United States v. Leroy Rey

923 F.2d 1217, 32 Fed. R. Serv. 114, 1991 U.S. App. LEXIS 872

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 22, 1991
• Docket: 90-5582
• Status: Published

Opinions

CONTIE, Senior Circuit Judge.

Defendant-appellant, Leroy Rey, appeals the judgment and conviction for conspiracy to distribute and possession with intent to distribute cocaine.

I.

On October 13, 1989, a senior customs inspector at the main post office in St. Thomas, Virgin Islands inspected and found cocaine in an express mail box. The express mail label on the box read as follows:

TO: Grace Richardson

816 Murfreesboro Road, Apt. C-28 Nashville, TN

FROM: David Richardson Estate Nadir, 15-B St. Thomas, Virgin Islands

In order that the box be subject to a controlled delivery, the inspector forwarded the box to postal officials in Nashville, Tennessee, who turned it over to agents of the Drug Enforcement Administration (DEA). DEA agents obtained search warrants for the package and for the apartment to which it was addressed. When the search warrant was executed on the package, the agents found six bricks of cocaine amounting to approximately six kilos. The bricks of cocaine were replaced with bags of sugar and a sample of approximately two grams of cocaine.

A controlled delivery of the package was made on October 17, 1989, using a postal inspector, Inspector Wilson, disguised as a mailman. At least ten officers were involved in surveilling Apartment C-28. Delivery of the package was not restricted so that it could be signed for by any adult at the address.

At trial, Inspector Wilson testified that the defendant opened the door and identified himself as Leroy Rey. Inspector Wilson asked for “Mrs. Richardson” to whom the package was addressed. Defendant responded, saying “Yes.” Inspector Wilson specified that he was looking for “Grace Richardson” and that defendant “didn’t look like Grace.” Nevertheless, defendant stated that he would “take it” and signed his name to the express mail label. After the inspector left, defendant used a portable cellular phone to dial a number in the Virgin Islands — 809-775-3601. Shortly thereafter, defendant left by the rear door of the apartment building and was arrested as he began to drive away. Upon his apprehension, the defendant identified himself as Leroy Rey, acknowledged that he was living in Apartment C-28, and, upon being advised of a search warrant for his apartment, permitted peaceful entry.

The package was found, unopened, within a foot or two of the door. The officers executed the search warrant for the apartment, which led to the discovery of a variety of electronic equipment, including the following:

1. mobile/cellular telephone (and warranty card for the mobile telephone made out to Leroy Rey, 816 Mur-freesboro Road, Apt. C-28, Nashville, Tennessee);

2. beeper;

3. GE answering machine (this was found in the bedroom of Judith Arn-dell, the defendant’s sister);

4. electronic police scanner;

5. wireless remote microphone and receiver;

6. portable CB radio;

7. Panasonic cassette recorder.

The officers also found an axe/wrecking bar, a box of 9 mm. ammunition, $10,000 worth of men’s jewelry, a printed funeral service for Grace Richardson, and numerous books, including the following:

1. DEA Domestic Operations Guidelines;

2. How to Launder Money;

3. Tax Havens in the Caribbean;

4. Police Call Radio Guide (with two handwritten pages of notes contained therein);

5. Surveillance Communications Counter-measures;

6. Undercover Operations;

7. Methods of Disguise;

8. Creating and Maintaining Alternative Identities;

9. Crime Scene Search and Physical Evidence Handbook;

10. High Times Magazine (September, October, and November of 1989).

In addition, various papers and notes were found containing names and dollar amounts which were indicative of “owe sheets” used in drug trafficking.

On November 15, 1989, defendant Rey was indicted by a federal grand jury and charged with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Defendant filed a Motion for a Bill of Particulars on December 11, 1989, requesting the district court to direct the U.S. Attorney to furnish the names of co-conspirators. The motion was denied.

On December 13, 1989, defendant filed a Motion for a Special Verdict Request to Jury, requesting the court to order the jury to state the amount of cocaine possessed or sold and the percentage of purity. This motion was denied.

