U.S. v. Payne

Decision Date10 July 1997
Docket NumberNos. 95-4136,95-4195,s. 95-4136
Citation119 F.3d 637
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Ervin PAYNE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Christopher FOSTER, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Charles E. Kirksey, Jr., St. Louis, MO, argued, for Defendant-Appellant Payne.

Shawn R. Perez, Dana Point, CA, argued, for Defendant-Appellant Foster.

James C. Delworth, Asst. U.S. Atty., St. Louis, MO, argued, for Plaintiff-Appellee.

Before LOKEN, JOHN R. GIBSON, and MORRIS S. ARNOLD, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

A jury convicted Christopher Foster and Thomas Ervin Payne of conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster appeals arguing that: (1) the district court 1 erred in denying his motion to suppress evidence seized without a warrant; (2) there was no probable cause for his warrantless arrest or for the seizure of his bag; (3) he did not voluntarily consent to the search of his residences; (4) the district court erred in admitting into evidence the testimony of a government-paid informant; (5) the district court erred in limiting the time allowed for closing argument; and (6) the district court erred in finding him responsible for the distribution of more than twenty kilograms of cocaine. Payne also appeals, arguing that the district court erred: (1) in not suppressing evidence seized from his automobile and hotel room; (2) in proceeding on his indictment when the government unnecessarily delayed presenting the charge to the grand jury in violation of Federal Rule of Criminal Procedure 48(b); (3) in denying his motion to sever his trial from Foster's trial; and (4) by enhancing his sentence for being a leader of a criminal activity that involved five or more participants. Payne also asserts that the government violated his due process rights because the government knowingly introduced and failed to correct perjurious testimony from government witnesses. We affirm.

Foster first came under investigation when he met with Carlos Garavito, a government-paid informant, on December 9, 1993 to discuss money laundering. Law enforcement agents conducted surveillance of the meeting, and continued doing so after the meeting. Foster never gave Garavito any money to launder.

On December 15, 1993, law enforcement agents followed Foster from his home to a hotel near the Los Angeles airport where he picked up a man later identified as David Woods. Foster and Woods drove to a car repair shop, which Foster entered. After Foster left the shop, Woods and Foster got into a second car and sat in it for a short time. Foster then got out of the car and Woods drove away in it. Law enforcement agents stopped Woods and he consented to a search of the car, which was registered to Nicole Tait. The search of Woods's car revealed an empty secret compartment in the trunk. A narcotic trained dog positively alerted to the secret compartment in the trunk, indicating the compartment had a narcotic odor.

On January 11, 1994, law enforcement agents saw Foster place a box out with the trash for curbside collection. After Foster left, a law enforcement agent removed the box and took it to the Azusa Police Department where a trained police dog indicated the box had a narcotic odor at its bottom.

On February 15, 1994 law enforcement agents followed Foster to a condominium complex. An agent testified before the magistrate that Foster engaged in counter-surveillance driving on his way to the condominium complex. Upon arriving at the complex, Foster took an empty green soft-sided suitcase from the trunk of his car and carried it into the complex. Foster left the building a short time later without the green suitcase and drove to a nearby restaurant where a man later identified as Thomas Payne met him. Foster left his car at the restaurant and drove back to the complex with Payne in Payne's red Thunderbird.

Upon arrival at the complex, Foster got out of the car and walked to a nearby gate. Another man came to the gate and handed Foster a green soft-sided suitcase. The suitcase now appeared to be heavy based upon the manner in which the men carried the suitcase. Foster walked back to the trunk of the car where Payne met him. Payne took the suitcase from Foster and placed it in the trunk. Payne then departed in the Thunderbird, while Foster remained at the complex.

Law enforcement agents followed Payne onto the freeway and eventually stopped Payne's car. Officers searched the car and seized the green suitcase, which contained approximately twenty kilograms of cocaine. After arresting Payne law enforcement agents searched his hotel room, but no evidence seized from the hotel room was introduced at trial.

After Payne's arrest, agents continued surveillance on Foster. On February 17, 1994, two days after Payne's arrest, agents saw Foster leave his residence with a duffle bag that he placed in the trunk of his car. Agents followed him for a short time, then stopped him and asked for permission to search his car. Before the actual search, Foster told agents that the money in his trunk was his, and not money from narcotic transactions. A search indicated that the duffle bag contained $360,180. Agents then took Foster to the Santa Monica Police Station, where he signed consent forms for the search of his car and his residences. The agents found $19,333, a money counter, and certain documents during the search of Foster's residence on Ocean Avenue.

Several others were also involved in the conspiracy. Raymond Tohill served as a courier under Payne's direction. Payne also directed Marvin Bonds in some aspects of this conspiracy. Leroy Eason testified at trial that he loaned Payne $40,000, and that he made four trips to Los Angeles during which he obtained a total of forty-six kilograms of cocaine.

Foster and Payne filed pretrial motions to suppress. After a hearing, the magistrate judge filed a Report and Recommendations, that the district court adopted, denying the motions to suppress and Payne's motion to sever his trial. A jury convicted Payne and Foster of conspiracy to distribute and possession with intent to distribute cocaine. The district court sentenced Payne to 324 months of imprisonment and Foster to 300 months of imprisonment. The district court's ruling denying the motions to suppress and motion to sever, as well as issues related to the trial and the sentencing hearing, are challenged in this appeal.

I.

Foster first argues that the district court erred in its conclusion that Foster did not have standing to challenge either the search of the car driven by Woods, or the search and seizure of the suitcase found in Payne's car. We review factual determinations related to a standing issue under a clearly erroneous standard, but review de novo the district court's determination to deny a motion to suppress. See United States v. Gomez, 16 F.3d 254, 256 (8th Cir.1994).

A defendant can argue for the suppression of evidence gathered in violation of the Fourth Amendment "only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (per curiam). Foster has the burden to show that he had a legitimate expectation of privacy in the car driven by Woods and in the suitcase seized from Payne's trunk. See Gomez, 16 F.3d at 256. If Foster does not prove a sufficiently close connection to Woods's car or the suitcase in Payne's trunk, then he has no standing to argue that the police searched or seized the items illegally. See id. We previously have held that factors relevant to the determination of standing include:

ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.

Id. (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir.1991)).

There is no coconspirator exception to the standing rule. See Padilla, 508 U.S. at 82, 113 S.Ct. at 1939. Foster himself must satisfy the test we laid out in Gomez for each search.

Here, Foster did no more than sit in a car outside an auto repair shop in which Woods later drove away. Foster does not assert ownership of the car. Indeed, the car was registered to Nicole Tait. Further, Foster presented no evidence that indicated he had ever possessed the car or had driven it. That Foster sat in the car with Woods for a short time before Woods drove it away, does not convince us that the district court was clearly erroneous in its factual determination that Foster had not established possession or control of the car. The district court did not err in adopting the magistrate's recommendation that Foster had no legitimate expectation of privacy in the car driven by Woods and therefore that Foster has no standing to challenge the search of the vehicle driven by Woods. See Gomez, 16 F.3d at 256.

Similarly, the district court did not err in holding that Foster had no legitimate expectation of privacy in the suitcase found in Payne's car. The district court found that Foster only possessed the bag for a short time until he turned the suitcase over to someone at the condominium complex. Later, Foster retrieved the suitcase, and immediately gave it to Payne, who then drove away with it.

Foster presented no evidence that he owned the suitcase, had historical use of the suitcase, or had the ability to regulate access to the suitcase, as the suitcase was only zipped shut and had no lock. Finally, no evidence in the record indicates that the...

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