United States v. McRae

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDRE MCRAE, a/k/a Dre,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cr-00157-FDW-DCK-1)

Argued: May 14, 2009 Decided: July 6, 2009

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J.
Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

A jury convicted Andre McRae (McRae) of numerous drug and

firearm offenses. He challenges several of these convictions on

appeal. We affirm.

I

Following his Spring 2004 guilty plea to federal charges

unrelated to this case, McRae’s best friend, Damon Chamberlain

(Chamberlain), began cooperating with ATF Special Agent Terrell

Tadeo (Agent Tadeo), who was investigating drug and firearm

activity in the Charlotte, North Carolina area. Through

information provided by Chamberlain, Agent Tadeo learned that

McRae regularly carried a .40 caliber firearm and sold both

cocaine and cocaine base (crack).

On April 15, 2004, Chamberlain placed a recorded call to

McRae to set up a drug deal with an undercover police officer,

Detective Rolando Ortiz (Ortiz), from the Charlotte-Mecklenburg

Police Department (CMPD). In the call, McRae discussed selling

marijuana and cocaine and a debt McRae owed to a drug source

from the Dominican Republic.

On April 16, 2004, Ortiz contacted McRae and arranged to

purchase an ounce of crack later that day at a Bi-Lo grocery

store (Bi-Lo) parking lot. Prior to the sale, Agent Tadeo and

CMPD officers set up a surveillance of the parking lot. Ortiz

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and Chamberlain arrived at the Bi-Lo parking lot in Ortiz’s

unmarked vehicle. McRae entered Ortiz’s vehicle and sold an

ounce of crack to Ortiz.

Instead of arresting McRae at that time, Agent Tadeo

decided to try to arrange a drug deal involving a larger amount

of drugs. His attempt to arrange a larger drug deal failed, so

Agent Tadeo decided to see if Chamberlain could arrange a deal

involving the sale of a firearm.

On May 17, 2004, Chamberlain placed a recorded call to

McRae. In the call, Chamberlain asked McRae to get him a “three

pound” or .357 magnum firearm. McRae agreed to do so and

proposed meeting nearby at “Shauna’s house” within an hour.

At this point, Agent Tadeo gathered some CMPD street unit

officers with the intention of directing these officers to stop

McRae en route to Shauna’s house. Agent Tadeo decided not to

stop McRae himself because he did not want McRae to know that a

federal investigation of his drug activities was underway.

Agent Tadeo told the CMPD officers that: (1) McRae was a

convicted felon; (2) he had monitored that day a conversation

between McRae and Chamberlain wherein McRae agreed to furnish

Chamberlain a .357 magnum firearm; (3) McRae regularly carried a

.40 caliber firearm; and (4) there may be drugs in McRae’s

vehicle, as McRae sold crack to an undercover officer on April

16.

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 Two CMPD officers present at the meeting stopped McRae on

his way to Shauna’s house. During a search of McRae’s vehicle,

the officers recovered a .357 magnum firearm, a .40 caliber

firearm, and a quantity of crack in excess of five grams.

Marijuana was found on McRae’s person.

McRae was arrested at the scene, taken into custody, and

interviewed by Agent Tadeo. After waiving his Miranda rights,

McRae admitted that the crack and the .40 caliber firearm were

his, but denied owning the .357 magnum firearm. McRae also

outlined an extensive cocaine and crack conspiracy operating in

Charlotte. He identified his drug source from the Dominican

Republic as “Uncle” and named some of his other drug contacts,

including “Cory,” “Trap,” and “Pooh Bear.” McRae admitted that,

between February 2004 and May 17, 2004, he sold twenty-three

kilograms of cocaine.

During the interview, McRae agreed to assist Agent Tadeo in

gathering evidence regarding the drug conspiracy. Agent Tadeo

immediately had McRae place a recorded call to Trap, whom Agent

Tadeo knew from a prior federal drug investigation. In the

call, McRae discussed Uncle and the quality of drugs. In fact,

Trap complained about Uncle being a difficult supplier, and

McRae offered to intercede on Trap’s behalf.

