (2005). Accordingly,
we vacate Thomas’ sentence and remand this matter for resentencing.
See United States v. Hughes, 401 F.3d 540, 556 n.15 (4th Cir.
2005).
Because Thomas raised his Sixth Amendment contention for the
first time on appeal, it is subject to review for plain error only.
See id. at 547. As set forth in United States v. Olano, the plain
error mandate is satisfied if: (1) there was error; (2) it was
plain; and (3) it affected the defendant’s substantial rights. 507
13
U.S. 725, 732 (1993). If these conditions are met, we may then
exercise our discretion to notice the error, but only if it
“seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks and
alteration omitted). The Olano conditions are satisfied here.
First, the prison term imposed on Thomas constituted error
under Booker. See 125 S. Ct. at 755-56 (holding Sixth Amendment
contravened when sentencing court, acting pursuant to Guidelines,
imposes sentence greater than maximum authorized by facts found by
jury alone). Under the then-mandatory Guidelines regime, the jury
verdict finding Thomas guilty of conspiracy to distribute 50 grams
or more of crack cocaine supported an offense level of 32,
resulting in a sentencing range of 168 to 210 months. However, the
court’s findings that Thomas was responsible for more than 500
grams of crack and that he carried a firearm increased Thomas’
offense level to 38, yielding a sentencing range of 324 to 405
months. Pursuant to Booker, the court erred in relying on its own
fact-finding to impose a sentence of more than 210 months. See
Hughes, 401 F.3d at 547 (recognizing that imposition of sentence
“in part based on facts found by the judge . . . constituted
error”).
Second, although Thomas’ Sixth Amendment contention was
foreclosed by our precedent at the time of his sentencing, Booker
has since “abrogated our previously settled law,” rendering the
14
error plain. Hughes, 401 F.3d at 548. And third, the error was
prejudicial, in that the sentence imposed on Thomas -- 330 months
-- was greater than the 210-month maximum authorized by the facts
found by the jury alone. See id. at 548-49.
Finally, to affirm Thomas’ sentence despite the error would
seriously affect the fairness, integrity, or public reputation of
these judicial proceedings. In the wake of Booker, the Guidelines
are to be treated as advisory (rather than mandatory), and
sentences that fall within the statutorily prescribed range are
reviewable only for reasonableness. Id. at 546 (citing Booker, 125
S. Ct. at 765-68). The record before us does not indicate what
sentence the court would have imposed on Thomas had it exercised
its discretion under 18 U.S.C. § 3553(a) and treated the Guidelines
as merely advisory. Although it is possible that Thomas will
receive the same sentence on remand, “[t]his possibility is not
enough to dissuade us from noticing the error.” Hughes, 401 F.3d
at 556. We, therefore, vacate Thomas’ sentence, and remand for
resentencing consistent with Booker and its progeny.
V.
Pursuant to the foregoing, we affirm Thomas’ conviction,
vacate his sentence, and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
15