United States v. Bert
United States v. Bert
Opinion of the Court
MEMORANDUM
We affirm Bert’s convictions. We address all of the issues Bert raises on appeal in this unpublished memorandum. We address the Government’s cross-appeal in a contemporaneously filed published opinion.
We reject Bert’s argument that he was detained and searched in violation of the Fourth Amendment when he and the officers left the train terminal building. We conclude that the officers had reasonable suspicion to detain Bert outside the building and obtained the drugs in a valid search incident to arrest.
“[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”
It is undisputed that Bert matched a drug courier profile. Moreover, in answering Officer Paskwietz’s questions— while still inside the building — Bert gave Paskwietz a name that was different than that on Bert’s train ticket, a home town that was different than the address on Bert’s identification, and a ticket-purchase date that Paskwietz knew to be incorrect. Under the totality of these circumstances, Paskwietz had reasonable suspicion to detain Bert by the time he and the officers left the building.
Once outside, the officers had probable cause to arrest Bert after he unzipped his shoulder bag and the officers saw within an object wrapped in white plastic that, based on the officers’ experience and training, was consistent with the type of package used to smuggle illegal drugs.
II. Bert’s Request for an Evidentiary Hearing
“An evidentiary hearing must be held only when the moving papers allege facts which are sufficiently definite, clear, and specific to enable the trial court to conclude that contested issues of fact exist.”
Agent Delaney — who received the confidential information that “Erick Bert” matched a drug carrier profile — stated under oath that the profile did not contain a racial element and that the confidential informant did not inform Delaney of “Erick Bert’s” race. Bert, on the other hand, alleged no specific facts other than his freestanding claim that he was a victim of racial profiling. Thus, Bert offered nothing more than a conelusory allegation of illegality. Accordingly, the district court did not abuse its discretion in denying Bert’s request for an evidentiary hearing.
III. The Expert Testimony
Federal Rule of Evidence 704(b) prohibits an expert from “staffing] an opinion or inference”
Delaney’s testimony is indistinguishable from that of the expert in United States v. Gomez-Norena,
IV. Bert’s Motion to Acquit for Insufficient Evidence
We have expressly held that “crack” cocaine “is synonymous with ‘rock’ cocaine.”
V. Bert’s Knowledge of the Type and Quantity of Drugs
“Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.”
VI. Bert’s Prior Conviction
“ ‘Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt.” ’
Convictions AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. "[W]e are not bound by the court’s reasoning and may affirm on any ground having support in the record." Miranda v. Clark County, Nevada, 279 F.3d 1102, 1110 (9th Cir. 2002).
. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (internal quotation marks and citation omitted).
. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) ("the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances [correspondence to a drug courier profile]").
. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (holding that traveling under an assumed name and matching a drug carrier profile supplied reasonable suspicion for an investigative Teny stop); see also United States v. $49,576.00, 116 F.3d 425, 428 (9th Cir.), rejected in part as dictum on other grounds, United States v. $129,727.00, 129 F.3d 486, 492 n. 1 (9th Cir. 1997) (stating that, in regard to an appellant who fit a drug courier profile, "appellant's use of a fake driver’s license, his evasive and dishonest answers to questions, and his general nervous behavior are indicative of some illegal activity,” even if not sufficient to constitute probable cause).
. See United States v. Ayon-Meza, 177 F.3d 1130, 1132-33 (9th Cir. 1999) (finding probable cause for arrest when, in response to request for consent to search a bag, the suspect did not answer but only unzipped his bag to show the officer the inside, and the officer saw part of a package that, based on her experience, was packaged in a manner consistent with those that typically contain illegal drugs).
. United. States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996).
. United States v. Ramirez-Garcia, 269 F.3d 945, 947 (9th Cir. 2001).
. Id.; see also United States v. Wilson, 7 F.3d 828, 835 (9th Cir. 1993) (affirming denial of hearing where moving papers indicated no contested issue of fact sufficient to require an evidentiary hearing); United States v. Licavo-li, 604 F.2d 613, 621 (9th Cir. 1979) (affirming denial of hearing where allegations were only in general and conelusory terms and contained no specific allegations raising contested issue of fact).
. Rule 704(b) provides that an expert witness may not "state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime chargedf.]” Fed. REvid. 704(b).
. United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (enbanc).
. 908 F.2d 497 (9th Cir. 1990).
. Id. at 502.
. United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir. 2001) (internal quotation marks omitted), cert. denied, — U.S.-, 122 S.Ct. 1342, 152 L.Ed.2d 245 (2002).
. See Gomez-Norena, 908 F.2d at 502.
. Gomez-Norena did not apply the "necessarily compels” standard, which came later, in Morales. The Morales en banc panel cited Gomez-Norena several times with approval,
. We note that our recent holding regarding expert witness testimony in United States v. Pineda-Torres, 287 F.3d 860 (9th Cir. 2002), is not applicable to this case. In Pineda-Torres, the issue was whether the defendant knew that marijuana was hidden in his car. Id. at 863-64. The Government introduced expert testimony regarding the structure of large drug trafficking organizations in an attempt to establish knowledge, even though there was no evidence that the defendant was part of a large drug trafficking organization. Id. at 864. In this case, however, Delaney's testimony concerned the properly admitted and undisputed evidence of the quantity of drugs involved.
. United States v. Shaw, 936 F.2d 412, 415 (9th Cir. 1991).
. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).
. United States v. Carranza, 289 F.3d 634 (9th Cir. 2002) (emphasis in original).
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc) ("the days of semantical hair splitting between 'elements of the offense' and 'sentencing factors’ are over”) (citations omitted), petition for cert. filed, Apr. 18, 2002 (No. 01-9813).
. Id.
. See id.
. United States v. Summers, 268 F.3d 683, 688 (9th Cir. 2001) (quoting United States v. Tighe, 266 F.3d 1187, 1190 (9th Cir. 2001)), cert. denied, - U.S. -, 122 S.Ct. 1182,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. Lamance Cookie BERT, Defendant—Appellant United States of America, Plaintiff—Appellant v. Lamance Cookie Bert, Defendant—Appellee
- Cited By
- 2 cases
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- Published