Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-15-2005
USA v. Dowdy
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2421
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"USA v. Dowdy" (2005). 2005 Decisions. Paper 545.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-2421
UNITED STATES OF AMERICA
v.
KEVIN DOWDY,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court Crim. No.: 3-CR-01-0401-02
District Judge: The Honorable Edwin M. Kosik
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Filed: September 15, 2005)
OPINION
SMITH, Circuit Judge.
Kevin Dowdy was convicted of distribution and possession with the intent to
distribute 50 grams or more of crack cocaine, and of conspiring to do the same. On May
20, 2004, Dowdy was sentenced under a mandatory United States Sentencing Guidelines
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regime to 324 months’ imprisonment. In addition to challenging his sentence, Dowdy
raises eight issues he contends warrant a new trial.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; this Court’s
jurisdiction is under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We will uphold Dowdy’s
conviction, but will vacate the sentence and remand the case for resentencing in
accordance with United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005). See United
States v. Davis, 407 F.3d 162, 164-65 (3d Cir. 2005) (en banc).
Sufficiency of the Evidence
Dowdy’s conviction-related issues are repetitive and meritless.1 Dowdy spins one
sufficiency-of-the-evidence issue into four issues. Specifically, Dowdy contends that (1)
the evidence presented by the Government was insufficient to sustain the conviction; (2)
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Two of Dowdy’s claims on appeal deserve no more than summary treatment. Dowdy
contends that the District Court erred by refusing to hold an evidentiary hearing on Dowdy’s
farfetched allegation that his ex-lover, Dawn Phillips, blackmailed Dowdy into selling crack by
threatening to interfere with Dowdy’s relationship with Melissa Martin if he did not. Next,
Dowdy cites the inapposite United States v. Cross, 308 F.3d 308 (3d Cir. 2002), for the
proposition that this Court should be on the lookout for winning appellate arguments made by his
co-defendants, and that such arguments should “spill over” to his benefit. Dowdy’s argument
might be applicable in co-defendant cases at the trial level, where the district judge is intimately
familiar with the factual overlap of the cases. When appropriate, a district court can allow
defendants to incorporate by reference the arguments of their co-defendants. In non-consolidated
appeals, however, each appellant is on their own, and issues not raised in one’s opening brief are
deemed to be waived. Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a
passing reference to an issue . . . will not suffice to bring that issue before this court”); See FED .
R. APP . PROC. 28(a)(5), (9) (stating that the appellant’s brief must contain a statement of issues
presented for review and arguments with authorities and record citations). To be sure, courts
strive for consistency in applying the law, but other mechanisms of appellate courts – adherence
to precedent, multi-member panels, rehearing procedures, etc. – and not Dowdy’s proposed “as-
to-one, so-to-all spillover rule” are designed for that job.
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the jury verdict was against the weight of evidence; (3) the chain of evidence was
insufficient because it was physically and logically impossible; and (4) the physically
impossible evidence compelled Dowdy to disclose to the jury that he was being detained,
prejudicing his constitutional right to a presumption of innocence.
To discredit what the jury found to be sufficient evidence, Dowdy attempts to
undermine the facts developed at trial. For example, Dowdy contends that, contrary to
their testimony, the police could not have found drugs in Dowdy’s right front pants
pocket because the pants he was wearing at the time of his arrest had a single front pocket
on the left. In a similar vein, Dowdy argues that it was “physically incredible” and
perhaps even impossible that an associate of his could carry a one-ounce bar of crack in
each of her brassiere cups, as she testified she did on drug runs with Dowdy. Dowdy also
questions the reliability of the testimony from Detective Hazen that she purchased crack
from Dowdy in controlled buys with marked money because the money was never
recovered.
Drawing all reasonable inferences from the evidence and showing deference to the
jury’s verdict, as we must, United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996),
means here that we will not indulge Dowdy’s attempt to leverage minor inconsistencies
and allegedly “impossible” or “incredible” facts to impugn the jury’s deliberations or
abrogate their verdict.
Separate Conspiracies Theory
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Dowdy argues that the District Court improperly allowed the Government to
present evidence of two separate conspiracies covering different time periods.
