[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14830 ELEVENTH CIRCUIT
JUNE 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00006-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY CHRISTOPHER MCWHORTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(June 2, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Jeremy Christopher McWhorter (“McWhorter”) appeals his convictions and
sentences for possession with intent to distribute marijuana, in violation of 21
U.S.C. § 841(a)(1) (count one), and possession of a firearm during and in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(count two). On appeal, McWhorter challenges the denial of his motion to reopen
a suppression hearing. He also appeals an obstruction of justice enhancement to
his sentence. After careful review, we AFFIRM his convictions and sentences.
I. BACKGROUND
McWhorter filed a pre-trial motion to suppress evidence found during a
search of his automobile. At the suppression hearing in April 2008, Corporal
Anthony Kestle of the Montgomery Police Department testified that he responded
to a call from Katorie Stinson (“Stinson”) on 2 May 2007. Stinson said a black
male named Jeremy McWhorter, whom she had been dating, had just threatened to
shoot and kill her if she told anybody he was involved in a shooting that occurred
the day before. Stinson described McWhorter’s physical appearance and his
vehicle. Stinson also said McWhorter probably had several assault rifles in his car.
While Corporal Kestle and Stinson were talking, McWhorter drove by in his car
and Stinson pointed him out.
Corporal Kestle followed and stopped McWhorter’s vehicle. The driver
identified himself as Jeremy McWhorter. Corporal Kestle instructed McWhorter
2
and a male passenger to exit the vehicle. Corporal Kestle then conducted a pat-
down search of McWhorter. At that point, Officer M.D. Green arrived to assist.
Corporal Kestle obtained McWhorter’s consent to do a “wingspan search of the
vehicle, any area that was accessible to the driver.” Doc. 22 at 13. The purpose of
the search was to retrieve any weapons or contraband that would endanger the
officers’ safety. When Officer Green looked inside the vehicle, he smelled a “very
strong” odor of marijuana. Id. at 13. A red backpack found on the rear seat
directly behind the driver’s seat contained several marijuana seeds, plastic
sandwich bags, and two-way radios. Corporal Kestle likewise smelled marijuana
when he placed his head inside the vehicle.
McWhorter refused to consent to a search of his trunk, stating that it was
unnecessary because “there wasn’t anything back there.” Id. at 15. Corporal
Kestle then requested a canine unit. During a perimeter search of the vehicle’s
exterior, a drug-sniffing dog scratched on the driver’s side door and on the trunk,
alerting the police to the presence of narcotics. An officer found marijuana inside
the vehicle on the driver’s side by the fuse box. Upon opening the trunk, officers
discovered three assault rifles and a blue backpack. The dog immediately began
hitting at the backpack. An officer opened the backpack and found approximately
one pound of what appeared to be marijuana. On cross-examination, Corporal
3
Kestle stated that his video camera had not been working for the past month, and
neither his audio or video equipment was operational that day.
Based on the evidentiary hearing, the magistrate judge recommended that
McWhorter’s motion to suppress be denied. The judge first found that Corporal
Kestle had probable cause to stop and search the vehicle based on the credible
information provided by Stinson. Alternatively, even absent probable cause, the
judge found that the brief, investigative stop was justified under Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868 (1968).1 The wingspan search was justified by McWhorter’s
consent. The officers had probable cause to search the rest of the vehicle,
including the trunk, based on the smell of marijuana, the drug paraphernalia in the
red backpack, and the canine search. The district court adopted the magistrate
judge’s report and recommendation and denied the motion to suppress.
McWhorter subsequently filed a Motion to Dismiss Indictment or in the
Alternative to Exclude Evidence (“motion to dismiss”). He contended that new
evidence refuted Corporal Kestle’s testimony at the suppression hearing that his
patrol car’s audiovisual equipment had not been working. A hearing was held on
the motion in July 2008. A communications technician testified that he repaired
1
The Supreme Court recognized in Terry that “a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S.
at 22, 88 S. Ct. at 1880.
