United States v. Leroy Rey

BOGGS, Before KEITH and Circuit Judges, CONTIE, and Senior Circuit Judge.

CONTIE, Judge. Senior Circuit Defendant-appellant, Leroy Rey, appeals judgment and conviction for possession to distribute and with intent to distribute cocaine.

I. On October a senior customs inspector post at the main office in St. Thomas, Virgin inspected Islands express found cocaine in an mail box. The express mail label on the box read as fol- lows:

TO: Grace Richardson Road, Apt. 816 Murfreesboro C-28 Nashville, TN FROM: David Richardson Nadir, Estate 15-B Thomas, Virgin St. Islands subject order the box be to a con- delivery, inspector trolled forwarded Nashville, postal the box to officials in Ten- nessee, agents who turned it over Drug (DEA). Enforcement Administration DEA obtained search warrants for package and for the which it was addressed. When the search package, warrant was executed on the agents found six bricks of cocaine amount- ing approximately six kilos. The bricks replaced bags sug- of cocaine were with sample approximately ar and a two grams of cocaine. package

A controlled 17, 1989, using postal made on October Wilson, inspector, Inspector disguised as a mailman. At least ten officers in- surveilling volved in Apartment C-28. De- livery package was not restricted so signed by any that it for could adult at Brown, Atty. (argued), the address. Joe B. U.S. Rob- Anderson, Atty., ert Asst. U.S. Office of trial, Inspector At Wilson testified that Tenn., Nashville, Atty., plaintiff- for U.S. opened the defendant the door and identi- appellee. Leroy Rey. Inspector fied himself as Wil- Quillen, Nashville, Tenn., Richard- son asked for “Mrs. Richardson” to whom Dale Malibu, Cal., (argued), for Defendant re- Lynn son R. was addressed. sponded, saying Inspector defendant-appellant. “Yes.” Wilson specified looking that he 8. Creating “Grace Maintaining Alterna- Richardson” and that defendant “didn’t Identities; tive Nevertheless, like look Grace.” 9. Crime Physical Scene Search and signed stated that he would “take it” and Handbook; Evidence express his name to the mail label. After High 10. Magazine (September, Times left, inspector porta- defendant used a October, 1989). and November of phone ble cellular to dial a number in the addition, papers various and notes were Virgin Shortly Islands —809-775-3601. containing found names and dollar amounts thereafter, defendant left the rear door which were indicative of “owe sheets” used apartment building and was arrested drug trafficking. in began away. Upon ap- as he to drive his prehension, the defendant identified him- 15, 1989, On November defendant Leroy Rey, acknowledged self as that he was grand jury indicted a federal and C-28, and, living Apartment was in charged with to distribute and being advised of a search warrant for his possess with intent to distribute cocaine in apartment, permitted peaceful entry. 841(a)(1) violation of 21 U.S.C. and 846. §§ found, unopened, The was with- Defendant filed a Motion for a Bill of in a two of the door. The foot or officers 11, 1989, request- Particulars on December apart- executed the search warrant for the ing the district court to direct the U.S. ment, discovery led of a varie- which Attorney furnish the names of co-con- ty equipment, including of electronic spirators. The was motion denied. following: 13, 1989, On December defendant filed a telephone (and 1. war- mobile/cellular Special Motion for a Request Verdict ranty telephone card for the mobile Jury, requesting jury the court to order the Leroy Rey, made out to 816 Mur- possessed to state the amount of cocaine Road, C-28, Nashville, Apt. freesboro percentage purity. sold This Tennessee); motion was denied. beeper; 2. (this answering 3. machine GE On December defendant filed a in Arn- found the bedroom of Judith suppress motion to The evidence. motion dell, sister); the defendant’s hearing was denied after a was held on scanner; January sup- At the police 4. 1990. end of electronic pression hearing, the denied the court also microphone 5. wireless remote and re- limine, three in which defendant motions ceiver; filed, seeking had exclusion from the trial radio; portable 6. CB any referring specific to a evidence 7. Panasonic cassette recorder. quantity certain electronic axe/wrecking The officers also found an equipment publications. or certain $10,000 bar, ammunition, of 9 mm. box printed jewelry, trial, Agent men’s funeral During Special worth of Keller of the Richardson, and numer- equip- service for Grace DEA how the electronic testified books, including following: ous ment, written materials publications, illegal drug trafficking. Operations were indicative 1. DEA Domestic Guide- lines; Testimony revealed that defendant had ac- cepted delivery of the box addressed to Money; 2. How to