                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4658


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANDREW JEROME MALCOLM,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-00232-DCN-1)


Submitted:   August 20, 2010                 Decided:   September 9, 2010


Before MOTZ, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, for Appellant. Kevin F. McDonald, Acting United States
Attorney, Alston C. Badger, Christopher Coates, Assistant United
States Attorneys, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Andrew    Jerome     Malcolm     was   convicted     by    a     jury    of

importing     into    the   United      States     fifty    grams     or    more     of

methamphetamine,       in      violation      of     21      U.S.C.        §§ 952(a),

960(b)(1)(H) (2006), and possession with intent to distribute

more than fifty grams of methamphetamine, in violation of 21

U.S.C.   § 841(a)(1),       (b)(1)(A)      (2006).         Malcolm’s       indictment

arose from a traffic stop conducted by a South Carolina Highway

Patrol trooper that resulted in the discovery of methamphetamine

in the sleeper area of the cab of a tractor trailer driven by

Malcolm.

            On appeal, Malcolm first argues that the evidence was

insufficient     to    sustain    his     conviction       for   importation         of

methamphetamine,       because    the      controlled       substance       had     not

reached its final destination and the crime was therefore not

complete.     “The offense of importation of a controlled substance

into the United States requires proof (1) that the substance was

imported; (2) that it was imported knowingly and willfully; and

(3) that the defendant willfully associated himself with the

importation venture.”          United States v. Samad, 754 F.2d 1091,

1096 (4th Cir. 1984).        In a case involving marine transport of a

controlled substance, the Court held that “[w]hile crossing into

United States waters in Palmero [v. United States, 112 F.2d 922

(1st Cir. 1940)] was sufficient to establish importation, that

                                         2
event is not necessarily also the termination of the act of

importation.”      United States v. MacDougall, 790 F.2d 1135, 1151

(4th Cir. 1986).         We conclude that the elements of importation

were fulfilled when Malcolm knowingly and willfully drove his

truck    across    the       border   from   Canada      and    entered     the   United

States with the drugs in his truck.                      Although the importation

was not completed, it was established.

            Malcolm next argues that the district court erred in

finding    that    he    voluntarily      consented       to    the    search     of   his

truck.      Whether      a    defendant      has   voluntarily        consented     to   a

search is a factual question determined under the totality of

the     circumstances        and,     accordingly,       is     reviewed    under      the

clearly erroneous standard.              See Schneckloth v. Bustamonte, 412

U.S. 218, 248-49 (1973); United States v. Jones, 356 F.3d 529,

533 n.* (4th Cir. 2004).              Under the clearly erroneous standard,

this court will reverse the district court only when it is “left

with the definite and firm conviction that a mistake has been

committed.”       United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir.    2005)   (internal        quotation       marks    and    citation    omitted).

“[I]f the district court's account of the evidence is plausible

in light of the record viewed in its entirety,” this court will

not reverse the district court's finding despite concluding that

it would have “decided the fact differently.”                           Id. (internal

quotation marks, citation, and alteration omitted).                             In other

                                             3
words,    when    two     views     of    the    evidence            are    permissible,       “the

district       court’s       choice       between             them     cannot     be     clearly

erroneous.”           Id.     (internal          quotation            marks     and     citation

omitted).       We accord particular deference “to a district court’s

credibility determinations, for it is the role of the district

court to observe witnesses and weigh their credibility during a

pre-trial motion to suppress.”                      United States v. Abu Ali, 528

F.3d    210,    232   (4th    Cir.       2008)      (internal         quotation        marks   and

citation omitted).           When a suppression motion has been denied,

this court reviews the evidence in the light most favorable to

the Government.         United States v. Neely, 564 F.3d 346, 349 (4th

Cir. 2009).       Our review of the record leads us to conclude that

the district court did not err in denying Malcolm’s motion to

suppress.

               Malcolm next argues that the district court erred by

limiting his re-cross examination of Trooper Laird regarding a

previous stop of another truck owned by Malcolm’s employer.                                     The

truck, which was stopped in New Jersey, contained twice as many

pills as were found in Malcolm’s truck.                          Prior to trial, Malcolm

moved    to     prohibit      any     mention            of    this        incident,    and     the

Government       agreed     that     it    would         not    introduce        any    evidence

regarding the stop.               Fed. R. Evid. 611(b) provides:                         “Cross-

examination      should      be     limited         to    the    subject       matter    of     the

direct examination and matters affecting the credibility of the

                                                4
witness.    The court may, in the exercise of discretion, permit

inquiry into additional matters as if on direct examination.”

The district court “‘is vested with broad discretion to control

the mode of interrogation and presentation of evidence,’” and

this court reviews a district court’s ruling under Fed. R. Evid.

611(b) “only to determine whether it has abused its discretion.”

United States v. McMillon, 14 F.3d 948, 955-56 (4th Cir. 1994)

(quoting    United      States    v.   Gravely,     840    F.2d   1156    (4th    Cir.

1988)); see also United States v. Siegel, 536 F.3d 306, 320 (4th

Cir. 2008) (district court is “vested with broad authority to

control the manner of trial and the presentation of evidence”).

We    conclude      that   the   district     court    properly    exercised      its

discretion in limiting the cross-examination of Laird.

