U.S. v. Pofahl

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 4, 1993
• Docket: 92-8104
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

______________

No. 92-8104 ______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

AMY RALSTON POFAHL, CHARLES T. NUNN, and RANDY WHITE, Defendants-Appellants.

__________________________________________________

Appeals from the United States District Court for the Western District of Texas __________________________________________________ (May 6, 1993)

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants, Amy Ralston Pofahl ("Pofahl"), Charles T. Nunn

("Nunn"), and Randy White ("White"), were jointly tried before a

jury and convicted of offenses stemming from a conspiracy to import

into the United States and distribute 3,4-

methylenedioxymethamphetamine ("MDMA" or "Ecstasy"). Pofahl, Nunn,

and White were all convicted of conspiring to distribute and

possess with intent to distribute MDMA, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (1988). Both Pofahl and Nunn were convicted of

conspiring to import MDMA into the United States, in violation of

21 U.S.C. §§ 952(a), 963 (1988). Pofahl was also convicted of

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (1988). All three defendants now appeal their convictions and

sentences. We vacate Nunn's sentence and remand for specific

findings of fact. Otherwise we affirm in all respects.

I

A

From 1985 until early 1989, Charles Pofahl1 and Morris Key

operated an elaborate conspiracy for the purpose of trafficking in

MDMA, more popularly known as Ecstasy. Charles Pofahl hired Dr.

Morris Key, a professional chemist, to assist in the production of

MDMA. Raw chemicals were purchased in West Germany and shipped to

Guatemala, where they were used to manufacture MDMA tablets. Key

and Charles Pofahl then employed a number of individuals to smuggle

the drugs into the United States, where an extensive network of

distributors and dealers sold them to consumers. Between 1985 and

1989, several million MDMA tablets were manufactured by the Pofahl-

Key operation, some of which were imported and sold. Large

quantities of MDMA were seized by law enforcement officials.

Amy Pofahl met Charles Pofahl in 1985, and they married in

November of that year. Amy Pofahl was personally involved in many

aspects of her husband's drug trafficking operation. She traveled

with him to Guatemala on several occasions when he was taking part

in the management of the conspiracy. Amy Pofahl assisted Charles

1 Charles Pofahl was the ringleader of the conspiracy which led to the convictions of Amy Pofahl, Charles Nunn, and Randy White. However, Charles Pofahl is not a party to this appeal. He was arrested in Germany, was tried and convicted by German authorities, and was incarcerated in Germany when Amy Pofahl, Charles Nunn, and Randy White were tried in the Western District of Texas.

-2- Pofahl with counting and bottling MDMA tablets. She also

introduced her former boyfriend, Larry Morrow, into the conspiracy

and thereafter sold MDMA to him when he became a distributor. Amy

Pofahl continued to sell MDMA and receive the proceeds of MDMA

sales after Charles Pofahl's personal involvement in the conspiracy

ended with his arrest in West Germany.

Charles T. Nunn served the conspiracy as a smuggler. Nunn

transported 130,000 tablets of MDMA from Guatemala to the United

States by car, and he was in Guatemala preparing to return with

another shipment when he learned that Charles Pofahl had been

arrested in Germany.

Randy White lived, worked, and sold MDMA in the Dallas area.

White regularly received substantial quantities of

MDMA))manufactured by the Pofahl-Key operation))from Tom and Dan

Drath. The Draths received the MDMA from Charles Wesley Knight,

who received it directly from Morris Key and Charles Pofahl. Randy

White regularly sold MDMA to several lower-level distributors.

B

A cooperative investigation by state and federal authorities

led to the arrests of a number of participants in the conspiracy,

including Pofahl, Nunn, and White, all of whom were charged in an

indictment alleging a variety of drug and money laundering

offenses. Pofahl, Nunn, and White were tried together before a

jury, which found all three defendants guilty of Count One of the

indictment))conspiring to distribute and possess with intent to

distribute MDMA, in violation of 21 U.S.C. §§ 841(a)(1), 846

-3- (1988). Both Pofahl and Nunn were found guilty of Count

Two))conspiring to import MDMA into the United States, in violation

of 21 U.S.C. §§ 952(a), 963 (1988). The jury also found Pofahl

guilty of Count Six))money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i) (1988).

The district court sentenced Pofahl to consecutive prison

terms of 240 months for Count One and 52 months for Count Two.

Pofahl received a concurrent term of 60 months on Count Six. The

district court sentenced Nunn to 235 months imprisonment for Count

One and a concurrent term of 60 months on Count Two. Randy White

received a sentence of 109 months imprisonment.2

C

Pofahl, Nunn, and White now appeal their convictions and

sentences. All three appellants allege racial discrimination in

the selection of the jury. Both Pofahl and White attack the

sufficiency of the evidence to support their conspiracy

convictions.

Pofahl raises several additional claims: (a) that the district

court erred in its handling of her motion for appointment of a

psychiatric consultant, pursuant to 18 U.S.C. § 3006A, and that her

trial counsel was ineffective for failing to object to the district

court's handling of the motion; (b) that the district court

erroneously denied her motion to suppress evidence seized from her

residences in violation of the Fourth Amendment; (c) that the

2 The three defendants also received terms of supervised release, fines, and special assessments.

-4- district court, in imposing sentence, held her accountable for an

excessive quantity of MDMA; (d) that her sentence was enhanced on

account of an erroneous finding that she was a manager in the

conspiracy; and (e) that her sentence was enhanced as a result of

the district court's erroneous finding that she attempted to

obstruct justice.

Charles Nunn argues that (a) the district court erred by

denying his motion to sever, (b) the district court held him

responsible at sentencing for an excessive quantity of drugs,

(c) he should have been granted an offense level reduction as a

minimal or minor participant in the conspiracy, (d) he was entitled

to an offense level reduction for acceptance of responsibility, and

(e) the district court erred by enhancing his sentence for

possession of a firearm during the course of the offense without

first specifically finding that he possessed the gun, as required

by Fed. R. Crim P. 32(c)(3)(D).

Randy White claims that (a) his confession should have been

suppressed, because it was given without the benefit of the

warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966), and (b) the district court at

sentencing held him accountable for an excessive quantity of MDMA.

II

Joint Claims

Pofahl, Nunn, and White argue that their convictions must be

reversed on account of racial discrimination in the selection of

-5- the jury. The appellants present several arguments to that effect,

none of which has merit.

(i)

Pofahl, Nunn, and White contend that the district court erred

by overruling White's objection, premised on Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the

prosecutor's use of peremptory strikes to remove all of the

African-Americans and Hispanic-Americans from the jury. The Equal

Protection Clause3 forbids a prosecutor to exercise peremptory

challenges against prospective jurors solely on account of their

race. Id. at 89, 106 S. Ct. at 1719. To show that the prosecutor

violated the Equal Protection Clause by her use of peremptory

strikes, a defendant must first demonstrate that the facts raise an

inference that the strikes were racially motivated. Id. at 93-94,

106 S. Ct. at 1721. Once the defendant makes that prima facie

case, the prosecutor then has the burden of showing that the

strikes were based on "permissible racially neutral selection

criteria." See id. at 94, 106 S. Ct. at 1721. After the

prosecutor offers a racially neutral explanation, the district

court must determine whether the defendant has established

purposeful racial discrimination. See id. at 98, 106 S. Ct. at

1724.

3 The Equal Protection Clause of the Fourteenth Amendment pertains to the states, but Batson applies to federal, as well as state, criminal cases. See Brown v. United States, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (federal criminal conviction reversed on the basis of Batson).

-6- Following voir dire, counsel for White drew the district

court's attention to the fact that the prosecutor had exercised

peremptory strikes to remove from the jury the only two African-

American venire members and the one Hispanic venire member. See

Supp. Record on Appeal, vol. 7, at 74, 77. The district court

apparently understood counsel to be making a Batson objection, and

asked the prosecutor whether he could "state nondiscriminatory

reasons for striking" the three venire members.4 See id. at 74.

The prosecutor answered that he generally tended to strike jurors

"on economic grounds" rather than racial grounds. See id. at 75.

In particular the prosecutor preferred "a middle class jury" made

up of jurors "who work[ed] eight hours a day and [were] preferably

salaried." See id.

4 The Supreme Court contemplated that district courts faced with Batson objections would decide whether the facts supported an inference of racial discrimination. See Batson, 476 U.S. at 97, 106 S. Ct. at 1723. If the district court determined that the facts supported that inference, the government would then be required to come forward with race neutral explanations for its peremptory strikes. See id. Here the district court did not explicitly find that the facts supported an inference of racial discrimination. See Supp. Record on Appeal, vol. 7, at 74. The district court responded to the apparent Batson objection by immediately asking the prosecutor for race-neutral explanations for his peremptory challenges. See id. However, "[t]his departure from the normal course of proceeding need not concern us. . . . Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, ___ U.S. ___, ___, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991); see also United States v. Broussard, ___ F.2d ___, ___ n.4, 1993 WL 72937, *5 n.4 (5th Cir. 1993) (declining to decide whether defendant had established prima facie case of racial discrimination, where district court required explanation for peremptory strikes).

-7- The prosecutor offered specific reasons for striking each of

the three contested venire members. See id. He stated that

venireman Bolds was struck because he was single and a school bus

driver. Based on those facts, the prosecutor surmised that Mr.

Bolds probably earned low wages and was not employed full time.

See id. The prosecutor said that he struck venireman Olivarez

because he was a self-employed auto mechanic, and as a result it

was not possible to determine how many hours Mr. Olivarez worked or

how much money he earned. See id. at 76. The prosecutor also

stated that he was suspicious of Mr. Olivarez's dress and demeanor.

See id. The prosecutor asserted that he struck Ms. Sargent because

she was not paying attention during voir dire. See id. at 75-76.

After hearing these explanations, the district court overruled

White's objection to the prosecutor's use of his peremptory

strikes. See id. at 77.

Because only White objected to the prosecutor's use of

peremptory challenges, see id. at 74-77, the government argues that

Pofahl and Nunn are barred from raising a Batson claim on appeal.

See Brief for United States of America at 26 n.13. Because a

timely objection is an essential prerequisite to a Batson claim, we

agree that neither Nunn nor Pofahl is entitled to assert such a

claim. See Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.

1992) (holding that failure to make timely Batson objection at

trial was "a constitutional bar" to Batson claim), petition for

cert. filed, (U.S. Mar. 18, 1992) (No. 91-7669); Thomas v. Moore,

866 F.2d 803, 805 (5th Cir.), cert. denied, 493 U.S. 840, 110 S.

-8- Ct. 124, 107 L. Ed. 2d 85 (1989); Jones v. Butler, 864 F.2d 348,

369 (5th Cir. 1988), cert. denied, 490 U.S. 1075, 109 S. Ct. 2090,

104 L. Ed. 2d 653 (1989); United States v. Forbes, 816 F.2d 1006,

1011 (5th Cir. 1987); United States v. Erwin, 793 F.2d 656, 667

(5th Cir.), cert. denied, 479 U.S. 991, 107 S. Ct. 589, 93 L. Ed.

2d 590 (1986).

