United States v. McGhee

United States Court of Appeals
For the First Circuit

No. 09-1322

UNITED STATES OF AMERICA,

Appellee,

v.

WINSTON MCGHEE, a/k/a Pooh,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.

J. Martin Richey, Federal Defender Office, for appellant.
Nina Goodman, Appellate Section, Criminal Division, Department
of Justice, with whom Lanny A. Breuer, Assistant Attorney General,
Greg D. Andres, Acting Deputy Assistant Attorney General, and
Carmen Milagros Ortiz, United States Attorney, were on brief for
appellee.

December 7, 2010
 BOUDIN, Circuit Judge. A jury found Winston McGhee

guilty of possession of cocaine base (at least five grams), 21

U.S.C. § 844(a) (2006), and of possession of cocaine base with

intent to distribute (less than five grams), id. § 841(a)(1).1 He

now appeals on three grounds: that the search of his person

violated the Fourth Amendment; that the court impermissibly allowed

a testifying chemist to rely in part on another chemist's test

results as to one drug sample (the sale of which was not charged);

and that at sentencing, a youthful offender adjudication was

improperly treated as a career offender predicate.

During June and July 2006, Jeffrey Stone (a sergeant in

the Massachusetts State Police) and Nicholas Curelli (a detective

in the Oak Bluffs, Massachusetts, Police Department) investigated

reports of cocaine sales by Jordan Clements, her boyfriend Calvin,

and his friend called "Pooh." On July 10, a confidential informant

made a controlled purchase of a sample from Pooh, which Stone

observed before following Pooh back to the Nashua House hotel. The

sample was contained in a corner of a plastic bag that had been

twisted and cut off from the original bag. The officers concluded

from appearance and a field test that the sample was crack cocaine,

1
After McGhee's trial and sentence, both § 841 and § 844 were
amended by the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, which increased from five grams to twenty-eight
grams the amount of cocaine base distribution triggering the
statutory sentencing range of five to forty years and which removed
a five-to-twenty-year range for possession of more than five grams
of cocaine base. Id. §§ 2(a)(2), 3, 124 Stat. at 2372.

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and a Nashua House employee informed Curelli that Clements and two

men were staying in Room 6 of the hotel.

Based on this evidence, the officers obtained a warrant

permitting them to search for cocaine and records, money, or

paraphernalia related to illegal drug possession in Room 6 and on

the person or in the possession of Clements, Calvin, and Pooh.

That evening, the officers stopped McGhee as he entered the hotel--

he denied using the name Pooh and identified himself as Winston

McGhee--and in a pat down took from him a knife. McGhee walked up

to Room 6 with the officers, and Curelli began to search him while

Stone searched the room.

There, the officers found fifteen corners and seventeen

knotted ends of plastic sandwich bags, a cell phone, and two

receipts--one for the room registration in Clements' name and one

dated that day for a bicycle in McGhee's name; they found no

cocaine and no apparatus for smoking crack. In McGhee's pockets

and wallet, Curelli found identification with McGhee's name and

$1,229 in cash--although McGhee was unemployed at the time--and

another cell phone that displayed the name "Pooh." The officer

found marijuana in McGhee's shoes and arrested him.

Around this time, two more male officers--McSweeney and

Marquis--joined Stone and Curelli in the room. Curelli had McGhee

remove his polo shirt and blue jean shorts, leaving him in his

underwear (an A-shirt and basketball shorts) and revealing a brand

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or scar of "Pooh" on his arm. Stone then instructed Curelli to

complete his search.

McGhee began to protest, saying that they could not

search him or "stick a finger up [his] ass." Stone replied that

they would not do that, but they would "do a complete search."

McGhee refused and then physically resisted removal of his

underwear; against resistance, the officers forced McGhee to the

floor, pulled down his shorts, and found a bag protruding from

between McGhee's buttocks, which McSweeney picked up. The bag

contained thirty-one individual baggies of what, when later tested,

proved to be cocaine base.

McGhee was indicted for possession of cocaine base and

possession with intent to distribute cocaine base; the grand jury

alleged in both counts that the offense involved at least five

grams of a substance containing a detectable amount of cocaine

base. Prior to trial, McGhee moved to suppress the seized evidence

but his motion was denied. At his trial the officers testified to

the events set forth above including the original sample purchased

by the informant, the searches of the room and of McGhee and the

evidence obtained in both searches. There was also expert

testimony from a chemist that the drugs in the baggies were cocaine

base and totaled 7.88 grams and that the sample was also cocaine

base and weighed 0.49 grams.