Because McRae was showing signs of being a valuable asset,

he was released on the day of his arrest with the understanding

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that he would continue to cooperate with law enforcement. In

the ensuing days, however, McRae completely ignored Agent

Tadeo’s efforts to contact him. Following the issuance of an

arrest warrant, Agent Tadeo stopped McRae’s vehicle on May 26,

2004. McRae fled the vehicle only to be chased down and tackled

by Agent Tadeo. McRae was arrested and brought back to his

vehicle. McRae’s vehicle was searched by CMPD officers pursuant

to both his arrest and his consent. During the search, the CMPD

officers recovered a 9 mm firearm and approximately an ounce of

crack.

The following day, Agent Tadeo transported McRae to his

initial appearance before the United States District Court for

the Western District of North Carolina. Along the way, McRae

pleaded with Agent Tadeo for a second chance. Agent Tadeo

decided that McRae could still provide valuable assistance in

gathering evidence on the extensive drug conspiracy, so he asked

the Assistant United States Attorney to seek McRae’s release on

bond, which the district court granted.

After McRae was released on May 27, Agent Tadeo instructed

McRae to contact Uncle and set up a drug deal involving one to

two kilograms of cocaine. McRae contacted Uncle, and the pair

agreed to meet at the Landmark Restaurant at 3:00 p.m. At the

videotaped and recorded meeting, McRae and Uncle discussed the

fact that McRae owed Uncle money from a prior drug deal, but

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Uncle nevertheless agreed to consummate a drug deal with McRae

that night. Uncle instructed McRae to call him around 7:30 p.m.

so that they could decide upon a location for the drug deal.

The deal was never consummated because McRae refused to contact

Uncle that evening.

On June 29, 2004, a federal grand jury sitting in the

United States District Court for the Western District of North

Carolina indicted McRae on eight counts. Count One charged

McRae with conspiracy to possess with the intent to distribute

five kilograms or more of cocaine and fifty grams or more of

crack, 21 U.S.C. §§ 841 and 846. Count One named Uncle and

Trap, among others, as coconspirators, and alleged that the

conspiracy began on or about January 1, 2004 and ended on or

about May 17, 2004. Counts Two, Three, and Six charged McRae

with possession with the intent to distribute five grams or more

of crack, id. § 841, relating to the crack recovered on April

16, May 17, and May 26, 2004. Counts Four and Seven charged

McRae with possession of a firearm during and in relation to a

drug trafficking crime, 18 U.S.C. § 924(c), relating to the

firearm seizures on May 17 and May 26, 2004. Counts Five and

Eight charged McRae with possession of a firearm by a convicted

felon, id. § 922(g), again relating to the firearm seizures on

May 17 and May 26, 2004.

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 After McRae’s indictment, Agent Tadeo met with McRae on at

least two occasions. In each of these meetings, McRae described

the large scale conspiracy in which he participated, changing

only the drug amounts during these interviews. At a status-of-

counsel hearing on December 7, 2005, however, McRae sang a

completely different tune. He claimed the names of his

coconspirators that he had provided to Agent Tadeo were all

“make believe.” McRae said he lied because he was “scared” of

being “ke[pt] in jail.” In light of McRae’s testimony at the

hearing, a superseding indictment was obtained, omitting the

coconspirators’ names.

Prior to trial, McRae filed a motion to suppress the

evidence obtained at the May 17, 2004 stop of his vehicle, which

was denied. The case proceeded to trial, and a jury convicted

McRae on all counts. On December 11, 2007, he was sentenced to

a total of 687 months’ imprisonment. McRae received concurrent

327-month sentences on the conspiracy and the possession with

the intent to distribute crack counts; two concurrent 120-month

sentences on the § 922(g) counts; and consecutive sentences of

sixty and 300 months on the § 924(c) counts. He noted a timely

appeal.

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 II

McRae contends that the May 17, 2004 stop of his vehicle

was unreasonable under the Fourth Amendment and, thus, the

evidence obtained following the stop should have been suppressed

by the district court. 1 According to McRae, although a traffic

stop may be based on the collective knowledge of the officers

involved in the investigation, an officer conducting a traffic

stop can rely on information provided to him by another officer

only when exigent circumstances make it impractical for the

officer providing the information to effectuate the stop. Thus,

McRae posits that, although Agent Tadeo could have stopped his

vehicle, the CMPD officers could not. 2

In examining a district court’s ruling on a motion to

suppress, we review the district court’s findings of fact for

clear error and its legal conclusions de novo. United States v.

