UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AKIBA MATTHEWS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00581-CCB-1)
Submitted: March 10, 2010 Decided: April 13, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Cheryl L.
Crumpton, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Akiba Matthews appeals his conviction and sentence for
knowingly and intentionally distributing and possessing with
intent to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(C) (2006) (Count One), knowingly and
unlawfully possessing a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(2006) (Count Two), and knowingly and unlawfully possessing a
firearm after having been convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18
U.S.C. § 922(g)(1) (2006) (Count Three). Finding no reversible
error, we affirm.
I.
A.
Shortly before 8 p.m. on November 15, 2007, Detective
Shawn Frey, a narcotics officer with the Baltimore City Police
Department, received an anonymous call that a black male was
selling drugs from a white van at the intersection of Frederick
and Collins Avenues. Detective Frey, accompanied by two
plainclothes narcotics detectives, Tavon McCoy and Yoo Kim,
proceeded to the area in an unmarked police car to begin
surveillance. All three detectives were experienced, having
each conducted at least 1000 street-level narcotics arrests in
Baltimore.
2
Several minutes after arriving in the general area,
the detectives observed a white van pull to the side of the road
and turn off its lights. The detectives observed a man exit the
vehicle and approach a black female standing next to the van.
At this point, the man was holding a dark colored bag, which the
detectives suspected contained drugs based upon how the man held
it and its apparent “weight.” Detective Frey then witnessed the
unidentified female hand paper currency to the man, who reached
into the bag, removed an item, and passed it to her.
At that point, Detective Kim drove toward the white
conversion van and moved to “box the van in” as the black male
opened the driver’s side door of the vehicle. As the detectives
approached the van, Detective Frey stated that he recognized the
black male as Akiba Matthews. The three detectives exited their
vehicle, identified themselves, and ordered Matthews to show his
hands. Instead, Matthews began reaching into the area between
the driver and passenger seats and kept the van in gear.
Weapons drawn, the detectives repeated their request for
Matthews to show his hands. Detective Frey, who had moved to
the driver’s side of the van, radioed for backup and waved his
flashlight to examine the van’s interior. In so doing,
Detective Frey saw a handgun protruding from the area between
the seats where Matthews was reaching. Matthews also began
asking Detective Frey, by name, why he was being stopped.
3
Shortly thereafter, Sergeant Darryl Collins arrived
and proceeded to the driver’s side of the vehicle. As this
backup arrived, Matthews placed his hands on the steering wheel.
Sergeant Collins then assisted Detective Frey in removing
Matthews from the vehicle without incident. As Matthews was
exiting the vehicle, Detective McCoy observed several clear bags
with what appeared to be drugs in the door panel. Detective Kim
also secured the handgun, a loaded Ruger .40 caliber, that
Detective Frey had seen between the seats. The clear bags that
Detective McCoy saw contained 60 gel caps of heroin and some
marijuana. The detectives also recovered a small amount of
marijuana and $274 in cash from Matthews’s right pants pocket.
B.
Prior to November 15, 2007, Detective Frey had two
interactions with Akiba Matthews. First, in 2001, Detective
Frey asked Matthews to vacate a street corner in a high crime
area. After Matthews refused, Frey attempted to arrest him for
loitering, but Matthews resisted and a wrestling match ensued.
Next, in 2002, Detective Frey witnessed Matthews complete a
hand-to-hand drug sale and attempted to arrest him. Matthews
fled the scene on foot, and Detective Frey eventually caught him
on a nearby front porch. Another fight occurred, this one
ending with both Matthews and Detective Frey suffering bruises
and cuts.
4
Matthews was also well known to the Baltimore City
Police Department because of his role as the camera-man in the
infamous “Stop Snitching” video 1 that appeared in 2004. As
defense counsel described it, that video featured “inner-city
gangster types doing a lot of talking and bragging and
threatening.” The video also gained traction in the national
media because of an appearance by NBA star Carmelo Anthony.
In response, the Baltimore Police Department created
its own video, “Keep Talking.” This video included footage of
Matthews with his name in bold letters and described him as the
“so-called cameraman” for “Stop Snitching.”
C.
Prior to trial, Matthews moved to dismiss the
indictment, contending that the Government had destroyed
exculpatory evidence — a videotape recording of his stop. The
Baltimore City Police Department operates, at locations
throughout the city, a system of surveillance cameras, commonly
called PODSS TV cameras, 2 or “blue light camera[s].” PODSS
cameras are unmanned cameras situated atop poles that record
video footage to a removable hard drive located in a box under
the cameras. The cameras rotate constantly on a 360 axis. The
video footage stays on the hard drive for five days and is then
1
The actual film title is “Stop F***ing Snitching.”