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 The jury found McGhee guilty of both counts; in answers

to special interrogatories, the jury stated that the substance in

both counts was cocaine base, but that the five-gram minimum was

only shown for the possession count. The separate inquiry was

pertinent because, among other things, the five-gram figure

affected the statutory sentencing range then in force. 21 U.S.C.

§§ 841(b)(1)(B)(iii), 844(a). At sentencing, the district court

ruled over objection that McGhee qualified as a career offender,

U.S.S.G. § 4B1.1 (2008), leading to a guideline range of 210 to 262

months' imprisonment, but the district court granted a downward

variance and sentenced McGhee to 96 months' imprisonment. McGhee

now appeals.

We begin with McGhee's claim that the district court

should have suppressed the package of thirty-one baggies. Police

searches are constrained by the Fourth Amendment's reasonableness

requirement and, in certain circumstances, by the further

requirement of a warrant. E.g., Arizona v. Gant, 129 S. Ct. 1710,

1716 (2009); 1 W. LaFave, Search and Seizure § 1.1(a), at 8 (4th

ed. 2004). McGhee does not argue that a warrant was needed if the

requisite grounds existed for so intrusive a search incident to an

arrest. Conversely the government chose not to assert that the

warrant separately authorized a search that included removal of

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McGhee's clothes,2 but defends the search as reasonable incident to

the arrest.

McGhee had been validly arrested on a drug offense at the

time of the search and, although McGhee was formally arrested only

for marijuana possession, there was probable cause to believe that

he was a drug trafficker since he had sold a drug sample earlier in

the day. In an ordinary arrest, a "full search of the person" is

a conventional means of protecting the arresting officers from

weapons and assuring against the destruction of evidence. United

States v. Robinson, 414 U.S. 218, 235 (1973); see also Chimel v.

California, 395 U.S. 752, 762-63 (1969).

But, as a search extends beyond a pat down and the

removal of outer garments, shoes and socks, the case law has

required increasing justification for more intrusive measures, see,

e.g., Swain, 117 F.3d at 5-6; our decisions, although sometimes

varying in labels, tend to distinguish between (1) a simple strip

search involving removal of all or virtually all clothes, (2) a

visual inspection of genitals or buttocks requiring some change in

posture of the body (for example, the subject might be forced to

2
The warrant authorized a search for cocaine and related
evidence on the person or in the possession of Pooh, and it
incorporated an affidavit stating "that people who use, possess and
sell drugs will often conceal drugs on their body." Cf. Doe v.
Groody, 361 F.3d 232, 239-40 (3d Cir.), cert. denied, 543 U.S. 873
(2004); United States v. Husband, 226 F.3d 626, 638-39 (7th Cir.
2000) (Easterbrook, J., dissenting); United States v. Nelson, 36
F.3d 758, 760 (8th Cir. 1994).

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bend over and spread his buttock cheeks), and (3) an actual manual

intrusion into such orifices. E.g., Blackburn v. Snow, 771 F.2d

556, 561 n.3 (1st Cir. 1985); see also United States v. Barnes, 506

F.3d 58, 62 (1st Cir. 2007).3

In this case, the district court found that McGhee was

subject on arrest only to the first of these three additional

measures, using the term "strip search" to exclude the more

intrusive visual body cavity search. McGhee rather briefly asserts

that in fact what occurred here was a visual body cavity search.

The district court may be entitled to different measures of

deference depending upon whether the focus is upon characterization

of evidence or its findings of raw facts, compare Ornelas v. United

States, 517 U.S. 690, 699 (1996), with United States v. Bater, 594

F.3d 51, 55 (1st Cir. 2010), but regardless, the record evidence

confirms the district court's conclusion.

Thus, McGhee argues that while a strip search involves a

view of the naked body in a natural posture, the district court

found that the officers had held McGhee down and pulled his ankles

apart, revealing "what was hidden in between the cheeks of his

buttocks." But the description is incomplete and the word "hidden"

3
Further, a search on arrest may be assessed differently than
searches in other circumstances. McGhee's situation thus differs
from a search of pretrial detainees, for which security interests
of detention facilities may add justification, see Bell v. Wolfish,
441 U.S. 520, 559-60 (1979), or a search conducted long enough
after arrest that the exigent threat of destruction of evidence has
faded, see Swain v. Spinney, 117 F.3d 1, 8-9 (1st Cir. 1997).