White's Batson argument lacks merit entirely. "Where . . .

the [district court] has entertained and ruled on a defendant's

motion charging a Batson violation, we review only [its] `finding

of discrimination vel non.'" United States v. Terrazas-Carrasco,

861 F.2d 93, 94 (5th Cir. 1988) (quoting United States v. Forbes,

816 F.2d 1006, 1010 (5th Cir. 1987)). The district court's

determination whether the prosecutor's strikes are racially

motivated is purely factual, and largely turns on an evaluation of

the prosecutor's credibility. Hernandez v. New York, ___ U.S. ___,

111 S. Ct. 1859, 1869, 114 L. Ed. 2d 395 (1991). We review the

district court's finding concerning the presence vel non of

purposeful racial discrimination under the "clearly erroneous"

standard. See Hernandez, ___ U.S. ___, 111 S. Ct. at 1871;

Terrazas-Carrasco, 861 F.2d at 94. We will not find a district

court's ruling to be clearly erroneous unless we are left with the

definite and firm conviction that a mistake has been committed.

United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992).

The prosecutor's explanations of his peremptory strikes))focusing

on employment, economic status, attentiveness, and demeanor))were

certainly non-racial. Furthermore, White does not argue, and the

-9- record does not indicate, that the prosecutor's explanations lacked

credibility. Therefore, the district court's finding that the

prosecutor's peremptory strikes were not racially motivated was not

clearly erroneous, and White is not entitled to relief.

(ii)

Pofahl, Nunn, and White also contend that they are entitled to

reversal because the jury was selected in violation of the Jury

Selection and Service Act, 28 U.S.C. §§ 1861 et seq. (1988).5 We

will not consider that claim, because it was not preserved below.

The Act provides:

In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.

28 U.S.C. § 1867(a). By failing to act timely as directed by

§ 1867(a), a defendant waives her objection under the Act. See 28

U.S.C. § 1867(e) ("The procedures prescribed by this section shall

be the exclusive means by which a person accused of a Federal crime

. . . may challenge any jury on the ground that such jury was not

selected in conformity with the provisions of this title."); United

States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied, 475

U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); United States

5 28 U.S.C. § 1862 (1988) provides:

No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States . . . on account of race, color, religion, sex, national origin, or economic status.

-10- v. Green, 742 F.2d 609, 612 (11th Cir. 1984). Because none of the

appellants complied with § 1867(a), they are barred from raising a

claim under the Jury Selection and Service Act on appeal.

(iii)

Pofahl, Nunn, and White also appear to claim that they were

denied their Sixth Amendment right to a jury selected from a pool

that represents a fair cross-section of the community. See Taylor

v. Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 697, 42 L. Ed. 2d

690 (1975). In order to state a claim of that sort, the appellants

must show that a distinctive group is generally and systematically

excluded from jury venires. See Timmel v. Phillips, 799 F.2d 1083,

1086 (5th Cir. 1986). The appellants have not alleged, much less

demonstrated, general and systematic exclusion of a distinctive

group from jury venires in the Western District of Texas. None of

the appellants is entitled to reversal on the basis of their

complaints regarding the selection of the jury.

Both Pofahl and White contend that the evidence was

insufficient to support their convictions for conspiracy to

distribute and possess with intent to distribute a controlled

substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988).

Pofahl further argues that the evidence was insufficient to support

her conviction for conspiracy to import a controlled substance, in

-11- violation of 21 U.S.C. §§ 952(a), 963 (1988).6 Pofahl's and

White's contentions are without merit.

"In deciding the sufficiency of the evidence, we determine

whether, viewing the evidence and the inferences that may be drawn

from it in the light most favorable to the verdict, a rational jury

could have found the essential elements of the offenses beyond a

reasonable doubt."7 United States v. Pruneda-Gonzalez, 953 F.2d

190, 193 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 2952,

119 L. Ed. 2d 575 (1992). "It is not necessary that the evidence

exclude every rational hypothesis of innocence or be wholly

inconsistent with every conclusion except guilt, provided a

reasonable trier of fact could find the evidence establishes guilt

beyond a reasonable doubt." Id. "We accept all credibility

choices that tend to support the jury's verdict." United States v.

Anderson, 933 F.2d 1261, 1274 (5th Cir. 1991).

In order to prove that a defendant conspired to distribute and

possess with intent to distribute MDMA, in violation of 21 U.S.C.

6 Pofahl was also convicted of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Pofahl does not challenge the sufficiency of the evidence to support her conviction for money laundering. 7 This standard of review is applied here, because Pofahl and White properly preserved their sufficiency claims by moving for a judgment of acquittal at trial. A more stringent standard is applied where the defendant fails to preserve her sufficiency claim. See United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991) (applying "manifest miscarriage of justice" standard because defendant failed to move for directed verdict or for judgment of acquittal).

-12- §§ 841(a)(1), 846,8 the government must prove beyond a reasonable

doubt that (1) there was a conspiracy9 to distribute and possess

with intent to distribute MDMA; (2) the defendant knew about the

conspiracy; and (3) the defendant voluntarily joined in the

conspiracy. See United States v. Hernandez-Palacios, 838 F.2d

1346, 1348 (5th Cir. 1988) (citing United States v. Jackson, 700

F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S. 842, 104 S. Ct.

139, 78 L. Ed. 2d 132 (1983)). The government must prove the same

basic elements))existence of a conspiracy, knowledge, and voluntary

participation))in order to convict an individual of conspiring to

import MDMA in violation of 21 U.S.C. §§ 952(a), 963.10 See id.;

8 Title 21, section 841(a)(1) provides:

[I]t shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . . 21 U.S.C. § 841(a)(1) (1988).

Title 21, section 846 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. 21 U.S.C. § 846 (1988). 9 A conspiracy consists of "an agreement by two or more persons to commit one or more unlawful acts and an overt act by one of the conspirators in furtherance of the conspiracy." United States v. Romeros, 600 F.2d 1104, 1106 (5th Cir. 1979), cert. denied, 444 U.S. 1077, 100 S. Ct. 1025, 62 L. Ed. 2d 759 (1980). 10 Title 21, section 952(a) provides:

It shall be unlawful . . . to import into the United States from any place outside thereof, any controlled substance . . . . 21 U.S.C. § 952(a) (1988).

-13- United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir.

1986). "No evidence of overt conduct is required. A conspiracy

agreement may be tacit, and the trier of fact may infer agreement

from circumstantial evidence." Hernandez-Palacios, 838 F.2d at

1348 (citations omitted).

Amy Pofahl was convicted of two distinct conspiracies.11 One

concerned possession and distribution of MDMA, while the other

concerned importation. Evidence presented by the prosecution

established the existence of both conspiracies, as well as Pofahl's

knowledge of and participation in both.

Witnesses presented by the prosecution testified to the

existence of a conspiracy to import MDMA. Morris Key testified

that he met with Charles Pofahl in February of 1985, and Pofahl

hired him to determine whether or not MDMA was a legal substance.

See Supp. Record on Appeal, vol. 7, at 104-05. Key determined that

MDMA was not illegal in the United States, but that it soon would

be. See id. at 106, 112. As a result, Key and Charles Pofahl

agreed to manufacture the drug in Guatemala, and Charles Pofahl

promised to pay Key one million dollars for his assistance in

Title 21, section 963 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. 21 U.S.C. § 963 (1988). 11 See Supp. Record on Appeal, vol. 12, at 5.

-14- manufacturing the MDMA. See id. at 112. Key and Charles Pofahl

employed a number of other individuals to smuggle the MDMA into the

United States. For example, in the summer of 1988 they arranged

with Jerry Williamson to have half a million MDMA tablets carried

to the United States from Guatemala by boat. See id. at 150-54.

Other smugglers employed by Key and Charles Pofahl included Judy

Snell, Charles Nunn, and Robert Petty. See id. vol. 9, at 680-86;

id. vol. 10, at 867-72. Evidence of the agreements and overt acts

of these individuals established the existence of a conspiracy to

import MDMA.

Amy Pofahl's knowledge of, and voluntary participation in the

conspiracy were also established by the evidence. Richard Cesarski

testified at trial that he manufactured MDMA tablets for Charles

Pofahl in Lewisville, Texas, and that Amy Pofahl was present at the

time and was "counting [pills] and putting them in bottles."12 See

id. vol. 8, at 247. Morris Key testified that Amy Pofahl was

present in an apartment in Guatemala where MDMA was being stored by

Charles Pofahl. See id. vol. 7, at 148. Carlos de la Riva

testified that he saw Amy Pofahl at the apartment where the MDMA

was stored, and that she was helping Charles Pofahl remove "Made in

12 Because the events in Lewisville occurred in 1985, before MDMA became a controlled substance, Amy Pofahl's conduct on that occasion was not illegal. However, Cesarski's testimony establishes that in 1985 Amy Pofahl knew that her husband agreed with others to traffick in MDMA, and that she joined in the agreement by assisting with the packaging of MDMA tablets. That evidence, especially when considered in light of other evidence presented at trial, supports the conclusion that Amy Pofahl continued to take part in a conspiracy to traffic in MDMA after it became illegal.

-15- Guatemala" labels from plastic bottles, which would then be used to

package MDMA tablets for shipping to the United States. See id.

vol. 8, at 281. Kathleen Key, Morris Key's ex-wife, testified that

she was visited by Amy Pofahl in February of 1989, after Morris Key

was arrested. See id. vol. 10, at 771. Pofahl was concerned about

her husband and didn't know where he was. See id. at 772. Pofahl

was also concerned about her money, but she told Key "that there

was enough product in Guatemala to take care of everyone." See id.

at 773-74.

Based on the foregoing evidence, the jury could have

reasonably concluded that Pofahl knew of, and entered into the

conspiracy to import MDMA. See United States v. Mitchell, 777 F.2d

248, 261 (5th Cir. 1985) (finding that evidence supported

conviction for conspiracy to import drugs, where the defendant had

knowledge of the origin of the drug shipments, participated in

weighing and distributing the drugs, and collected and disbursed

funds in connection with the importation), cert. denied, 476 U.S.

1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986); see also United

States v. Rojas-Martinez, 968 F.2d 415, 420-21 (5th Cir.) (finding

circumstantial evidence sufficient to support conviction for

conspiracy to import marijuana), cert. denied, ___ U.S. ___, 113 S.

Ct. 828, 121 L. Ed. 2d 698 (1992); United States v. Gibson, 963

F.2d 708, 711 (5th Cir. 1992) (upholding conviction for importation

of marijuana where circumstantial evidence))such as defendant's

nervousness and inability to explain her unusual conduct))was

-16- sufficient to support finding that defendant knew marijuana was

present in side panel of her car).

The conspiracy to distribute and possess with intent to

distribute MDMA involved additional participants and agreements.

Larry Morrow was a friend of Amy Pofahl's who testified that he

periodically purchased as many as two thousand tablets from Amy

Pofahl. See id. vol. 9, at 594. When Amy Pofahl moved to

California, she arranged for Morrow to begin receiving MDMA from

her husband. See id. at 596. Morrow testified that he sold the

MDMA to Sherry Wallingford, who was his "main distributor." See

id. at 610-15. Pofahl concedes that this evidence was presented at

trial, but she argues that the evidence was nonetheless

insufficient to prove that she participated in the conspiracy. See

Brief for Pofahl at 32 ("At most, the evidence shows that Mrs.

Pofahl was acting as an independent dealer for the conspiracy.").

Pofahl also contends that no evidence showed that she participated

in negotiations or discussions concerning dealings in MDMA.

However, those arguments fall short of demonstrating that the

government's evidence was insufficient to support Pofahl's

conviction. "[T]he trier of fact may infer agreement from

circumstantial evidence." Hernandez-Palacios, 838 F.2d at 1348.

Although some of the government's evidence may have been

circumstantial, it was not therefore insufficient to support the

jury's verdict. Consequently, we reject Pofahl's sufficiency

claim.