On December 21, 1989, defendant filed a motion to suppress evidence. The motion was denied after a hearing was held on January 12, 1990. At the end of the suppression hearing, the court also denied the three motions in limine, which defendant had filed, seeking exclusion from the trial of any evidence referring to a specific quantity of cocaine, certain electronic equipment or certain publications.

During trial, Special Agent Keller of the DEA testified how the electronic equipment, publications, and written materials were indicative of illegal drug trafficking. Testimony revealed that defendant had accepted delivery of the box addressed to “Grace Richardson” even though he knew that Grace Richardson, his aunt, was dead. The defendant had attended her funeral in the Virgin Islands in September 1989 and had remained in the Virgin Islands for several weeks thereafter.

Defendant’s sister, Ms. Arndell, who also lived at apartment C-28, testified that their brother-in-law was Alton Alexander Phillip, who lived in the Virgin Islands. It was determined that it was his phone number (809-775-3601) to which defendant placed a call three minutes after delivery of the box.

Other evidence established a connection between the telephone number “809-775-3601” and the return address on the box containing the cocaine. An expert document analyst determined defendant did not write the address on the express mail label on the box, indicating that a second person was involved.

Defendant was found guilty on both counts and sentenced to a term of imprisonment for 170 months and a fine of $4,000,-000.

Defendant timely filed a notice of appeal on April 6, 1990.

II.

Appellant Rey alleges that the district court erred by denying his motion to suppress the search of his residence because the search warrant was not supported by probable cause. Appellant argues that probable cause for an anticipatory search warrant existed only for the seizure of the controlled delivery package and for nothing else. Appellant alleges that Agent Keller’s actual affidavit for the search of the apartment refers only to the controlled delivery and that he had no knowledge of Rey or any illicit activity in the apartment prior to the delivery. Appellant relies on United States v. Garcia, 882 F.2d 699 (2d Cir.1989), in which the court found that additional facts besides the controlled delivery had given rise to probable cause to believe that the apartment searched was being used as a storage and distribution center for drugs. In Garcia, drug couriers, who had become government informants, had been given the telephone number of the codefendant’s apartment and there was evidence'that one of the couriers had previously delivered drugs to the apartment. Also federal agents had seen at least one other defendant suspected of drug activity enter and leave the apartment. Id. at 704. The second circuit stated, “Had the only evidence been that duffel bags were being delivered to the apartment, the scope of the search, described in the warrant [for ‘cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia’] might have been overbroad.” Id.

In the present case, at the suppression hearing, the affiant testified that the apartment had been under surveillance and defendant Rey had been seen at the apartment on the day before the delivery. The affiant also testified that the mail carrier for the apartment claimed a number of “these types of packages” had been delivered to the same location in the past. Thus, contrary to appellant’s assertions, there were indications of prior illicit activity.

Moreover, other circuits have rejected the claim that a warrant authorizing a search for drug paraphernalia as well as contraband is overbroad, even though based only on the knowledge of a controlled delivery. United States v. Washington, 852 F.2d 803, 804-05 (4th Cir.), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988) (“sure course” of destination of controlled delivery package addressed to fictitious name gives probable cause for anticipatory warrant to search premises to which package is addressed for “a quantity of drug paraphernalia, papers, notes, bank records, identification documents and other items of evidence”);¹ United States v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982) (defendants’ claim that search warrant issued after a controlled delivery of baseballs containing drugs was too broad to allow agents to seize papers and documents related to drug dealing has no merit if warrant is specific and details the facts surrounding the discovery of the drug subject to the controlled delivery);² United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978) (search of defendant’s residence pursuant to warrant for “passports, correspondence, telephone bills and other evidence of residence, narcotics, and narcotics paraphernalia” is upheld following arrest of defendant who received controlled delivery elsewhere).

Based on these three cases, we believe that in the circumstances of the present case there was probable cause to issue a warrant for “controlled substances, records of narcotics activities, documents, paraphernalia and other evidence of drug dealing and importation.”

