IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10297
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL WAYNE ROUTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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January 13, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Michael Route appeals his conviction of thirteen counts of
bank fraud in violation of 18 U.S.C. § 1344. Finding no error, we
affirm.
I.
Route was charged with participating in a scheme to defraud
various businesses and financial institutions. Route and Eddie
Crossley conspired to draft checks payable in the name of Paul
Beaty, a fictitious individual in whose name Route and Crossley had
obtained a Texas driver's license, which checks were then given to
Marvin Fullwood. Fullwood, having obtained a bank account in
Beaty’s name, would then cash the checks and give a certain
percentage of the proceeds to Route and Crossley.
After Crossley and Fullwood cooperated with authorities in
exchange for leniency, the government proceeded to trial against
Route. A jury convicted Route on all thirteen counts, and the
court sentenced him to thirteen concurrent ninety-six-month terms
of imprisonment and thirteen concurrent five-year terms of
supervised release, restitution in the amount of $74,490, and a
special assessment of $650.
II.
A.
Route contends first that the district court erred in failing
to grant his pretrial motion to suppress evidence seized during the
execution of an arrest warrant at his residence. We review the
district court’s factual findings for clear error and its conclu-
sions of law de novo. See United States v. Rico, 51 F.3d 495 (5th
Cir.), cert. denied, 116 S. Ct. 220 (1995).
It is uncontested that the police obtained a valid arrest
warrant for both Route and Crossley to be executed at Route’s
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residence.1 When the police arrived at the residence, they found
Route backing his car out of the driveway and arrested him
immediately. Route testified at the suppression hearing that,
after he refused to consent to a search of his home, Detective
Faber took the house keys from his pocket and proceeded to enter
the house.
While in the house, Faber observed computer equipment and
other items that he believed had been used in the commission of the
bank fraud. After receiving a search warrant based in large part
upon the observations made during his search of the house, Faber
returned to Route’s house and seized the computer equipment and
other accessories.
Faber testified at the suppression hearing that, after Route
had refused to consent to a house search and after Route insisted
that he did not know of Crossley’s whereabouts, Faber proceeded to
walk around the perimeter of the house in search of Crossley.
According to Faber, as he was walking around the house, he heard
the television inside the residence and thus suspected that
Crossley might be inside. After Route again refused permission to
search the house for Crossley, Faber entered the house, whereupon
1
Although we use the term “Route’s residence,” we note that the police had
obtained sufficient information indicating that Crossley also resided there.
Among the items the police had identified as indicating Crossley’s residence at
Route’s house are (1) Crossley’s credit card applications listing 1520 Mims
(Route’s address) as his mailing address; (2) an electric and water bill for 1520
Mims in Crossley’s name; (3) verification from the Postal Inspector that Crossley
was receiving mail at 1520 Mims; and (4) Crossley’s car registration listing 1520
Mims as his address. In any event, Route does not contest that Crossley was in
fact living at his house.
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he did not find Crossley but did happen upon the computer equipment
and other criminal accessories.
A valid arrest warrant carries with it the implicit but
limited authority to enter the residence of the person named in the
warrant in order to execute the warrant, where there is “reason to
believe” that the suspect is within. See Payton v. New York,
445 U.S. 573, 603 (1980); United States v. Woods, 560 F.2d 660, 665
(5th Cir. 1977), cert. denied, 435 U.S. 906 (1978). As distinct
from the “probable cause” standard that governs the initial
issuance of the arrest warrant and that must be determined by a
magistrate, we have defined previously the “reason to believe”
standard to “'allow[] the officer, who has already been to the
magistrate to secure an arrest warrant, to determine that the
suspect is probably within certain premises without an additional
trip to the magistrate and without exigent circumstances.'” Woods,
560 F.2d at 665 (quoting United States v. Cravero, 545 F.2d 406,
421 (5th Cir. 1976), cert. denied, 430 U.S. 983 (1977)).2
All but one of the other circuits that have considered the
question are in accord, relying upon the “reasonable belief”
standard as opposed to a probable cause standard.3 To the extent
2
Although Woods pre-dates Payton, the Woods standard is fully consistent
with Payton and, as such, we adhere to its articulation of the “reasonable
belief” test.
3
See, e.g., United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996) (“[T]he
officers’ assessment need not in fact be correct; rather, they need only 'reasonably
believe' that the suspect resides at the dwelling to be searched and is currently
(continued...)
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that this court has not already done so in Woods, we adopt today
the “reasonable belief” standard of the Second, Third, Eighth, and
Eleventh Circuits.