Parker, 262 F.3d 415, 419 (4th Cir. 2001). Moreover, the

evidence must be construed in the light most favorable to the

government, the prevailing party below. United States v.

Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

1
This issue relates to McRae’s convictions on Counts One,
Three, Four, and Five.
2
Of note, McRae challenges only the initial stop of his
vehicle, conceding that, if the stop was constitutionally
permissible, the ensuing search was as well.

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 The Fourth Amendment protects the “right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

Although a traffic stop is typically brief, it is a “seizure”

within the meaning of the Fourth Amendment. Delaware v. Prouse,

440 U.S. 648, 653 (1979). Because routine traffic stops are

more analogous to an investigative detention than a custodial

arrest, the principles set forth in Terry v. Ohio, 392 U.S. 1

(1968), guide this court’s analysis of the reasonableness of the

traffic stop. United States v. Rusher, 966 F.2d 868, 875 (4th

Cir. 1992). Thus, we examine whether the traffic stop was

“justified at its inception” and “reasonably related in scope to

the circumstances which justified the interference in the first

place.” Terry, 392 U.S. at 20.

“[A]n officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). There

must be “at least a minimal level of objective justification for

making [a Terry] stop.” Id. Reasonable suspicion requires more

than a hunch but less than probable cause. Id. at 123-24.

Moreover, under the collective knowledge doctrine (also known as

the fellow officer rule), reasonable suspicion may be based on

the collective knowledge of the officers involved in an

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investigation. United States v. Hensley, 469 U.S. 221, 232

(1985). Thus, law enforcement officers cooperating in an

investigation are entitled to rely upon each other’s knowledge

of facts when forming the conclusion that a suspect has

committed or is committing a crime. See United States v. Wells,

98 F.3d 808, 810 (4th Cir. 1996) (“And, although the agent who

actually seized the weapon pursuant to the supervising agent’s

instructions had no personal knowledge that Wells was a

convicted felon, it is sufficient that the agents collectively

had probable cause to believe the weapon was evidence of a crime

at the time of the seizure.”); see also United States v.

Whitaker, 546 F.3d 902, 905 (7th Cir. 2008) (noting that, under

the collective knowledge doctrine, “law enforcement officers are

considered to possess information known to other officers but

not known to them.”); United States v. Ramirez, 473 F.3d 1026,

1037 (9th Cir. 2007) (“Where one officer knows facts

constituting reasonable suspicion or probable cause (sufficient

to justify action under an exception to the warrant

requirement), and he communicates an appropriate order or

request, another officer may conduct a warrantless stop, search,

or arrest without violating the Fourth Amendment.”); United

States v. Williams, 429 F.3d 767, 771-72 (8th Cir. 2005) (“[W]e

also hold that the collective knowledge of the DEA team was

sufficient to provide reasonable suspicion to stop [the

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codefendant’s] vehicle, and such knowledge was imputed to the

officer at the scene when he received [another officer’s]

radioed request.”); United States v. Burton, 288 F.3d 91, 99 (3d

Cir. 2002) (“[T]he arresting officer need not possess an

encyclopedic knowledge of the facts supporting probable cause,

but can instead rely on an instruction to arrest delivered by

other officers possessing probable cause.”); cf. United States

v. Ventresca, 380 U.S. 102, 111 (1965) (“Observations of fellow

officers of the Government engaged in a common investigation are

plainly a reliable basis for a warrant applied for by one of

their number.”).

In this case, McRae does not dispute, nor could he, that

Agent Tadeo had reasonable suspicion to stop his vehicle on May

17, 2004. To be sure, the following facts known to Agent Tadeo

clearly supported a stop based upon reasonable suspicion: (1)

McRae was a convicted felon; (2) Agent Tadeo had monitored on

May 17 a conversation between McRae and Chamberlain wherein

McRae agreed to furnish Chamberlain a .357 magnum firearm; (3)

McRae regularly carried a .40 caliber firearm; and (4) there may

be drugs in McRae’s car, as McRae sold crack to an undercover

officer on April 16. Thus, one officer here (Agent Tadeo) had

all the reasonable suspicion components; the question then is

whether that information can be imputed to the CMPD officers.