4
Corporal Kestle’s audiovisual system and it was functioning properly as of 25
April 2007. Nevertheless, the system “very easily” could have failed on the road if
problems with the vehicle’s alternator or battery occurred. Doc. 59 at 59. The
technician further explained that only sergeants or higher-ranked officers have a
key to open the vault containing the videotape inside a patrol car. There is no way
an officer can destroy a tape without opening the vault. Nor can an officer rewind
a tape and record over previously recorded material. An officer may manually turn
off the audio and visual recording equipment so that it does not record, however.
Records indicated that Corporal Kestle picked up a lapel microphone for his
transmitter pack from the repair shop on 2 May 2007.
Corporal Kestle also testified at the July 2008 hearing. He stated that his
rank was that of police officer on 2 May 2007 and he had never been a sergeant or
higher rank. On 2 May 2007, he was driving his assigned patrol car, the same one
that had been in the repair shop in April. He acknowledged that it is standard
procedure to turn on the audiovisual equipment when an officer gets in his patrol
car, and that he had assumed his camera was working properly when he stopped
McWhorter on 2 May 2007.
Following the hearing, the district court denied McWhorter’s motion to
dismiss but granted his oral motion to continue the trial date. Additionally, the
5
court granted McWhorter permission to file a motion to reopen the suppression
hearing.
McWhorter subsequently filed a Motion to Reopen Suppression Hearing and
supporting memorandum. He asserted that another hearing was warranted so he
could present evidence that Corporal Kestle had materially misrepresented the
status of his audiovisual equipment during the suppression hearing. The district
court denied McWhorter’s motion to reopen the suppression hearing “based upon
representations from counsel to the court that the defendant has not discovered any
new or additional evidence which would warrant the court granting said motion.”
Doc. 79.
A jury convicted McWhorter of both counts following a trial in May 2009,
at which McWhorter testified in his own defense. At the sentencing hearing,
McWhorter objected to the recommendation in the pre-sentence investigation
report of a two-level enhancement for obstruction of justice under United States
Sentencing Guidelines (“U.S.S.G.”) § 3C1.1. The district court overruled the
objection and found that the enhancement applied based on McWhorter’s perjury
at trial. The court sentenced McWhorter within the guidelines range to 13 months
imprisonment on count one and 60 months imprisonment on count two, to be
served consecutively, and five years of supervised release.
6
This appeal followed.
II. DISCUSSION
A. Motion to Reopen the Suppression Hearing
McWhorter first argues that the district court erred in denying his motion to
reopen the suppression hearing.2 The purpose for reopening the hearing, according
to McWhorter, was to test Corporal Kestle’s credibility concerning his audiovisual
equipment. McWhorter asserts that Corporal Kestle’s credibility was critical to the
district court’s determination that McWhorter consented to the wingspan search.
Additionally, McWhorter suggests it is possible Corporal Kestle destroyed or
failed to preserve a recording, in violation of Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194 (1963).
We review a district court's denial of a motion to reopen or reconsider a
suppression hearing for an abuse of discretion. United States v. Simms, 385 F.3d
1347, 1356 (11th Cir. 2004). As noted, the district court denied the motion to
reopen based on representations from counsel that McWhorter had no “new or
2
Within this argument section, McWhorter contends in a footnote that the magistrate
judge erred in denying his motion to suppress based on the existence of probable cause to stop
and search McWhorter’s vehicle. See Appellant’s Initial Brief at 10 n.1. McWhorter also
appears to suggest that the magistrate judge erred in finding that McWhorter had consented to a
wingspan search of his vehicle. See id. at 9-10. However, he concedes in his reply brief that he
is not actually challenging the denial of the motion to suppress. See Appellant’s Reply Brief at
1. Accordingly, he has abandoned these issues. See United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003) (concluding that appellant abandoned his Rule 404(b) argument where
he made only passing references to the issue under different topical headings).
7
additional evidence which would warrant the court granting said motion.” Doc.
79. This finding is supported by the record. McWhorter made the same arguments
in his motion to reopen that he made in his motion to dismiss. Both motions
contended that Corporal Kestle’s credibility had been compromised by evidence
that his audiovisual equipment was functional on 2 May 2007. Additionally, both
motions argued that Corporal Kestle may have committed a Brady violation. The
evidence pertaining to these arguments was presented at the July 2008 hearing on
the motion to dismiss. Corporal Kestle testified at this hearing and was subject to
cross-examination. Thus, McWhorter already had the opportunity to present
evidence related to Corporal Kestle’s audiovisual equipment, and the district court
already had the opportunity to assess Corporal Kestle’s credibility on this issue and
determine if a Brady violation had occurred.