There is no clear error in the district court’s determination
that Faber had a reasonable belief that Crossley resided at 1520
Mims and was within the residence at the time of entry. As noted
above, Faber had confirmed via Crossley’s credit card applications,
water and electricity bills, car registration, and receipt of mail
that Crossley at least was representing to others that he was
residing at 1520 Mims. Whether Crossley was in fact residing at
1520 Mims, which appears to have been the case, is irrelevant to
our conclusion that Faber had done sufficient due diligence to form
a reasonable belief of Crossley’s residence there.
Faber also testified at the suppression hearing that when he
arrived at 1520 Mims, although Route was leaving the residence,
Faber could hear the television inside the house and noticed
another vehicle remaining in the driveway. In light of Faber’s
3
(...continued)
present at the dwelling.”); United States v. Lauter, 57 F.3d 212, 215 (2nd Cir.
1995) (“[T]he proper inquiry is whether there is a reasonable belief that the
suspect resides at the place to be entered . . . and whether the officers have
reason to believe that the suspect is present.”); United States v. Edmonds, 52 F.3d
1236, 1248 (3d Cir. 1995) (“[While the information available to the agents clearly
did not exclude the possibility that Carlton Love was not in the apartment, the
agents had reasonable grounds for concluding that he was there.”), vacated in part
on other grounds, 52 F.3d at 1251; United States v. Magluta, 44 F.3d 1530, 1535
(11th Cir.) (“[T]he facts and circumstances within the knowledge of the law
enforcement agents, when viewed in the totality, must warrant a reasonable belief
that the location to be searched is the suspect’s dwelling, and that the suspect is
within the residence at the time of entry.”), cert. denied, 116 S. Ct. 189 (1995).
But cf. United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991) (“[T]he police
may enter a home with an arrest warrant only if they have probable cause to believe
the person named in the warrant resides there.”).
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reasonable belief that Crossley resided at 1520 Mims, we agree with
the district court that Faber’s observations were sufficient to
form a reasonable belief that Crossley was in fact in the residence
at the time of the warrant.
B.
Route next argues that the district court erred in admitting
evidence of other fraudulent activity under FED. R. EVID. 404(b).
The government had sought to introduce evidence of Route’s 1980
conviction for possession of a stolen check and his 1990 conviction
for bank fraud, for which conviction he was on supervised release
at the time of his arrest for the present charges. The district
court excluded the 1980 conviction for staleness but allowed the
government to introduce the 1990 conviction. To prevent the jury
from hearing of the conviction, Route agreed to stipulate that in
1989 he and another individual had devised and executed a scheme to
defraud a financial institution by opening several bank accounts
using false social security numbers and by depositing stolen checks
into the accounts and then withdrawing the cash.
We review the admission of extrinsic acts evidence for abuse
of discretion. See United States v. Broussard, 80 F.3d 1025, 1039
(5th Cir.), cert. denied, 117 S. Ct. 264 (1996). We use a two-part
test to determine whether evidence is admissible properly under
404(b): (1) whether the evidence is relevant to an issue other than
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the defendant’s character and (2) whether the evidence possesses
probative value that is not outweighed substantially by the danger
of unfair prejudice and is otherwise admissible under Rule 403.
See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978),
cert. denied, 440 U.S. 920 (1979).
We agree with the district court that evidence of the 1990
conviction was relevant to an issue other than Route’s charac-
terSSnamely, intent and knowledge. In the instant trial, Route
defended himself by arguing that, although blank checks identical
to those used in the scheme were found in his home and although the
printer matching the print found on the tainted checks was also
found there, Crossley had used his home and computer equipment
without his knowledge. Evidence of a similar scheme in which Route
opened bank accounts under false names and deposited stolen checks
in the accounts (within five years of the instant scheme) was
indeed relevant to Route’s instant intent and knowledge.
Furthermore, the probative value of Route’s extrinsic acts
evidence was not outweighed substantially by the danger of unfair
prejudice. Notwithstanding Route’s protestations to the contrary,
the events were neither too remote nor too dissimilar. See, e.g.,
Broussard, 80 F.3d at 1040 (noting that rule 404 does not bar
per se the introduction of a ten-year-old conviction). Moreover,
any prejudice Route suffered was mitigated by the admission of his
stipulated involvement in the scheme (as opposed to his actual
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conviction) and by the limiting instruction to the jury regarding
the proof of other criminal conduct. See, e.g., United States v.
Devine, 934 F.2d 1325, 1346 (5th Cir. 1991).
