United States v. Recasner

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-30269
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ABRAM RECASNER, also known as Abram Racasner

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(00-CR-72-ALL-K)
_________________________________________________________________
January 29, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

PER CURIAM:*

Defendant-Appellant Abram Recasner appeals his conviction

for two counts of cocaine possession. For the following reasons,

we AFFIRM.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
 I. PROCEDURAL HISTORY

On September 21, 2000, Defendant-Appellant Abram Recasner

was charged, pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii),

and (b)(1)(C) (1999), with one count of possession with intent to

distribute fifty grams or more of cocaine base and one count of

possession with intent to distribute less than 500 grams of

cocaine hydrochloride. On November 2, 2000, the district court

denied Recasner’s motion to suppress evidence obtained in a

warrantless search of his vehicle. On November 28, 2000, the

district court denied Recasner’s motion for mistrial based on the

inadvertent introduction of extrinsic material not in evidence

into the jury room. Also on November 28, after a two-day trial,

a jury found Recasner guilty on both counts of cocaine

possession. On February 14, 2001, the district court sentenced

Recasner to 151 months imprisonment on each count, to be served

concurrently. Recasner timely appeals the district court’s

judgment, specifically the denial of his motion to suppress

evidence, the district court’s ruling that the government’s

peremptory strike of an African-American juror was race-neutral,

his conviction by the jury, and the district court’s denial of

his motion for mistrial.

II. MOTION TO SUPPRESS EVIDENCE

Recasner contends that the district court erred in denying

his motion to suppress evidence seized in a warrantless search of

2
his vehicle because Recasner asserts that the detective who

seized the evidence lacked probable cause. On appeal of a motion

to suppress evidence, this court reviews the district court’s

factual findings for clear error and reviews the court’s

“conclusions regarding the constitutionality of a warrantless

search de novo.” United States v. Vega, 221 F.3d 789, 795 (5th

Cir. 2000) (internal citations and quotations omitted). We view

the facts in the light most favorable to the prevailing party,

the government in this case. United States v. Howard, 106 F.3d

70, 73 (5th Cir. 1997).

At the hearing on the motion to suppress, the district court

heard the following evidence. New Orleans Police Department

(“NOPD”) Detective Robert Ferrier testified to the following

version of events. On March 16, 2000, he received a tip from a

confidential informant. The informant told Ferrier that an

African-American male known to the informant as “Abe” would

participate in a narcotics transaction with another unknown

African-American male sometime between 2:00 and 2:30 p.m. on

March 16, 2000, at a specified New Orleans intersection. The

informant offered a description of “Abe” and said that Abe would

be driving a maroon Buick. Ferrier indicated that the informant

was reliable and previously provided information leading to at

least five arrests for drug offenses, but admitted that no

convictions resulted from that informant’s prior tips as of March

16, 2000.

3
 On March 16, Ferrier and other NOPD detectives set up

surveillance of the specified intersection at approximately 1:45

p.m. Although Ferrier had an unobstructed view of the

intersection via binoculars, he was the only detective with a

view of the intersection. Ferrier maintained contact with the

other detectives in the vicinity by police radio. At

approximately 2:10 p.m., Ferrier saw a maroon Buick approach the

intersection and park approximately forty feet from it. Ferrier

wrote down the license plate number of the Buick. A blue truck

occupied by two African-American males then approached the

intersection and parked. The driver of the Buick, later

identified as Recasner, exited the Buick, and at the same time,

the two other males exited the blue truck, one carrying a white

and green plastic bag with a “Foot Action” logo. Ferrier

observed Recasner remove a “wad or bundle” of what Ferrier

believed to be currency from the Buick and approach the two males

at the rear of the blue truck. Recasner handed the currency to

one of the males who then handed the Foot Action bag to Recasner

in return. Recasner then opened the Foot Action bag and removed

a brown paper bag, from which he in turn removed a “white

object.” Recasner then replaced the white object in the brown

paper bag and, in turn, replaced the brown bag in the Foot Action

bag. Recasner then returned to the Buick and departed the

intersection. Ferrier indicated that the entire transaction

occurred within approximately twenty seconds and that he believed

4
from his experience as a narcotics officer -- having observed

many “hand-to-hand” drug deals -- that the white object was

contraband. Ferrier testified that he believed he had witnessed

an illegal narcotics transaction between Recasner and the

occupant of the blue truck. Ferrier broadcast the following

information over his radio to the other officers assisting with

the surveillance, including Detective Kyle Hinrichs: a

description of the blue truck, a description of the Buick and its

driver, and the Buick’s license number. Ferrier also broadcast

his belief that the Buick driver was in possession of “contraband

or drugs.” Ferrier admitted that he was the only detective who

observed the blue truck.