2
PODSS stands for Police Overt Digital Surveillance System.
5
recorded over. If someone requests the footage before the end
of a five-day period, a technician in a bucket truck must be
sent to physically remove the hard drive from the camera.
The intersection where the detectives stopped
Matthews, Frederick and Collins Avenues, has a PODSS camera.
Matthews’s counsel in a state prosecution subpoenaed the PODSS
footage on December 7 and December 14, 2007. Because, however,
these requests were more than five days after the events in
question, the recordings had been taped over and could not be
recovered. At a hearing on Matthews’s motion to dismiss the
indictment, Sergeant Derrick Lee, with the Department’s Legal
Affairs Office, testified that upon receiving the subpoena he
informed counsel that the footage could no longer be retrieved.
Sergeant Lee further testified he had never personally viewed
any footage that the Frederick/Collins camera recorded on
November 17, and he did not know if the camera captured
Matthews’s stop. Likewise, Detective Jesse Schmidt, a member of
the Criminal Intelligence Unit that operates the PODSS system,
testified that no one had requested the footage from that camera
to see if Matthews’s stop was captured. Detectives Frey and
McCoy testified that they were aware of the PODSS camera but
that they never requested the recordings for their drug arrests
because they found them unhelpful and not a part of their
standard investigative practice. Detective Kim testified that
6
he had once requested footage from a PODSS camera in a murder
investigation but found the footage unhelpful because, on that
occasion, “the POD camera was going 360. It saw the incident
start, but it missed the homicide. When it came back, the
suspect was gone.”
The district court ultimately denied Matthews’s motion
to dismiss, and the case proceeded to trial. Following a four-
day jury trial, Matthews was convicted of all counts. The
district court, however, granted Matthews’s unopposed motion for
a new trial because an unredacted police memo was erroneously
submitted to the jury. After a second jury trial, Matthews was
again convicted of all counts. The district court ultimately
sentenced Matthews to 360 months’ imprisonment.
II.
On appeal, Matthews raises three arguments: that the
district court erred in denying his motion to dismiss the
indictment; that the district court erred in refusing to
suppress the evidence seized during the stop; and that the
district court abused its discretion in sentencing Matthews. We
review each in turn.
A.
Matthews first argues that the district court erred in
denying his motion to dismiss the indictment based on the
7
Government’s failure to preserve the PODSS video footage. We
review the district court’s ruling on a motion to dismiss an
indictment de novo. United States v. Brandon, 298 F.3d 307, 310
(4th Cir. 2002). Any factual findings made by the district
court are reviewed for clear error. United States v. Woolfolk,
399 F.3d 590, 594 (4th Cir. 2005).
Under the Due Process Clause of the Fourteenth
Amendment, the Supreme Court developed “‘what might loosely be
called the area of constitutionally guaranteed access to
evidence.’” California v. Trombetta, 467 U.S. 479, 485 (1984)
(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). The Court has specified that, to the extent the
Constitution imposes a duty upon the government to preserve
evidence, “that duty must be limited to evidence that might be
expected to play a significant role in the suspect's defense”-
i.e., evidence that is constitutionally material. Id. at 488-
89. To satisfy this standard, evidence must: (1) “possess an
exculpatory value that was apparent [to the police] before the
evidence was destroyed,” and (2) “be of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.” Id. at 489. The mere possibility
that lost or destroyed evidence could have exculpated a
defendant is not sufficient to satisfy Trombetta’s requirement
that the exculpatory value be “apparent” to the police before
8
destruction. Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988).
Additionally, “if the exculpatory value of the evidence is
indeterminate and all that can be confirmed is that the evidence
was ‘potentially useful’ for the defense, then a defendant must
show that the government acted in bad faith in destroying the
evidence.” United States v. Bohl, 25 F.3d 904, 910 (10th Cir.
1994) (citing Youngblood, 488 U.S. at 58). “[M]ere negligence
on the government's part in failing to preserve such evidence is
inadequate for a showing of bad faith.” Id. at 912.
Applying this standard, we believe the district court
correctly denied the motion to dismiss the indictment. The
district court first held that the PODSS video footage did not
rise to the level of Trombetta, that is, that the footage did
not possess exculpatory value on its face. The district court
found that it “takes fairly substantial efforts on the part of
the police to extract the hard drive,” that PODSS footage is
used “primarily in the situation where there is not a police
officer witness,” and that “approximately 90% of the time it
doesn’t capture anything worthwhile.” The district court
further found that Detectives Frey, McCoy, and Kim never pulled
PODSS footage for routine street-level drug arrests, such that
“there is nothing out of the ordinary about the decision that
Detective Frey made in this particular case.” Building upon
these findings, the district court made the additional finding
9
that “[t]here is simply nothing in the evidence in front of me
at all, no testimony to show that this would be exculpatory.”
