924 F. 2d 753 - United States v. F Stephenson

460 U.S. at 497, 103 S.Ct. at 1324.

Stephenson claims that the encounter became an investigative (Terry ) stop when agent Hicks again flashed his badge, identified himself as a DEA agent and advised Stephenson and Smith that he suspected them of carrying currency obtained in illegal narcotics transactions. The cases in this circuit are somewhat inconsistent in their holdings as to the occurrence or non-occurrence of a Terry-stop under facts similar to those in this matter. Compare United States v. Condelee, 915 F.2d 1206 (8th Cir.1990), United States v. Millan, 912 F.2d 1014 (8th Cir.1990) and United States v. Drinkard, 900 F.2d 140 (8th Cir.1990) with United States v. McKines, 917 F.2d 1077 (8th Cir.1990), reh'g en banc granted, (Dec. 28, 1990). However, we need not reach this issue because, even if an investigative stop occurred, the requirements of Terry were satisfied here. We find that the cumulative effect of the large bundles of cash visible in Smith's pockets, Stephenson's and Smith's noticeable nervousness, the apparent use of fictitious names, the one-way airplane tickets, and the time and manner of the purchase of the tickets was sufficient to give rise to a reasonable and articulable suspicion that these two individuals either had committed, or were committing, a crime.

Stephenson also argues that the district court unfairly and improperly applied the Sentencing Guidelines in determining that his criminal record placed him for sentencing purposes in Criminal History Category II under the Sentencing Reform Act of 1984. Stephenson contends that the court's assignment of one criminal history point pursuant to Sec. 4A1.2(a)(3) of the Guidelines for the imposition of a prior sentence of less than sixty days imprisonment and two points pursuant to Sec. 4A1.1(d) for committing the instant offense while under a sentence of probation resulted in the imposition of a "grossly disproportionate" sentence that violated his rights under the Eighth Amendment and the Due Process Clause of the Fifth Amendment. Stephenson suggests that the district court's determination was the product of a "double-counting" that unfairly resulted in an additional five years of imprisonment. He asks that we order the district court to resentence him, this time as a Category I offender.

We find no error in the district court's placement of Stephenson in Criminal History Category II for sentencing purposes. Guidelines Section 4A1.1 provides, in subsections (a) and (b), that three points should be added for each prior sentence of imprisonment exceeding one year and one month and two points for each prior sentence of imprisonment of at least sixty days not counted in (a). Of greater relevance here is the provision in Sec. 4A1.1(c) that "1 point [should be added] for each prior sentence not included in (a) or (b), up to a total of 4 points." Nowhere in the Guidelines or the Commentary thereto is a sentence of probation excepted from the provisions of Sec. 4A1.1(c). The addition of one point thereunder was proper. The Guidelines provide in Sec. 4A1.1(d) that the sentencing court should "[a]dd 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation ..." Certainly, it was not error for the district court to assign two points pursuant to this provision.

The one point added under subsection (c) merely addressed prior criminal conduct generally. The two points added under subsection (d) addressed the additional consideration of the recency of the prior criminal activity. Clearly, these provisions involve two distinct considerations and do not result in an improper or unconstitutional double-counting.

Gohagen and Ebanks also argue that the district court erred in denying their motion to suppress certain statements made and evidence seized in the course of an airport encounter at LaGuardia Airport in New York City on November 5, 1987. As previously discussed, officers of the Kansas City, Missouri Police Department had notified authorities at LaGuardia that persons suspected of carrying large amounts of currency were on board a particular flight from Kansas City to New York City. Subsequent thereto, Gohagen, Ebanks and a female companion were questioned in the terminal immediately after deplaning by agents of the DEA and the Port Authority Police Department. In circumstances remarkably similar to those attendant to the encounter between Stephenson and agent Hicks, Gohagen and Ebanks were approached by the agents and asked if they would answer a few questions. They agreed to do so. The questioning revealed that Gohagen, Ebanks and their female companion were all traveling under fictitious names on airplane tickets purchased that same morning for cash. Ebanks' attempted explanation of the situation was misleading and inconsistent. Both Gohagen and Ebanks subsequently consented to a search of their carry-on bags, whereby the agents discovered what was later determined to be $6,190 in cash. After a drug detection dog reacted positively to the presence of narcotics residue on it, the currency was seized by the agents.