-17- (iii)

The evidence also supported the jury's conclusion that White

was guilty of conspiracy to distribute and possess with intent to

distribute MDMA. At trial Tom Drath testified that he had a

meeting with Boyd Knight and Charles Wesley Knight, at which they

discussed forming a partnership to sell MDMA. See Supp. Record on

Appeal, vol. 8, at 404. Thereafter Drath began to receive large

quantities of MDMA from Wes Knight,13 which he sold to two

"distributors" who were "underneath" him. See id. at 406-07.

Drath testified that Randy White was one of those distributors, see

id. at 407, and that White was assigned to him by Boyd Knight. See

id. at 433. According to Drath, White carried a beeper, and Drath

would call the beeper to let White know that a certain quantity of

MDMA was waiting for him at a storage locker to which White had a

key. See id. at 410-11. White would retrieve the drugs and sell

them, and then pay Drath for the drugs by placing part of the

proceeds from his sales back in the locker. See id. Drath stated

that he distributed over 100,000 tablets to White between October

of 1987 and December of 1988. See id. at 406, 425, 428.

Internal Revenue Service Special Agent Gary Terrell testified

at trial and recounted an interview with White. White stated to

Terrell that he entered into an agreement with Tom Drath to

purchase two to three thousand tablets of MDMA per week. See id.

at 440. White also told Terrell that he had distributors to whom

13 Wes Knight received MDMA directly from Morris Key. See Supp. Record on Appeal, vol. 7, at 144.

-18- he resold the MDMA which he received from Tom Drath. See id. at

440-42. These distributors included Shawn Guillory, Sandy Paulas,

Gary Strauss, and Chris Edwards. See id. White told Terrell that

at one time he accumulated $75,000 in proceeds from sales of MDMA.

See id. at 448. This evidence reveals a number of agreements

entered into by White for the sake of trafficking in MDMA, and

amply proves that White knew of, and participated in a conspiracy

to distribute and to possess with intent to distribute MDMA.

White points out that he did not know the top-level organizers

of the conspiracy, such as Charles Pofahl and Morris Key. However,

in order for White to be convicted of conspiracy it was not

necessary for the government to prove that he knew all of the

members of the conspiracy. In Blumenthal v. United States, 332

U.S. 539, 68 S. Ct. 248, 92 L. Ed. 154 (1947), Blumenthal was

convicted of conspiracy to sell whiskey at a price in excess of the

price set by the government. See id. The Supreme Court found the

evidence sufficient to support Blumenthal's conviction, even though

Blumenthal had no knowledge of the identity or participation of the

individual who actually owned the whiskey, see id. at 556-57, 68 S.

Ct. at 256:

[I]t is most often true, especially in broad schemes calling for the aid of many persons, that after discovery of enough to show clearly the essence of the scheme and the identity of a number participating, the identity and the fact of participation of others remain undiscovered and undiscoverable. Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections

-19- with it, without requiring evidence of knowledge of all its details or of the participation of others.

Id. The evidence here amply demonstrated the essential nature of

the conspiracy))a network of agreements to traffick in MDMA))as well

as White's participation in the conspiracy. The government was not

required to prove that White knew the top-level organizers of the

conspiracy. See id.; United States v. Alvarez, 625 F.2d 1196, 1198

(5th Cir. 1980) (en banc) (citing Blumenthal), cert. denied, 451

U.S. 938, 101 S. Ct. 2017, 68 L. Ed. 2d 324 (1981).

White also contends that he dealt in MDMA while it was legal

in the United States, but withdrew from the conspiracy "shortly"

after MDMA became a controlled substance. We disagree. Although

it appears that White began dealing in MDMA before it was illegal

to do so, he continued to traffick in the contraband long

afterwards. The record reveals that MDMA became a controlled

substance on October 27, 1986. See Supp. Record on Appeal, vol.

10, at 949. The record also reveals that White was still

trafficking in MDMA as late as December of 1988, more than two

years after it became a controlled substance. See id. vol. 8, at

446. The evidence was sufficient to support White's conviction for

conspiracy to distribute and possess with intent to distribute

MDMA.

III

Amy Ralston Pofahl

Pofahl makes several claims concerning her motion for

appointment of a psychiatrist to assist in preparing and presenting

-20- her defense, pursuant to 18 U.S.C. § 3006A (1988).14 Pofahl's trial

counsel, John Hurley, filed in the district court Pofahl's Ex Parte

Motion for Appointment of Defense Psychiatric Consultant,

"respectfully request[ing] the Court to appoint Dr. Stephen Mark,

a licensed psychiatrist, as a defense consultant pursuant to 18

U.S.C. § 3006A(e)." See Record on Appeal, vol. 1, at 313 (sealed).

The motion stated that a psychiatric consultant was needed for the

following reasons:

The contents of some of [Pofahl's] writings express strong beliefs in ideas such as reincarnation and the channeling of spirits. While these beliefs may not in themselves be evidence of mental unsoundness, the sheer volume of writing produced by [Pofahl], her supposed easy access to hallucinogenic drugs, and her steadfast rejection of any suggestion to reduce her potential penal exposure by plea bargaining create a need for [Pofahl] to be examined by a psychiatric expert, and for this attorney to consult with said expert in order to adequately represent [Pofahl], and investigate all possible defenses available to [her], and to determine whether [she] is unable to properly assist in her defense because of mental disease or defect.

Id.

The district court entered an order without conducting a

hearing or otherwise taking evidence concerning the merits of

Pofahl's motion. See id. at 324. The district court found "that

14 Section 3006A provides:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain the services. 18 U.S.C. § 3006A(e) (1988).

-21- a psychiatrist should be appointed to examine [Pofahl] and to

determine her present competency to stand trial and her sanity at

the time of the offense." Id. The district court appointed Dr.

Stephen Mark to conduct the examination, and ordered him to prepare

a written report of his findings. The district court directed Dr.

Mark to forward copies of his report to the prosecutor.

Dr. Mark met with Pofahl and thereafter forwarded to all

concerned parties a one-page letter which contained the following

description of the meeting:

[Pofahl] basically told me that she did not want to talk to me. She did say that she faces lots of years in prison and because of the way things have gone she is not sure who to trust and who not to trust. She did tell me that she has never been in a psychiatric facility nor has she been under psychiatric care or on psychiatric-type medications. The very little bit that she did talk, I could not pick up any reason to believe that she would not be competent to stand trial, although, certainly before I come to that conclusion, I typically like to ask a lot more questions and get responses to questions than what I was able to ask today.

Id. (letter of Stephen L. Mark, M.D., Sept. 16, 1991). Pofahl's

counsel, Mr. Hurley, made no objection to the district court's

handling of Pofahl's motion, and made no further attempts to obtain

psychiatric assistance or to present a defense of insanity.

Pofahl argues that the district court committed reversible

error by denying her motion15 without first conducting an ex parte

15 The district court effectively))though not expressly))denied Pofahl's motion. The psychiatric examination ordered by the district court was neither requested by Pofahl nor authorized by § 3006A(e). "The expert appointed under § 3006A . . . is intended to serve the interests of the defendant. . . . `His conclusions need not be reported to either the court or the

-22- inquiry to determine whether she was entitled to the relief

requested. When a criminal defendant moves under § 3006A(e) for

psychiatric expert assistance, the district court is required to

conduct an ex parte inquiry to determine whether the requested

relief is appropriate. See United States v. Hamlet, 456 F.2d 1284,

1284 (5th Cir. 1972) (holding that the district court "erred in

denying the § 3006A(e) motion without conducting the ex parte

inquiry required by the statute"); United States v. Theriault, 440

F.2d 713, 715 (5th Cir. 1971) (same). However, the district

court's failure to conduct the inquiry required by § 3006A(e) does

not automatically warrant reversal in this case. Where, as here,

a party fails to object to an alleged error before the district

court, we generally will not disturb the district court's ruling,

unless plain error is shown. See, e.g., United States v. Surasky,

974 F.2d 19, 20 (5th Cir. 1992) (holding that plain error standard

applied where criminal defendant failed to object to allegedly

erroneous application of the sentencing guidelines); United States

v. Lopez, 923 F.2d 47, 49-51 (5th Cir.) (declining to review the

merits of appellant's sentencing guidelines claim, where the

alleged error was not raised at trial, and no plain error was

found), cert. denied, ___ U.S. ___, 111 S. Ct. 2032, 114 L. Ed. 2d

117 (1991). Plain error is "error so obvious and substantial that

failure to notice it would affect the fairness, integrity, or

public reputation of [the] judicial proceedings" and would "result

prosecution.'" United States v. Chavis, 476 F.2d 1137, 1142 (D.C. Cir. 1973) (quoting United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971)).

-23- in manifest injustice." Lopez, 923 F.2d at 50; see also United

States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir. 1984); United

States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982).

We have not previously applied the plain error standard where

a criminal defendant failed to object to the district court's

failure to conduct the ex parte inquiry required by 18 U.S.C. §

3006A(e). Neither Hamlet nor Theriault mentioned whether the

defendant made an objection. However, we now choose to follow the

Tenth Circuit in applying the plain error standard in this context.

See United States v. Greschner, 802 F.2d 373, 380 (10th Cir. 1986)

(applying plain error standard where defendant failed to object to

the presence of government attorneys at hearing on § 3006A(e)

motion for appointment of penologist), cert. denied, 480 U.S. 908,

107 S. Ct. 1353, 94 L. Ed. 2d 523 (1987).

Pofahl has not shown plain error resulting from the district

court's failure to conduct an ex parte inquiry. Pofahl would have

been prejudiced by that alleged error only if it had prevented the

presentation of a meritorious defense of insanity, and nothing in

the record suggests that Pofahl suffered from any mental disease or

defect which would have supported an insanity defense. The only

items in the record which bear on Pofahl's sanity are the

allegations in her Ex Parte Motion for Appointment of Defense

Psychiatric Consultant. Mr. Hurley alleged that Pofahl's writings

revealed her belief in reincarnation and the channeling of spirits,

but he conceded that these beliefs "may not in themselves be

evidence of mental unsoundness." See Record on Appeal, vol. 1, at

-24- 313 (sealed). Counsel also alleged that Pofahl had "easy access to

hallucinogenic drugs," but did not allege that Pofahl had ever used

such drugs, or that she was impaired by their use at the time of

the offense. See id. Finally, counsel alleged that Pofahl refused

to consider a plea bargain. See id. While that choice may have

been unwise, it is hardly symptomatic of a mental disease or

defect. In sum, nothing in the record suggests that Pofahl could

have presented a successful defense of insanity. Consequently, we

find no plain error in the district court's failure to conduct an

ex parte inquiry.

Pofahl also argues that her conviction should be reversed

because she was denied her Sixth Amendment right to effective

assistance of counsel. Pofahl argues that her trial attorney was

ineffective for failing to object to the district court's

disposition of her § 3006A(e) motion. We reject Pofahl's argument,

because she has not shown that, in the absence of her counsel's

failures, the outcome of her trial probably would have been

different.

In order to prevail on her claim of ineffective assistance of

counsel, Pofahl must show that (1) her counsel's performance was

deficient, and (2) the deficient performance prejudiced her

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674 (1984). We agree that counsel's

performance in this case was deficient. In United States v.

Edwards, 488 F.2d 1154 (5th Cir. 1974), a case presenting facts

-25- very similar to these, we held that counsel's performance was

ineffective. In Edwards a motion was filed under § 3006A(e), and

the district court ordered a psychiatric examination. See id. at

1159. After performing the examination, the psychiatrist reported

his findings to the prosecution as well as the defense. See id.