As the district court explained, “[t]o suggest that the PODSS
camera would show some different version of events, such as that
the drug transaction never took place, on the record in front of
me is speculation. There is simply nothing to support it.”
Continuing, the district court concluded that, even under the
Youngblood standard, that is, assuming the evidence was
“potentially useful,” there was “not evidence of bad faith on
the record.”
We agree with the district court that this evidence
did not satisfy the requirements of Trombetta because the
evidence’s exculpatory value was not apparent on its face.
Three experienced narcotics detectives testified as to the
events leading to Matthews’s arrest. For this evidence to have
apparent exculpatory value, all three detectives had to have
fabricated their testimony. In a similar situation, the Tenth
Circuit found that neither prong of Trombetta was satisfied when
a state trooper accidently erased footage of a traffic stop he
conducted. United States v. Parker, 72 F.3d 1444 (10th Cir.
1995). The stop eventually led to a search of the car that
uncovered narcotics. In upholding the district court’s
conclusion that the erasing of the video did not violate
Trombetta, the Tenth Circuit explained, “the only way the erased
10
video tape evidence could be ‘apparently’ exculpatory is if it
demonstrated that the events did not occur as [the trooper]
related, that is, that he was lying about the events.” Id. at
1452. And, “[w]hether [the trooper] was telling the truth was
essentially a question of credibility for the district court.”
Id. Likewise, in this case, the district court found the three
detectives were credible and made the factual finding that there
was “nothing” to suggest the video would show anything other
than Matthews conducting a drug deal with an unknown black
female.
As to the second prong, whether the evidence is
otherwise readily available, the Tenth Circuit in Parker also
answered this question in the negative, explaining “along with
[two additional state troopers], [the] Defendants participated
in the recorded events.” Id. Thus, “Defendants had a readily
available source to replace the missing video tape — [the
trooper’s testimony] and their own testimony of the events.”
Id. Again, in this case the evidence Matthews sought — a
narration of the events of that evening — was available in
cross-examination of the detectives and in Matthews’s own
testimony at the hearing.
In the alternative, Matthews contends that the
evidence on the PODSS camera was at least “potentially useful”
and that Detective Frey’s actions in not requesting the tape
11
were in bad faith. Again, the district court made the finding
that the record was devoid of evidence of bad faith. In
response, Matthews contends that his prosecution is a set-up by
the police, and that such actions are obviously in bad faith.
Matthews cannot rebut the fact, however, that failing to request
the PODSS footage was in line with the detectives’ actions in
all of their street-level drug arrests. At best, the failure to
request the tape for purposes of evidence preservation would
appear to be negligence, and “[m]ere negligence is not
sufficient to establish . . . bad faith” in this context.
Parker, 72 F.3d at 1452.
Accordingly, we find no error in the district court’s
denial of Matthews’s motion to dismiss the indictment.
B.
Matthews next argues that the district court erred in
refusing to suppress the handgun and drugs discovered during the
search of Matthews and his van or, in the alternative, in
failing to grant a judgment of acquittal on those grounds. In
reviewing the denial of a motion to suppress, the court reviews
the district court’s findings of historical fact for clear
error, “giving due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.” Ornelas
v. United States, 517 U.S. 690, 699 (1996). The court reviews
legal conclusions de novo. Id. And, “[b]ecause the district
12
court denied the motion to suppress, we construe the evidence in
the light most favorable to the Government.” United States v.
Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
Our review of the record, however, leads us to
conclude that Matthews did not preserve this claim. Prior to
trial, Matthews moved for dismissal of the indictment under
Trombetta and also filed a motion to suppress statements he made
to Detective Frey after his arrest but before Miranda warnings
were administered. Matthews never moved to suppress evidence
recovered from the stop, and he may not do so now. See Fed. R.
Crim. P. 12(b)(3) (noting that “motions that must be made before
trial” include “a motion to suppress evidence”); see also United
States v. Ruhe, 191 F.3d 376, 386 (4th Cir. 1999) (announcing
the “general rule . . . that a defendant forfeits a suppression
claim if that claim is not timely raised”).
Moreover, even assuming Matthews preserved this claim,
it is without merit. Police officers are permitted to make
investigatory stops when they possess “reasonable suspicion,”
based on articulable, particularized facts, that “criminal
activity may be afoot.” Terry, 392 U.S. 1, 30 (1968). And, in
the automobile context, “where a suspect is an occupant or
recent occupant of a vehicle at the initiation of a Terry stop,
and where the police reasonably believe the suspect may be
dangerous and that there may be readily-accessible weapons in
13
his vehicle, [Michigan v.]Long authorizes a protective search of
the vehicle for weapons.” In United States v. Holmes, 376 F.3d
270, 280 (4th Cir. 2004).