C.
Route next contends that the district court erred by terminat-
ing prematurely his cross-examination of Fullwood, the chief
government witness. On cross-examination, Route asked Fullwood
whether Crossley had hid in Fullwood’s dormitory room for the two
days following Route’s arrest. The district court noted correctly
that the question was beyond the scope of Fullwood’s direct
examination and instructed Route to restrict properly his examina-
tion.
A district court possesses wide latitude to impose reasonable
limits on cross examination, subject to the Confrontation Clause of
the Sixth Amendment. See United States v. Cooks, 52 F.3d 101, 103
(5th Cir. 1995). We review the restriction of the scope of cross-
examination for abuse of discretion. See United States v. Stewart,
93 F.3d 189, 193 (5th Cir. 1996). Even where the district court
abuses its discretion, we will not order a new trial unless the
harm is plainly prejudicial. See Cooks, 52 F.3d at 104.
The district court did not abuse its discretion. The court
correctly instructed Route that his cross-examination of Fullwood
was limited by the scope of the government’s direct examination,
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permitted Route to continue his questioning consistent with this
admonition, and ended Route’s cross-examination only after Route
indicated his inability to abide by the court’s instructions.
Even assuming that the court’s ruling was error, it was
harmless. See Cooks, 52 F.3d at 104. Route intended to ask
Fullwood whether, after Route was arrested, Crossley hid for two
days in Fullwood’s dormitory room. According to Route, “[t]he fact
that Crossley and Fullwood were so intimately involved with each
other at the time of the offenses does tend to discount Route’s
involvement and to refute Fullwood’s testimony that Route was
involved.” Not only would such testimony have been duplica-
tiveSSCrossley had testified on direct examination that he had in
fact hid in Fullwood’s dormitory roomSSbut we are not convinced of
the validity of Route’s ruminations that “[t]here is even a
possibility that, under cross examination, Fullwood would have
conceded that Route was not involved in the offenses.”
III.
Route next contests his sentence. First, he argues that the
district court, as a basis for upward departure, considered
improperly the three theft offenses that he had committed when he
was eighteen to twenty-one years old. We review for abuse of
discretion the decision to depart upward. See United States v.
Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc), cert. denied,
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115 S. Ct. 1969 (1995). The district court has wide discretion in
determining the extent of the departure, and we will affirm an
upward departure if (1) the court gives acceptable reasons for
departing and (2) the extent of the departure is reasonable. See
United States v. Hawkins, 87 F.3d 722, 728 (5th Cir.), cert.
denied, 117 S. Ct. 408 (1996).
Route filed written objections to the presentence report
(“PSR”) and argued orally that the offenses SStwo of the which did
not receive any criminal history pointsSSwere too remote in time
and too dissimilar to warrant consideration. The court noted
Route’s objections but concluded that his criminal history
category of 6 did not reflect adequately the seriousness of his
past conduct nor the likelihood that he would commit future crimes.
As such, the court adopted the PSR’s recommendation that Route
receive an upward adjustment of one level. Because the court gave
acceptable reasons for its decision, and because the extent of the
departure was reasonable, we do not find any abuse of discretion.
Second, Route contests the PSR’s conclusions that the extent
of his check fraud scheme totaled $193,696.34, substantially
greater than the $24,129.46 for which he was convicted. We review
the PSR’s factual conclusions for clear error. See United States
v. Mir, 919 F.2d 940, 943 (5th Cir. 1990). Not only was the
district court’s consideration of the PSR’s factual findings
reasonable, but Route did not offer any rebuttal evidence to refute
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the factual findings. Thus, the court was free to adopt the facts
in the PSR without further inquiry. See United States v. Mueller,
902 F.2d 336, 346 (5th Cir. 1990).
IV.
Finally, Route claims that he is entitled to a new trial
because of ineffective assistance of counsel. Generally, we will
not review on direct appeal an ineffective assistance claim that
the defendant has failed to present to the district court; we will
entertain such claims only in those rare cases where the record
allows us to evaluate fairly the merits of the claim. See United
States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992). This is not
one of those rare cases. As such, we decline to address the matter
on direct appeal.
V.
Route also challenges this court’s denial of his motion for
substitute counsel on appeal. We will not substitute appointed
counsel except in the event of incompatibility between attorney and
client or other most pressing circumstances. See United States v.
Trevino, 992 F.2d 64 (5th Cir. 1993). We agree with this court’s
prior adjudication of this issue that such circumstances are not
present in the instant case.
AFFIRMED.
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