Detective Hinrichs testified to the following version of

events. Ferrier told him of the information provided by the

confidential informant prior to the surveillance. Hinrichs also

received Ferrier’s radio broadcast regarding the narcotics

transaction between the Buick driver and an occupant of the blue

truck, which broadcast indicated that the driver of the Buick was

in possession of a Foot Action bag containing what Ferrier

believed to be “drugs,” and provided a description of the Buick

and its license number. Hinrichs then spotted the Buick,

verified that its license number matched the number relayed to

him by Ferrier, and, without a warrant, stopped the vehicle and

placed the driver in the back of an NOPD vehicle. Hinrichs

observed a green and white plastic bag on the seat of the Buick

5
that matched the one described to him by Ferrier over the radio.

Then, also without a warrant, Hinrichs removed the bag, examined

its contents, and found an open box of plastic sandwich bags and

packages of white substances, later identified as powder and

crack cocaine, within the green and white bag.

Recasner testified at the hearing and also called two

defense witnesses, Lionell Carter, Jr. and John Elder. Carter

testified that he lived in an apartment near the specified

intersection where the alleged drug transaction took place, that

Recasner visited Carter there on March 16 from approximately

12:30 p.m. to 2:30 p.m., and that Carter observed Recasner drive

off without talking to, or receiving anything from, any other

person. Elder testified that he observed a police car following

Recasner’s Buick, observed an officer place Recasner in the back

of an NOPD vehicle, and observed an officer searching Recasner’s

trunk. Recasner testified that he visited Carter on March 16 and

that, prior to being stopped by Hinrichs, Recasner made no stops,

did not meet or talk with anyone in a blue truck, and that he

never observed any blue truck.

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court

established that the test for whether a police officer had

probable cause to conduct a warrantless search based on an

informant’s tip looks to the totality of circumstances

establishing the reliability of the tip. See United States v.

Reyes, 792 F.2d 536, 539 (5th Cir. 1986). The district court

6
based its decision that Hinrichs had probable cause to search

Recasner’s vehicle on the “evidence received and the Court’s

assessment of the credibility of the witnesses,” including “the

fact that there was an informant who notified police of the

possible transaction involving narcotics, that there was

surveillance set up in order to corroborate that information, and

in fact, the corroboration took place by Detective Ferrier

observing what was obviously a contraband transaction.”1 While

the trial court noted that the license number for the blue truck

was never obtained and that the blue truck was never found, the

court expressly credited Ferrier’s testimony, finding that he did

not “confabulate” the blue truck and “clearly saw the

transaction.” The facts credited by the district court are

sufficient to support its finding that Hinrichs had probable

cause to conduct a warrantless search of Recasner’s vehicle based

on the information supplied to him by Ferrier. See, e.g., United

States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (finding

probable cause for a warrantless search based on an officer’s

testimony that an informant had supplied reliable information in

the past and that the tip indicated when, where, and how the

transaction would occur, along with the fact that the tip was

1
The district court used the term “proximate cause,”
not probable cause. The government explains that Recasner’s
attorney misstated the term as “proximate cause” when questioning
Ferrier, and for some unstated reason, both parties and the court
continued using that incorrect term throughout the proceedings
when they meant to refer to “probable cause.”

7
corroborated by an experienced narcotics detective’s independent

observation of the transaction).2

We reject Recasner’s contention that the fact that Ferrier

failed to note the license number of the blue truck renders

Ferrier’s testimony so implausible that the district court

clearly erred in crediting that testimony over contradictory

testimony by Recasner and his two defense witnesses. See United

States v. Gillyard, 261 F.3d 506, 509 (5th Cir. 2001) (“[W]hen a

trial judge’s finding is based on [that judge’s] decision to

credit the testimony of one of two or more witnesses, each of

whom has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear error.”)

(internal quotation omitted). The district court did not err,

therefore, in finding that Hinrichs had probable cause to conduct

the warrantless search of Recasner’s vehicle. Thus, the court

did not err in denying Recasner’s motion to suppress evidence

seized in that search.

III. PEREMPTORY STRIKE OF THE AFRICAN-AMERICAN JUROR

Recasner contends that the district court erred in ruling

that the government’s peremptory strike of an African-American

female juror, “juror 23,” was race-neutral and therefore proper.