Furthermore, the motion to reopen did not identify any additional evidence
which would have made another hearing necessary. For example, the motion to
reopen cited video equipment guidelines of the Montgomery City Police
Department, which stated, inter alia, that all traffic stops should be recorded.
However, Corporal Kestle previously testified at the July 2008 hearing that it is
standard procedure for an officer to turn on the audiovisual equipment when the
officer gets into his vehicle, and he assumed his camera was working properly on
8
the day in question. The motion to reopen also contended that maintenance logs
for Corporal Kestle’s patrol vehicle revealed “no records of an electrical system
malfunction contemporaneous to the stop of May 2, 2007.” Doc. 66 at 4. Such
evidence would have been duplicative of the repair technician’s testimony at the
July 2008 hearing that Corporal Kestle’s vehicle had no visible problems with its
electrical system. Finally, the motion to reopen referred to an August 2008 inter-
office police department memorandum advising that no videotapes had been
located for Corporal Kestle’s patrol vehicle during the time frame of the traffic
stop on McWhorter’s car. Given that there was no videotape to introduce into
evidence, this memorandum further supports the district court’s determination that
there was no new or additional evidence which warranted reopening the
suppression hearing.
Contrary to McWhorter’s argument, Simms does not support a conclusion
that McWhorter’s motion to reopen should have been granted. In Simms, the
district court denied a motion to reopen a suppression hearing because it “found
that the officers had not made any inconsistent statements at the suppression
hearing.” 385 F.3d at 1356. A review of the suppression hearing transcript
supported the district court’s finding that no inconsistent statements had been
made. Id. We therefore concluded that the court had not abused its discretion in
9
denying the motion to reopen on this basis. Id. In contrast to Simms, the denial of
the motion to reopen in McWhorter’s case hinged on the district court’s finding
that no new or additional evidence was available which would warrant another
hearing, not on the fact that no inconsistent statements had been made. As we have
discussed, the district court’s stated basis for denying the motion to reopen is
supported by the record. Accordingly, the district court did not abuse its discretion
in this matter.
B. Obstruction of Justice Enhancement
In his second argument, McWhorter maintains the district court erroneously
applied an obstruction of justice enhancement at sentencing. He contends the
court’s perjury finding was not supported by Katorie Stinson’s testimony at trial
and that his own testimony was plausible.
We review a district court’s factual findings for clear error and the
application of an obstruction of justice enhancement based on those facts de novo.
United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (per curiam).
U.S.S.G. § 3C1.1 permits a two-level enhancement to a defendant’s offense level if
“the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction,” and “the obstructive conduct
10
related to the defendant’s offense of conviction and any relevant conduct.”
U.S.S.G. § 3C1.1 (2009). An enhancement is justified if a defendant commits,
suborns, or attempts to suborn perjury. Id., comment (n.4(b)).
A finding of perjury requires the existence of four elements: “(1) the
testimony must be under oath or affirmation; (2) the testimony must be false; (3)
the testimony must be material; and (4) the testimony must be given with the
willful intent to provide false testimony, and not as a result of a mistake, confusion,
or faulty memory.” United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002)
(quotation marks and citation omitted). “Material” testimony includes statements
“that, if believed, would tend to influence or affect the issue under determination.”
Id. at 763 (quotation marks and citation omitted). The district court is in the best
position to “assess a defendant’s demeanor, apparent sincerity, intonation,
expression, gesticulations, and a wide range of other considerations that are
pertinent in determining whether he has perjured himself.” United States v.
Williams, 340 F.3d 1231, 1240 (11th Cir. 2003). Consequently, we give “special
deference” to a district court’s ruling that a § 3C1.1 enhancement is warranted on
this basis. Id. at 1241; see also Singh, 291 F.3d at 763 ( “‘We . . . accord great
deference to a district court’s credibility determinations.’”).
