U.S.A. v. Blair

• Citation: 214 F.3d 690
• Decision Date: 01 February 2000
• Docket Number: Nos. 98-2051,s. 98-2051
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. George Blair (98-2051); and Connie Blair, also known as Launa Maikowski (99-1626), Defendants-Appellants. ; 99-1626 Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 690

214 F.3d 690 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. George Blair (98-2051); and Connie Blair, also known as Launa Maikowski (99-1626), Defendants-Appellants.

Nos. 98-2051; 99-1626

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 1, 2000

Decided and Filed: May 26, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-81440--Patrick J. Duggan, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Patricia G. Gaedeke, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Milton R. Henry, Bloomfield Hills, Michigan, for Appellants.

Before: COLE and CLAY, Circuit Judges; BELL, District Judge. ^*

COLE, J., delivered the opinion of the court, in which BELL, D. J., joined. CLAY, J. (pp. 702-07), delivered a separate opinion concurring in part and dissenting in part.

OPINION

R. GUY COLE, JR., Circuit Judge.

George and Connie Blair were convicted of various drug and money laundering charges and sentenced to lengthy terms of imprisonment. The Blairs now appeal their convictions; George also appeals his sentence. Specifically, George argues that the district court erred: by denying his motion to suppress evidence; by denying his motion to dismiss the original indictment based on the composition of the grand jury; by denying his motion to vacate his sentence based on "promises" made to testifying witnesses; and by failing to reduce his sentence based on the 100:1 sentencing disparity of crack cocaine versus powder cocaine. Connie joins George's argument with respect to the district court's denial of their motion to suppress evidence and, in addition, contends that the district court erred by denying her motion to dismiss the superseding indictment based on the composition of the grand jury that returned the original indictment. For the reasons that follow, we AFFIRM the Blairs' convictions and George's sentence.

I.

Beginning in approximately 1992, George Blair and Connie Blair (aka Launa Miakowski) operated several prostitution houses in Detroit, Michigan. As a part of their operation, the Blairs sold drugs - typically crack cocaine or heroin - to the prostitutes who worked in the houses, most of whom had serious drug addictions. In addition to requiring the prostitutes to buy their drugs from them, the Blairs sold drugs to the prostitutes' clients. The Blairs also sold drug paraphernalia such as syringes and pipes at their houses. During a routine "shift" at a house, the Blairs sold approximately $1000 worth of drugs.

In April 1997, IRS Special Agent Thomas Kraft, having information that the Blairs were engaged in narcotics trafficking, provided an affidavit in order to obtain a search warrant for the Blairs' residence and one of the prostitution houses. A federal magistrate judge issued the warrant, which authorized law enforcement agents to seize records "relating to the transportation, importation, ordering, sale, and distribution of controlled substances." Detroit police officers assisted in the execution of the warrant to search the Blairs' residence. In that capacity, a Detroit police officer who was also a DEA Task Force Agent, Sergeant James Raby, aided in the search. Raby observed on top of a dresser an open pill vial that contained a plastic bag in which there was "a white substance [that appeared] to be narcotics." Raby conducted a field test on the substance which revealed the presence of cocaine.

At this point, Raby left the Blairs' residence to obtain a state search warrant authorizing agents to seize "[a]ll suspected controlled substances, all items used in the [sic] connection with the sales, manufacture, use, storage, distribution, transportation, delivery or concealment of controlled substances." Raby then returned to the Blairs' residence with the state warrant. Law enforcement agents ultimately seized 350 grams of crack cocaine, 50 grams of heroin, drug paraphernalia, four loaded firearms and approximately $13,000 in cash.

In December 1997, a federal grand jury in the Eastern District of Michigan indicted the Blairs in a six-count indictment, setting forth five counts of possession with intent to distribute controlled substances, in violation of 21 U.S.C. 841(a)(1), and one count of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848. Both George and Connie were represented by the same attorney, Milton Henry,¹ who filed a motion to suppress the evidence seized during the search of the Blairs' residence. Following a hearing, the district court denied the motion.