As in the instant case, defense counsel failed to object, and we

held that Edwards did not receive "counsel reasonably likely to

render and rendering reasonably effective assistance." See id. at

1162, 1165. In light of Edwards we conclude that Pofahl's

counsel's performance was deficient.

However, Pofahl is not entitled to reversal unless she

demonstrates that her defense was prejudiced by her attorney's

errors. To demonstrate prejudice, Pofahl must show that "there is

a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Pofahl was

prejudiced by counsel's errors only if those errors stopped her

from presenting a meritorious defense of insanity. As discussed in

the preceding section, the record reveals no basis for such a

defense. Therefore Pofahl has not shown that, but for counsel's

unprofessional performance, the outcome of her trial probably would

-26- have been different.16 Accordingly, we find no merit to Pofahl's

ineffective assistance of counsel claim.

Pofahl further argues that "the district court, having itself

raised the issue of Mrs. Pofahl's competency,17 erred in failing to

conclusively determine whether in fact Mrs. Pofahl was competent at

the time of offense and at the time of trial." Brief for Pofahl at

15. Pofahl contends that Dr. Mark's examination was inconclusive,

and therefore the district court erroneously failed to resolve the

issue which it raised. Pofahl did not object below to the district

court's alleged failure to determine whether she was competent.

Consequently, absent a showing of plain error, Pofahl is not

entitled to relief. For the reasons stated previously, see supra

III.A.(i)., Pofahl has not shown plain error. Pofahl does not

allege that she was ever mentally incompetent, and nothing in the

record would support such an allegation. Consequently, we reject

Pofahl's argument.

16 Edwards is distinguishable in this regard. It appears that Edwards was prejudiced by his attorney's failure to pursue the insanity defense because Edwards was diagnosed as "`an immature personality' exhibiting `simple schizophrenia with depression, sociopathic tendencies, religiosity and passive dependent features.'" Edwards, 488 F.2d at 1159. Consequently, there was a reasonable probability that Edwards could have presented a meritorious insanity defense, if not for his counsel's omissions. 17 Pofahl argues that the district court raised the issue of her competency by ordering Dr. Mark to conduct a psychological evaluation.

-27- Pofahl next argues that the district court erred by denying

her motion to suppress evidence seized from three of her residences

in California. Law enforcement officers obtained search warrants

for the following three locations: 8488 Carlton Way, Los Angeles;

8447 West 4th Street, Los Angeles; and 17 Yawl Street, Marina Del

Rey. Pofahl argues that the affidavits supporting the warrants did

not establish probable cause. According to Pofahl, the affidavits

alleged that her husband, Charles Pofahl, and Dr. Morris Key

engaged in criminal activities in Texas, but failed to allege that

she engaged in any illegal conduct or that any illegal conduct took

place in California. Pofahl contends that the affidavits therefore

did not establish a nexus between her residences in California and

the evidence sought there by officials.

Where a district court denies a motion to suppress evidence

seized pursuant to a warrant, and the motion is premised on an

alleged lack of probable cause to support the warrant, we review

the denial of the motion to determine (1) whether the good-faith

exception to the exclusionary rule applies, see United States v.

Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); and

(2) whether the warrant was supported by probable cause. United

States v. Satterwhite, 980 F.2d at 317, 320 (5th Cir. 1992); see

also United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.),

cert. denied, ___ U.S. ___, 113 S. Ct. 355, 121 L. Ed. 2d 269

(1992). However, it is unnecessary to address the probable cause

issue if the good-faith exception applies, unless the case involves

a "`novel question of law whose resolution is necessary to guide

-28- future action by law enforcement officers and magistrates.'"

Illinois v. Gates, 462 U.S. 213, 264, 103 S. Ct. 2317, 2346, 76 L.

Ed. 2d 527 (1983) (White, J., concurring); Satterwhite, 980 F.2d at

320 (quoting Gates). Because Pofahl's Fourth Amendment argument

does not present a novel question of law, we address the good-faith

issue first.

Evidence obtained by officers in objectively reasonable good-

faith reliance upon a search warrant is admissible, even though the

warrant was unsupported by probable cause. See Leon, 468 U.S. at

922-23, 104 S. Ct. at 3420; Satterwhite, 980 F.2d at 320. The

evidence is not admissible where the warrant is based upon an

affidavit "`so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.'" Leon,

468 U.S. at 923, 104 S. Ct. at 3421 (quoting Brown v. Illinois, 422

U.S. 590, 610-611, 95 S. Ct. 2254, 2265-66, 45 L. Ed. 2d 416 (1975)

(Powell, J., concurring in part)). We often refer to an affidavit

of that sort as a "bare bones affidavit."18 See United States v.

Craig, 861 F.2d 818, 821 (5th Cir. 1988). Where a warrant is

supported by more than a bare bones affidavit, an officer may rely

in good faith on the warrant's validity. Satterwhite, 980 F.2d at

321; United States v. Pigrum, 922 F.2d 249, 252 (5th Cir.), cert.

denied, ___ U.S. ___, 111 S. Ct. 2064, 114 L. Ed. 2d 468 (1991).

We review de novo the reasonableness of an officer's reliance upon

18 A bare bones affidavit contains "wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause." Satterwhite, 980 F.2d at 321.

-29- a warrant issued by a magistrate. Satterwhite, 980 F.2d at 321

(citing United States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990)).

The search warrant for 8488 Carlton Way in Los Angeles was

supported by the affidavit of Internal Revenue Service Special

Agent Michel L. Lamberth. See Record on Appeal, vol. 2, at 232-53.

The affidavit described at length how Charles Pofahl and Morris Key

obtained chemicals in West Germany, shipped them to Guatemala for

use in the manufacture of MDMA, and then imported the MDMA tablets

into the United States for sale. Most of the criminal activities

discussed in the affidavit involved Charles Pofahl and Morris Key,

but not Amy Pofahl. However, a confidential informant ("CI-3")

told Lamberth "that Amy Pofahl was fully knowledgeable and heavily

involved with Charles F. Pofahl's personal and business

activities." Id. at 234-35. Another confidential informant ("CI-

5") stated that, following the arrest of Charles Pofahl in April of

1989, "Amy Pofahl [had] taken charge of the business and personal

effects of Charles F. Pofahl." See id. at 234.

Prior to Charles Pofahl's arrest, he and Amy Pofahl resided at

12526 Sunlight Drive in Dallas. See id. at 243. Confidential

informant CI-3 stated that he maintained an office at Charles

Pofahl's residence and was once a business partner of Charles

Pofahl. See id. at 244. CI-3 stated that he had seen "numerous

filing cabinets containing records relating to the manufacture of

pharmaceutical products . . . at Pofahl's residence located at

12526 Sunlight." See id. at 243. CI-3 said that additional

-30- records were kept at an office at 3317 Finley, in Irving. See id.

CI-3 further reported that Charles Pofahl kept a safe at his Dallas

residence, which contained "large amounts of currency, jewelry,

coins, firearms, and plastic bags containing white powder and

tablets." See id.

Around the time of Charles Pofahl's arrest, Amy Pofahl vacated

the residence in Dallas. See id. at 243. A neighbor of the

Pofahls reported seeing furniture being loaded into a moving van at

12526 Sunlight Drive in April of 1989. See id. at 234. Amy Pofahl

told the neighbor that she was moving to California. See id. CI-5

reported that, following Charles Pofahl's arrest, he assisted Amy

Pofahl by transporting office equipment, books, and records

pertaining to Charles Pofahl's business from an office at 3317

Finley, in Irving, to a storage facility in Dallas. See id. at

241. CI-5 also stated that he helped Amy Pofahl move boxes of

documents to the same storage facility from the Pofahls' house on

Sunlight Drive around the same time. See id. Lamberth searched

the storage facility and found what he believed to be only part of

the Pofahls' business and financial records. See id. at 238. At

the time of Lamberth's affidavit, the whereabouts of the safe

referred to by CI-3 were unknown. See id. at 242.

Utility company records revealed that Amy Pofahl obtained

utility services for 8488 Carlton Way in Los Angeles on April 12,

1989, see id. at 235-36, and Pacific Bell Telephone listed a number

for Amy Ralston (Pofahl's maiden name) at 8488 Carlton Way. See

id. at 235. A Drug Enforcement Administration ("DEA") agent told

-31- Lamberth that he had seen a woman matching Amy Pofahl's description

at the 8488 Carlton Way residence. See id.

Citing United States v. Green, 634 F.2d 222 (5th Cir. 1981),

Pofahl argues that the foregoing information did not support an

objectively reasonable good faith belief in probable cause because

it did not allege that Pofahl engaged in any criminal activity in

California. In Green, law enforcement officers obtained a search

warrant for Green's Florida residence. See id. at 226. The

affidavits supporting the warrant amply demonstrated that Green was

involved in criminal activities in California, "[b]ut no evidence,

other than residence, was set forth in the affidavits that

connected the Key West, Florida, home to the criminal activity

taking place almost 3,000 miles away." See id. at 225-26. On

appeal the question was "whether evidence that a person is engaged

in criminal conduct in California constitutes probable cause, in

and of itself, to search that person's Florida residence." See id.

at 226. We answered that question in the negative:

The justification for allowing a search of a person's residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenient than one's residence for use in planning criminal activities and hiding fruits of a crime. But we are confronted with a different situation: in this case defendant Green allegedly engaged in criminal activity several thousand miles from his residence. The convenience of the residence for use as a place to plan and hide fruits of the crime is thus diminished, if not eliminated.

Id. Under those circumstances we found "no justification for a

reasonable person to conclude that there was probable cause to

-32- believe that fruits or instrumentalities of crimes could be found

at the Florida residence." Id. Pofahl argues that, in light of

Green, Lamberth's allegations of criminal conduct in Texas did not

support a reasonable good faith belief in probable cause to search

Pofahl's residence in California. We disagree.

In Green the only support for probable cause was the

assumption that, because it is usually convenient for criminals to

keep the fruits and instrumentalities of their crimes at home,

Green would do so as well. Here the search warrant was supported

by specific, concrete facts, rather than a mere assumption about

the tendencies of criminals to keep evidence of their crimes at

home. The facts alleged by Lamberth showed that Amy and Charles

Pofahl stored records and fruits of their criminal enterprise at

their residence, and that Amy Pofahl moved from Sunlight Drive in

Dallas to 8488 Carlton Way in Los Angeles after she took control of

the drug trafficking business. Therefore, it was reasonably

inferable that Amy Pofahl had the records, fruits, and

instrumentalities of the Pofahls' crimes transported to California

and stored at her residence.19 See United States v. Thomas, 973

F.2d 1152, 1157 (5th Cir. 1992) ("Since [the] criminal instruments

were not found at Thomas's . . . business, the expectation of

19 When Amy Pofahl moved to California, she removed from the house in Dallas any records and fruits of the criminal enterprise; she also removed business records and equipment from the office in Irving. Some of these items were transported to a storage facility in Dallas, but Lamberth concluded that the business records discovered there were only part of the records pertaining to the Pofahls' drug smuggling operation. Lamberth did not indicate that the search of the storage facility revealed any of the items mentioned by CI-3 as the contents of Charles Pofahl's safe.

-33- finding the [criminal instruments] at Thomas's home was a

reasonable inference supporting a determination of probable

cause."); United States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992)

(noting that nexus between evidence sought and location to be

searched "may be established `through normal inferences as to where

the articles sought would be located'" (quoting United States v.