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is inaccurate. The record shows that, far from submitting to the

request to strip, McGhee deliberately swung his body into the

officers, and the district court found that he made a non-forcible

strip search impossible "by clenching his buttocks, by tangling his

ankles, by refusing to get up, by resisting in a variety of

different ways."

The officers, as the district court ruled, did "no more

than was necessary to obtain a full strip search"; the "spreading"

of McGhee's legs was only "in the sense that [an officer] untangled

[McGhee's deliberately entangled] ankles" and, at that point, the

officers "observed . . . in plain view, protruding from Mr.

McGhee's buttocks," the package containing the thirty-one baggies

of cocaine. In fact, the back of McGhee's undershorts were pulled

down only enough to expose his buttocks, so the legs, being bound

by the garment, probably could not readily have been pulled far

apart into some unnatural posture.

The question remains whether the officers had whatever

enhanced grounds may be needed to justify any strip search at all.

Here, the government cites our statement in Barnes that "[t]he

initial strip search [of the defendant] for contraband and weapons

was clearly justified given Barnes's arrest for a drug trafficking

crime," 506 F.3d at 62; Barnes then went on to assess a more

intrusive body cavity inspection (a bend-over-and-spread-your-

cheeks direction) based on a tip that the defendant regularly

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concealed drugs between his buttocks, id. at 60-65. The quoted

statement in Barnes, says the government, lays down a general rule

that justifies a strip search of any drug-trafficking arrestee.

McGhee responds that categorical rules are always to be

rejected in the Fourth Amendment context and that everything must

turn on evaluating the specific facts. Yet generalizations lie

behind every such evaluation, Tardiff v. Knox Cnty., 365 F.3d 1, 5

n.6 (1st Cir. 2004): the question is whether a generalization is

powerful enough to become a rule of thumb or something stronger.

Over-generalization risks error; the absence of rules invites

endless reinvention and inconsistent outcomes. There are plenty of

rules and rules of thumb in the Fourth Amendment cases,4 whether

Barnes were read as a rule, a presumption or something less.

However, McGhee says that the quoted language in Barnes

is only a dictum because, in the end, that decision focused on a

more intrusive body cavity search and upheld it in light of the

particular facts in that case including the tip as to the

defendant's own past practice. But whether the statement was pure

dictum or played a role in the decision's reasoning, the Barnes

court fairly viewed drug trafficking as linked to concealment of

4
See, e.g., Samson v. California, 547 U.S. 843, 857 (2006)
(statutory suspicionless searches of parolees); United States v.
Villamonte-Marquez, 462 U.S. 579, 580-81, 592-93 (1983)
(suspicionless boarding of vessels for inspection of documents);
Henry v. United States, 361 U.S. 98, 100 (1959) (warrantless arrest
for felonies committed in officer's presence).

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drugs; and Barnes made clear, in what is more than dictum, that an

intrusive search of a validly arrested person (whether a strip

search or a visual body cavity search) requires only a reasonable

basis for supposing that the particular kind of search employed

might be fruitful. 506 F.3d at 62-63.

Here, it is enough that the officers had ample reason to

suspect that McGhee might well be concealing drugs about his person

and not just in his pockets. Marijuana had already been found

concealed in his shoes; and, when one officer told him without

being more specific that the team was about to complete the search,

McGhee began to protest, saying that they could not "stick a finger

up [his] ass." Although reassured that this was not going to

occur, McGhee physically resisted removing his shorts; his pattern

of behavior was a reasonable signal that drugs were likely

concealed within. On its own facts, the search was lawful and

suppression properly denied.

McGhee's second claim concerns the testimony given at

trial to establish the nature and weight of the drugs. Caroline

Tatro, a chemist at the Massachusetts State Police Crime Laboratory

who had analyzed the thirty-one baggies, testified that they

contained 7.88 grams of cocaine base. It was these baggies that

were the subjects of both counts of the indictment, one of which

charged intent to distribute and the other mere possession. There

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is no challenge to Tatro's testimony about the weight or substance

contained in these baggies.

