UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW JEROME MALCOLM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-00232-DCN-1)
Submitted: August 20, 2010 Decided: September 9, 2010
Before MOTZ, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, for Appellant. Kevin F. McDonald, Acting United States
Attorney, Alston C. Badger, Christopher Coates, Assistant United
States Attorneys, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Jerome Malcolm was convicted by a jury of
importing into the United States fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 952(a),
960(b)(1)(H) (2006), and possession with intent to distribute
more than fifty grams of methamphetamine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) (2006). Malcolm’s indictment
arose from a traffic stop conducted by a South Carolina Highway
Patrol trooper that resulted in the discovery of methamphetamine
in the sleeper area of the cab of a tractor trailer driven by
Malcolm.
On appeal, Malcolm first argues that the evidence was
insufficient to sustain his conviction for importation of
methamphetamine, because the controlled substance had not
reached its final destination and the crime was therefore not
complete. “The offense of importation of a controlled substance
into the United States requires proof (1) that the substance was
imported; (2) that it was imported knowingly and willfully; and
(3) that the defendant willfully associated himself with the
importation venture.” United States v. Samad, 754 F.2d 1091,
1096 (4th Cir. 1984). In a case involving marine transport of a
controlled substance, the Court held that “[w]hile crossing into
United States waters in Palmero [v. United States, 112 F.2d 922
(1st Cir. 1940)] was sufficient to establish importation, that
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event is not necessarily also the termination of the act of
importation.” United States v. MacDougall, 790 F.2d 1135, 1151
(4th Cir. 1986). We conclude that the elements of importation
were fulfilled when Malcolm knowingly and willfully drove his
truck across the border from Canada and entered the United
States with the drugs in his truck. Although the importation
was not completed, it was established.
Malcolm next argues that the district court erred in
finding that he voluntarily consented to the search of his
truck. Whether a defendant has voluntarily consented to a
search is a factual question determined under the totality of
the circumstances and, accordingly, is reviewed under the
clearly erroneous standard. See Schneckloth v. Bustamonte, 412
U.S. 218, 248-49 (1973); United States v. Jones, 356 F.3d 529,
533 n.* (4th Cir. 2004). Under the clearly erroneous standard,
this court will reverse the district court only when it is “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005) (internal quotation marks and citation omitted).
“[I]f the district court's account of the evidence is plausible
in light of the record viewed in its entirety,” this court will
not reverse the district court's finding despite concluding that
it would have “decided the fact differently.” Id. (internal
quotation marks, citation, and alteration omitted). In other
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words, when two views of the evidence are permissible, “the
district court’s choice between them cannot be clearly
erroneous.” Id. (internal quotation marks and citation
omitted). We accord particular deference “to a district court’s
credibility determinations, for it is the role of the district
court to observe witnesses and weigh their credibility during a
pre-trial motion to suppress.” United States v. Abu Ali, 528
F.3d 210, 232 (4th Cir. 2008) (internal quotation marks and
citation omitted). When a suppression motion has been denied,
this court reviews the evidence in the light most favorable to
the Government. United States v. Neely, 564 F.3d 346, 349 (4th
Cir. 2009). Our review of the record leads us to conclude that
the district court did not err in denying Malcolm’s motion to
suppress.
Malcolm next argues that the district court erred by
limiting his re-cross examination of Trooper Laird regarding a
previous stop of another truck owned by Malcolm’s employer. The
truck, which was stopped in New Jersey, contained twice as many
pills as were found in Malcolm’s truck. Prior to trial, Malcolm
moved to prohibit any mention of this incident, and the
Government agreed that it would not introduce any evidence
regarding the stop. Fed. R. Evid. 611(b) provides: “Cross-
examination should be limited to the subject matter of the
direct examination and matters affecting the credibility of the
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witness. The court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination.”
The district court “‘is vested with broad discretion to control
the mode of interrogation and presentation of evidence,’” and
this court reviews a district court’s ruling under Fed. R. Evid.
611(b) “only to determine whether it has abused its discretion.”