The case was set for trial. The day before trial was scheduled to begin, Henry indicated that because of potential conflicts, he wished to withdraw from the representation of Connie². The court severed Connie, but proceeded to trial in George's case. George waived his right to a jury trial; thus, the court conducted a bench trial. The court found George guilty of the five drug counts, but acquitted him of the CCE count.

Two weeks after George's trial and prior to Connie's trial, this court issued a decision invalidating a portion of the jury selection plan in the Eastern District of Michigan. See United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998). Citing Ovalle, the Blairs filed a motion to dismiss their indictment. On April 24, 1998, the district court denied the motion as to George, but granted it as to Connie after the government agreed that her indictment should be dismissed without prejudice because she had not yet been tried. Approximately two weeks later, another grand jury returned a superseding indictment against Connie, charging her with the same six counts set forth in the original indictment and adding a count of money laundering conspiracy, in violation of 18 U.S.C. 1956. The Blairs then filed another motion to dismiss both indictments, which the district court denied.

In July 1998, the Blairs filed a motion for dismissal or other relief, arguing that the government induced prosecution witnesses to testify, in violation of 18 U.S.C. 201(c). The district court denied the motion.

In August 1998, the district court sentenced George. George raised several objections at that time, including an objection to the calculation of his sentence on the basis of crack cocaine rather than powder cocaine. The district court sentenced George to 262 months' imprisonment to be followed by five years of supervised release. George filed a timely notice of appeal of his conviction and sentence.

In October 1998, Connie entered into a conditional plea agreement with the government pursuant to Fed. R. Crim. P. 11(a)(2). Connie entered a plea of guilty to one count of possession with intent to distribute controlled substances and to the money laundering conspiracy count, in exchange for the dismissal of the other five charges. In addition, Connie reserved her right to appeal the denial of the joint motion to suppress evidence and her motion to dismiss the superseding indictment. The district court sentenced Connie to 168 months' imprisonment to be followed by five years of supervised release. Connie filed a timely notice of appeal of her conviction.

This court consolidated the Blairs' appeals and granted Connie's motions to consolidate and adopt George's joint appendix and his argument regarding the denial of the Blairs' motion to suppress evidence.

II.

A. MOTION TO SUPPRESS

The Blairs argue that the district court erred by denying their motion to suppress evidence because Agent Kraft's affidavit was insufficient to support the federal search warrant, the federal search warrant did not comply with the particularity requirement of the Fourth Amendment, the federal search warrant was a "subterfuge" to search for drugs, and Sergeant Raby impermissibly field tested the suspected drugs. The Blairs further argue that the state search warrant was invalid because it was obtained on the basis of Raby's unlawful actions.

We review a district court's factual findings regarding a motion to suppress for clear error, and its legal conclusions de novo. See United States v. Leake, 998 F.2d 1359, 1366 (6th Cir. 1993). In addition, a magistrate's finding of probable cause for the issuance of a warrant is accorded "great deference." See id. at 1362-63; United States v. Sonagere, 30 F.3d 51, 53 (6th Cir. 1994). On appeal, we must determine whether, in light of the totality of the circumstances, the magistrate had a "substantial basis" for concluding that "a search would uncover evidence of wrongdoing." Sonagere, 30 F.3d at 53 (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).

1. The Federal Warrant

a. Sufficiency of the affidavit

The Blairs argue that the affidavit was insufficient to support the warrant in this case, because the magistrate judge had no basis to conclude that records relating to the Blairs' businesses would be found in their residence. We disagree.

The application for the federal search warrant was based on an eleven-page affidavit by Agent Kraft, who had extensive experience in drug-trafficking investigations. Kraft testified that the purpose of the search warrant was "to locate and seize evidence relating to an investigation into violations of Title 18, United States Code Section 1956, Laundering of Monetary Instruments, Title 18, United States Code Section 1957, Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity and Title 21, United States Code Section 841 and 846." Kraft's affidavit set forth his experience in investigating the financial aspects of drug trafficking and stated that in his experience it was common for drugs traffickers to store financial records in their homes. Kraft also provided information obtained about the Blairs from several cooperating witnesses, with statements attesting to their reliability. The cooperating witnesses stated that they had worked as prostitutes for...