11 F.3d 620 (6th Cir. 1993), 92-4344, United States v. Thomas

Docket Nº:Albert THOMAS (92-4344); and Angelique Dupree (93-3026),
Citation:11 F.3d 620
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:December 14, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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11 F.3d 620 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Albert THOMAS (92-4344); and Angelique Dupree (93-3026),

Defendants-Appellants.

Nos. 92-4344, 93-3026.

United States Court of Appeals, Sixth Circuit.

December 14, 1993

Argued Nov. 8, 1993.

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[Copyrighted Material Omitted]

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Marilyn A. Bobula, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Cleveland, OH, for plaintiff-appellee.

Donald Krosin (argued and briefed), Debra K. Migdal, Federal Public Defender's Office, Cleveland, OH, for defendant-appellant Albert Thomas.

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Robert J. Marek (argued and briefed), Cleveland, OH, for defendant-appellant Angelique Dupree.

Before: MILBURN and BATCHELDER, Circuit Judges; and JOINER, Senior District Judge. [*]

MILBURN, Circuit Judge.

Defendants Albert Thomas (Case No. 92-4344) and Angelique Dupree (Case No. 93-3026) appeal their jury convictions of one count of possession of more than 50 grams of crack cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and one count of possession of a firearm in the commission of a drug distribution offense in violation of 18 U.S.C. Sec. 924(c)(1), and also the sentences imposed thereon. On appeal, both defendants have raised the same issues. The issues are (1) whether the district court erred in denying defendants' motion to suppress the physical evidence seized at the time of their warrantless arrest, (2) whether the district court's jury instruction on aiding and abetting was plain error, and (3) whether the district court erred in determining at sentencing that the amount of drugs involved in the offense was in excess of 50 grams of crack cocaine. For the reasons that follow, we affirm the district court in both cases.

I.

A.

On July 7, 1992, a federal grand jury returned a three-count indictment against defendants. In count one of the indictment, both Thomas and Dupree were charged with intent to distribute 53.6 grams of cocaine base (crack cocaine) in violation of 21 U.S.C. Sec. 841(a)(1). In count two of the indictment, Thomas was charged with using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). In count three of the indictment, Dupree was charged with using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1).

Subsequently, defendants filed motions to suppress the evidence seized at their warrantless arrest. The district court held an evidentiary hearing on the motions on September 14, 1992; on September 17, 1992, the district court denied the motions to suppress.

A jury trial commenced on September 21, 1992. The trial concluded on September 23, 1992, when the jury returned guilty verdicts on all counts.

B.

At approximately 10:00 p.m., on March 5, 1992, Cleveland, Ohio, police officers Gary Mullins and George Deli interviewed Lawrence Williams at the Cleveland Justice Center Jail, where Williams was in custody. Williams had been hospitalized at Charity Hospital as the result of multiple gunshot wounds to his mouth, foot, knee, and legs, which he received on or about 1:30 a.m. on February 16, 1992.

During the interview on March 5, 1992, Williams informed the officers that defendant Thomas was the individual who shot him after an altercation at Mr. B's Bar on Woodland Avenue in Cleveland, Ohio. Williams gave the officers an accurate physical description of defendant Thomas; namely, that Thomas was a black male in his late 20's to early 30's, medium height, husky build, with medium length hair with a wave in it. Further, Williams provided a detailed description of Thomas' truck; namely, a 1978-1980 black Chevrolet pickup with large tires and white rims, steps on the sides of the truck, and a temporary license plate tag in the window. Williams advised the officers that Thomas usually parked the pickup at the Longwood Estates parking lot on Woodland Avenue, between East 37th and 40th Streets in Cleveland. Williams also stated that Thomas frequented the area of Mr. B's Bar.

Williams described the shooting incident as an argument which began in Mr. B's Bar and moved outside the bar. Williams told the officers that Thomas pulled a large blue steel revolver that looked like a .357 magnum and

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that he and Thomas engaged in a physical struggle over the gun. Thomas shot Williams once with the gun, at which point Williams took possession of the gun and expelled the remaining rounds. Thereafter, Thomas pulled out a .38 caliber chrome revolver and shot Williams in the foot and mouth.