2
Recasner does not contest that Hinrichs could form
probable cause based on information communicated to him by
Ferrier that was sufficient for Ferrier to form probable cause.

8
In a challenge to a peremptory strike made pursuant to Batson v.

Kentucky, 476 U.S. 79 (1986), we analyze whether a party

exercised the strike in a discriminatory manner in three steps:

(1) the opponent of a strike must make a prima facie showing that

the strike was exercised on the basis of race, (2) the burden

then shifts to the party exercising the strike to articulate a

race-neutral explanation, and (3) the burden shifts back to the

opponent of the strike to prove purposeful discrimination.

United States v. Williams, 264 F.3d 561, 571 (5th Cir. 2001)

(quotation and citation omitted). We review the district court’s

determination that the government’s strike of juror 23 was not

racially motivated for clear error. Id. When a trial court

accepts a plausible, race-neutral explanation offered by a party

and thus allows a challenged strike to stand, this court will

rarely disturb that decision because “ultimately the inquiry

boils down to whether the [party] should be believed,” which is

“quintessentially a question of fact which turns heavily on

demeanor and other issues not discernable from a cold record,

such that deference to the trial court is highly warranted.” Id.

at 572.

In this case, the government prosecutor furnished two such

plausible, race-neutral reasons, stating: “I don’t let teachers

on juries. The second reason is she was a character witness for

a defendant in a murder trial,” and thus that he felt juror 23

9
had “a favorable bent toward the defense.”3 The prosecutor

further explained, “My experience as a prosecutor is I have

always found that teachers tend to be more liberal, more

forgiving.” Although the district court indicated that the

composition of the jury disturbed that court because the jury

included only one African-American in its final total of twelve

jurors, the court stated that it would be more disturbed if

“there were no African-Americans on this jury.” The court thus

allowed the strike. Given that the district court had the

opportunity to observe the demeanor of the prosecuting attorney

when that attorney offered a race-neutral explanation for the

challenged strike, we cannot say that the district court clearly

erred in accepting that explanation. Moreover, Recasner offers

no rebuttal evidence of any discriminatory intent on the part of

the government beyond his original assertion that the jury

composition was facially suspect. The district court did not

clearly err, therefore, in ruling that the peremptory strike of

juror 23 was not racially motivated.

IV. JURY VERDICT

Recasner contends that the jury erred when it found him

guilty of two counts of cocaine possession. Recasner reasserts

his contention that Ferrier’s testimony regarding the existence

3
The prosecutor then admitted that he knew that juror 23
had never testified in any murder trial but had only “agreed” to
testify.

10
of the blue truck is implausible. He also contends that

Ferrier’s testimony regarding the drug transaction is likewise

implausible because that testimony does not indicate that Ferrier

observed either Recasner or the alleged occupants of the blue

truck weighing contraband or counting money. Recasner further

contends that the real motive behind his arrest and conviction

was animosity arising from a prior incident after which Recasner

claims he complained to the NOPD that Ferrier and Hinrichs

assaulted Recasner while arresting him. Recasner thus contends

that the implausibility of Ferrier’s testimony along with

Recasner’s testimony regarding improper motives on the part of

Ferrier and Hinrichs render the jury verdict irrational. Because

Recasner failed to renew his motion for acquittal at the close of

evidence, this court reviews the jury verdict for plain error.

United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001). On

review for plain error, “a conviction may be reversed only to

avoid a manifest miscarriage of justice .... Such a miscarriage

would exist only if the record is devoid of evidence pointing to

guilt, or ... because the evidence on a key element of the

offense was so tenuous that a conviction would be shocking.” Id.

(internal quotation and citations omitted).

As to Count One, the government was required to prove four

elements beyond a reasonable doubt, including Recasner’s

(1) knowing, (2) possession of a controlled substance,

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(3) containing over fifty grams of cocaine base, and (4) with

intent to distribute. See 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii). As to Count Two, the government was required to

prove Recasner’s (1) knowing, (2) possession of a controlled

substance (cocaine hydrochloride), (3) with intent to distribute.

See 21 U.S.C. § 841(a)(1). At trial, the government presented

essentially the same testimony by Ferrier and Hinrichs that was

presented to the district court in opposition to Recasner’s

motion to suppress –- including, Ferrier’s description of

witnessing a drug transaction involving Recasner, Hinrich’s

description of the information relayed to him by Ferrier,

Hinrichs’s description of his search of Recasner’s vehicle, and

Hinrichs’s description of seizing the Foot Action bag with

cocaine inside. See supra Part II. The jury likewise heard

essentially the same contradictory testimony by Recasner and his

two defense witnesses, Carter and Elder, that was presented to

the district court in support of his motion to suppress. See id.