Freeman, 685 F.2d 942, 949 (5th Cir. 1982))). In Green "[w]e

emphasize[d] that the affidavits contain[ed] no allegations tending

to establish that criminal activity of any kind was taking place at

the Florida residence." Green, 634 F.2d at 226 n.8. Because the

affidavit at issue here contained substantially greater indicia of

probable cause than did the affidavit in Green, Pofahl's reliance

on that case is misplaced.

Lamberth's affidavit was not a bare bones affidavit containing

only "wholly conclusory statements, which lack the facts and

circumstances from which a magistrate can independently determine

probable cause." See Satterwhite, 980 F.2d at 321. The specific

facts alleged by Lamberth tended to establish the existence of an

ongoing criminal enterprise, as well as the likelihood that

evidence of that enterprise would be found at Pofahl's California

residence. Therefore, the officers reasonably relied in good faith

on the search warrant for the house at 8488 Carlton Way, and the

district court did not err by admitting evidence seized at that

residence.

-34- (ii)

Amy Pofahl apparently moved to 8447 West 4th Street in Los

Angeles in April of 1990.20 A search warrant was issued for that

address in July. DEA Special Agent Douglas Cortinovis was the

affiant in support of the warrant. Cortinovis alleged numerous

facts which indicated that Pofahl was actively involved in the

importation and distribution of MDMA along with Charles Pofahl and

Morris Key. For example, Cortinovis stated that he had interviewed

Morris Key at a federal prison, and that Key reported seeing Amy

Pofahl carrying 10,000 MDMA tablets in the trunk of her car. See

Record on Appeal, vol. 2, at 216, 219. Cortinovis also interviewed

Charles Pofahl in a German prison, at which time Charles Pofahl

stated that Amy Pofahl had full knowledge of his drug business, and

even assisted in tableting and packaging MDMA and counting currency

acquired through sales of MDMA. See id. at 210-11. Charles Pofahl

admitted that he and his associates were involved in the

importation and distribution of MDMA from 1985 to 1989. See id. at

220. Cortinovis stated, based on his experience investigating

crimes of this kind, that individuals who participate in drug

trafficking maintain records and other evidence of their illegal

activities at their residences for long periods of time, often

months or years. See Record on Appeal, vol. 2, at 222-24.

20 In March of 1990 Pofahl's landlords at 8488 Carlton Way told an IRS investigator that Pofahl was terminating her tenancy that month. See Record on Appeal, vol. 2, at 202. Pofahl began receiving phone service at 8447 West 4th Street in April of 1990. See id. Water, gas, and electric services for that address were registered in Pofahl's name as well. See id.

-35- Pofahl presses essentially the same arguments with respect to

the search warrant for her West 4th Street apartment as she did

with respect to the warrant for the Carlton Way residence.

Pofahl's argument under Green is even less persuasive here. In

addition to demonstrating Pofahl's extensive involvement in the

MDMA business, Cortinovis alleged specific facts tending to show

that Pofahl continued to be involved with MDMA after she moved to

California. At the 8488 Carlton Way residence, officers seized

Pofahl's Mercedes Benz, which contained half a dozen MDMA tablets.

See id. at 205. Long distance telephone records also indicated

that Pofahl kept in touch with Larry Morrow, a major participant in

Charles Pofahl's MDMA operation,21 while she was living in the house

on Carlton Way. See id. at 204. Because the facts alleged in

Cortinovis's affidavit do not pertain only to Texas, Pofahl's

reliance on Green is again misplaced.

Many of the facts alleged by Cortinovis concerning Amy

Pofahl's involvement in the MDMA trafficking scheme occurred before

she moved from Carlton Way to West 4th Street. Therefore, Pofahl

argues, the facts alleged by Cortinovis had little if anything to

do with the West 4th Street location, and did not justify admission

of evidence seized at that location. We disagree.

First, facts alleged by Cortinovis tend to show that after Amy

Pofahl moved to the apartment on West 4th Street, she regularly

communicated with Jerry Williamson, the individual who was

21 Cortinovis alleged that Larry Morrow participated in Charles Pofahl's operation as a smuggler and as a regular distributor of MDMA. See id. at 210.

-36- responsible for smuggling the majority of Charles Pofahl's MDMA

into the United States from Guatemala. See id. at 204. Williamson

stated, during a post-arrest interview, that Amy Pofahl contacted

him to warn him that Charles Pofahl was cooperating with the

authorities and might be revealing incriminating information about

him. See id. Long distance telephone records indicated that

Williamson called Amy Pofahl's residence several times each month

during the first few months that she lived at the West 4th Street

address. See id.

Second, Pofahl's argument has little weight in light of our

decision in United States v. Webster, 960 F.2d 1301 (5th Cir.),

cert. denied, ___ U.S. ___, 113 S. Ct. 355, 121 L. Ed. 2d 269

(1992). Webster argued that evidence seized at his residence

should have been suppressed because the affidavit supporting the

search warrant failed to establish probable cause. See id. at

1306. The affidavit alleged that Webster sold drugs at his

residence 18 months before the issuance of the warrant. See id.

The more recent drug sales alleged in the affidavit occurred at

other locations. See id. at 1307. We affirmed the district

court's admission of the seized evidence, under the Leon good-faith

exception:

The affidavit alleged that, based on the officer's experience, drug dealers and traffickers commonly keep caches of drugs, as well as paraphernalia and records of drug transactions, in their residences. In other words, the basis for searching Webster's residence was his overall drug trafficking and sales activity, not just those sales that actually took place at his residence.

See id. The same can be said here.

-37- Agent Cortinovis did not submit a bare-bones affidavit.

Cortinovis alleged facts tending to show that Amy Pofahl's

involvement in a long-standing drug trafficking operation continued

into the period when she lived at the apartment on West 4th.

Cortinovis also pointed out that participants in drug trafficking

enterprises are likely to keep records and other evidence of their

illegal activities at their homes for long periods of time.

Therefore, we conclude that the facts alleged by Cortinovis

supported a reasonable good faith belief in probable cause.22 The

district court did not err by admitting evidence seized at 8447

West 4th Street.

Law enforcement officers executed a search warrant for

Pofahl's residence at 17 Yawl Street, Unit #4 in Marina Del Rey on

March 27, 1991. Internal Revenue Service Special Agent Gary

Gallman submitted an affidavit in support of the search warrant

application. Gallman alleged that Charles Pofahl and Morris Key's

MDMA racketeering operation persisted for several years and

involved the importation and distribution of millions of MDMA

tablets. See Record on Appeal, vol. 2, at 185-86. Gallman

22 See also United States v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992). There we upheld the admission of evidence under the Leon good faith exception, even though evidence relating directly to the residence searched was a year old. See id. at 948-49. We concluded that the affidavit "`clearly show[ed] a long-standing, ongoing pattern of criminal activity,' continuing through the date of issuance of the warrant," and "the type of evidence sought))records of drug-trafficking activity))`[was] of the sort that [could] reasonably be expected to be kept for long periods of time in the place to be searched.'" See id. at 949 (quoting United States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988)).

-38- referred to an interview with Morris Key, during which Key stated

that Amy Pofahl had full knowledge of the MDMA operation, and that

he had seen her carrying about 10,000 MDMA tablets in the trunk of

her car. See id. at 183. Charles Pofahl also stated that Amy

Pofahl knew about, and assisted him with, the production,

importation, and distribution of MDMA. See id. at 181. Gallman

alleged facts which tended to show that, after the arrest of

Charles Pofahl in Germany, Amy Pofahl removed large sums of cash

from various storage facilities in the Dallas area and transported

the money, or had it transported, to California. See id. at 174,

177-79. Other facts alleged by Gallman indicate that Amy Pofahl

placed at least some of the currency in storage facilities in

California. See id. at 173. Gallman recounted an interview with

an individual named Robert Petty, who stated that he had sold MDMA

for Amy Pofahl and delivered the proceeds ($218,930) to her while

she was living in Los Angeles. See id. Dean Bornstein and Heather

Teague were friends of Amy Pofahl, who claimed that Pofahl provided

them with MDMA for their personal use during 1989 and 1990. See

id. at 173-74. Gallman also alleged facts tending to show that Amy

Pofahl, while living in California, maintained contact with Jerry

Williamson, who had been primarily responsible for importing

Charles Pofahl's MDMA into the United States from Guatemala. See

id. at 175-76. Finally, when Amy Pofahl was arrested on March 26,

1991))the day before the search of the Yawl Street residence))the

arresting officers asked her where her money was hidden. See id.

-39- at 170-71. Pofahl asked the officers whether they "would let her

go free if she gave up her money." See id. at 170.

Agent Gallman did not submit a bare-bones affidavit. The

specific facts alleged by Gallman tended to show that Amy Pofahl

had been involved in an elaborate, longstanding MDMA trafficking

operation, and that she continued to be involved with the

operation, or at least some facets of it, after she moved to

California. Because Amy Pofahl utilized storage facilities in

California, it was likely when the Yawl Street warrant was issued

that evidence of drug trafficking, particularly the proceeds of

drug sales, had not been seized at either of Amy Pofahl's

residences in Los Angeles and remained in her hands. That

conclusion would have been bolstered by Amy Pofahl's offer to the

arresting officers to hand over her money in return for her

freedom. These facts supported a reasonable good faith belief in

probable cause to search the Yawl Street residence. See

Kleinebreil, 966 F.2d at 949; Webster, 960 F.2d at 1307. The

district court did not err by admitting evidence seized at the Yawl

Street location.23

23 Randy White claims that his conviction must be reversed because certain evidence admitted at trial was unconstitutionally seized from Amy Pofahl's Jaguar automobile outside the Yawl Street residence in Marina del Rey. Because White has no standing to object to the search, his argument fails. An individual who has no reasonable expectation of privacy in a vehicle lacks standing to challenge a search of that vehicle. See Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 433, 58 L. Ed. 2d 387 (1978); United States v. Johnston, 685 F.2d 934, 939 (5th Cir. 1982) (citing Rakas). We have found that an individual lacks standing to object to the search of a vehicle where he asserts no ownership interest in the vehicle. See United States v. Harrison, 918 F.2d 469, 472 (1990) (citing Rakas and Johnston); Johnston, 685 F.2d at 939.

-40- C

Pofahl also contends that the district court erred by

calculating her sentence on the basis of the full amount of MDMA

involved in the conspiracy))1.4 million grams. Pofahl argues that

it was not reasonably foreseeable to her that the conspiracy would

involve such a large quantity of MDMA, and therefore the district

court should not have taken that amount of drugs into account in

determining her base offense level for the drug conspiracy counts.24

The district court assigned Pofahl a base offense level of 38 based

on 1.4 million grams of MDMA.25 Pofahl failed to object to the

amount of MDMA used to calculate her base offense level. See

Letter from Attorney John M. Hurley to U.S. Probation Officer

William H. Moore, attached to Presentence Report, United States of

America v. Amy Ralston Pofahl, No. W-91-CR-038 (Pofahl's objections

White concedes that he "did not know . . . Pofahl and knew nothing of her residence in Marina del Rey, California or her automobile." Brief for White at 15. Clearly White lacks standing to contest the search of that automobile. 24 A defendant's base offense level is determined on the basis of:

[A]ll acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense . . . . United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(1) (Nov. 1991). "Conduct `for which the defendant would be otherwise accountable' . . . includes conduct of others in furtherance of the execution of [a] jointly- undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. § 1B1.3, comment. (n.1). 25 See Presentence Report, United States of America vs. Amy Ralston Pofahl, No. W-91-CR-038, at 22 (sealed); Supp. Record on Appeal, vol. 12, at 20 (applying offense level recommended by probation officer).

