     15-1401
     United States v. Grady

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of March, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-1401
16
17       SHAEEM GRADY,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        MELISSA A. TUOHEY, Assistant
22                                             Federal Public Defender (James
23                                             P. Egan, on the brief), for Lisa
24                                             A. Peebles, Federal Public
25                                             Defender, Syracuse, New York.
26
27       FOR APPELLEE:                         PARKER A. RIDER-LONGMAID, United
28                                             States Department of Justice,

                                                  1
 1                              Washington, D.C. (Geoffrey J.L.
 2                              Brown, Assistant United States
 3                              Attorney, on the brief), for
 4                              Richard S. Hartunian, United
 5                              States Attorney for the Northern
 6                              District of New York, Syracuse,
 7                              New York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Northern District of New York (Scullin, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Shaeem Grady appeals his conviction, after jury trial
17   in the United States District Court for the Northern
18   District of New York (Scullin, J.), for possession of
19   cocaine base with the intent to distribute in violation of
20   21 U.S.C. § 841(a)(1) and (b)(1)(c); possession of a firearm
21   in furtherance of a drug-trafficking crime in violation of
22   18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a
23   felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
24   Grady challenges the denial of his pre-trial motion to
25   suppress evidence, and the admittance of certain expert
26   testimony at trial. We assume the parties’ familiarity with
27   the underlying facts, the procedural history, and the issues
28   presented for review.
29
30        1.  Two officers of the Syracuse Police Department
31   approached a parked vehicle at night; upon arriving at the
32   passenger-side door with his flashlight, one officer
33   observed a sandwich bag containing crack cocaine on Grady’s
34   lap, in plain view. Grady challenges the officers’ initial
35   approach of the car as a Fourth Amendment violation. At the
36   suppression hearing, the officers testified and exhibits
37   were entered into evidence. Grady’s suppression motion was
38   denied by written decision.1
39
40        The district court concluded that there was no Fourth
41   Amendment violation, because (1) the officers’ initial

         1
           We accept the district court’s findings of fact,
     which were not clearly erroneous, and review de novo its
     conclusions of law. See United States v. Diaz, 802 F.3d
     234, 238 (2d Cir. 2015).
                                  2
 1   encounter with the occupants of the vehicle was consensual;
 2   and (2) the officers had reasonable suspicion to believe
 3   that the vehicle was parked in violation of a Syracuse
 4   parking ordinance. We need not decide whether the officers’
 5   initial approach of the vehicle constituted a seizure;
 6   assuming arguendo that it did amount to an investigative
 7   Terry stop, see Terry v. Ohio, 392 U.S. 1, 30-31 (1968), we
 8   affirm because the officers had the requisite reasonable
 9   suspicion of a parking violation.2
10
11        The City of Syracuse’s odd/even parking ordinance
12   requires cars in designated areas to park on the odd-address
13   side of the street from 6 p.m. on an odd day to 6 p.m. on
14   the next (even) day; and on the even-address side of the
15   street from 6 p.m. on an even day to 6 p.m. on the next
16   (odd) day. A vehicle is defined as “parked” when stopped
17   even if occupied; however, it is not “parked” if only
18   temporarily stopped “for the purpose of and while actually
19   engaged in loading or unloading merchandise or passengers.”
20   N.Y. Veh. & Traf. Law § 1200(c); Syracuse, N.Y., Charter,
21   Gen. Ordinances pt. M., ch. 15, art. I, 15-1(19). The
22   Syracuse Police Department is authorized to ticket or tow
23   for violation of the even/odd parking rules.
24
25        While on patrol in a marked police car at approximately
26   11:00 p.m. on an even day, Officers Decker and Ettinger made
27   a left turn onto Catawba Street, and observed a white Impala
28   stopped on the odd side of the street. They pulled their
29   patrol car over and parked in front of and facing the
30   Impala. They approached the Impala with flashlights in
31   hand. Officer Decker walked to the driver’s side, intending
32   to tell the occupants that the vehicle was parked on the
33   wrong side of the street and should be moved; and Officer
34   Ettinger walked to the passenger’s side. At no time did the
35   officers observe anyone getting into or out of the vehicle,