Specifically, Dowdy alleges that two months separated the conspiracies and that there was
no single conspiracy encompassing the entire time frame as alleged by the Government.
Consequently, Dowdy asserts that he was entitled to a jury instruction on his “separate
conspiracies” theory.
Dowdy admits that the Government presented evidence that he was involved in
conspiracies spanning March 2001 to December 2001; he merely asserts that the
Government did not show illegal activity in June 2001 or July 2001, and thus there was a
break which created two separate conspiracies. Dowdy only names, but does not cite,
cases for the general proposition that the District Court “should not have considered any
evidence on both conspiracies.” Dowdy fails to explain how he was prejudiced by the
District Court’s refusal to entertain his theory of the case, except to argue that a variance
between the indictment and the Government’s evidence would have been created had the
jury found separate conspiracies. Dowdy attempts to manufacture this variance by
contending that the competing theories of the case – the Government’s single conspiracy
theory and Dowdy’s separate conspiracies theory – should have been placed before the
jury in the instructions.
We believe the District Court was well within its discretion in refusing Dowdy’s
preferred jury instruction. The two-month evidentiary gap highlighted by Dowdy is not
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cause for assigning error to the District Court on account of this aspect of the jury
instructions. The District Court limited the conspiracy count put to the jury to three
members – Dowdy, Jones, and Young – because the main Government witness on this
count could not positively identify the fourth accused member in court. Also, the
evidence was clearly sufficient to establish the elements of a narcotics conspiracy, and
included multiple factual links among the three co-conspirators. In short, the District
Court properly tailored the jury charge to the evidence presented, and Dowdy was not
entitled to his proposed instruction, which was cribbed from the Ninth Circuit Model
Criminal Jury Instructions, was ill-fitting for the facts of the case, and may have confused
the jury.
Motion to Suppress
Dowdy next argues that the search warrant was improperly issued, and,
consequently, his motion to suppress the evidence found in the search of the Snow Ridge
Village apartment he shared with Melissa Martin should have been granted and the
contraband evidence excluded. Our review of the supporting affidavit convinces us that it
provided an ample basis for the magistrate’s conclusion that probable cause existed for
the issuance of the warrant.2 The correctness of the magistrate’s determination is so
readily apparent that the search need not seek the refuge of United States v. Leon, 468
2
Though on our reading of the affidavit we could readily reach the same conclusion as
the magistrate, our conclusion is sealed by the substantial deference we give to the magistrate’s
probable cause determination. Illinois v. Gates, 462 U.S. 213, 236 (1983).
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U.S. 897 (1984), in order to be deemed constitutional. The affidavit recounts several
controlled transactions of crack from Dowdy and Martin in which the drugs were
exchanged for marked currency. Following each transaction, the narcotics seller was
followed by a surveillance officer back to the Snow Village apartment shared by Dowdy
and Martin. Further, the affidavit noted that Dowdy was implicated by a confidential
informant as being a member of a narcotics distribution organization from which 41
controlled buys were made and which was responsible for an estimated sales volume of
1500 rocks of crack per week in Monroe County, and that Dowdy had personally sold
crack to undercover officers on multiple occasions in the previous forty-eight hours. In
short, the affidavit contained sufficient information for the magistrate to conclude that
crack cocaine, marked currency, or both, probably would be found in Dowdy and
Martin’s Snow Village apartment.
Sentencing Issues
The District Court sentenced Dowdy on May 20, 2004, seven months before the
Supreme Court issued its Booker opinion. The District Court based its computation of
Dowdy’s Guidelines range in part on the Government’s position that Dowdy was
involved in distributing between 500 grams and 1.5 kilograms of crack cocaine, that he
managed a narcotics distribution organization, and that he possessed a firearm in
connection with the drug offenses. None of these determinations were ever put to the
jury.
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In light of the Supreme Court’s subsequent Booker opinion, we believe this and the
other sentencing issues raised by Dowdy are best determined by the District Court in the
first instance, and we will vacate the sentence and remand for resentencing in accordance
with intervening precedent.
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