-41- to Presentence Report); Supp. Record on Appeal, vol. 12 (Pofahl's

sentencing hearing). Because Pofahl failed to object below, the

district court's ruling will be reviewed only for plain error. See

United States v. Hatchett, 923 F.2d 369, 376 (5th Cir. 1991)

(applying plain error standard where defendant failed to object to

district court's consideration of a quantity of cocaine in

calculating his base offense level). Plain error is "error so

obvious and substantial that failure to notice it would affect the

fairness, integrity, or public reputation of [the] judicial

proceedings" and would "result in manifest injustice." United

States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, ___ U.S.

___, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991) (citations omitted);

see also United States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir.

1991); United States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982).

We find no plain error here. "Questions of fact capable of

resolution by the district court upon proper objection at

sentencing can never constitute plain error." Lopez, 923 F.2d at

50. The quantity of drugs reasonably foreseeable to Pofahl is a

question of fact which the district court could have resolved at

sentencing. See United States v. Cockerham, 919 F.2d 286, 289 (5th

Cir. 1990) (holding that determination of relevant conduct under

§ 1B1.3 is "primarily factual"); United States v. Rivera, 898 F.2d

442, 445 (5th Cir. 1990) (holding that quantity of drugs implicated

by a crime is a factual question).

In the alternative, we find no plain error in holding Pofahl

accountable for the full amount of MDMA involved in the conspiracy

-42- because it appears that the full amount of MDMA was reasonably

foreseeable to Pofahl. Evidence presented by the prosecution

revealed that Pofahl was personally involved in several aspects of

her husband's MDMA business, practically from the inception of the

conspiracy, and that she knew or should have known of the large

quantities of MDMA that were involved in the conspiracy. Before

the manufacturing operation was moved to Guatemala, Amy Pofahl

assisted in counting MDMA tablets and placing them in bottles in

Lewisville, Texas. See Supp. Record on Appeal, vol. 8, at 247.

Pofahl was also present in Guatemala at the apartment where Charles

Pofahl stored MDMA before importing it into the United States, and

she helped him to remove the "Made in Guatemala" labels from

bottles that were used to package the MDMA. See id. vol. 7, at

148; vol. 8, at 281. Charles Pofahl stated to law enforcement

officers that Amy Pofahl had full knowledge of his manufacturing,

importation, and distribution activities, and that she frequently

assisted him in counting large quantities of currency received in

exchange for MDMA. See Record on Appeal, vol. 2, at 181 (affidavit

of IRS Special Agent Gary Gallman in support of search warrant).26

26 In determining Pofahl's sentence, the district court could consider information included in the sworn affidavits of law enforcement officers. See 18 U.S.C. § 3661 (1988) ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); United States Sentencing Commission, Guidelines Manual, § 1B1.4 (Nov. 1991); United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) ("The district court is free to consider all relevant evidence [at sentencing]))even inadmissible evidence))as long as the evidence relied upon has `sufficient indicia of reliability to support its probable accuracy.'" (quoting United States v. Alfaro, 919 F.2d

-43- A confidential informant reported that, after Charles Pofahl's

arrest, Amy Pofahl took charge of Charles Pofahl's "business and

personal effects." See id. at 234 (affidavit of IRS Special Agent

Michael Lamberth in support of search warrant). Amy Pofahl's

knowledge of the large quantity of MDMA involved in the conspiracy

was also evident from a conversation with Morris Key's wife,

Kathleen Key, soon after Morris Key's arrest. See Supp. Record on

Appeal, vol. 10, at 771-74. Pofahl stated that she did not know

where her husband was, and she was concerned about her money, but

"that there was enough product in Guatemala to take care of

everyone." See id. at 772-74. The district court's consideration

of 1.4 million grams of MDMA did not amount to plain error.

D

Pofahl also contends that the district court erred in

increasing her offense level by two, based upon its finding that

she was a manager of the conspiracy.27 See Supp. Record on Appeal,

vol. 12, at 7; United States Sentencing Commission, Guidelines

Manual, § 3B1.1(c) (Nov. 1991). The district court's factual

finding that Pofahl was a manager of the conspiracy will not be

reversed absent a showing of clear error. See United States v.

962, 965 (5th Cir. 1990))). 27 The term "manager" is not defined by the Sentencing Guidelines. See U.S.S.G. § 3B1.1 and comment. As that term has been applied in this Circuit, it implies, inter alia, recruitment of participants in the offense, the exercise of control over others, and the exercise of decision-making authority. See United States v. Peters, 978 F.2d 166, 170 (5th Cir. 1992); United States v. Liu, 960 F.2d 449, 456 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 418, 121 L. Ed. 2d 341 (1992).

-44- Mueller, 902 F.2d 336, 345 (5th Cir. 1990); United States v.

Alvarado, 898 F.2d 987, 993 (5th Cir. 1990). We will not deem the

district court's finding to be clearly erroneous unless we are left

with the definite and firm conviction that a mistake has been

committed. See Alvarado, 898 F.2d at 993-94.

The district court's characterization of Pofahl as a manager

was not clearly erroneous. On several occasions Pofahl influenced

the course of the drug trafficking operation or exercised authority

over others in furtherance of the conspiracy. Pofahl was

responsible for introducing Larry Morrow into the conspiracy. See

Supp. Record on Appeal, vol. 9, at 593. Morrow was first

introduced to Charles Pofahl by Amy Pofahl, and for some time she

personally supplied Morrow with MDMA for resale and for his

personal use. See id. at 593-94. Amy Pofahl negotiated with

Morrow regarding the price that he would pay her for the MDMA. See

id. at 594-95. When Amy Pofahl moved to California, she made

arrangements for Morrow to deal with her husband in her absence.

See id. at 595-96. After Charles Pofahl was arrested, Amy Pofahl

contacted Morrow and requested that he visit a locked storage vault

in order to retrieve a sum of money which she expected to be stored

there. See id. at 608. Morrow did not find the money, but

retrieved a quantity of MDMA from the vault. See id. at 611-12.

Amy Pofahl later instructed him to return to the vault to determine

whether any MDMA remained. See id. at 613.

Pofahl exercised authority over others in furtherance of the

conspiracy on other occasions as well. In May of 1989 Amy Pofahl

-45- rented a Lincoln Town Car in Dallas and instructed Dean Bornstein

to drive the car to Los Angeles, carrying, among other things, a

gym bag full of money. See id. vol. 10, at 788-89. Robert Petty

smuggled MDMA into the United States for Charles Pofahl. See id.

at 866-69. However, upon entering the United States with a

shipment of MDMA from Guatemala, Petty learned that Charles Pofahl

had been arrested. See id. at 870. Because he could not deliver

the MDMA to Charles Pofahl, Petty sold it for a substantial sum.

See id. at 871. Thereafter Amy Pofahl contacted Petty and arranged

a meeting with him, at which she told Petty that she knew he had

either a quantity of MDMA or the proceeds therefrom. See id. at

873-74. Amy Pofahl demanded that Petty relinquish the money, which

he did at a later meeting. See id. at 874-75. When Petty reported

that he had sold the MDMA tablets for two dollars apiece, Pofahl

commented that she could have sold them for four or six dollars

each. See id. at 875-76.

Because Amy Pofahl's role in the conspiracy involved

negotiating the price of MDMA, recruiting other members of the

conspiracy, and directing the actions of others in furtherance of

the conspiracy, the district court's characterization of Pofahl as

a manager of the conspiracy does not leave us with the definite and

firm conviction that a mistake has been committed. See United

States v. Peters, 978 F.2d 166, 170 (5th Cir. 1992) (upholding

enhancement under U.S.S.G. § 3B1.1(c) where defendant recruited

others to take part in the offense); United States v. Liu, 960 F.2d

449, 456 (5th Cir.) (holding that, in determining whether defendant

-46- is a manager or supervisor, district court should consider

recruitment of participants in the offense, the exercise of control

over others, and the exercise of decision-making authority), cert.

denied, ___ U.S. ___, 113 S. Ct. 418, 121 L. Ed. 2d 341 (1992);

Alvarado, 898 F.2d at 993-94 (upholding enhancement under

§ 3B1.1(c) where defendant negotiated drug deals, directed the

actions of others, and dealt with the proceeds of the criminal

enterprise); U.S.S.G. § 3B1.1, comment. (n.1) (recommending that

district court consider "the exercise of decision making authority,

. . . the recruitment of accomplices, . . . and the degree of

control and authority exercised over others" in applying § 3B1.1).

The district court's finding was not clearly erroneous.

E

Pofahl next contends that the district court erred by

enhancing her sentence as a result of an erroneous finding that she

attempted to obstruct justice. Section 3C1.1 of the federal

sentencing guidelines provides for a two level increase in a

defendant's offense level "[i]f the defendant willfully obstructed

or impeded, or attempted to obstruct or impede the administration

of justice during the investigation, prosecution, or sentencing of

the instant offense." See United States Sentencing Commission,

Guidelines Manual, § 3C1.1 (Nov. 1991). The district court imposed

an increase of two levels because, at the time of her arrest Pofahl

was living part-time in Florida under an assumed name, and because

she wrote a letter to her husband, asking him not to provide the

authorities with information which would incriminate her. Where a

-47- district court enhances a defendant's offense level on account of

an obstruction of justice, the district court's finding of

obstructive conduct is reviewed for clear error. See United States

v. Pierce, 893 F.2d 669, 677 (5th Cir. 1990); United States v.

Rivera, 879 F.2d 1247, 1254 (5th Cir.), cert. denied, 493 U.S. 998,

110 S. Ct. 554, 107 L. Ed. 2d 550 (1989); United States v. Franco-

Torres, 869 F.2d 797, 800 (5th Cir. 1989).

The district court's finding of obstructive conduct was not

clearly erroneous. Pofahl wrote to her husband during his

incarceration in Germany, and implored him to stop providing the

authorities with incriminating information about her.28 Application

Note 3 to § 3C1.1 provides as an example of conduct which warrants

28 Pofahl's letter contained the following passages:

Everyone does not want me to correspond with you[, and] considering what info [sic] was passed on to me by your attorney I must agree. Why do you say things that harm me [and] make their case against me stronger[?] I can't try to help [and] support you when you do the opposite. I will always love you Sandy [for]ever but you are forcing me into a position of alienating you because you bring me harm.

* * *

I must say every attorney I've talked to can't believe you're co-operating [and] now they simply are getting statements from everyone you squeled [sic] on . . . Win win situation for them. Everyone goes to prison and no lengthy trial. Except me, little ole Amy))Do me a favor please from now on don't mention my name to anyone anymore. By simply writing this letter I could also be accused of obstruction of justice [and] since I can't trust you to keep your mouth shut I am doing this with great reserve. I'm positive it will come back to haunt me. Government's Exhibit No. 1058, United States of America vs. Amy Ralston Pofahl, No. W-91-CR-038.

-48- an enhancement for obstruction of justice "conduct prohibited by 18

U.S.C. §§ 1501-1516," see U.S.S.G. § 3C1.1, comment. (n.3(i)); and

it appears that Pofahl's letter, by which she attempted to prevent

her husband from cooperating with the authorities, was prohibited

by 18 U.S.C. § 1512(b) (1988). See 18 U.S.C. § 1512(b)

(prohibiting "corruptly persuad[ing] another person, or

attempt[ing] to do so . . . with intent to influence, delay, or

prevent the testimony of any person in an official proceeding");

United States v. Masterpol, 940 F.2d 760, 763 (2d Cir. 1991)

(suggesting that urging a witness to lie to authorities is

indictable under § 1512 as corrupt persuasion); United States v.