At the sentencing hearing, the district court recognized that a defendant
11
should not be punished merely because he chose to testify at trial and the jury
disbelieved that testimony. The court nevertheless found that McWhorter’s trial
testimony constituted an obstruction of justice:
[I]n this case, the defendant’s testimony was designed to persuade the
jury that he had no knowledge of any criminal conduct or activity that
he had engaged in, that he was not aware of any drugs in his car, he
was not aware of any guns in his car, and he even testified that the
smell of marijuana could not be had from his car, when, in fact, law
enforcement testified to the contrary.
I do find that in this case, Mr. McWhorter’s testimony was
designed to persuade jurors that he was not engaged in any criminal
conduct, and his testimony, if believed at trial, would have resulted in
an acquittal at trial. And it was not given merely for the purpose of
explaining how incriminating evidence ended up in his car, but it was
intended to deliberately convince the jury quite to the contrary, that
Mr. McWhorter had no association whatsoever with the drugs and
guns which both were found in his car and which a witness testified
before the drugs and guns were found that he actually had them in the
trunk of his car.
Doc. 141 at 13-14.
The district court’s findings are supported by the record. Stinson, who was
McWhorter’s live-in girlfriend at the time, testified at trial that McWhorter told her
in April 2007 that he thought he was going to start selling marijuana. Stinson
further testified that, on 2 May 2007, McWhorter had his car the whole day and she
saw him put something into the trunk. Shortly thereafter, McWhorter threatened
her while armed with an assault rifle. Stinson warned the police that McWhorter
12
was known to carry rifles. Less than an hour after his confrontation with Stinson,
McWhorter was seen driving his vehicle. The police found approximately 1.1
pounds of marijuana and three loaded assault rifles in the trunk, in addition to a
backpack in the rear seat containing marijuana seeds and stems, two-way radios,
and plastic sandwich bags commonly used to package marijuana for sale. Two
police officers testified that there was a strong odor of marijuana inside the vehicle.
McWhorter specifically contradicted this evidence during his trial testimony.
He denied threatening Stinson on 2 May 2007. He denied owning or carrying a
gun that day. He denied knowing there was marijuana or firearms in the trunk. He
denied owning the backpack found in the rear seat or even being aware of its
presence until the police found it. He admitted he was familiar with the smell of
marijuana but insisted “[t]here was no smell of marijuana in my car.” Doc. 140 at
97. McWhorter claimed he “know[s] now” the firearms were placed in his vehicle
by a former drug-dealing friend who borrowed the car earlier that day. Id. at 88,
90, 98-99.
McWhorter’s continued denial of any knowledge of the marijuana or
firearms in his vehicle reflects a willful intent to give false testimony. He did not
suggest that he was confused, unable to remember, or mistaken about what
happened. To the contrary, he affirmed that he had “told the truth.” Id. at 89. The
13
district court found otherwise, however, and we afford great deference to the
court’s credibility determination as it had the opportunity to view McWhorter as he
testified. See Singh, 291 F.3d at 763-64. Moreover, McWhorter’s testimony was
material because, if believed, it would have negated the required element of
knowledge needed to sustain a conviction under 21 U.S.C. § 841(a)(1). See United
States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam) (“In order to
convict . . . under 21 U.S.C.A. § 841(a)(1), the government had to prove three
elements: (1) knowledge; (2) possession; and (3) intent to distribute.”). Similarly,
McWhorter’s testimony, if believed, would have negated the predicate offense for
18 U.S.C. § 924(c)(1) that the defendant was engaged in a drug trafficking crime
when he possessed the firearm. See id. at 1392. Accordingly, we conclude that the
district court did not clearly err in enhancing McWhorter’s offense level under
U.S.S.G. § 3C1.1 for committing perjury during trial. See Singh, 291 F.3d at 764
(finding no clear error in § 3C1.1 application where district court correctly
determined that defendant committed perjury during his sentencing hearing).
III. CONCLUSION
In sum, the district court did not abuse its discretion in denying
McWhorter’s motion to reopen the suppression hearing, and it properly applied an
enhancement to McWhorter’s offense level for obstruction of justice. We therefore
14
AFFIRM McWhorter’s convictions and sentences.
AFFIRMED.
15