U.S.A. v. Bender

• Citation: 265 F.3d 464
• Decision Date: 01 August 2001
• Docket Number: Nos. 99-6230,99-6236,s. 99-6230
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Danna Yvonne Bender (99-6230) and David E. Culliver (99-6236), Defendants-Appellants. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 464

265 F.3d 464 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Danna Yvonne Bender (99-6230) and David E. Culliver (99-6236), Defendants-Appellants.

Nos. 99-6230, 99-6236

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 1, 2001

Decided and Filed: September 14, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 96-00030, Todd J. Campbell, District Judge. [Copyrighted Material Omitted] William Cohen, Daniel J. Perry, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

Mark C. Scruggs, Nashville, Tennessee, Nashville, Tennessee, for Appellants.

Before: CLAY, GILMAN, and WALLACE, Circuit Judges.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Danna Yvonne Bender was arrested on February 22, 1996 after she signed for an Express Mail parcel that United States postal inspectors had previously opened and found to contain approximately 21.6 grams of cocaine base (crack). Bender and codefendant David E. Culliver were indicted on the following five counts: (1) conspiracy to distribute crack, (2)aiding and abetting the unlawful use of the United States mails to commit a drug felony, (3) possession with intent to distribute crack, (4)possession with intent to distribute powder cocaine, and (5) possession of a firearm by a convicted felon. A jury found Bender guilty on all five counts and Culliver guilty on counts one, two, three, and five. Bender appeals, challenging both her conviction and sentence, while Culliver appeals his sentence only. For the reasons set forth below, we AFFIRM Bender's conviction and sentence, as well as the sentence imposed on Culliver.

I. BACKGROUND

A. Factual background

In early 1996, United States postal inspectors observed the increased transportation of narcotics from Florida to the Nashville, Tennessee area through the United States mails, particularly by Express Mail. Postal inspectors were on the lookout for suspicious packages shipped between these locations in order to detect narcotics trafficking. On February 21, 1996, Inspector Steve Cheuvront intercepted Express Mail parcel number EG100814144US that was addressed to 4610 Forest Ridge Drive in Hermitage, Tennessee. The parcel indicated that the sender was Willie M. Williams of 2210 Northwest 153rd Street, Opa Locka, Florida 22054. Law enforcement officials in Florida informed the postal inspectors in Tennessee that Willie M. Williams was not a listed resident at the given address.

An experienced drug-detection dog was brought to the Express Mail parcel. The dog reacted positively, indicating that controlled substances were contained within the package. In addition, the parcel was secured with clear plastic tape. Postal inspectors have learned from experience that packages containing drugs are usually sealed in this manner in an attempt to trap the odor inside. Given the sealing and the positive identification of the parcel by the drug-detection dog, Postal Inspector Max Jordan obtained a federal search warrant on February 22, 1996 to open the parcel. Once opened, the inspectors found a pair of men's shoes in a shoe box. Also inside the shoe box was approximately 21.6 grams of cocaine base that had been placed in a styrofoam plate that was, in turn, folded and taped, wrapped in newspaper, and enclosed in two padded bags. The postal inspectors removed most of the cocaine base and three small samples for field testing, placing a cookie and a small sample of the cocaine base back in the parcel. They also installed a transmitter inside the parcel that was designed to emit a slow beeping signal as long as the parcel remained intact. Once the parcel was opened, however, the transmitter was programmed to emit a fast beeping signal.

The delivery supervisor at the Hermitage Post Office testified that a woman identifying herself as Mrs. Culliver called the post office once on February 21, 1996 and twice on February 22, 1996 to inquire about the delivery status of Express Mail parcel number EG100814144US. This same woman also told the supervisor that she had inquired about the delivery status of her package by calling the toll free number for Express Mail information.

On February 22, 1996, at approximately 1:35 p.m., Postal Inspector Wallace Bowden delivered the parcel to 4610 Forest Ridge Drive, Hermitage, Tennessee. Danna E. Bender accepted the parcel and signed the delivery sheet as "Danna Culliver." Prior to the controlled delivery, Jordan had obtained a warrant to conduct a search of the recipient's residence.