Kulczyk, 931 F.2d 542, 546 n.7 (9th Cir. 1991) (same).

Pofahl's correspondence with her husband was not the only

conduct which supported an enhancement for obstruction of justice.

At the time of her arrest, Pofahl had established a new identity

and a new life in Florida. The arresting officers found in

Pofahl's possession a Florida driver's license, a birth

certificate, and a Social Security card, all in the name of Amy

Rossell.29 See Supp. Record on Appeal, vol. 12, at 16. Pofahl was

living part-time in Florida with a friend, see id. at 17, and she

had acquired new bank accounts, a safety deposit box, and storage

29 Pofahl apparently acquired at least the Florida driver's license after she became aware that she was the target of an ongoing investigation. The driver's license was issued on December 13, 1990. See Government Exhibit No. 1029, United States of America vs. Amy Ralston Pofahl, No. W-91-CR-038. At that time over a year had elapsed since the search of Pofahl's residence on Carlton Way in Los Angeles, and several months had passed since the search of her residence on West 4th Street.

-49- units in Florida under the name Amy Rossell. See id. at 16.

Pofahl also purchased an automobile in Florida. See id. at 17.

Pofahl did not have a telephone number registered in her name in

California, where she was residing part-time, and she appears to

have been in the process of obtaining a California driver's license

under the name Amy Scalisi. See id. at 15-17. The aggregate of

all the conduct through which Pofahl established a new identity and

a new life in Florida suggests persuasively that Pofahl willfully

attempted to evade prosecution for her crimes.

In light of Pofahl's letter to her husband, as well as her

adoption of a new identity in Florida,30 the district court's

finding that Pofahl attempted to obstruct justice was not clearly

erroneous. Therefore, we affirm the district court's imposition of

the § 3C1.1 enhancement.31

IV

30 Pofahl argues strenuously that her possession of false identification documents at the time of her arrest did not warrant an enhancement for obstruction of justice under § 3C1.1. See U.S.S.G. § 3C1.1, comment. (n.4(a)) (stating that "providing a false name or identification document at arrest" does not warrant an enhancement for obstruction of justice, except when providing the false name or document seriously impedes the administration of justice). However, mere possession of counterfeit identification was not the sole basis for the enhancement of Pofahl's sentence. Pofahl did not merely possess false identification documents. It appears that she used those documents to assume a new identity and embark on a new life in Florida, and it could be inferred that she did so in order to avoid apprehension or impede the investigation of her offenses. That inference is bolstered by Pofahl's letter to husband. 31 Lastly Pofahl argues that MDMA was not properly designated as a controlled substance. We have already rejected Pofahl's argument. In United States v. Piaget, we held that MDMA was properly listed as a controlled substance. See United States v. Piaget, 915 F.2d 138, 141 (5th Cir. 1990).

-50- Charles T. Nunn

Nunn contends that the district court erred in denying his

motion for severance. Nunn filed a pre-trial motion to sever

pursuant to Fed. R. Crim. P. 14,32 claiming unfair prejudice due to

"the sheer number of defendants and counts in the indictment, the

complexity and interrelatedness of issues, and the maze of

evidentiary problems."33 The district court denied Nunn's motion

to sever.

Denial of a Rule 14 motion for a severance is reviewable only

for abuse of discretion. See Zafiro v. United States, ___ U.S.

___, 113 S. Ct. 933, 939, ___ L. Ed. 2d ___ (1993) (holding that

determination of the risk of prejudice from joint trials, and of

the necessary remedy to avoid such prejudice, are entrusted to the

sound discretion of the district court); United States v. Arzola-

Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933,

110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); United States v.

Manzella, 782 F.2d 533, 540 (5th Cir.), cert. denied, 476 U.S.

1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986). "Reversal is

warranted only when the appellant can demonstrate compelling

32 Rule 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed. R. Crim. P. 14. 33 Supp. Record on Appeal, vol. 2, at 56.

-51- prejudice against which the trial court was unable to afford

protection." Arzola-Amaya, 867 F.2d at 1516; United States v.

Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S.

1034, 106 S. Ct. 599, 88 L. Ed. 2d 578 (1985). The rule, rather

than the exception, is that persons indicted together should be

tried together, especially in conspiracy cases. See Arzola-Amaya,

867 F.2d at 1516; United States v. McGuire, 608 F.2d 1028, 1031

(5th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S. Ct. 1060, 62

L. Ed. 2d 782 (1980).

Nunn claims he was entitled to a severance because his

involvement in the drug trafficking as a "mere mule" was extremely

limited.34 Nunn's absence from particular episodes in the

conspiracy does not mandate severance. See United States v. Rocha,

916 F.2d 219, 228 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111

S. Ct. 2057, 114 L. Ed. 2d 462 (1991). Nunn asserts that the

amount of evidence offered against him was far less than the

evidence offered against his co-defendants,35 but we have held that

a quantitative disparity in the evidence "is clearly insufficient

in itself to justify severance." Harrelson, 754 F.2d at 1175.

Furthermore, Nunn asserts that the reputations of the co-defendants

and evidence of their past crimes created a prejudicial spillover

34 See Brief for Nunn at 9-10 (claiming that "[d]efendant's activities were limited to at most 210,000 tablets [of Ecstacy or MDMA] . . . whereas the entire conspiracy dealt in approximately 5.6 million tablets"). 35 See Brief for Nunn at 9 (noting that testimony regarding Nunn consisted of 53 pages, while testimony regarding other co- defendants consisted of almost 900 pages).

-52- effect. We have also held that the mere presence of a spillover

effect does not ordinarily warrant severance. See Rocha, 916 F.2d

at 228; Harrelson, 754 F.2d at 1178. Moreover, in the case at bar

the district court properly instructed the jury to limit evidence

to the appropriate defendant.36 "[J]uries are presumed to follow

their instructions." Zafiro, ___ U.S. at ___, 113 S. Ct. at 939.

Consequently, the jury was able to separate the evidence and

properly apply it only to those against whom it was offered.

Because Nunn did not suffer compelling prejudice against which the

district court was unable to afford protection, we find that the

district court did not abuse its discretion by refusing to sever

his case.

Nunn also asserts that the district court miscalculated his

base offense level by holding him responsible for a large quantity

of drugs, the importation of which was not reasonably foreseeable

to him. See United States Sentencing Commission, Guidelines

Manual, § 1B1.3(a)(1), comment. (n.1) (Nov. 1991) ("In the case of

criminal activity undertaken in concert with others," the defendant

36 The district court's instructions to the jury provided:

In determining whether a Defendant was a member of an alleged conspiracy . . . the jury should consider only that evidence, if any, pertaining to his or her own acts and statements . . . Each count, and the evidence pertaining to it, should be considered separately and individually. The fact that you may find one or more of the Defendants guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other Defendant. You must give separate consideration to the evidence as to each Defendant. Supp. Record on Appeal, vol. 2, at 166, 174.

-53- is responsible for "conduct of others in furtherance of the

execution of the jointly-undertaken criminal activity that was

reasonably foreseeable by the defendant."). The district court

based Nunn's sentence on "all of the trafficking which occurred

after he became involved in the conspiracy . . . because . . . he

would have known about that and certainly [would] be accountable

for it." See Supp. Record on Appeal, vol. 13, at 5. The district

court held that the appropriate amount of drugs was 1.2 million

tablets of MDMA. See id. at 8. In addition to 200,000 tablets

that Nunn imported or attempted to import, there were 500,000 MDMA

tablets in Guatemala undelivered and awaiting importation, and co-

conspirator Jerry Williamson imported another 500,000 MDMA tablets

from Guatemala. See id. at 7. "A district court's findings about

the quantity of drugs implicated by the crime are factual findings

reviewed under the `clearly erroneous' standard." Rivera, 898 F.2d

at 445.

Nunn claims that he should only be held responsible for the

200,000 MDMA tablets which he imported or attempted to import, not

the 1.2 million tablets the district court attributed to him. Nunn

asserts that the 500,000 tablets imported by Williamson are not

attributable to him, because their importation predated his

participation in the conspiracy. See Brief for Nunn at 15, 17-18.

Nunn's argument lacks support in the record. Testimony at trial

placed the Williamson importation somewhere between late June and

August of 1988, see Supp. Record on Appeal, vol. 7, at 150-51, 153-

-54- 55, and Nunn was involved with the conspiracy several months prior

to June of 1988. See id. vol. 9, at 676-78.

Nunn also asserts that the 500,000 tablets awaiting

importation from Guatemala are not attributable to him because he

withdrew from the conspiracy. Witness testimony at trial placed

the 500,000 MDMA tablets in Guatemala in February of 1989, the same

month Nunn scheduled a trip to Guatemala to import MDMA tablets.

See id. vol. 10, at 774. After learning that a co-conspirator was

arrested, Nunn cancelled his trip to Guatemala, but this did not

end his involvement in the conspiracy. See id. vol. 9, at 689. We

have held that involvement in a conspiracy is presumed to continue

and will not be terminated until the co-conspirator acts

"affirmatively to defeat or disavow the purpose of the conspiracy."

United States v. Devine, 934 F.2d 1325, 1335 (5th Cir. 1991), cert.

denied, ___ U.S. ___, 112 S. Ct. 954, 117 L. Ed. 2d 121 (1992).

Nunn's decision to cancel his trip to Guatemala in the face of

possible arrest is hardly an affirmative action to defeat the

conspiracy. Because Nunn was a member of the conspiracy when the

disputed 1 million tablets were imported or when importation was

attempted, the district court's finding of reasonable

foreseeability was not clearly erroneous. Therefore, we hold that

the district court properly calculated Nunn's base offense level.

-55- C

Nunn contends that he was entitled to a downward adjustment,

under § 3B1.2 of the sentencing guidelines, for minimal or minor

-56- participation in the offense.37 Nunn claims that he was a "mere

mule" possessing less knowledge and understanding of the conspiracy

than the average participant, and therefore he was a minimal or

minor participant in the offense. Section 3B1.2 is designed to

reduce a sentence when the defendant is substantially less culpable

than the average participant in the offense. See United States v.

Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert. denied, 495

U.S. 923, 110 S.Ct. 1957, 109 L. Ed. 2d 319 (1990). The district

court denied Nunn's request for the downward adjustment, stating

that it "[did not] believe Mr. Nunn was either a minor or a minimal

participant." See Supp. Record on Appeal, vol. 13, at 14. A

judicial fact-finding that a defendant is not a minimal or minor

participant will enjoy the protection of the clearly erroneous

standard. United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th

Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L. Ed. 2d

602 (1989).

We have held that a "`mule' or transporter of drugs may not be

entitled to minor or minimal status." United States v. Bethley,

37 Section 3B1.2 provides:

Based on the defendant's role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels. United States Sentencing Commission, Guidelines Manual, § 3B1.2 (Nov. 1990).

-57- 973 F.2d 396, 401 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113

S. Ct. 1323, ___ L. Ed. 2d ___ (1993); Buenrostro, 868 F.2d at 137-

38. Nunn's role as a courier was not limited to a single delivery,

but included a second delivery attempt which was later aborted.