         2
            Reasonable suspicion of a civil traffic violation
     provides a sufficient basis for law enforcement officers to
     make an investigative stop. United States v. Stewart, 551
     F.3d 187, 193 (2d Cir. 2009). All “circuits that have
     considered the question whether a parking violation
     justifies a Terry stop have found no legally meaningful
     distinction between a parking and a moving violation.”
     United States v. Spinner, 475 F.3d 356, 358 (D.C. Cir. 2007)
     (citing cases). Grady does not contest that traffic
     violations include parking infractions.
                                  3
 1   or loading or unloading items from it. These objective,
 2   particularized facts provided reasonable suspicion to
 3   believe that the Impala was parked in violation of the
 4   odd/even parking ordinance. See United States v. Diaz, 802
 5   F.3d 234, 239 (2d Cir. 2015).
 6
 7        Grady argues that the officers’ observation was for too
 8   short a time to have determined whether the Impala was
 9   actively loading or unloading. But as found by the district
10   court, the officers observed no loading or unloading in the
11   span of time that they turned onto Catawba Street, noticed
12   the Impala, pulled over, stopped the police vehicle, exited
13   the police vehicle, and approached the Impala--a sufficient
14   period in which to suspect that the vehicle was parked
15   unlawfully.3 The officers were not required to conduct
16   surveillance long enough to “rule out the possibility of
17   innocent conduct.” Diaz, 802 F.3d at 240 (quoting Navarette
18   v. California, 134 S. Ct. 1683, 1691 (2014)).
19
20        Grady contends that any reasonable suspicion dissipated
21   once the officers approached the car and realized that it
22   was occupied and that the engine was running. This argument
23   lacks merit. The ordinance forbids stopping on the wrong
24   side of the street without active loading or unloading,
25   regardless of whether the vehicle is occupied, or whether
26   the engine is running. See N.Y. Veh. & Traf. Law § 1200(c)
27   (definition of “parking”); Syracuse, N.Y., Charter, Gen.
28   Ordinances pt. M., ch. 15, art. I, 15-1(19) (same).
29
30        2.  At trial, the government’s expert witness,
31   Detective Proud, testified on the subject of narcotics
32   distribution and packaging, chiefly the so-called
33   “freestyle” method of crack cocaine distribution, in which
34   the seller holds the cocaine base in a bulk form, e.g., in a
35   single rock, and breaks off purchases only at the time of
36   sale. This differs from the method in which one-to-three
37   doses of crack cocaine (typically one-tenth of a gram each)
38   are pre-packaged for sale in individual plastic baggies.
39   Grady challenges the admission of this testimony pursuant to
40   Federal Rules of Evidence 702(a) and 704(b).
41



         3
           Officer Ettinger testified that he observed the
     Impala for approximately ten seconds before deciding to
     approach it.
                                  4
 1        The district court did not abuse its discretion in
 2   admitting Detective Proud’s testimony. See United States v.
 3   Barrow, 400 F.3d 109, 123 (2d Cir. 2005). Rule 702(a)
 4   requires that expert testimony “will help the trier of fact
 5   to understand the evidence or to determine a fact in issue.”
 6   Fed. R. Evid. 702(a). Detective Proud’s testimony did that:
 7   it concerned facts not within the average juror’s knowledge,
 8   and was important to understanding the potential
 9   significance of Grady’s possession of a single 2.27-gram
10   rock of crack cocaine (and a steak knife). See United
11   States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir. 1994)
12   (“Testimony about the weight, purity, dosages, and prices of
13   cocaine clearly relates to knowledge beyond the ken of the
14   average juror.”).
15
16        At one point, Detective Proud testified that, in his
17   experience, 2.27 grams of crack cocaine was consistent with
18   distribution as opposed to personal use, because 2.27 grams
19   constituted approximately 22 to 25 individual doses of crack
20   cocaine, and because a typical user would limit purchases to
21   one-to-three doses at a time, so as to avoid a big
22   investment in crack of poor quality. Grady argues that this
23   amounted to an opinion on Grady’s intent to distribute, and
24   thus violated Rule 704(b). See Fed. R. Evid. 704(b) (“In a
25   criminal case, an expert witness must not state an opinion
26   about whether the defendant did or did not have a mental
27   state or condition that constitutes an element of the crime
28   charged or of a defense.”).
29
30        “Rule 704(b) does not prohibit all expert testimony
31   that gives rise to an inference concerning a defendant’s
32   mental state. The . . . rule . . . means that the expert
33   cannot expressly ‘state the inference,’ but must leave the
34   inference, however obvious, for the jury to draw.” United
35   States v. DiDomenico, 985 F.2d 1159, 1165 (2d Cir. 1993)
36   (citation omitted). Detective Proud’s testimony did not
37   violate Rule 704(b) because, while it could have been used
38   by the jury to conclude that the crack cocaine in Grady’s
39   possession was intended for distribution rather than
40   personal use, that final inference was left to the finder of
41   fact. See United States v. Lopez, 547 F.3d 364, 373-74 (2d
42   Cir. 2008); United States v. Taylor, 18 F.3d 55, 60 (2d Cir.
43   1994). Detective Proud’s testimony made clear that his
44   opinion as to the hypothetical was based on his general
45   experience, not on any specific knowledge of Grady’s mental
46   state; and he conceded on cross-examination that he
47   “suppose[d]” it was “possible” for a person to smoke 2.27

                                  5
 1   grams of crack cocaine over the course of one night. App’x
 2   445. Accordingly, the jury could have rejected the
 3   inference that Grady intended to distribute the cocaine
 4   base, and found instead that it was intended for Grady’s (or
 5   one of the other Impala occupants’) own use.
 6
 7        For the foregoing reasons, and finding no merit in
 8   Grady’s other arguments, we hereby AFFIRM the judgment of
 9   the district court.
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK
13




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