III.

Appellant next contends that the district court erred by denying the motion to suppress because the search warrant did not specify that the search could only be executed after the controlled delivery had been made. However, this argument has no merit. Although it may be preferable to make such a statement, the warrant’s silence on this point does not render it void. Tennessee v. Wine, 787 S.W.2d 31 (Tenn.App.1989). In the present case, the affidavit requested a warrant for a search “subsequent to the delivery of the package tomorrow.” A reasonable inference can be made that the warrant authorizes a search only after the controlled delivery has occurred. If the controlled delivery had not occurred, then the warrant would have been void. State v. Wahl, 450 N.W.2d 710 (N.D.1990). Therefore, we find that the warrant was not defective because it did not expressly specify that the search could be executed only after the controlled delivery had been made.

IV.

Appellant next alleges that the district court erred by admitting into evidence certain trial exhibits.

Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Federal Rule of Evidence 402 provides that evidence which is not relevant is not admissible. The defendant contends that the trial court erred by admitting irrelevant evidence, specifically a mobile phone and warranty card, beeper, answering machine, police scanner, microphone, CB radio, cassette recorder, pilot tapes, and several books taken from a larger collection.

To be relevant, the electronic equipment and books must tend to prove that the defendant conspired to distribute or possess with intent to distribute cocaine. The United States was permitted to introduce the electronic equipment and books into evidence because such items are sometimes used by drug dealers. While one or two of the items taken by themselves would not indicate conspiracy or possession with an intent to distribute cocaine, the entire collection of items makes the charge more probable; thus, the evidence is relevant.

Next appellant Rey argues that even if the evidence is relevant, the unfair prejudice and risk of misleading the jury substantially outweighed the evidence’s probative value so that the evidence should have been excluded under Federal Rule of Evidence 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The trial court has broad discretion in deciding admissibility issues under Rule 403. Hines v. Joy Mfg. Co., 850 F.2d 1146, 1154 (6th Cir.1988); United States v. Brady, 595 F.2d 359, 361 (6th Cir.1979), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979). In order to exclude evidence under Rule 403, the evidence must be more than damaging; it must be unfairly prejudicial. Hines, 850 F.2d at 1154; United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987). Unfair prejudice means an undue tendency to suggest a decision on an improper basis. United States v. Vandetti, 623 F.2d 1144, 1149 (6th Cir.1980). In reviewing the trial court’s ruling on a Rule 403 objection, the reviewing court must look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect. United States v. Kelley, 849 F.2d 999, 1003 (6th Cir.1988).

The government contends that the electronic equipment and books are probative of the defendant’s intent to distribute cocaine because the items constitute tools of the drug trade. Appellant Rey maintains that these items pose a risk of misleading the jury and are unfairly prejudicial. However, the items in question are not of a type to inflame the jury. Such neutral items are not likely to suggest a decision on an improper basis to a jury. Although the evidence may be damaging to the defendant’s case, it is not unfairly prejudicial. Therefore, we find that the district court did not abuse its discretion in admitting the evidence.

V.

Appellant argues that the district court erred in denying his motion for a bill of particulars, seeking the identity of co-conspirators.

The grant or denial of a motion for a bill of particulars lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. United States v. Paiva, 892 F.2d 148, 154-55 (1st Cir.1989); United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981); Turner v. United States, 426 F.2d 480, 483 (6th Cir.1970), cert. denied, 402 U.S. 982, 91 S.Ct. 1646, 29 L.Ed.2d 148 (1971). Proof of abuse of discretion “requires a showing of actual surprise at trial and prejudice to the defendant’s substantial rights by the denial.” United States v. Paiva, 892 F.2d at 154; United States v. Colson, 662 F.2d at 1391.

