138 F.3d 257 (6th Cir. 1998), 96-6718, United States v. Charles

Docket Nº:96-6718.
Citation:138 F.3d 257
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Matthew Otis CHARLES, Defendant-Appellant.
Case Date:March 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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138 F.3d 257 (6th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Matthew Otis CHARLES, Defendant-Appellant.

No. 96-6718.

United States Court of Appeals, Sixth Circuit

March 5, 1998

Argued Jan. 30, 1998.

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[Copyrighted Material Omitted]

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Sunny A. Koshy (argued and briefed), Office of the U.S. Atty., Nashville, TN, for Plaintiff-Appellee.

William Henry Haile (argued and briefed), Nashville, TN, for Defendant- Appellant.

Before: NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

In this criminal case, the defendant Matthew Otis Charles appeals from a jury verdict convicting him of the following offenses: conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (Count 1); making false statements to firearms dealers in violation of 18 U.S.C. § 922(a)(6) (Counts 2 & 3); possession of cocaine base with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) on November 22, 1995 and December 15, 1995 respectively (Count 4 & 7); and being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) on November 22, 1995 and December 15, 1995 respectively (Count 5 & 8). The jury acquitted Charles of using a firearm during the commission of a drug trafficking crime (Count 6).

In his appeal, Charles challenges numerous aspects of his trial and sentence. First, he argues that errors in the return of the search warrant prejudiced him at trial. Charles also claims that the affidavit supporting the search warrant contained deliberately or recklessly false statements, and thus all of the evidence seized as a result of this warrant should have been suppressed. In addition, he contends that the evidence presented at trial was insufficient to convict him of possession of crack cocaine on December 15, 1995. Finally, Charles challenges the district court's application of the sentencing guidelines. More specifically, Charles claims that the district court wrongly imposed a

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two-level enhancement for obstruction of justice. He also argues that the district court applied the wrong base offense level because the base amount of drugs was overestimated.

For the reasons stated below, we find that Charles's claims lack merit or, in the alternative, that any errors were harmless. Accordingly, we uphold the jury's verdict and affirm the rulings of the district court.

I. FACTUAL BACKGROUND

Sometime prior to November 15, 1995, Charles moved from North Carolina to Clarksville, Tennessee. Clarksville is near Fort Campbell, where he had previously served in the Army. In North Carolina, Charles had been convicted of several breaking and entering crimes, two kidnapings, and aggravated assault for shooting a victim with a sawed off shotgun while attempting to escape. In Clarksville, Charles assumed the name "Charles Owen." He used the name and birth certificate of the real Charles Owen, a man he knew in North Carolina, to obtain a Tennessee driver's license. Charles lived at 862 Parham Drive until his roommate got married, at which time he moved to a nearby trailer park. Because Charles raised registered Rottweilers, and the trailer park did not permit dogs, Charles returned daily to 862 Parham to care for the dogs. He also occasionally spent the night at the home. The utilities for the home continued to be registered under his assumed name.

On November 15, 1995, Army Criminal Investigation Command ("CID") agents arrested Private DeJuan Bell, a soldier stationed at Ft. Campbell. The arrest occurred after Bell participated in several drug transactions with undercover Investigator Brodie Slade. Bell agreed to cooperate with the CID by assisting them in apprehending a bulk cocaine dealer known to Bell only as "O." Bell arranged a meeting between Slade, "O," and himself for November 22, 1995. Bell and Slade planned to purchase one ounce of "crack" in exchange for $1,200. "O" instructed them to meet him at 862 Parham Drive to complete the transaction.

At noon on November 22, 1995, Bell and Slade arrived at 862 Parham Drive and proceeded with the transaction by giving "O" $1,200 in cash in exchange for what they thought at the time was one ounce of cocaine base. Both Slade and Bell identified "O" as the defendant, Matthew Otis Charles. The crack was later determined to be only 20 grams rather than the one ounce (28.35 grams) for which Bell and Slade had negotiated. Slade noted that the 20 grams they received amounted to about half of the crack "O" had shown him. During the drug transaction at 862 Parham Drive, Slade and Bell also noticed three firearms--a shotgun, a rifle, and a pistol--on the premises.

As Slade was leaving the house, he observed a distinctively customized blue Buick station wagon and a white BMW parked in front of the house. Slade later traced the license plates and found that they were registered to Charles Owen. Bell had previously informed the CID that his supplier drove a customized blue Buick station wagon.

Between November 22, 1995 and December 15, 1995, Slade attempted to organize several other drug transactions with Charles. These attempts were unsuccessful because Slade was concerned for his safety. Slade claims that during one of the unsuccessful attempts to organize a drug transaction, Charles admitted to possessing cocaine.

Finally, on December 15, 1995, Slade and Charles arranged to meet at Extreme Audio, a nearby store, to negotiate a drug transaction. At the meeting, Slade gave Charles $1,200 as a down payment on two ounces of crack cocaine. Charles then told Slade that he planned on driving to Nashville to obtain the drugs and would meet Slade later that same day at 862 Parham Drive. After receiving $1,200, the CID surveillance team witnessed Charles drive off in a Cadillac, fill the car with gasoline, and return to Extreme Audio to pick up two male passengers. Charles then drove toward the highway, but the CID surveillance team lost contact with Charles's car.

Charles returned that afternoon to 862 Parham, at which time the Clarksville Police Department officers detained him. Charles initially consented to the search of 862 Parham, but later withdrew his consent. The government did not locate any drugs or money.

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Prior to Charles's withdrawal of consent, however, officers saw the firearms that Slade and Bell had described after their transaction with Charles on November 22, 1995.

Apparently Bell called Charles while the officers were still searching the house. Speaking to Bell, Charles commented that he believed that Slade was an undercover agent. Bell also claims that Charles mentioned to Bell that while returning from Nashville, Charles recognized a red Corvette often used by the police as a surveillance vehicle. In an attempt to maintain his undercover identity, Slade also called Charles later that day to inquire about the drugs and the money. During the calls with Bell and Slade respectively, Charles mentioned that he had obtained the drugs and encouraged Slade to come to 862 Parham and retrieve them. Slade claims that he did not meet Charles because of safety concerns.

One week later, on December 21, 1995, Slade completed a lengthy affidavit which supplied the probable cause to obtain a search warrant for 862 Parham and an arrest warrant for "Charles Owen." The police executed the warrant on December 22, 1995. On that day, the police witnessed Charles, who was still using the alias of Charles Owen, leave 862 Parham in a white Buick. According to the government, Charles spotted Slade, who was on the surveillance team. About 100 meters from 862 Parham, the marshals arrested Charles in the white Buick. The marshals searched Charles, the white Buick, the blue Buick station wagon parked outside of 862 Parham, and the home at 862 Parham. The marshals seized an alpha-numeric pager from the white Buick. The pager displayed a message saying that Charles was under surveillance. The marshals also seized a cellular phone from the station wagon. The marshals then confiscated bank transactions records, telephone calling cards, and a driver's license from Charles's person. In addition, the marshals searched 862 Parham and seized firearms, ammunition, photographs, currency, and various other items from the house. The marshal in charge then completed the return of the warrant authorizing the search of 862 Parham. The return mistakenly listed all of the items seized as coming from the house, including items taken from Charles's person and his cars.

During his initial appearance before the magistrate judge, Charles identified himself as Charles Owen. The government moved to detain Charles. Despite this motion, the magistrate relied on the bail report, prepared by the Pretrial Services Officer, that outlined the relatively minor criminal record of the real Charles Owen. Relying on this information, the magistrate judge conditionally released Charles. Still assuming the identity of Charles Owen, Charles then signed the agreement...

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