Although the facts and circumstances surrounding the airport incidents of Stephenson in Kansas City and Gohagen and Ebanks in New York City are very similar, the legal arguments advanced in support of their respective motions to suppress are somewhat different. Whereas Stephenson focused primarily upon Fourth Amendment considerations in his motion, Gohagen and Ebanks contend in theirs that the use at trial of the statements and evidence obtained during the LaGuardia encounter violates their rights under the Fifth Amendment pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

As noted previously, a district court's findings of fact on a motion to suppress are reviewable under the clearly erroneous standard. United States v. Campbell, supra; United States v. Flett, 806 F.2d 823, 826 (8th Cir.1986). We find no clear error in the district court's findings of fact regarding the November 5, 1987 encounter at LaGuardia airport involving Gohagen and Ebanks and the various law enforcement agents.

As for the legal conclusions to be drawn from those findings, let it first be said that we find Miranda inapposite to the facts of this case. But cf. United States v. Blackman, 897 F.2d 309 (8th Cir.1990) (detention "custodial" for Miranda purposes where numerous police officers were waiting to arrest defendant on specific charge; however, trial court's denial of suppression motion harmless due to great weight of other evidence). Further, we find, consistent with the determination below, that Gohagen and Ebanks were not, and should not have felt, deprived of their liberty by the encounter and that the statements and evidence obtained were the products of a consensual encounter and search and, thus, were properly admitted at trial. Although the question presented here is somewhat closer than that raised by Stephenson, we are nonetheless convinced that this encounter amounted to something less than the "custodial interrogation" to which Miranda applies.

Gohagen contends that the district court erred in denying his motion to dismiss the indictment as to him on the ground of former, or double, jeopardy in light of his previous conviction for distribution of crack during the same time frame as the alleged conspiracy. Gohagen urges this Court to follow the "totality of the circumstances" test articulated in United States v. Thomas, 759 F.2d 659, 662 (8th Cir.1985), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985), in determining whether his conviction below was violative of the double jeopardy clause of the Fifth Amendment to the United States Constitution. In Thomas, however, each of the two indictments charged defendant with a conspiracy offense. The analysis in Thomas is not particularly helpful in this case. Here, Gohagen was previously charged with and convicted of the substantive offense of distribution of cocaine base. In the later indictment, with which we are concerned on this appeal, he was charged with conspiracy to distribute cocaine base.

A defendant may be cumulatively punished if conviction on each offense requires proof of a fact not required by the other. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); United States v. Martin, 867 F.2d 476, 478 (8th Cir.1989). More specifically, we have previously held that where it was not necessary to prove completion of the substantive offense in order to prove conspiracy, nor was proof of a conspiracy necessary for a conviction of the substantive crime charged, double jeopardy did not exist. United States v. Udey, 748 F.2d 1231, 1238 (8th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985). The motion to dismiss was properly denied.

C. CHRISTOPHER CONSTANTINE AND MICHAEL SWABY

Constantine contends that the district court erred in denying his motion for severance. He argues that as a result of being tried with the other defendants he was greatly prejudiced by the introduction of evidence of specific crimes and other bad acts committed by his coconspirators, even though there was no direct evidence of any involvement by him in those transactions.