Additionally, Nunn's role was not confined to that of a mule. Nunn

recruited an individual named "David" to transport an MDMA shipment

from Guatemala into the United States, and received large payments

for his efforts. See Supp. Record on Appeal, vol. 9, at 678, 684-

87. Consequently, the district court's finding that Nunn's role

was not minimal or minor was not clearly erroneous, and Nunn was

not entitled to an adjustment under § 3B1.2.

Nunn also contends that he was entitled to a downward

adjustment, under § 3E1.1 of the sentencing guidelines, because he

accepted responsibility for the offense.38 Nunn claims that he

cooperated with the authorities and provided "extensive debriefing

of his criminal conduct." Brief for Nunn at 23-24. However, the

38 Section 3E1.1 provides:

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense by 2 levels.

(b) A defendant may be given consideration under this section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.

(c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right. United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov. 1991).

-58- district court found that Nunn did not accept responsibility for

the offense. See Supp. Record on Appeal, vol. 13, at 10. This

finding by the district court "is entitled to great deference,

greater than that accorded under the clearly erroneous standard."

United States v. Gonzalez-Basulto, 898 F.2d 1011, 1013 (5th Cir.

1990) (quoting United States v. Tellez, 882 F.2d 141, 143 (5th Cir.

1989)).

Section 3E1.1 "requires a showing of sincere contrition on the

defendant's behalf to warrant the reduction." United States v.

Beard, 913 F.2d 193, 199 (5th Cir. 1990); United States v. Reed,

882 F.2d 147, 150 (5th Cir. 1989). The guidelines also provide

that "[t]his adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by denying the

essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse." U.S.S.G. § 3E1.1, comment.

(n.2). Moreover, only "[i]n rare situations [may] a

defendant . . . clearly demonstrate an acceptance of responsibility

for his criminal conduct even though he exercises his

constitutional right to a trial." Id.

Nunn claims that his pre-trial discussions with officers,

where he admitted involvement in the drug trafficking, qualify as

acceptance of responsibility. However, Nunn plead not guilty and

proceeded to trial, where his counsel argued emphatically for

acquittal. See Supp. Record on Appeal, vol. 11, at 1112, 1119-20.

Furthermore, Nunn's admission of guilt))"I guess I'm guilty of both

[counts]"))came only after the jury returned a verdict of guilty.

-59- See Presentence Report, United States of America v. Charles Thomas

Nunn, No. W-91-CR-038, at 24 (sealed). In light of those facts,

the district court's finding))that Nunn did not accept

responsibility))was not erroneous.

Nunn asserts that the district court erred by increasing his

offense level under § 2D1.1(b) of the Federal Sentencing

Guidelines39 due to possession of a firearm, without first

specifically finding that Nunn possessed the weapon, as required by

Fed. R. Crim. P. 32. During Nunn's arrest at his home/business on

July 2, 1991, police officers confiscated a handgun stored in a

drawer with assorted drugs. The Presentence Report (PSR) alleged

that the pistol belonged to Nunn, and that he possessed it at the

time of and in connection with his offenses. See Presentence

Report, United States of America v. Charles Thomas Nunn, No. W-91-

CR-038, at 26-27 (sealed). Therefore the PSR recommended an

enhancement of 2 levels under § 2D1.1(b)(1). See id. Nunn

contended in his objections to the PSR and at the sentencing

hearing that the enhancement for possession of the gun was improper

because the weapon belonged to his roommate. See Letter from

39 Section 2D1.1(a) provides the base offense level for, inter alia, the unlawful trafficking of drugs. Section 2D1.1(b)(1) further provides:

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels. United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1991).

-60- Attorney J. Marlin Blackledge to U.S. Probation Officer Mikal

Klumpp at 4, attached to Presentence Report; Supp. Record on

Appeal, vol. 13, at 11. After hearing argument from both sides at

the sentencing hearing, the district court overruled Nunn's

objection without explanation. See Supp. Record on Appeal, vol.

13, at 12.

Nunn argues that the district court was required by Fed. R.

Crim. P. 32(c)(3)(D) to make specific factual findings as to

whether Nunn possessed the gun. Rule 32(c)(3)(D) provides:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.

Fed. R. Crim. P. 32(c)(3)(D). The issue of Nunn's possession of

the gun was in dispute, by virtue of Nunn's objections to the PSR

and his counsel's argument at sentencing. Consequently, the

district court was required either to resolve the dispute or to

determine that possession of the gun would not be taken into

account in sentencing. Because the district court failed to do

either, we must vacate Nunn's sentence and remand to the district

court for specific findings as to whether Nunn possessed the

pistol, or a determination that possession of the gun will not

affect Nunn's sentence. See United States v. Sherbak, 950 F.2d

1095, 1098-99 (5th Cir. 1992) (vacating and remanding for specific

findings as to amount of drugs attributable to defendant) (citing

-61- United States v. Warters, 885 F.2d 1266, 1271-73 (5th Cir. 1989);

United States v. Burch, 873 F.2d 765, 767-68 (5th Cir. 1989));

United States v. Hooten, 942 F.2d 878, 881-82 (5th Cir. 1991)

(remanding for findings as to possession of gun).

On remand, if the district court determines that Nunn did not

possess the gun personally, the enhancement under § 2D1.1 is still

appropriate if the gun was possessed by one of Nunn's accomplices,

and the accomplice's possession was reasonably foreseeable to Nunn.

See U.S.S.G. § 1B1.3(a)(1), comment. (n.1) (Nov. 1991); Hooten, 942

F.2d at 881-82. "The adjustment should be applied if the weapon

was present, unless it is clearly improbable that the weapon was

connected with the offense." U.S.S.G. § 2D1.1, comment. (n.3).

The firearm need not be an integral part of the offense; simple use

or possession per se is justification for the upward adjustment.

See United States v. Hewin, 877 F.2d 3, 5 (5th Cir. 1989); see also

United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).

V

Randy White

Randy White contends that the district court erred by allowing

IRS Special Agent Gary Terrell to testify regarding statements made

by White during an interview in White's home. White argues that

his rights under the Fifth Amendment were violated, because the

self-incriminating statements admitted into evidence were made by

White without the benefit of the warnings prescribed by Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

-62- Special Agents Terrell and Gallman went to White's apartment

to serve a subpoena in connection with the investigation of the

Pofahl-Key MDMA conspiracy. When the agents arrived, White stated

that he knew they were there to talk about MDMA, and he invited

them inside. White voluntarily spoke to the agents for about an

hour and a half, during which he explained his dealings in MDMA in

detail. White was not given Miranda warnings. Before trial, White

moved to suppress evidence of any statements that he made to

Terrell and Gallman, on the grounds that he was not given the

warnings required by Miranda. The district court found that

Miranda warnings were not required, because White voluntarily

invited the agents into his apartment and proceeded to speak to

them, and because White was never in custody during the

conversation with the agents. See Supp. Record on Appeal, vol. 4,

at 144. Therefore, the district court denied White's motion to

suppress.

The district court properly denied White's motion, because

White was not entitled to Miranda warnings. Miranda requires that

the warnings be given prior to a custodial interrogation. See

Miranda, 384 U.S. at 467, 478-79, 86 S. Ct. at 1624, 1630; see also

Illinois v. Perkins, 462 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d

243 (1990); United States v. Harrell, 894 F.2d 120, 123 (5th Cir.),

cert. denied, 498 U.S. 834, 111 S. Ct. 101, 112 L. Ed. 2d 72

(1990). The district court correctly held that White was not in

custody when he confessed to Gallman and Terrell. A person is "`in

custody' for Miranda purposes when placed under formal arrest or

-63- when a reasonable person in the suspect's position would have

understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal

arrest." United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.)

(en banc), cert. denied, 488 U.S. 924, 109 S. Ct. 306, 102 L. Ed.

2d 325 (1988); see also United States v. Harrell, 894 F.2d 120, 123

(5th Cir. 1990) (citing Bengivenga). The record does not indicate

that White was under arrest or that he was subject to a restraint

of his freedom comparable to formal arrest. The record

demonstrates that White spoke to the agents in his home, of his own

volition. We agree with the district court's conclusion that White

was never in custody, and therefore was not entitled to suppression

of the statements which he made without the benefit of Miranda

warnings. See Harrell, 894 F.2d at 125 ("A reasonable person,

questioned within his own home, would not suffer `a restraint on

freedom of movement of the degree which the law associates with

formal arrest.'").

White also argues that the district court improperly

calculated his base offense level by holding him responsible for an

excessive quantity of MDMA.40 Under § 1B1.3 of the federal

sentencing guidelines, the district court was required to assign

40 See Brief for White at 20 ("[T]he Government, over the objections of counsel, greatly exaggerated the amount of contraband sold by Appellant, thereby enhancing the severity of the sentence Appellant received."); Reply Brief for White at 5 ("Obviously, the trial court considered the maximum number of pills in applying the guidelines . . . .").

-64- White a base offense level corresponding to the amount of drugs

which was reasonably foreseeable to him. See U.S.S.G.

§ 1B1.3(a)(1), comment. (n.1) (Nov. 1991).

The district court held White accountable for 200,000 MDMA

tablets. See Supp. Record on Appeal, vol. 14, at 37. The district

court's finding that this amount of drugs was reasonably

foreseeable to White is reviewed only for clear error. See Rivera,

898 F.2d at 445 ("A district court's findings about the quantity of

drugs implicated by the crime are factual findings reviewed under

the `clearly erroneous' standard."). We will not regard the

district court's finding as clearly erroneous unless we are left

with the definite and firm conviction that a mistake has been

committed. Mitchell, 964 F.2d at 457-58.

The district court's finding of reasonable foreseeability of

200,000 tablets was not clearly erroneous. Evidence at trial

revealed that White dealt in large quantities of MDMA, and knew of

dealings in MDMA by other members of the conspiracy. White entered

into an agreement with Tom and Dan Drath in the fall of 1987, under

which he purchased from the Draths two to three thousand MDMA

tablets per week. See Supp. Record on Appeal, vol. 8, at 459; id.

vol. 14, at 12. White continued to buy drugs from the Draths and

resell them, until December of 1988. See id. vol. 14, at 12. Tom

Drath estimated that he sold White "100,000 to perhaps 150,000"

tablets of MDMA during the course of their business relationship.

See id. vol. 8, at 417. White sold Shawn Guillory "a few thousand

to 12,000" tablets per month. See id. vol. 14, at 25. White sold

-65- an individual named Sammy five hundred to a thousand tablets from

time to time. See id.

On the basis of those facts, the district court certainly

could have concluded that White personally dealt in more than a

hundred thousand MDMA tablets during the course of his involvement

in the conspiracy. Moreover, White knew that he was not the only

person distributing MDMA on behalf of the Draths. See id. vol. 8,

at 446. White knew that he had a "major competitor" named Craig

who also acquired MDMA from the Draths. See id. at 447. Given

that information, White should have realized that the conspiracy

involved dealings in substantial quantities of MDMA in addition to

the tens of thousands of tablets which he bought and sold. White

could reasonably have foreseen that the conspiracy would lead to

trafficking in at least 200,000 tablets of MDMA. Therefore, the

district court did not commit clear error by finding that

trafficking in that quantity of MDMA was reasonably foreseeable.

The district court properly sentenced White on the basis of 200,000

half-gram tablets of MDMA.

VI

For the reasons stated in Part IV.E. supra, Charles Nunn's

sentence is VACATED, and his case is remanded to the district

court. Nunn's conviction is AFFIRMED, as are the convictions and

sentences of Pofahl and White.

-66-