                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                               NOT PRECEDENTIAL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)


       1
           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



                                              4
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).

                                                 5
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.



                                              6
      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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