However, Tatro also testified that the sample McGhee had

supplied the informant earlier in the day comprised 0.49 grams of

cocaine base. Although McGhee was not charged in the indictment

with possession or distribution of this sample, the evidence of the

earlier sale was offered by the government to confirm that McGhee

was a drug trafficker and so to support the inference that the

thirty-one baggies–or some portion of them--were also intended for

distribution. There was other evidence of intended distribution,

to which we will return; but the distributed sample was evidence

offered to confirm McGhee's intent as to the thirty-one baggies.

However, a different chemist, Hannah Knowles, had tested

the sample, and Knowles did not testify nor were her records

offered in evidence. Instead Tatro rendered an opinion as to both

the nature and weight of the sample based on Knowles' case file and

test results recorded in the file. McGhee made unsuccessfully at

trial, and now renews on appeal, the objection that Tatro's

testimony as to the sample was barred by the Confrontation Clause

of the Constitution as construed in Crawford v. Washington, 541

U.S. 36 (2004), and more recently in Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009).

Both cases dealt with out-of-court statements, other than

admissions, offered in criminal trials against the defendant;

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prior Supreme Court precedent had held such statements to be

constitutional if they fell within traditional hearsay exceptions

or were otherwise reliable. Ohio v. Roberts, 448 U.S. 56, 65-66

(1980). In Crawford, the Supreme Court established as a

constitutional rule that where the out-of-court statements were

"testimonial," the sine qua non of admissibility was a prior

opportunity by the defendant to cross examine the out-of-court

"witness" and the unavailability of that witness as well, 541 U.S.

at 53-54, 68.

Then, in Melendez-Diaz, a sharply divided Court applied

the Crawford ban to a lab technician's certification that cocaine

seized by the police was of a certain quality and quantity, 129 S.

Ct. at 2532. This overturned the common practice in many state

courts of using such certificates in drug and other prosecutions.

Id. at 2543 (Kennedy, J., dissenting). The Supreme Court's new

slant on the Confrontation Clause is likely to be contested

territory for some years, although the recent grant of certiorari

in State v. Bullcoming, 226 P.3d 1 (N.M. 2010), cert. granted, 79

U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-10876), may lead to

some clarification.

In the meantime, McGhee relies heavily upon Melendez-

Diaz, claiming that Tatro's testimony simply channeled Knowles'

report. This case can doubtless be distinguished from Melendez-

Diaz: in particular, Knowles' report was not introduced in

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evidence, nor did Tatro's testimony comprise a direct recitation of

that report, as in Davis v. Washington, 547 U.S. 813, 826 (2006).

The problem is further complicated because Justice Thomas, who made

up the needed fifth vote in Melendez-Diaz, 129 S. Ct. at 2543

(Thomas, J., concurring), had a narrower interpretation of

Crawford, and it is unclear whether he would regard Tatro's

testimony, relying only in part on Knowles' work, as amounting to

a forbidden introduction of Knowles' own report, even assuming that

he regarded the latter as a "testimonial statement" subject to

Crawford.

What may matter even more is that Tatro's testimony that

the sample was cocaine base did not rest on Knowles' conclusion

alone. Knowles' report furnished technical test data, which in

some measure permitted Tatro to draw her own scientific conclusion

as to the nature of the sample; Tatro, who worked in the same lab,

understood the testing methodologies and protocols used by Knowles.

Experts who testify regularly in court commonly and permissibly

rely in some measure on information gathered by other experts.

Fed. R. Evid. 703. A number of lower court cases have

distinguished Melendez-Diaz on this basis.5

5
E.g., United States v. Turner, 591 F.3d 928, 931-33 (7th Cir.
2010); United States v. Williams, Criminal No. 09-0026 (PLF), 2010
WL 4071538, at *4-*5 (D.D.C. Oct. 18, 2010); United States v.
Mirabal, No. CR 09-3207 JB, 2010 WL 3834072, at *4-*8 (D.N.M. Aug.
7, 2010); see also United States v. Winston, 372 F. App'x 17, 19-20
(11th Cir. 2010) (per curiam); United States v. Johnson, 587 F.3d
625, 634-36 (4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010);

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 On the other hand, Tatro's conclusion as to the substance

of the sample did depend in part on Knowles' work. The quality and

quantity of dependence is going to vary from case to case and,

absent clarification by the Court, how Rule 703 and Melendez-Diaz

are to be reconciled may, in some cases, involve case-by-case

assessments. However, the issue needs no further discussion here

for even if we assume arguendo that Melendez-Diaz barred Tatro's

testimony as to the identity of the sample, the error was patently

harmless beyond a reasonable doubt. As for the weight of the

sample--where Tatro's testimony did depend entirely on Knowles'

weighing and was likely inadmissible, see Mirabal, 2010 WL 3834072,

at *7-*8--that evidence was virtually irrelevant.