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As explained above, the case law, including our own, permits

such imputation under the collective knowledge doctrine.

McRae seeks to distinguish Hensley and the case law cited

above on the basis that, in this case, there were no exigent

circumstances present that made it impractical for Agent Tadeo

to effectuate the stop himself. However, no court has engrafted

an exigent circumstances requirement on the collective knowledge

doctrine and to do so would make little sense. The potential

abuse of the collective knowledge doctrine, in the reasonable

suspicion traffic stop context, lies where the stop order is

based upon nothing more than the hope that the unevaluated bits

and pieces of information in the hands of several different

officers may turn out to add up to reasonable suspicion.

Engrafting an exigent circumstances requirement simply would not

encourage officers to pool the information they have in their

possession.

Moreover, Agent Tadeo understandably wanted to keep McRae

from knowing that a federal drug investigation was underway.

Where one officer has reasonable suspicion to effect a stop and

orders another officer to do so in order to preserve the ongoing

drug investigation, regardless of whether the officer possessing

reasonable suspicion can effect the stop, the law enforcement

interests at that point are “considerable” and the “intrusion on

personal security is minimal.” Hensley, 469 U.S. at 232.

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 In sum, there was no error in the district court’s denial

of McRae’s motion to suppress the evidence obtained following

the May 17, 2004 stop.

III

The government built its case on Count One, the drug

conspiracy count, around McRae’s admissions during his

interviews with Agent Tadeo. In those interviews, McRae

outlined his participation in an extensive drug conspiracy, with

Uncle being his cocaine source. McRae’s statements throughout

these interviews were consistent, except that, over time, McRae

reduced the drug amounts involved, which, according to Agent

Tadeo, was not uncommon for a target under federal investigation

who would ultimately be sentenced under the United States

Sentencing Guidelines. The veracity of McRae’s admissions was

supported by numerous recorded phone conversations and the

videotape of his meeting with Uncle on May 27, 2004, wherein the

two discussed their ongoing drug dealing relationship.

McRae’s defense to the government’s case was that he lied

during all of his conversations with Agent Tadeo about the

existence of the conspiracy. According to McRae, the conspiracy

was make believe, invented solely because, without the ruse,

Agent Tadeo would never have sought his release following his

May 17 and May 26 arrests. The problem for this defense was

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that it necessarily required either the testimony of McRae or

other proof of the conspiracy’s nonexistence. As of result of

his prior felony convictions, McRae declined to testify,

choosing instead to demonstrate the conspiracy’s nonexistence by

attacking the adequacy of Agent Tadeo’s investigation.

Faced with McRae’s defense of attacking Agent Tadeo’s

investigation, the district court gave McRae substantial

latitude, allowing his counsel to ask whether certain statements

made by McRae to Agent Tadeo turned out to be truthful or

untruthful. The district court, however, sustained the

government’s objection when counsel for McRae asked Agent Tadeo

on cross-examination if he recalled McRae’s statements of

recantation made at the December 7, 2005 status-of-counsel

hearing, opining that such a question would elicit hearsay

testimony. Within these confines, on cross-examination, counsel

for McRae was able to establish that Agent Tadeo did not pursue

coconspirators named by McRae or arrest them based on things he

told Agent Tadeo. During closing argument, counsel for McRae

hammered this point home, arguing to the jury that Agent Tadeo

could not verify any information concerning McRae’s alleged

coconspirators and that McRae’s words were not “good enough to

even arrest somebody.”

On appeal, McRae contends that the district court erred

when it sustained the government’s hearsay objection after

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counsel for McRae asked Agent Tadeo on cross-examination if he

recalled the recantation statements McRae made at the December

7, 2005 status-of-counsel hearing. We review the district

court’s ruling for an abuse of discretion. See United States v.

White, 405 F.3d 208, 212 (4th Cir. 2005) (noting that abuse of

discretion standard is applied to this court’s review of

evidentiary rulings made by the district court).