Defendant Rey claims his counsel’s ability to prepare for trial was impeded because he did not have the name of the co-conspirator before trial. The government was not required to furnish this information. A defendant may be indicted and convicted despite the names of his co-conspirators remaining unknown, as long as the government presents evidence to establish an agreement between two or more persons, a prerequisite to obtaining a conspiracy conviction. Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951); United States v. Piccolo, 723 F.2d 1234, 1238-39 (6th Cir.1983), cert. denied, 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 817 (1984). As long as the indictment is valid, contains the elements of the offense, and gives notice to the defendant of the charges against him, it is not essential that a conspirator know all other conspirators. “It is the grand jury’s statement of the ‘existence of the conspiracy agreement rather than the identity of those who agree’ which places the defendant on notice of the charge he must be prepared to meet.” Piccolo, 723 F.2d at 1239, quoting United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982). Defendant Rey knew that he was charged with conspiracy to possess cocaine with intent to distribute. Defendant also knew the dates involved as stated in the indictment. Defendant has not demonstrated that his lack of knowledge of the co-conspirator’s name before trial either surprised him, prejudiced him, or impeded his counsel’s ability to prepare for trial. Thus, the district court did not abuse its discretion in denying defendant’s motion for a bill of particulars.

VI.

Appellant finally argues that the district court erred by refusing to submit a special interrogatory concerning the amount of cocaine defendant possessed. However, we find that this allegation has no merit.

Title 21, United States Code, Section 841(a)(1) only requires that there be unlawful possession with intent to distribute “a controlled substance.” (emphasis added). The fact-finding function of the jury is to return a verdict of guilt or innocence and the quantity requirements of section 841 are applicable only to sentencing. Because the quantity possessed is not an element of the offense under 21 U.S.C. § 841(a), a special interrogatory regarding the amount of cocaine involved is not required by the statute.

Moreover, the total amount of cocaine originally sent is the amount considered for sentencing under the United States Sentencing Guidelines. U.S. v. White, 888 F.2d 490, 498 (7th Cir.1989). In White, the defendant argued that his sentence should have been based upon the trace amount, or representative sample, used for purposes of a controlled delivery, rather than the total amount of cocaine originally in the package intercepted by customs officials. The court rejected this theory, stating:

Had the packages slipped by the Customs Service, White would have received 302 grams; had the DEA decided to make a controlled delivery of the original packages instead of removing most of the drug, the same 302 grams would have arrived. The nature and seriousness of White’s conduct is the same no matter how much of the cocaine the DEA took out.

Id. The court discussed the functions of the Guidelines and found that the appropriate sentence depends on the original quantity, the offense level being the same as if the object of the conspiracy or attempt had been completed. Id. at 498-99.

In the present case, the evidence clearly showed beyond a reasonable doubt that the package originally contained six kilograms of cocaine. The district court did not err by refusing to allow the jury to decide the amount of cocaine since determining the amount for sentencing is solely a function of the court.

To conclude, the judgment of the district court is hereby affirmed.

1 . In Washington, a prior investigation revealed the names of the occupants of the residence. 852 F.2d at 804 n. 2. The court stated that the fact that the package was addressed to someone other than the occupants was not relevant because it is common knowledge that fictitious names are frequently used in illicit drug trafficking. Id. at 804. The only evidence of probable cause to issue a search warrant for drug paraphernalia given in the opinion was that the package was "on a sure course to its destination, as in the mail....” Id. Although the names of the occupants of the residence were known, there is no indication in the opinion that the investigation revealed any suspicion of prior drug activity on the part of defendant as was the case in Garcia. We believe that Judge Hall stated in the opinion in Washington all of the relevant facts on which he relied in making a determination of probable cause. Moreover, the wording of the affidavit in Washington ("Based on the probable cause developed in this investigation”) is similar to the wording in the affidavit in the present case.

2 . In Malik, a prior investigation revealed only to whom the package was to be delivered. After the defendants received the bag with the contraband hidden in baseballs in it, they entered an apartment and were then arrested. A search warrant was later executed on the apartment not only for the baseballs but also for items related to drug dealing. There is no indication in the opinion that the apartment entered was the defendants’ residence or that it had previously been involved in drug-related activity.