Elder additionally testified, however, that he never saw any

officers remove any items from Recasner’s Buick. Recasner

additionally testified that he had never seen the Foot Action bag

until the trial, that he never possessed any cocaine, that he

never saw any of the officers remove anything from his vehicle

while searching it, and that no officer placed anything in the

trunk of the NOPD vehicle in which Recasner was placed.

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 In addition, the jury heard testimony by a Drug Enforcement

Agency (“DEA”) forensic chemist, Cheryl White, that the cocaine

taken from the Foot Action bag included sixty-one grams of

cocaine base and seventy grams of cocaine hydrochloride. The

jury was entitled to infer intent to distribute from the quantity

of controlled substance seized. See, e.g., United States v.

Sanchez, 961 F.2d 1169, 1176 (5th Cir. 1992). Moreover, a DEA

expert in drug trafficking, Chris Ortiz, testified that the

amount of cocaine seized and the presence of the plastic sandwich

bags, which he testified are commonly used for packaging

narcotics for sale, indicated in his opinion that the cocaine was

intended for distribution. Thus, the government offered evidence

to the jury that establishes all of the elements of both counts

with which Recasner was charged.

The jury was entitled to weigh all of the testimony offered

by both the government and defense witnesses and to choose to

credit witnesses for the government, despite any defense

testimony to the contrary. See, e.g., Greenwood v. Societe

Francaise De, 111 F.3d 1239, 1251 (5th Cir. 1997). Viewing the

evidence in the light most favorable to the verdict, this court

cannot say that the record is devoid of evidence supporting the

verdict or that the government evidence is so tenuous as to

render Recasner’s conviction either shocking or a manifest

miscarriage of justice. Consequently, the jury did not plainly

err in convicting Recasner for two counts of cocaine possession.

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 V. MOTION FOR MISTRIAL

Recasner contends that the district court erred in denying

his motion for mistrial based on the inadvertent introduction of

a receipt, which was not in evidence, into the jury room.

Recasner further contends that it was an abuse of discretion for

the district court not to give a curative instruction to the jury

regarding the receipt. The receipt was found by jurors at the

bottom of the Foot Action Bag and given by those jurors to a

court officer who then told them that the receipt was not

evidence and was to be “disregard[ed].” At Recasner’s request,

the district court refrained from instructing the jury

specifically that the receipt was not to be considered by them.

Recasner indicated that he did not want the court to call

attention to the receipt and thus possibly induce the jurors to

improperly consider the receipt in their deliberations. The

district court had already instructed the jury not to consider

any material not properly introduced as evidence at trial by

testimony or as an exhibit. In denying Recasner’s motion, the

district court determined that the receipt was not prejudicial to

Recasner because the receipt failed to denote any transaction and

designated its origin as New Mexico, not Texas where Recasner was

arrested. Thus, the district court found that the receipt

appeared wholly unrelated to Recasner and the drug transaction at

issue.

14
 We review the district court’s denial of the motion for

mistrial and any claimed evidentiary error for abuse of

discretion. See United States v. Honer, 225 F.3d 549, 555 (5th

Cir. 2000) (denial of motion for mistrial) (citation omitted);

United States v. Sanchez-Sotelo, 8 F.3d 202, 210-11 (5th Cir.

1993) (evidentiary errors). Recasner is correct that a defendant

is entitled to a new trial when “extrinsic evidence is introduced

into the jury room ‘unless there is no reasonable possibility

that the jury’s verdict was influenced by the material that

improperly came before it’” and that the government bears the

burden of “proving the harmlessness of the breach.” United

States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990) (quoting

Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir. 1980))

(citation omitted). However, this court affords “great weight to

the trial court’s finding that the evidence in no way interfered

with any juror’s decision.” United States v. O’Keefe, 722 F.2d

1175, 1179 (5th Cir. 1983) (citation omitted). There is no

evidence that the receipt is linked to Recasner in any way, that

the jury considered the receipt valuable to its deliberations, or

that the receipt is strongly probative of Recasner’s guilt in

light of the other evidence offered against Recasner. The

district court did not abuse its discretion, therefore, in

denying Recasner’s motion for mistrial based on the inadvertent

introduction of the receipt into the jury room.

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 VI. CONCLUSION

For the foregoing reasons, the district court’s judgment of

conviction and sentence are AFFIRMED.

16