280 F.3d 923 (9th Cir. 2002), 00-30296, United States v. Gill

Docket Nº:00-30296, 00-30318
Citation:280 F.3d 923
Party Name:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE-CROSS-APPELLANT, v. DWAN BERNARD GILL, DEFENDANT-APPELLANT-CROSS-APPELLEE.
Case Date:February 06, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 923

280 F.3d 923 (9th Cir. 2002)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE-CROSS-APPELLANT,

v.

DWAN BERNARD GILL, DEFENDANT-APPELLANT-CROSS-APPELLEE.

Nos. 00-30296, 00-30318

United States Court of Appeals, Ninth Circuit

February 6, 2002

October 18, 2001

Page 924

[Copyrighted Material Omitted]

Page 925

D.C. No. CR-99-00464-RSL Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Counsel Stephen R. Illa, Law Offices of Stephen R. Illa, Inc., Bainbridge Island, Washington, for the defendant-appellant-cross-appellee. Demetra Lambros, United States Department of Justice, Washington, D.C., for the plaintiff-appellee-cross-appellant.

Before: Andrew J. Kleinfeld and Ronald M. Gould, Circuit Judges, and John M. Roll, District Judge.1

Roll, District Judge

Concurrence by Judge Gould

OPINION

Appellant Dwan Bernard Gill appeals from the district court's denial of his motion to suppress evidence seized pursuant to a search warrant and its imposition of consecutive sentences for conspiracy to distribute phencyclidine (PCP) and attempted possession of PCP with intent to distribute. The government cross-appeals the district court's ruling that drug quantity had to be proven beyond a reasonable doubt for sentencing guidelines purposes. For the reasons set forth below, the district court correctly denied the motion to suppress but this matter is remanded for resentencing.

FACTUAL BACKGROUND

On Thursday, August 5, 1999, shortly before 6:00 p.m., Gill entered a post office near Los Angeles International Airport, carrying an eight inch square package. From the video monitor in his office, postal police officer Norbert Jaworowski noticed the size of the package and the excessive amount of tape used on it. When he went to the post office lobby for a closer look, he observed that Gill appeared nervous, turned sideways in an apparent attempt to avoid the visible surveillance cameras, and sent the package by express mail. When Gill left the post office, Officer Jaworowski followed him outside and obtained a license plate number from Gill's vehicle. Upon returning to the post office, Officer Jaworowski examined the package and observed that the names of both the sender and the recipient were misspelled. He Page 926

concluded that the names were aliases.2 He also observed that the destination of the package was Kent, Washington, near Seattle.

Officer Jaworowski next ran a license plate number check, from which he learned that the vehicle was registered to Gill. He also requested a photo of Gill. From that inquiry, Officer Jaworowski confirmed that Gill was the sender of the package but learned that Gill's address was different from the return address on the package. A criminal history check of Gill revealed a firearms arrest and gang connections. Officer Jaworowski then contacted postal police officer Michael Erdahl in Seattle, Washington, secured the package, and mailed it to Officer Erdahl that same day.

The next day, Friday, August 6th, Officer Erdahl received the package and concluded that it met several profiling factors, including the use of excessive tape, the use of handwritten labels, the significant distance between the sender's address and the post office's address from which the package was mailed, the use of aliases, the size and shape of the package, and the fact that it was mailed from a "source" city for drugs.3 He then called the telephone number listed by Gill as the sender's telephone number and learned that the telephone was no longer in service. Officer Erdahl then arranged for a drug dog to sniff the package for the presence of drugs. The dog did not alert. However, drug dogs are not trained to detect methamphetamine and PCP.4 Accordingly, Officer Erdahl continued his investigation.

Officer Erdahl called the Kent post office and learned that the recipient's address had been vacant for several months. This was significant to Officer Erdahl, who had experienced instances in the past where packages had been sent to vacant houses and then picked up by the intended recipients. Officer Erdahl then drafted a search warrant for the package and faxed it to an Assistant United States Attorney (AUSA), who said he would read it over the weekend.

On Monday, August 9th, Officer Jaworowski informed Officer Erdahl that a "George Thomas" had called the post office to learn the whereabouts of the package."Thomas" gave the post office a telephone number that was one digit different from the telephone number written on the package. When "Thomas's" telephone call was returned, it was discovered that the number had been disconnected.

Officer Erdahl then contacted Puget Sound Energy concerning the Kent, Washington address on the package and learned that Venita Tatum was the subscriber. A criminal history check of Tatum disclosed that she was being supervised by the Department of Corrections (DOC). The DOC informed Officer Erdahl that Tatum had prior narcotic-related convictions and gang affiliations.

On that same day, Officer Erdahl spoke with the AUSA, who urged the officer to continue his investigation. The AUSA suggested contacting the postal carrier who delivered mail to the addressee's residence. The postal carrier informed Officer Erdahl that he had seen a woman accessing the mailbox a few days earlier; Page 927

the carrier's description of the woman was consistent with the description of Tatum in DOC and criminal history records.

The next day, Tuesday, August 10th, Officer Erdahl completed the search warrant application and affidavit. However, the magistrate judge was unavailable that day and did not authorize the search warrant until the following morning, Wednesday, August 11th.

Upon issuance of the search warrant, Officer Erdahl opened the package. Inside the package was an Ocean Spray glass bottle containing 25 ounces of a yellowish liquid, which field-tested positive for PCP. Gill was arrested and a search warrant was obtained for his house, where officers discovered a one ounce vanilla extract bottle containing PCP residue and a syringe.

Officers then made a controlled delivery to Tatum, using a PCP-like substance in an Ocean Spray bottle and a tracking device. After the tracking device signaled that the package had been opened, officers, pursuant to an anticipatory search warrant, entered the Tatum residence. Tatum ran into the bathroom and broke the bottle in the sink. A search of her residence uncovered approximately 75 small empty vials and a syringe.

PROCEDURAL BACKGROUND

Gill was charged in a superseding indictment with conspiracy to distribute 100 grams or more of PCP and attempted possession with intent to distribute 100 grams or more of PCP, in violation of 21 U.S.C. § § § § 841 (a)(1), (b)(1)(B) and 846. The superseding indictment mistakenly identified PCP as a Schedule III controlled substance.5

Gill filed a motion to suppress physical evidence, arguing that the initial detention of the package was not supported by reasonable suspicion and that the length of the detention was unreasonable. The motion to suppress was denied.

At trial, Tatum appeared as a government witness and testified that she had received other mailings from Gill in the past and had purchased a total of 103 ounces of PCP from him. Gill was convicted of both counts.

A post-trial hearing regarding the impact of Apprendi v. New Jersey, 530 U.S. 466 (2000), was held. At the hearing, because the jury had not determined the quantity of drugs involved and because of the mistaken impression that PCP was a Schedule III controlled substance, the government stated that the district court was limited to a maximum sentence of five years per count, the lowest penalty provision for convictions of conspiracy to distribute and attempted possession for distribution of a Schedule III controlled substance.

At sentencing, the district court concluded that because drug quantity had not been submitted to the jury, in proving drug quantity as a guidelines factor, the government was required to establish quantity beyond a reasonable...

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