The following day, Officers Mullins and Deli checked the computerized records of the Cleveland Police Department and verified that defendant Thomas was the named suspect in the incident report regarding the February 16, 1992, felonious assault on Williams. The report also revealed that a guard at Mr. B's Bar corroborated Williams' descriptions.

That same day, March 6, 1992, between 11:10 p.m. and 11:40 p.m., Officers Deli and Mullins drove an undercover car to the parking lot identified by Williams where they observed a pickup truck fitting the description given by Williams parked there. A check of the temporary tag in the window of the truck revealed that the pickup truck was registered to "Billy Thomas." Officers Deli and Mullins continued their routine patrol activities, periodically checking the parking lot and the area in front of Mr. B's Bar.

At approximately 1:05 a.m. on March 7, 1992, the officers observed the pickup truck parked in front of Mr. B's Bar. The officers then set up a surveillance of the pickup using binoculars. They observed two occupants in the pickup, defendant Dupree and Kevin Lanier. Defendant Dupree was seated in the middle of the pickup truck and Lanier was seated on the right side of the pickup truck.

The officers then observed defendant Thomas, who matched the description given by Williams, exit the bar and enter the driver's side of the pickup truck. Thomas made a U-turn onto eastbound Woodland Avenue and then made a left turn on East 55th Street. The officers followed closely behind the pickup truck. They activated the lights on their car, both the blue "gumball" light and the "bright" headlights, in order to direct the pickup truck to pull over. The officers observed Thomas looking at them in the rearview mirror as he led them through several turns before pulling over. They also observed Thomas and Dupree moving from side to side within the pickup truck, and Thomas was also observed bending over and leaning forward as he drove the truck. At trial, the officers testified that they were less than thirty feet behind the pickup truck, and with their headlights on "bright," they could see everything that was going on inside the pickup truck through the large rear window of the vehicle.

Defendant Thomas finally brought the pickup truck to a stop. Officers Deli and Mullins exited their vehicle and identified themselves as police. Officer Mullins approached the driver's side of the pickup truck and asked defendant Thomas for his identification. As he did so, Officer Mullins shined his flashlight into the cab of the pickup truck and observed the wooden handle ("butt end") of a gun sticking out from under the driver's seat. He advised Officer Deli, who was on the other side of the vehicle, of the gun, and the occupants were ordered to exit the vehicle. Defendant Thomas was told to exit the driver's side of the vehicle, and defendant Dupree and Kevin Lanier were told to exit from the passenger's side. Officer Mullins then seized the gun which he had seen--a large blue steel revolver, which is the basis of count two of the indictment. The revolver was fully loaded with six rounds of live ammunition and matched the description of the blue steel revolver given by Williams to the officers.

Mullins performed a pat-down search of Thomas and discovered a pager on his belt and $455 in cash in his pocket. Once Thomas had been identified, he was arrested for felonious assault and for carrying a concealed weapon. Dupree was also arrested for carrying a concealed weapon, since the gun observed by Officer Mullins was within her reach from her seat in the middle of the pickup truck. Further, Dupree was noticeably nervous when she was asked to exit the truck.

Before placing Dupree in the patrol car with her purse, Officer Mullins made a limited search of her purse, solely for the purpose of confiscating any weapons which were in the purse, from which he recovered a .38

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caliber chrome revolver which was fully loaded with five rounds of live ammunition. This gun also matched the description given by Williams of the second gun and forms the basis of count three of the indictment.

Thomas, Dupree, and Lanier were transported to the police station for booking. At that time, an inventory of Dupree's possessions was completed. The purse contained a glass pipe, a straight shooter used for smoking crack cocaine and which contained cocaine residue, and some cocaine wrapped in a piece of brown paper.

Subsequently, the pickup was inventoried at the arrest scene. It was then towed from the scene and held as a criminal tool. A firebox, a small safe which weighed between 15 and 20 pounds, was located in a purple vinyl tote bag on the seat of the pickup truck. The firebox was locked; however, one of the keys on the key ring which was located in the ignition of the pickup truck opened the firebox. The police inventoried the firebox and found that it contained 46 live .38 caliber bullets, four separately packaged "baggies" of crack cocaine, three black plastic film cases with cocaine residue, $1,000 in United States currency, and various other documents addressed to either Thomas or Dupree. No documents in the firebox were addressed to Kevin Lanier. The approximately 53.6 grams of crack cocaine (cocaine base) had a street value, in...

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