Launder though he Richardson” even knew “Grace Caribbean; 3. Tax Havens in the Richardson, aunt, his dead. that Grace (with 4. Radio two Police Call Guide had attended her funeral pages of notes contained handwritten September 1989 and Virgin Islands therein); Virgin had remained in the Islands for sev- 5. Surveillance Communications eral weeks thereafter. Counter-measures; Operations; Arndell, sister, Undercover Ms. who also Defendant’s C-28, testified that their Disguise; lived at Methods of informants, Phillip, given brother-in-law was Alton Alexander ment had been the tele- Virgin phone apart- who lived in the Islands. It was number of codefendant’s phone that it determined was his number ment and one of there was evidence'that (809-775-3601) placed to which defendant previously drugs the couriers had delivered call three minutes after of the box. apartment. federal Also suspected at one other defendant seen least Other evidence established a connection drug activity apart- enter and leave the telephone between the “809-775- number circuit stat- ment. Id. at 704. second 3601” and the return address box ed, “Had the evidence been that duffel containing expert An cocaine. doc- bags being apart- delivered to the analyst ument determined defendant did ment, search, scope described express the address on the mail not write ‘cocaine, the traces of warrant [for box, indicating that a second label on the records, currency, drug para- and narcotics person was involved. phernalia’] might have been overbroad.” guilty found on both Defendant was Id. imprison- sentenced to a term of counts and $4,000,- case, present suppression 170 months and a fine of In the at the ment for hearing, apart- the affiant testified that the ment had been under surveillance and de- timely appeal Defendant filed a notice of Rey apart- fendant had been seen at the 6, April on day delivery. the ment on the before affiant testified that the mail carrier also II. apartment for the claimed a number of Appellant Rey alleges that the dis types packages” “these of had been deliv- by denying trict court erred his motion past. ered to the same location in the suppress the search of his residence be Thus, assertions, contrary appellant’s sup cause the search warrant was not prior there indications of illicit activi- were ported by probable Appellant cause. ar ty. gues probable anticipato cause for an that Moreover, rejected ry only for the sei other circuits have search warrant existed authorizing delivery package and the claim that a warrant zure of the controlled nothing Appellant alleges drug paraphernalia that search for as as for else. well overbroad, though even Agent Keller’s actual affidavit for the contraband is apartment only only knowledge on the of a con search of the refers based delivery delivery. and that he had no trolled United States v. Wash 803, (4th Cir.), any activity in F.2d 804-05 knowledge ington, illicit prior delivery. Appel apartment cert. (1988) (“sure Garcia, course” of on 882 102 L.Ed.2d 547 lant relies United States delivery package (2d the court of controlled in which destination F.2d 699 gives probable fictitious name facts besides the con addressed to found that additional anticipatory warrant delivery given probable rise to cause for had trolled package premises to which is addressed for to believe that cause drug paraphernalia, papers, storage quantity and “a being used as a searched was records, Garcia, notes, bank identification doc drugs. center for distribution evidence”);1 couriers, govern- and other items of uments drug who become Although investigation the names of Washington, prior as in the mail....” Id. revealed 1. In known, occupants residence. occupants of the the names of the residence at 804 n. 2. The court stated that opinion 852 F.2d that the there is no indication in package someone was addressed to fact that any suspicion prior investigation revealed occupants relevant be- was not other than activity part drug defendant as was the knowledge fictitious it is common that Judge Hall case in Garcia. We believe drug frequently used in illicit traf- names are Washington opinion all of the stated in the only proba- ficking. evidence of Id. at 804. The making relevant facts on which he relied drug issue a search warrant for ble cause to paraphernalia Moreover, cause. determination given was that the Washington wording of the affidavit destination, a sure course to its was "on Malik, (N.D.1990). Therefore, we find that (7th Cir.1982) (defendants’ claim that warrant was not defective because it did search warrant issued after a controlled not expressly specify that the search could delivery of containing drugs baseballs executed after the controlled deliv- too broad papers to allow to seize ery had been made. dealing documents related to has specific