"It is the general rule that persons charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts." United States v. Jackson, 549 F.2d 517, 523 (8th Cir.1977), cert. denied, sub nom. Muhammad v. United States, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); accord, United States v. Anderson, 879 F.2d 369, 375 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). This preference for joint trials is not limited by any requirement that the quantum of evidence of each defendant's culpability be quantitatively or qualitatively equivalent. Jackson, supra at 525. Rarely, if ever, will it be improper for coconspirators to be tried together. United States v. Drew, 894 F.2d 965, 968 (8th Cir.1990), cert. denied, --- U.S. ----, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). To prevail on this point, Constantine must show clear prejudice and abuse of discretion. United States v. Martin, 866 F.2d 972, 979 (8th Cir.1989). No such showing has been made. Accordingly, we find no error in the district court's denial of the motion for severance.

Constantine and Swaby contend that the district court should have granted their motions to dismiss the indictment on the ground that the indictment was defective because it did not contain any allegations as to any overt acts carried out in furtherance of the conspiracy. As the United States points out, 21 U.S.C. Sec. 846 does not require submission or proof of overt acts to sustain a conspiracy conviction thereunder. United States v. Covos, 872 F.2d 805, 809-10 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989). We find no error in the district court's denial of these motions.

3. Motion for Bill of Particulars and Motion in Limine

On January 9, 1989, Swaby filed a Motion to Dismiss the Indictment and Request for Bill of Particulars, alleging that the indictment was "vague and ambiguous" and should have been dismissed as "void for vagueness." The district court denied this motion and request and Swaby asserts that it was error to do so. In particular, Swaby complains that the indictment failed to specifically identify the place that the alleged conspiracy was carried out. This motion, as well as a subsequent motion in limine, also addressed the use at trial of evidence concerning Swaby's arrest on March 17, 1988 in Kansas City, Kansas for related drug offenses. Swaby contends that the indictment did not address conduct within the State of Kansas; therefore, use of this evidence at trial by the United States resulted in an unlawful variance of the indictment.

In response, the Government contends that its "open file" policy with respect to this case, pursuant to which photocopies of more than a thousand pages of documents were provided, resulted in Swaby and his codefendants having all of the information they needed to understand the charges against them and to present a complete defense thereto. Further, the United States points out that, inasmuch as the indictment expressly alleged that the conspiracy took place "at Kansas City, in the Western District of Missouri, and elsewhere," no variance resulted.

The trial court has broad discretion in granting or denying a bill of particulars. See, e.g., United States v. Key, 717 F.2d 1206, 1210 (8th Cir.1983). To establish reversible error from the denial of such a motion, a defendant must show that he was actually surprised at trial and suffered prejudice by the denial. United States v. Arenal, 768 F.2d 263, 268-69 (8th Cir.1985). In the present case, Swaby has not shown how he was surprised at trial or how he was prejudiced by the denial of his request for the bill of particulars. We cannot say that the district court abused its discretion in denying the bill of particulars. Similarly, we agree that the introduction of the evidence regarding the Kansas City, Kansas arrest did not constitute a variance of the indictment.

In a somewhat related motion in limine, Swaby asked the district court to prohibit the United States from introducing any and all evidence related to his arrest in Kansas City, Kansas, particularly the considerable quantities of cocaine base and cash recovered from his pockets. That motion, too, was denied by the district court. The thrust of Swaby's argument on this point is that such evidence was not relevant to the charge in the instant case, but, rather, was offered to prove his bad character. He contends that this evidence of other bad acts should have been rejected pursuant to Rule 404(b) of the Federal Rules of Evidence.

The United States denies that the evidence regarding Swaby's arrest in Kansas City, Kansas was Rule 404(b) evidence, asserting that it was directly related to the conspiracy alleged and, as such, was clearly admissible to prove his guilt of the offense charged. The Government points out that this arrest took place during the period of the alleged conspiracy and resulted in the seizure of evidence which tied that transaction to the larger conspiracy alleged in the indictment. "[E]vidence which is probative of a crime with which a defendant is charged, and not solely of some other uncharged crimes, is not evidence of 'other bad acts.' " United States v. Westbrook, 896 F.2d 330, 334 (8th Cir.1990). We agree with the district court's finding that nothing in the indictment precluded evidence of conduct in Kansas City, Kansas from being used as direct evidence against Swaby or his coconspirators and that its admission at trial was proper.