In this case, the detectives clearly had reasonable
suspicion to initiate a traffic stop. Detective Frey received
an anonymous tip that a white van in the area of Frederick and
Collins Avenues was being used for drug deals; the three
detectives began surveillance, observed the white van, and
watched the driver conduct what all three experienced narcotics
detectives believed was a hand-to-hand drug deal. These events
created reasonable suspicion to stop Matthews. And, as the
detectives approached the car and commanded Matthews to exit, he
ducked down toward the area between the seats, where Detective
Frey was able to see a handgun. That observation satisfies the
requirements of Holmes for a protective search of the car. As
Matthews was being removed from the car, Detective McCoy
observed what he believed were drugs in the side of the driver’s
side door, further providing authorization for the search.
C.
Finally, Matthews challenges his sentence of 360
months’ imprisonment. A sentence is reviewed for reasonableness
under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). This review requires consideration of
both the procedural and substantive reasonableness of a
14
sentence. Id. After determining whether the district court
properly calculated the defendant's advisory guideline range, we
consider whether the district court considered the § 3553(a)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Id.; see United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized assessment need not be elaborate
or lengthy, . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review”). Finally, we review the substantive
reasonableness of the sentence, “taking into account the
totality of the circumstances[.]” United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007).
In this case, a probation officer prepared a Pre-
Sentence Report (PSR) after the jury convicted Matthews. The
PSR first determined that Matthews was a career offender under
USSG § 4B1.1 and adjusted his criminal history category to VI. 3
With the career offender designation, his offense level was
adjusted to 33, yielding an advisory guidelines range of 360
months to life, when taking into consideration the mandatory
consecutive 60 month sentence imposed on the § 924(c) charge.
3
Indeed, Matthews’s criminal history was so extensive that,
even absent the career offender designation, his criminal
history category was VI.
15
At sentencing, Matthews moved for a downward departure
based upon his age (36 years old at sentencing), the time
between his prior convictions, the leniency received for past
convictions, and his current conditions of confinement in a
state Supermax facility. Matthews also contended that he was
singled out for prosecution because of his role in the “Stop
Snitching” video. Ultimately, Matthews requested a sentence of
240 months’ imprisonment. The Government requested a sentence
within the advisory guidelines range, focusing upon Matthews’s
criminal history and his role in the “Stop Snitching” video.
The district court sentenced Matthews to 360 months’
imprisonment, the low end of the advisory guidelines range. The
district court rejected Matthews’s argument that his criminal
history was overstated, explaining “[t]he criminal history that
[Matthews] has displayed, the consistency of it, and the
sustained period of drug dealing he has been involved in, make
it inappropriate to depart downward from the career offender
status.” The district court next recounted the factors under
§ 3553(a) and concluded that they did not support a below-
Guidelines sentence. In particular, the district court noted
that Matthews was “still not accepting responsibility for any of
the activities in November of 2007, which I think were quite
thoroughly proved twice to a jury.” The district court, in
weighing whether a downward variance was appropriate, also
16
considered Matthews’s presence in the “Stop Snitching” video,
remarking that “that video and his involvement was perpetuating
one of the most pernicious, dangerous aspects of Baltimore’s
criminal culture.” Thus, “while it is not something that he
should be punished for, it is certainly something that is . . .
a legitimate factor to consider when being asked to vary and go
below what is otherwise the guideline range in this case.”
We believe the district court did not abuse its
discretion in sentencing Matthews. The sentence is procedurally
reasonable: the district court correctly calculated the
criminal history category and offense level and correctly
identified the advisory guidelines range. The district court
stated that it considered the § 3553(a) factors, and it included
a lengthy statement of reasons as to why a sentence at the low
end of the guidelines was appropriate but a downward variance
was not. The district court’s decision to consider Matthews’s
role in the “Stop Snitching” video was not improper; Matthews
alluded to the video throughout trial, questioning each
detective on their familiarity with the video. And, Matthews’s
role with the video is certainly relevant to his personal
circumstances and history. As the district court aptly
explained, while Matthews did not deserve additional punishment
for his role as the cameraman, it was certainly “a legitimate
17
factor to consider when being asked to vary and go below what is
otherwise the guidelines range.”
The sentence is also substantively reasonable.
Because the sentence was within the advisory guidelines range,
it is presumptively reasonable. United States v. Abu Ali, 528
F.3d 210, 261 (4th Cir. 2008). And, Matthews makes no arguments
in his brief as to why the sentence is substantively
unreasonable.
III.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
18