no merit if warrant is and details IV. surrounding the facts discovery Appellant alleges next that the district drug subject to delivery);2 the controlled court erred admitting into evidence cer- United Dubrofsky, States v. tain trial exhibits. (9th Cir.1978) (search of defendant’s Federal Rule of Evidence 401 pursuant residence defines to warrant “pass- relevant evidence as having “evidence ports, correspondence, any telephone bills and tendency to make the any existence of residence, narcotics, fact that is of consequence to the paraphernalia” narcotics determination upheld follow- of the action more proba- or less ing arrest of defendant who received con- ble than it would be without elsewhere). the evidence.” trolled Federal Rule of provides Evidence 402 cases, Based on these three we believe evidence which is not relevant is admis- not in the present circumstances of the sible. The defendant contends that the tri- case there was cause to issue a al by admitting court erred irrelevant evi- substances, warrant for “controlled records dence, specifically phone a mobile and war- activities, documents, of narcotics para- card, ranty beeper, machine, answering po- phernalia and other evidence of deal- scanner, lice microphone, radio, CB cas- ing importation.” recorder, sette pilot tapes, and several books taken from larger collection. III. relevant, To be equip electronic Appellant next contends that ment and prove books must tend to by denying district court erred the motion conspired to distribute or suppress to because the search warrant did possess intent with to distribute cocaine. specify not only that the search could be permitted The United States was to intro executed after the delivery equipment duce the electronic and books However, argument been made. this has into evidence because such items are some Although may no merit. preferable it be by drug times used dealers. one While or statement, make such a the warrant’s si two of the items taken themselves point lence on this does not render it void. possession would not indicate or Wine, (Tenn. Tennessee v. 787 S.W.2d 31 with an intent to distribute case, App.1989). present In the the affida charge entire collection of items makes the requested vit a warrant for a search “sub thus, probable; more the evidence is rele sequent delivery package to the to vant. morrow.” A reasonable inference can be made that the warrant authorizes a appellant Rey argues Next that even if only relevant, delivery after the controlled has oc preju- evidence is the unfair curred. If the controlled misleading jury had not dice and risk of sub- occurred, then the stantially outweighed warrant would have proba- the evidence’s Wahl, void. been State v. 450 N.W.2d 710 tive value that the so evidence should have ("Based developed apartment in this and were then arrested. A search investigation”) wording is similar to the in the apartment warrant was later executed on the present affidavit in the case. only not for the baseballs but also for items drug dealing. related to There is no indication Malik, prior investigation revealed that the entered was whom the was to be delivered. After previ- the defendants’ residence or that it had bag the defendants received the with the contra- ously drug-related activity. been involved in it, they hidden band in baseballs in entered an 1222

been excluded under Federal particulars, Rule of Evi- seeking identity of co-con- 403, dence which states: spirators. relevant,

Although evidence ex- grant or denial of a motion for probative cluded if its value is substan- particulars a bill of lies within the sound tially outweighed by danger of unfair discretion of the trial court and will not be prejudice, issues, confusion of the or mis- disturbed absent an abuse of discretion. leading jury, or considerations of Paiva, 148, time, undue United States v. 892 F.2d delay, waste of 154- needless (1st presentation Cir.1989); Colson, 55 cumulative evidence. United States 1389, (11th Cir.1981); 662 F.2d 1391 Turn The trial court has broad discretion States, 480, er v. United 426 F.2d 483 deciding admissibility issues under Rule denied, 982, cert. 402 U.S. 91 Co., Joy Mfg. 1146, 403. Hines v. 850 F.2d 1646, (1971). S.Ct. 29 L.Ed.2d 148 Proof of (6th Cir.1988); United States v. Bra “requires abuse of discretion a showing 359, (6th Cir.1979), dy, cert. surprise prejudice actual at trial and denied, 862, 129, 444 U.S. 100 S.Ct. rights by defendant’s substantial the deni (1979). L.Ed.2d 84 In order to exclude Paiva, al.” United States v. 892 F.2d at evidence under Rule the evidence must 154; Colson, United damaging; be more than it States 662 F.2d at must be unfair ly Hines, 1154; prejudicial. 850 F.2d at Mendez-Ortiz, Defendant claims his coun (6th Cir.1986), cert. ability sel’s prepare imped for trial was 94 L.Ed.2d 697 ed because he did not have the name of the prejudice