Approximately three minutes after the delivery, the transmitter enclosed in the parcel switched into the alarm mode, indicating that the parcel had been opened. An entry team had been waiting outside and executed the federal search warrant for the residence. Upon entering, the drug-enforcement agents came across a four-year-old boy on a couch in the living room. They found Bender in the rear bedroom. She was talking on the telephone, with the opened parcel located next to her on the bed. Bender was placed under arrest.

The agents conducted a thorough search of Bender's residence. They found many items indicative of narcotics trafficking. In Bender's bedroom, they discovered receipts from money transfers and car rentals, a mirror with white powder on it, and a beaker on the dresser. They also found two Oreo cookie tins. One tin contained small baggies, a vial containing white powder, marijuana, and razor blades. The other tin contained a small bag of cocaine, as well as vials, strainers, measuring spoons, scoops, and multicolored baggies. A shaving kit held numerous test tubes and beakers. Most of the beakers contained traces of cocaine, and Bender's fingerprints were found on one of them. One beaker that was missing from the collection in the shaving kit was found on Bender's dresser.

The agents also found two handguns in the bedroom closet. One was loaded and found on a shelf in the closet; the other was found in a briefcase on the closet floor. The briefcase belonged to Bender and contained important family papers. Other items found in the residence included Express Mail envelopes and packages, a coffee can with a false bottom, two scales, and two bottles containing white powder.

The agents mailed several items found during the search of Bender's residence to the United States Postal Inspection Service National Forensic Laboratory in Dulles, Virginia. After conducting tests, the laboratory determined that the compressed white powder in the styrofoam plate was 19.96 grams of cocaine base. In addition, the laboratory found traces of cocaine on measuring spoons, four beakers, four glass test tubes, and several of the plastic baggies.

Bender and Culliver had an ongoing relationship, including the fact that Culliver was the father of Bender's son. Both Bender and Culliver had prior felony convictions. The government presented evidence that between December 5, 1995 and February 22, 1996, Bender sent Culliver 18 money-wire transfers to Florida totaling $9,500. Culliver claimed that the wired money came from his work doing construction jobs and selling T-shirts. Between August of 1995 and February of 1996, 20 Express Mail packages were sent to Culliver at three different addresses in the Nashville area. Culliver claimed that these packages contained T-shirts or other gifts.

Bender maintained throughout her trial that she was not guilty of distributing either powder cocaine or cocaine base. She twice stated on direct examination that she had never sold drugs, but had become addicted to drugs in 1992 due to stress. Bender testified that she smoked crack-laced marijuana cigarettes, and that during the course of a week she would use approximately one ounce of marijuana and five to ten grams of powder cocaine. She also stated that she purchased drugs with money transferred from Culliver. Regarding the events that occurred on the day of her arrest, Bender contends that she never opened the parcel that she signed for. She also testified that the items of drug paraphernalia that were seized belonged to Walter Bailey Culliver, her codefendant's cousin who lived in the same residence. In addition, she contended that she did not know that there were firearms in the closet.

B. Procedural background

The government issued an original indictment on March13, 1996, charging only Bender. A superseding indictment was entered on May 1, 1996, charging both Bender and Culliver with (1) conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846; (2) unlawful use of a communication facility in a drug felony, or aiding and abetting the unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; (3)possession with intent to distribute cocaine base in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. § 2; (4)possession with intent to distribute powder cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (5)being a convicted felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). The district court ordered that the charges against Bender and Culliver be consolidated for trial following Culliver's arrest on December 18, 1997.

Bender filed several motions in limine to prohibit the government from mentioning her prior felony conviction for the distribution of cocaine in 1987 and a motion to suppress the evidence seized from her residence. The court denied all of these motions. Trial commenced on April 13, 1999 and concluded on April 20, 1999. The jury found Bender guilty on all counts, but acquitted Culliver of possession with intent to distribute powder cocaine as charged in Count 4. A sentencing hearing was held on August 20, 1999. The court sentenced Bender to 120 months on Counts 1, 3, 4, and 5 and 96 months on Count 2, to run concurrently. Culliver was sentenced to 135 months on Counts 1 and 3, 96 months on Count 2, and 125 months on Count 5, to run...