Officer testimony, essentially uncontradicted, showed

that McGhee had sold a sample during the controlled drug buy; and

officers testified that, by field test and observation, the sample

was a small amount of cocaine. Thus, the officer testimony

provided a basis for the jury to conclude without regard to Tatro's

testimony that the sample was cocaine; further, in making the sale,

McGhee appeared to be holding himself out as a drug dealer. Both

facts--the cocaine sale and the holding out--were themselves

relevant only for an inference that at least some of the thirty-one

United States v. Darden, 656 F. Supp. 2d 560 (D. Md. 2009); Larkin
v. Yates, No. CV 09-2034-DSF (CT), 2009 WL 2049991, at *1 (C.D.
Cal. July 9, 2009).

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baggies that McGhee had secreted on his body were also intended for

sale.

That intention, however, was independently established by

the empty bag ends in the hotel room, by the multiple cell phones,

by McGhee's possession (while unemployed) of a large cache of

bills, and by the large quantity of cocaine in the thirty-one

baggies. The jurors also had Officer Stone's testimony that a user

of crack cocaine would normally have one or two packets of cocaine,

not thirty-one. So it is hard to imagine that, even if the sample

sale had been excluded in its entirety, a jury could have avoided

concluding that some portion of the thirty-one baggies was intended

for distribution.

Of course, how much of the cocaine in the thirty-one

baggies was intended for distribution was a disputed issue; at

least, given the verdict, the jurors were not able to agree that

all of those baggies were intended for distribution rather than

consumption.6 Still, whether McGhee's prior (uncharged) sale was

of cocaine added almost no information about the percentage

intended for sale of the drugs actually seized on arrest. The

other evidence overwhelmingly established that McGhee held at least

6
Additionally, the jurors asked during deliberation, "Can we
agree on 1 count of the verdict (i.e. #1 or 2) and not on the
other?" They also posed two questions about "alternative
explanations" and their effect on reasonable doubt, enquiring
whether an alternative explanation unsupported by evidence or
unargued by the defense would constitute reasonable doubt.

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some of the baggies for distribution; and intended distribution,

with no minimum amount, was all the jury found on that count.

McGhee's third and final claim centers upon his

designation during sentencing as a career offender. Career

offender status normally increases significantly the guideline

range assigned to a convicted defendant, U.S.S.G. § 4B1.1, the

range usually influencing in some measure the ultimate sentence,

id. § 5; see United States v. Booker, 543 U.S. 220, 245-46 (2005).

Career offenders must have committed "at least two prior felony

convictions of either a crime of violence or a controlled substance

offense," U.S.S.G. § 4B1.1(a); at issue was whether McGhee's

youthful offender adjudication for armed robbery and assault with

a dangerous weapon would count as the second prior felony

conviction.

Initially, the district court considered certifying the

question to the Massachusetts Supreme Judicial Court to determine

whether it would classify the offense as an adult conviction. See

id. § 4B1.2 cmt. n.1. However, United States v. Torres, 541 F.3d

48 (1st Cir. 2008), cert. denied, 129 S. Ct. 1987 (2009),

intervened; the district court held that it was directed by Torres

to count the youthful offender adjudication as a prior felony

conviction. McGhee concedes in his appellate brief that Torres

controls his case; he "raises this challenge . . . in order to

preserve the issue for further en banc review."

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 Ordinarily, with exceptions not applicable here, one

panel in this circuit must follow a legal ruling by another panel,

Irving v. United States, 162 F.3d 154, 160 (1st Cir. 1998) (en

banc), cert. denied, 528 U.S. 812 (1999); accordingly, we follow

Torres and uphold the district court's sentencing decision, but

McGhee's opportunity to seek en banc reconsideration to challenge

Torres is duly preserved. Also preserved is his further argument,

based on the Fair Sentencing Act of 2010, that (if Torres were

overturned) the resulting error in classifying him as a career

offender would not be harmless as to him.

Affirmed.

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