United States v. McMillon, 14 F.3d 948, 955-56 (4th Cir. 1994)
(quoting United States v. Gravely, 840 F.2d 1156 (4th Cir.
1988)); see also United States v. Siegel, 536 F.3d 306, 320 (4th
Cir. 2008) (district court is “vested with broad authority to
control the manner of trial and the presentation of evidence”).
We conclude that the district court properly exercised its
discretion in limiting the cross-examination of Laird.
Malcolm next argues that the district court erred in
allowing the Government to present testimony of statements that
he did not make, by way of a description of his reaction to the
discovery of the drugs. Malcolm argues that his silence did not
constitute an adoptive admission, and thus the testimony was
inadmissible hearsay. This court reviews “the district court’s
admission of testimony for abuse of discretion. United
States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010). Malcolm did
not object to this testimony, and thus we review for plain
error. “To establish plain error, [Malcolm] must show that an
error occurred, that the error was plain, and that the error
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affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Malcolm satisfies
these requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
“The adoptive-admission doctrine permits statements of
others to be treated by the jury as statements of the party — it
is as if the party himself made the statement.” United
States v. Williams, 445 F.3d 724, 735 (4th Cir. 2006). In order
to be admissible as an adoptive admission, however, the
statement to which the defendant’s response is relevant must be
at least implicitly accusatory to the degree that failure to
answer is an adoption of the accusatory statement by the
defendant. Id. Assuming, without deciding, that the district
court erred in allowing the testimony in question, we conclude
that, in light of the significant other evidence of Malcolm’s
guilt, such error did not affect Malcolm’s substantial rights,
and thus he is not entitled to relief on this claim.
Malcolm next argues that his due process rights were
violated by the Government’s failure, despite three requests, to
produce his trucker’s logbook. He asserts that evidence in the
logbook could have been used to impeach the trooper’s testimony
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regarding his suspicions during the traffic stop, allowing
Malcolm to more fully litigate his motion to suppress. 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.” California v. Trombetta, 467 U.S. 479, 488-89 (1984).
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
its loss or destruction, which is required to establish that the
police acted in bad faith. Arizona v. Youngblood, 488 U.S. 51,
56 n.* (1988). Our review of the record leads us to conclude
that Malcolm fails to establish that the logbook was clearly
exculpatory, or that the Government acted in bad faith.
Malcolm asserts counsel failed to properly introduce
exculpatory cell phone records, failed to present evidence that
another employee of Malcolm’s employer had been arrested for
trafficking ecstasy, and failed to obtain his logbook. Claims
of ineffective assistance of counsel are generally not
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cognizable on direct appeal. United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295. In this case, the record
does not conclusively show that counsel performed deficiently,
or that any failure by counsel prejudiced Malcolm.
Malcolm next argues that the district court did not
sufficiently examine his testimony and explain its determination
that he committed perjury in imposing a sentencing enhancement
for obstruction of justice. This court reviews for clear error
a district court’s determination that a defendant obstructed
justice. United States v. Hughes, 401 F.3d 540, 560 (4th Cir.
2005). The district court summarized Malcolm’s false testimony
regarding his knowledge that the drugs were in his truck, and
made the required findings that the testimony was material and
was given with an intent to deceive. The court’s explanation
was sufficient, and the enhancement was properly applied.
Malcolm’s final argument is that the evidence relied
on by the district court to determine drug quantity was too
speculative and unreliable. This court reviews the district
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court’s calculation of the quantity of drugs attributable to a
defendant for sentencing purposes for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). The
Government must establish the quantity of drugs attributable to
a defendant by a preponderance of the evidence and may do so
through the introduction of relevant and reliable evidence.
United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
“The district court is afforded broad discretion as to what
information to credit in making its calculations.” United
States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996) (internal
quotation marks omitted). We conclude that the method utilized
by the forensic chemist and adopted by the district court to
estimate the quantity of drugs possessed by Malcolm was
appropriate to the evidence in question. The court’s drug
quantity determination is therefore supported by the evidence.
Accordingly, we affirm Malcolm’s convictions and
sentence. 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
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