As a general rule, hearsay is not admissible in federal

courts. Fed. R. Evid. 802. “‘Hearsay’ is a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). A statement is not hearsay if

it is offered for the limited purpose of explaining why a police

investigation was undertaken. United States v. Love, 767 F.2d

1052, 1063 (4th Cir. 1985).

In this case, the cross-examination question clearly sought

to introduce into evidence an exculpatory statement made by

McRae. This out-of-court statement was hearsay because the

person testifying, Agent Tadeo, was not the declarant and

because the statement was offered to prove the truth of the

matter asserted, namely, that McRae did not confess to Agent

Tadeo. McRae argues that the statement was not offered to prove

the truth of the matter asserted, but it was offered for the

limited purpose of showing that Agent Tadeo’s investigation was

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not thoroughly conducted. However, McRae’s statements reveal

that the investigation was not thorough only if he indeed had

not confessed. Thus, the district court did not abuse its

discretion by sustaining the hearsay objection to McRae’s

counsel’s question. 3

IV

McRae makes two related arguments concerning the expert

testimony component of Agent Tadeo’s testimony. First, he

argues that the district court abused its discretion in

permitting Agent Tadeo to testify as an expert witness to assist

the jury in understanding the drug trade and all of the drug

lingo used in the recorded conversations. He also argues that

the district court erred in allowing Agent Tadeo to testify in a

“dual role,” that is, as both an expert and a fact witness. 4

Like the testimony of a lay witness, this court reviews the

district court’s decision to admit expert testimony under Fed.

R. Evid. 702 for an abuse of discretion. United States v.

3
We also note that, assuming for the sake of argument the
district court erred when it sustained the government’s
objection, any error here did not affect McRae’s substantial
rights. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”).
4
These arguments relate to McRae’s convictions on Counts
One, Four, and Seven.

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Wilson, 484 F.3d 267, 273 (4th Cir. 2007). The district court

must be granted “considerable leeway in deciding in a particular

case how to go about determining whether particular expert

testimony is reliable.” Id. (internal quotation marks omitted).

If an expert seeks to be qualified on the basis of experience,

the district court must require that he “explain how his

experience leads to the conclusion reached, why his experience

is a sufficient basis for the opinion, and how his experience is

reliably applied to the facts.” Id. at 274 (citation,

alterations, and internal quotation marks omitted).

Assuming without deciding that the district court abused

its discretion in permitting Agent Tadeo to provide expert

testimony on the drug trade and the meaning of drug lingo, and

assuming that the district court erred in allowing Agent Tadeo

to testify as both an expert and a fact witness, McRae is not

entitled to relief. The consequences of the improper admission

of expert testimony are reviewed under the harmless error

standard. United States v. Forrest, 429 F.3d 73, 81 (4th Cir.

2005). An error in admitting improper expert testimony is

harmless, if viewing the record as a whole, it is clear beyond a

reasonable doubt that the jury would have returned a verdict of

guilty absent the testimony. Id.

In this case, the jury would have found McRae guilty even

absent Agent Tadeo’s expert testimony. The main evidence

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against McRae came from the physical evidence seized following

his arrests and his many admissions to Agent Tadeo, post-arrest,

which were consistent in all respects except for the drug

amounts involved. None of McRae’s admissions required expert

interpretation. McRae’s admissions set forth clearly and

concisely his role in the offenses charged, and there is no

dispute that Agent Tadeo could testify as a fact witness as to

these party-opponent admissions. Moreover, McRae’s admissions

were corroborated by the contemporaneous phone calls conducted

by McRae, which were played for the jury. The existence of such

calls conclusively demonstrates that McRae was not engaging in

make believe when he confessed to Agent Tadeo, and non-lingo

parts of the calls showed an obvious familiarity between McRae

on the one hand and Uncle and Trap on the other. Thus, they

corroborated McRae’s admissions without any expert

interpretation at all. The district court gave appropriate

cautionary instructions throughout Agent Tadeo’s testimony which

cured any prejudice. In short, Agent Tadeo’s expert testimony

played little or no role in the outcome of the trial.

V

For the reasons stated herein, the judgment of the district

court is affirmed.

AFFIRMED

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