Unfair means an tendency undue co-conspirator govern before trial. The suggest improper a decision on an basis. required ment was not to furnish Vandetti, this infor 1144, United States v. 623 F.2d (6th may mation. A defendant Cir.1980). be indicted and reviewing 1149 the trial despite convicted ruling court’s the names of his objection, on a Rule 403 the co-con spirators unknown, reviewing remaining court must look at long the evidence as as light in a proponent, government presents most favorable to its the evidence to estab maximizing probative its value and mini agreement lish an between two or more mizing prejudicial its effect. persons, United prerequisite obtaining to a con 999, Kelley, States 1003 spiracy Rogers conviction. v. United Cir.1988). States, 367, 375, (1951); 95 L.Ed. 344 United States v. Pic government contends that the elec- colo, 1234, (6th Cir.1983), 1238-39 equipment probative tronic and books are 2342, cert. 466 104 U.S. S.Ct. of the defendant’s intent to distribute co- long 80 L.Ed.2d 817 As as the caine because the items constitute tools of valid, indictment is contains the elements Appellant Rey the trade. maintains offense, gives the notice to the pose misleading that these items a risk of charges him, against defendant of the it is jury unfairly prejudicial. and are How- ever, conspirator not essential that a know all question type the items in are not of a conspirators. grand “It is the jury. jury’s to inflame the Such neutral items are likely suggest conspir not im- statement of the ‘existence of the decision on an proper jury. Although acy agreement to a than identity basis evi- rather damaging agree’ dence to the defendant’s places those who which the defen case, unfairly prejudicial. it is not There- dant on charge notice of the he must be fore, find that the district court we did not prepared Piccolo, to meet.” 723 F.2d at admitting abuse its discretion in the evi- Davis, quoting 679 dence. (11th Cir.1982). F.2d Defendant charged knew that he was with con

V. spiracy possess intent to cocaine with Appellant argues that the district court distribute. Defendant also knew the dates denying erred in his motion for a bill involved as stated the indictment. De- fendant has not demonstrated that object his lack the or attempt had knowledge co-conspirator’s name completed. been Id. at 498-99. him, surprised before trial either prejudiced present case, In the the evidence clearly him, impeded ability his counsel’s beyond showed a reasonable that the doubt Thus, prepare for trial. the district court package originally contained kilograms six denying did not abuse its discretion in de- of cocaine. The district court did not err fendant’s particulars. motion for a bill of by refusing jury to allow the to decide the amount of cocaine since determining the VI. sentencing amount for solely is a function Appellant finally argues that of the court. district by refusing court erred to submit a conclude, To judgment of the district special interrogatory concerning court hereby affirmed. possessed. amount of cocaine defendant However, allegation we find that this has KEITH, Judge, Circuit concurring. no merit. Although I concur majority’s with the Code, Title Section analysis conclusion and its on all but one 841(a)(1)only requires that there be unlaw- issue, separately I concur to my indicate possession ful with intent to distribute “a majority’s argument concerns with the (emphasis added). controlled substance.” addressing Section II scope of the war- fact-finding jury function of the is to rant. guilt return a verdict of or innocence and Defendant asserts that quantity requirements of section 841 only existed for the drugs seizure of the applicable only are sentencing. Because contained in the pack- quantity possessed is not an element of age and not a search of the 841(a), offense under U.S.C. § all drug dealing. The warrant special interrogatory regarding the amount was for a search for “controlled sub- required by of cocaine involved is not stances, activities, record of narcotic doc- statute. uments, and other evidence paraphernalia Moreover, the total amount of cocaine drug dealing importation.” Appel- originally sent is the amount considered for lee brief at 26. sentencing under the United States Sen- argument persuasive. I find Defendant’s tencing White, Guidelines. U.S. The fourth (7th Cir.1989). requires particulari- White, F.2d amendment 498 In the Const, ty in warrants. argued that U.S. amend. IV. his sentence should Circuit, amount, The in ruling have been based the trace Second that there representative sample, purposes ample used for in other evidence the case be- delivery, of a permit controlled rather than the premises fore it to a search of the originally total amount of cocaine in the receiving delivery drugs, a controlled of package intercepted by customs officials. against cautioned broad warrants where rejected theory, stating: The court this drug dealing there no other packages slipped by delivery.