Swaby also contends that the vague wording of the indictment has exposed him to prosecution in the State of Kansas upon the same charge of which he was convicted below in violation of his rights under the double jeopardy clause of the Fifth Amendment. According to the latest information provided, no charges of any kind, either state or federal, have been filed to date against Swaby arising from his arrest on March 17, 1988. We agree with the United States that this argument is both speculative and premature and find no merit in it.

1. Motions Related to Appellant's Nationality

It is argued by Stephenson, Gohagen and Ebanks that the trial court erred in overruling appellants' objections to certain exhibits and testimony concerning, inter alia, the nationality of appellants, who are all Jamaican nationals. Appellants contend that references to their nationality created a bias against them on the part of the jury and deprived them of a fair trial. While it is indeed true that appellants were entitled to a trial free of racial bias, see United States v. Doe, 903 F.2d 16 (D.C.Cir.1990), appellants have failed on this appeal to specifically identify any statements of the prosecutor or any government witness which prejudiced the jury against appellants on account of their Jamaican nationality.

The scant discussion given this point by appellants reveals the lack of merit therein. The admissibility of evidence, as well as rulings governing examination of witnesses, are subject to review under the abuse of discretion standard. United States v. LeAmous, 754 F.2d 795 (8th Cir.1985), cert. denied, 471 U.S. 1139, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985). We cannot say upon the arguments presented that the district court abused its discretion in any of its rulings on motions related to evidence of appellants' nationality.

2. Motions Addressing Admissibility of Evidence Outside the Period of the Conspiracy Alleged

Stephenson and Gohagen contend that the district court erred in admitting into evidence at trial certain drugs, guns, cash and other items which were seized outside the time frame of the conspiracy alleged in the indictment. Specifically, they assert that the court erred in permitting the government to introduce various drug paraphernalia, weapons and cash seized from one to three months after the close of the period of the conspiracy as alleged in the indictment. Stephenson also contends that he was unfairly prejudiced by the admission of the drugs and cash found on Swaby's person when he was arrested on March 17, 1987 in Kansas City, Kansas. Appellants contend that these items were evidence of other bad acts and, as such, their admissibility was governed by Rule 404(b) of the Federal Rules of Evidence. Appellants argue that admission of this evidence was improper under Rule 404(b) and that, inasmuch as it was seized outside the period of time alleged, its admission resulted in an improper variance of the charge set out in the indictment.

In response, the government notes that the vast majority of the challenged exhibits were obtained between May 27, 1987 and August 23, 1988, the fifteen month period of the conspiracy charged in the indictment. The government also points out that of the evidence seized after August 23, 1988--weapons, ammunition, scales, photographs, identification cards, and scraps of paper--none was per se illegal, and appellants have never articulated how this evidence and accompanying testimony constituted the "other crimes, wrongs, or acts" addressed by Rule 404(b). Thus, the government argues that Rule 404(b) was inapplicable to these items of evidence because they served as proof of the very charge for which these appellants were on trial, not of some other unrelated crime or act committed either prior or subsequent to the stated period of the conspiracy.

The facts relevant to this issue are not really in question. It is undisputed that a relatively small portion of the physical evidence introduced at trial was obtained by law enforcement officers on November 21 and 22, 1988, one week after the return of the indictment and three months subsequent to the end date of the conspiracy period alleged. However, some of that evidence may very well have been, and in all likelihood was, utilized by appellants or their unindicted coconspirators during the conspiracy period. The facts being generally undisputed here, our task is merely to determine whether the district court abused its considerable discretion in permitting the government to introduce this evidence at trial. See United States v. LeAmous, supra.