            Malcolm next argues that the district court erred in

allowing the Government to present testimony of statements that

he did not make, by way of a description of his reaction to the

discovery of the drugs.           Malcolm argues that his silence did not

constitute an adoptive admission, and thus the testimony was

inadmissible hearsay.            This court reviews “the district court’s

admission      of     testimony    for    abuse      of    discretion.          United

States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010).                        Malcolm did

not   object     to   this   testimony,       and   thus   we   review    for    plain

error.     “To establish plain error, [Malcolm] must show that an

error occurred, that the error was plain, and that the error

                                          5
affected his substantial rights.”                  United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).                  Even if Malcolm satisfies

these requirements, “correction of the error remains within [the

court’s] discretion, which [the court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public    reputation    of    judicial        proceedings.”      Id.    (internal

quotation marks and citation omitted).

            “The adoptive-admission doctrine permits statements of

others to be treated by the jury as statements of the party — it

is   as   if   the    party     himself     made    the   statement.”     United

States v. Williams, 445 F.3d 724, 735 (4th Cir. 2006).                  In order

to   be   admissible     as     an    adoptive      admission,   however,     the

statement to which the defendant’s response is relevant must be

at least implicitly accusatory to the degree that failure to

answer    is   an    adoption    of   the      accusatory   statement    by   the

defendant.     Id.     Assuming, without deciding, that the district

court erred in allowing the testimony in question, we conclude

that, in light of the significant other evidence of Malcolm’s

guilt, such error did not affect Malcolm’s substantial rights,

and thus he is not entitled to relief on this claim.

            Malcolm next argues that his due process rights were

violated by the Government’s failure, despite three requests, to

produce his trucker’s logbook.            He asserts that evidence in the

logbook could have been used to impeach the trooper’s testimony

                                          6
regarding      his   suspicions     during   the    traffic       stop,     allowing

Malcolm to more fully litigate his motion to suppress.                       To the

extent the Constitution imposes a duty upon the government to

preserve evidence, “that duty must be limited to evidence that

might be expected to play a significant role in the suspect’s

defense.”      California v. Trombetta, 467 U.S. 479, 488-89 (1984).

To   satisfy    this    standard,    evidence      must:         (1)    “possess    an

exculpatory value that was apparent [to the police] before the

evidence was destroyed,” and (2) “be of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means.”          Id. at 489.          The mere possibility

that    lost    or   destroyed      evidence    could      have        exculpated    a

defendant is not sufficient to satisfy Trombetta’s requirement

that the exculpatory value be “apparent” to the police before

its loss or destruction, which is required to establish that the

police acted in bad faith.           Arizona v. Youngblood, 488 U.S. 51,

56 n.* (1988).         Our review of the record leads us to conclude

that Malcolm fails to establish that the logbook was clearly

exculpatory, or that the Government acted in bad faith.

            Malcolm asserts counsel failed to properly introduce

exculpatory cell phone records, failed to present evidence that

another employee of Malcolm’s employer had been arrested for

trafficking ecstasy, and failed to obtain his logbook.                        Claims

of     ineffective     assistance     of     counsel       are     generally        not

                                        7
cognizable on direct appeal.            United States v. King, 119 F.3d

290,   295     (4th   Cir.    1997).     Rather,    to   allow    for   adequate

development of the record, a defendant must bring his claim in a

28 U.S.C.A. § 2255 (West Supp. 2010) motion.                 See id.; United

States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).                An exception

exists   when     the   record    conclusively      establishes      ineffective

assistance.      United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999); King, 119 F.3d at 295.               In this case, the record

does not conclusively show that counsel performed deficiently,

or that any failure by counsel prejudiced Malcolm.

             Malcolm next argues that the district court did not

sufficiently examine his testimony and explain its determination

that he committed perjury in imposing a sentencing enhancement

for obstruction of justice.            This court reviews for clear error

a   district    court’s      determination   that   a    defendant    obstructed

justice.     United States v. Hughes, 401 F.3d 540, 560 (4th Cir.

2005).     The district court summarized Malcolm’s false testimony

regarding his knowledge that the drugs were in his truck, and

made the required findings that the testimony was material and

was given with an intent to deceive.                The court’s explanation

was sufficient, and the enhancement was properly applied.

             Malcolm’s final argument is that the evidence relied

on by the district court to determine drug quantity was too

speculative and unreliable.             This court reviews the district

                                        8
court’s calculation of the quantity of drugs attributable to a

defendant       for    sentencing         purposes          for    clear      error.         United

States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).                                            The

Government must establish the quantity of drugs attributable to

a defendant by a preponderance of the evidence and may do so

through    the       introduction         of    relevant          and   reliable          evidence.

United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).

“The    district       court    is    afforded         broad       discretion        as    to   what

information       to    credit       in    making          its    calculations.”            United

States    v.    Cook,    76     F.3d      596,       604    (4th    Cir.      1996)       (internal

quotation marks omitted).                  We conclude that the method utilized

by the forensic chemist and adopted by the district court to

estimate       the     quantity       of       drugs       possessed          by    Malcolm      was

appropriate      to     the    evidence         in    question.            The      court’s     drug

quantity determination is therefore supported by the evidence.

               Accordingly,          we    affirm          Malcolm’s          convictions        and

sentence.       We dispense with oral argument because the facts and

legal    contentions          are    adequately            presented     in        the    materials

before    the    court     and       argument        would        not   aid    the       decisional

process.

                                                                                           AFFIRMED




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