Had the the Cus- than the controlled “Had the Service, toms White would have received bags evidence been that the duffel grams; had the DEA decided to being apartment, delivered to the the delivery original a controlled search, make scope of the in the war- described packages removing instead of most of cocaine, rant traces of curren- [for drug, grams the the same 302 would records, cy, drug parapherna- and narcotics have arrived. The nature and serious- lia], Here, might have been overbroad. ness of White’s conduct is the same no however, supporting in additional facts the matter how much the DEA cocaine the gave affidavit rise to cause to took out. being believe the used that storage as center for The court discussed the and distribution Id. functions Garcia, drugs.” appropri- the Guidelines and found that the (2d Cir.1989). depends quan- original ate sentence Unlike the facts of Garcia, tity, being agents the offense if in level the same as the the instant case Id. at 804 n. package had the defendant and two others. nothing except that this knew defendant, however, had not raised the 2. The placed in the mails addressed to been Accordingly, signed presented here. apartment where defendant later the issue information package. The court also have been more for the Garcia there magistrate must also care- the magistrates that .. to the and noted available limit anticipatory opinion. warrants to in the The fully craft not detailed which was scope quote of the warrant authorized from the affi- opinion the does contain officers items which law enforcement An support in of the search warrant. davit are located on have cause to believe that he Washington had sworn officer here had no Id. The officer premises.” in his investi- developed sister, any knowledge Rey, Rey’s or of papers, drug paraphernalia, gation that activity apartment. in the records, notes, and identification and bank premis- secreted inside the documents were support majority The cites cases probable cause the basis for this es. While delivery alone proposition that controlled in the of the affidavit is not detailed section of a probable cause for the search creates opinion, in the there is at least reproduced however, cases, my residence. These an investi- that there had been an indication proposition. support do not gation uncovered information which clearly these cases The facts of two of just package sent other than evidence in- greater that there had been indicate by would be targeted premises vestigation into apartment. connecting premises information more drug trafficking. permissible The law is unclear on no connection be- scope of a search when Malik, 680 F.2d 1162 In United States dealing premises drug tween the Cir.1982), is- (7th the search warrant was to the drugs have been addressed than that investigation of both the de- after an sued investi- been revealed an premises has drug background of the fendant and the majority cited gation. The cases search, Prior transaction. investigation there is an indicate that when who said agents contacted addressee disclosing information the addressee the defendant and shipment was for probable cause when con- that amounts arrangements for the agents about told the package, addressed a war- sidered with the Id. drugs to the defendant. transfer of the apartment for the entire rant to search Dubrofsky, at 1163. appropriate. material is related place protect caution would Second Circuit’s only upon valid oral delivery was searched potential innocent re- against searches of subsequent search was con- A consent. linked drugs who have not been residence, ceivers of but at the defendant’s ducted drug packages. setting forth upon an affidavit was based arrest, includ- the details of the defendant’s probable cause to government had delivery, the controlled ing that soon after drugs was on know the in a locked basement he had been found to draw as neces- premises, and wishes opened par- delivery with place proba- that from that alone sary conclusion n It was in this context at cel. Id. drug deal- that other evidence of ble cause “a warrant the court held that present. government, The ing would be the items the nexus between upheld when mistake, seeking to or someone someone place to be searched and the to be seized investigation, could subject another to an observation, on but not direct rests party and to a mail a controlled substance items, crime, type of nature probable cause for thereby provide criminal would where normal inferences residence, including an an entire search of at 213. Id. likely hide contraband.” if papers to determine of all examination records, drug evidence of they are support from majority have The does hypotheti- those activity. I do not believe F.2d 803 Washington, 852 v. explanations are so possible cals or only investigation where if an it rare that is one that re- opinion in the is mentioned substance, of a controlled by is the addressee occupied premises vealed that agent government is reasonable for a it

conclude that there il- there will be other

believe This activity at the location.

legal drug expansion beyond an what

would be support proposition have cited to

cases expansive held and a license for

thus far apartments, including all writ-

searches very

ings, on limited evidence. however, enough,

The case law is close good faith particular make this approved by an im- upon a warrant

based magistrate and therefore would not

partial Leon,

require reversal. United States rea-

L.Ed.2d rely on the warrant since the

sonable to in this that the warrant

conclusion by probable cause was supported not cir- not resolved on an issue

based agent was not unreasonable

cuits. magistrate’s determination.

accepting the result, finding in the

I therefore concur admissible found in the search

the evidence exception as to the good faith

under I warrant. concur

breadth of the search to all of reasoning and conclusions as majority addressed

the other issues

opinion. Adkins, Mary his ADKINS

Curtis (89-3537), wife, Plaintiffs-Appellees (89-3538), Appellants

Cross CORPORATION, al., et

GAF Defendants, Ltd., Corporation, Defendant-

Asbestos (89-3537), Appellant Cross (89-3538). Appellee 89-3537,

Nos. 89-3538. Appeals, Court Circuit.

Sixth 13, 1990.

Argued Nov. 23, 1991.

Decided Jan. 21, 1991.

Rehearing Denied Feb.

Case Details

Case Name: United States v. Leroy Rey

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 22, 1991

Citation: 923 F.2d 1217

Docket Number: 90-5582

Court Abbreviation: 6th Cir.