U.S. v. Lipscomb

539 F.3d 32

UNITED STATES of America, Appellee, v. Anthony LIPSCOMB, Defendant, Appellant.

No. 07-1293.

United States Court of Appeals, First Circuit.

Heard May 6, 2008.

Decided August 21, 2008.

George J. West, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Stephen G. Dambruch, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, O'CONNOR,^* Associate Justice (Ret.), and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Anthony Lipscomb was indicted by a federal grand jury on three counts: possession with the intent to distribute five or more grams of cocaine base, possession of a gun in furtherance of a drug trafficking crime, and possession of a gun as a convicted felon. After a three-day jury trial, he was convicted on all counts and sentenced to 195 months' imprisonment. Lipscomb now appeals his conviction and sentence on various grounds. After careful consideration of each of his arguments, we affirm his conviction, but remand for resentencing.

I. Background

Because Lipscomb questions the sufficiency of the evidence supporting his conviction, we recite the facts in the light most favorable to the jury's guilty verdict. See United States v. Colón-Díaz, 521 F.3d 29, 32 (1st Cir.2008). We begin by recounting the basic underlying facts and leave further elaboration, as necessary, for the analysis of Lipscomb's several other claims.

On December 30, 2004, Lipscomb was talking on his cell phone outside an auto repair shop when he was approached by Providence Police Detectives Scott A. Partridge and Joseph Colanduono. Lipscomb took several steps away from them and began to run; the detectives chased after him. As he fled, Lipscomb reached into his jacket and retrieved a clear plastic bag, which he threw to the ground. The bag was later found to contain thirty-five grams of crack cocaine. While continuing to run, Lipscomb also removed a fully-loaded 9 mm gun from his waistband and tossed it under a nearby car. The gun was found to have one round in the chamber ready to fire. As the police closed in, Detective Colanduono grabbed Lipscomb's jacket, but Lipscomb was able to slip out of it and continue fleeing.

Lipscomb was eventually tackled by Detective Partridge and arrested. He was taken to the hospital to treat the cuts and bruises on his face that resulted from the struggle. On his person, he was found to be carrying a cell phone, $1,471 in cash, and a quantity of marijuana.

Lipscomb was indicted by a grand jury on three counts: (1) possession with intent to distribute five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Lipscomb moved to suppress the gun and crack cocaine found by the police. On April 13, 2005, the district court held a hearing on the motion to suppress and heard testimony from Detectives Colanduono and Partridge, as well as from Lipscomb. Lipscomb identified Colanduono and Partridge and testified that they tackled and beat him without provocation or warning. When asked about the crack cocaine and the gun, he testified that neither was his. Upon further cross-examination, he reiterated that he did not possess a gun and denied any knowledge regarding the bag of crack cocaine that the Government claimed he had discarded during the pursuit. He denied wearing a jacket that day and repeated his assertion that the police "did not seize the items from me." He testified that he was carrying $1,471 in cash, which he claimed was from his landscaping and handyman businesses.

The district court denied the motion to suppress and admitted the evidence. In its written order, the court concluded that because Lipscomb had testified that he had never possessed either the gun or the crack cocaine at issue, he lacked standing to assert a Fourth Amendment violation. The court went on to provide two other grounds for its decision, concluding that even if it were to accept the Government's version of the facts, Lipscomb's motion to suppress would still fail because he had abandoned his property prior to the seizure and the officers had reasonable suspicion to approach Lipscomb in the first instance.

On October 5, 2005, following a three-day trial, a jury convicted Lipscomb on all counts. Lipscomb moved for a new trial, asserting that his counsel had been ineffective. The court denied the motion. One month later, in December 2005, Lipscomb filed a motion to reconsider, in which he argued that the court had failed to rule on his pro se request for substitute counsel; the request had been communicated to Lipscomb's counsel and the Government by letter several months before trial. He also asserted that his Sixth Amendment right to a public trial had been violated because the courtroom had been locked for a portion of closing arguments. The court denied the motion to reconsider and the case was set for sentencing.

The Government filed an information pursuant to 21 U.S.C. § 851 requesting the imposition of an enhanced mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B), based on Lipscomb's prior state felony drug convictions. After hearing argument from counsel, calculating the appropriate sentencing guidelines range, and considering the 18 U.S.C. § 3553(a) factors, the court sentenced Lipscomb to 135 months for Count One, to run concurrently with 120 months for Count Three, and sixty months for Count Two, to run consecutively to the 135 months' sentence; Lipscomb was sentenced to a total of 195 months' incarceration. Lipscomb timely appeals, alleging numerous errors by the district court.

II. Discussion

A. Motion to Suppress

Before reaching the merits of a suppression challenge, the defendant carries the burden of establishing that he had a reasonable expectation of privacy with respect to the area searched or, as in this case, the items seized. See United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); accord United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir.1994) ("Such an expectation of privacy is a threshold standing requirement that a defendant must establish before a court can proceed with any Fourth Amendment analysis."). While the Supreme Court noted that this threshold analysis is "more properly placed within the purview of substantive Fourth Amendment law than within that of standing," Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)), courts continue to refer to it as an issue of "standing," see, e.g., United States v. Romain, 393 F.3d 63, 68 (1st Cir.2004).

During the hearing on the motion to suppress, Lipscomb repeatedly asserted that neither the crack cocaine nor the gun was his. He claimed no interest in the items and denied that the government seized them from him. In cases involving defendants who fail to establish or claim ownership of an item, we have concluded that they lack a sufficient privacy interest to assert a Fourth Amendment violation. See, e.g., United States v. García-Rosa, 876 F.2d 209, 219-20 (1st Cir.1989) (no standing because the defendant failed to claim that he possessed the box at issue), vacated on different grounds sub nom. Rivera-Feliciano v. United States, 498 U.S. 954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990); United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988) (no standing because there was no evidence that the defendant owned or leased the car at issue). In the instant case, Lipscomb actively disowned any interest in any of the seized items;¹ thus, according to his own testimony, he lacks the expectation of privacy required to challenge the seizure of the crack cocaine and gun. We therefore affirm the district court's denial of the motion to suppress on this basis, and we need not reach any of the alternate grounds identified by the court.

B. Trial Challenges

Lipscomb argues that the district court made several errors leading up to and during trial. We address each in turn.

1. Disclosure of Confidential Informant

Lipscomb challenges the court's decision to deny his request for disclosure of the identity of a confidential informant. We need not tarry long on this argument, because Lipscomb failed to raise the issue before the district court.

After a hearing on the motion, the magistrate judge issued a written opinion denying the request for disclosure of the informant's identity. Lipscomb failed to timely appeal the magistrate judge's ruling to the district court.² Lipscomb cannot bypass the district court and bring this appeal to us directly. See, e.g., United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.2008); Teamsters Union, Local No. 59 v. Superline Transp. Co., Inc., 953 F.2d 17, 21 (1st Cir.1992) ("If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."); United States v. Akinola, 985 F.2d 1105, 1108-09 (1st Cir. 1993); cf. Rule 3(b), Rules for U.S. Magistrate Judges in the U.S. District Court for the District of Massachusetts ("[F]ailure to file timely and appropriate objections to that report and recommendation . . . will result in preclusion of the right to appeal the district court's order to the United States Court of Appeals.").

2. Rule 16 Notice Requirement

Lipscomb next argues that Detectives Colanduono and Partridge testified as experts without providing the necessary notice and disclosures prior to trial. Specifically, Lipscomb contests their testimony as to the connection between firearms and drug trafficking and the amount of crack cocaine that is consistent with an intent to...