Appeal from the District Court of the Virgin Islands (Crim. Nos. 3-06-cr-00029-001, 3-06-cr-00029-002) District Judge: Hon. Juan R. Sanchez.
The opinion of the court was delivered by: McKEE, Chief Circuit Judge.
Before: McKEE, Chief Judge, FUENTES and NYGAARD, Circuit Judges.
Glenn Petersen and Trevor Dorsett appeal their convictions for possessing more than 500 grams of cocaine with intent to distribute, and for aiding and abetting that possession. For the reasons that follow, we will affirm the judgments of conviction.
I. FACTUAL BACKGROUND*fn1
The circumstances leading to the defendants' arrest and conviction began as Virgin Islands Police Officers Angela Brown and Steve Gibbons were monitoring surveillance cameras in a police station on the island of St. John. Those cameras had been deployed in "high crime areas" in Cruz Bay; and fed into the police station where officers monitoring them could zoom in and out of a scene by manipulating a joystick. The officers could also swivel the cameras in a complete 360 degree circle, thereby tracking movements of anyone they chose to focus on.
While monitoring the cameras, Officer Brown recognized Dorsett as she saw him standing on the sidewalk directly across from a post office. As the officers observed Dorsett, Petersen met him, and the two began walking toward "Cap's Place," a local bar. When the two left the bar, the officers saw that Petersen had a drink in one hand and a plastic bag in the other. The officers zoomed in on the bag and saw that it contained a brick-shaped object that appeared to be heavy. As Petersen and Dorsett continued walking down the street to the First Bank Building, Petersen passed the bag to Dorsett. Dorsett kept the bag until they reached a short cut that led to the Julius E. Sprauve School. They then moved out of camera range when they took that short cut.
Officers Brown and Gibbons then left the station and walked towards the school. As they did, they saw Dorsett and Petersen get into a red Mitsubishi car and drive past the officers. The officers then ran back to the station, got into a police car, and attempted to follow Dorsett and Petersen. As they attempted to pursue the Mitsubishi, Officer Brown radioed other officers to be on the lookout for Dorsett and Petersen in the red car.
Officer Emile Proctor was heading towards the red Mitsubishi when he saw it fail to stop at a stop sign. Officer Proctor radioed to the other officers, informed them of what he saw, and told them that he was going to make a traffic stop. While attempting to catch up to the Mitsubishi, Officer Proctor saw Dorsett throw a clear plastic bag that contained a white substance out through the driver's side window into an open gutter. After the clear plastic bag was thrown into the gutter, the Mitsubishi turned into a street that Officer Proctor knew to be a dead end and Proctor stopped at the entrance of the street to block the Mitsubishi's exit. While doing this, he was able to observe the clear plastic bag that had been thrown from the car into the gutter. The Mitsubishi made a U-turn and then stopped in front of Officer Proctor's police car at about the same time that Officers Brown and Gibbons were arriving at the scene. They parked their car behind the Mitsubishi.
Officer Proctor ordered Dorsett and Petersen out of the car as Officer Dennis Vanterpool arrived and was informed about the clear plastic bag that was still in the gutter. As he retrieved the bag, Vanterpool observed a rock-like substance inside. He opened the bag and smelled what he believed to be crack cocaine and then informed the other officers of his discovery. Officers Proctor and Vanterpool then frisked Petersen and Dorsett. While conducting the pat-downs, Officer Proctor noticed that both Dorsett and Petersen smelled of marijuana, and Officer Vanterpool recovered a bag of marijuana from Petersen's pants pocket.
After Dorsett and Petersen were secured, Officers Brown and Gibbons looked inside the Mitsubishi and immediately noticed the odor of marijuana coming from inside. As Officer Brown continued his visual inspection, he noticed what appeared to be the plastic bag that he had previously seen Dorsett and Petersen carrying as they walked down the street. Brown inquired about the bag, but both Dorsett and Petersen denied any knowledge of it. Officer Brown retrieved the bag and saw that it contained brick-like objects covered by a white powdery substance. Dorsett and Petersen were then arrested and charged with possession of a controlled substance with intent to distribute.
II. DISTRICT COURT PROCEEDINGS
On January 15, 2006, a grand jury returned a two count indictment charging both Dorsett and Petersen with possessing cocaine base (Count One) and cocaine hydrochloride (Count Two) with intent to distribute within 1000 feet of a public school, in violation of 21 U.S.C. §§ 841(a) and 860, as well as aiding and abetting each other and unknown others in the commission of those offenses, in violation of 18 U.S.C. § 2.
After the district court denied their motions to suppress physical evidence, they proceeded to trial before a jury. The government's evidence at trial included the testimony of Eric Jordan, a forensic chemist employed by the United States Drug Enforcement Agency. He testified that the bricks the defendants were carrying contained cocaine hydrochloride that had a gross weight of nearly one and a half kilograms (1,367.9 grams). Officer Mark Joseph, a Virgin Islands Police Department detective who is assigned to the Drug Enforcement Task Force, testified that the drugs were packaged in a manner that was not consistent with personal use.
At the conclusion of that trial, the district court granted the defendants' motions for judgment of acquittal and dismissed Count One of the indictment. The jury could not reach a verdict on Count Two and a mistrial was declared.
At the ensuing retrial, both defendants were convicted on the charges contained in Count Two and sentenced to lengthy prison terms after the court denied their post trial motions. These appeals followed.
Dorsett argues that the district court erred in denying his suppression motion, that there was insufficient evidence to support his conviction, and that the district court erred in refusing to give his proffered jury instruction on aiding and abetting. Petersen also challenges the district court's denial of his suppression motion. He also contends that the district court erred in sustaining his conviction for a lesser-included offense because no lesser included offense instruction was given to the jury.
The defendants' challenge to the denial of their suppression motions does not warrant discussion. Their only argument in support of that claim is that all of the evidence seized by the Officers should have been suppressed because the evidence established that Officer Proctor did not see the Mitsubishi run a stop sign. Thus, according to the defendants, the traffic stop violated their Fourth Amendment rights.*fn2 In United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), we noted that "the Supreme Court [has] established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime." Id. at 252 (citing Whren v. United States, 517 U.S. 806 (1996)).
Petersen and Dorsett contend that surveillance videotape evidence established that Officer Proctor did not see their car run a stop sign. However, Officer Proctor clearly testified that he did see the Mitsubishi run a stop sign, and the district court credited the Officer's testimony and held that the traffic stop was proper. "It is not for us to weigh the evidence or to determine the credibility of witnesses." United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1990) (internal quotation marks and citation omitted). Thus, the district court did not err in denying the motions to suppress.
Dorsett's argument that there was insufficient evidence to support his conviction does not merit much discussion either.
Officer Brown testified that she saw Dorsett handling the bag containing the cocaine, and surveillance videotape established that Dorsett had actual possession of the bag. That same plastic bag was found in the vehicle just a few minutes later during the stop. This is more than sufficient to sustain the conviction for possession with intent to distribute.
We also reject both appellants' challenges to the district court's jury instructions, although those ...