We simply are not convinced that the admission of this evidence was governed by Rule 404(b). Evidence is not subject to the provisions of Rule 404(b) if its "possession is not a federal crime." United States v. Petty, 798 F.2d 1157, 1161 (8th Cir.1986), partially vacated on other ground, cert. denied on remaining grounds, 481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987). There was no showing made that mere possession of the evidence with which we are concerned here was or is, by itself, illegal under federal law.

Similarly, we do not agree that this was evidence of "other crimes, wrongs or acts." We think this evidence can be more accurately described as evidence plainly relevant to the existence of and appellants' participation in the conspiracy charged, and, thus, was properly admissible. See United States v. Bagaric, 706 F.2d 42, 68 (2nd Cir.1983), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); see also United States v. Westbrook, supra. "Evidence of a conspirator's post conspiracy activity is admissible if probative of the existence of a conspiracy or the participation of an alleged conspirator, 'even though they might have occurred after the conspiracy ended.' " United States v. Fields, 871 F.2d 188, 197 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989), quoting Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). Because we find that the challenged evidence was indeed probative of the existence of the conspiracy and appellants' participation therein, we agree with the district court that this evidence was properly admissible.

3. Sentencing--Base Offense Level Determination

Stephenson, Gohagen and Ebanks all contend that the district court erred in determining that this conspiracy involved the distribution of more than 500 grams of cocaine base and, thus, that for Guidelines Sentencing purposes the applicable base offense level for appellants' crime was level 36. The district court concluded, after considering the $112,867 in cash seized and the testimony that crack was routinely sold for $120 per gram, that this conspiracy involved the distribution of 1,173.88 grams of cocaine base. The Guidelines provide that level 36 is the appropriate base offense level for a conspiracy involving the distribution of more than 500 grams of cocaine base.

Appellants argue that the quantity of cash seized was insufficient evidence for the purposes of determining the base offense level, and that the district court's reliance upon it was unreasonable and irrational. Appellants suggest that the district court deprived them of certain due process rights in applying level 36 for sentencing purposes. They contend that the base offense level should be determined strictly by the amount of cocaine base either purchased or seized during the conspiracy period--some 233 grams, and that the proper base offense level was, therefore, level 34.

The government replies that the Guidelines provide for the sentencing judge to approximate the quantity of drugs involved in an offense where the amount of drugs seized does not reflect the scale of the offense. The government asserts that the district court quite properly calculated, in light of the testimony that cocaine base sold for $120 per gram, that the $112,867 in cash was the monetary equivalent of 940 grams. Further, the government points out that even if the amount of cash seized outside the conspiracy period is omitted from the calculation, the remaining $56,669 yields 472 grams of cocaine base, which when added to the 233.88 grams of drugs seized during the conspiracy still results in a total quantity of 705.88 grams, far in excess of the amount required for application of level 36.

The Sentencing Guidelines provide that "where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance ... [and] may consider ... the price generally obtained for the controlled substance." Guidelines Manual Sec. 2D1.4, Commentary Note 2; United States v. Gohagen, 886 F.2d 1041, 1043 (8th Cir.1989). The commentary, although not binding, is persuasive.

As noted, the district court considered the amount of cocaine base purchased or seized from the conspirators and the amount of cash recovered in determining the minimum amount of drugs involved in this conspiracy. The court concluded that minimum amount was 1,173.88 grams of cocaine base, and in so doing declared that the government had made a clear and convincing case on this point.

The use of cash and money order receipts in calculating the amount of controlled substance involved in an offense for sentencing purposes has previously been approved. See United States v. Johnson, 906 F.2d 1285, 1290-91 (8th Cir.1990). Further, we must accept the district court's findings of fact in the sentencing proceeding unless they are clearly erroneous. 18 U.S.C. Sec. 3742(e); United States v. Brett, 872 F.2d 1365, 1371 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). After careful review, we cannot say that the district court erred in determining the quantity of cocaine base involved in this conspiracy.

The judgments of conviction are affirmed.