295 F.3d 1158 (10th Cir. 2002), 00-3262, U.S. v. Avery

• Citation: 295 F.3d 1158
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan AVERY, Defendant-Appellant.
• Case Date: July 09, 2002
• Court: United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit

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295 F.3d 1158 (10th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jonathan AVERY, Defendant-Appellant.

No. 00-3262.

United States Court of Appeals, Tenth Circuit

July 9, 2002

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Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on brief), Wichita, KS, for Defendant-Appellant.

Randy Hendershot, Assistant United States Attorney (D. Blair Watson, Assistant United States Attorney, and Jackie N. Williams, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, and HALL ^[*] and BRORBY, Senior Circuit Judges.

EBEL, Circuit Judge.

On March 7, 2000, a federal grand jury issued an eight-count indictment against Defendant-Appellant Jonathan Avery. Count 1 charged Mr. Avery with possessing with the intent to distribute a "mixture or substance" containing thirteen grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count 2 indicted Mr. Avery for possessing with the intent to distribute approximately twenty grams of mixture or substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1), and Count 3 alleged that Mr. Avery possessed with the intent to distribute approximately four grams of a mixture or substance containing

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cocaine base, also in violation of § 841(a)(1). Counts 4, 5, 6, 7, and 8 of the indictment all accused Mr. Avery of having "knowingly possessed" specific firearms "during and in relation to a drug trafficking crime," in violation of 18 U.S.C. § 924(c)(1).

A few months after being indicted, a federal jury convicted Mr. Avery on all counts. The United States District Court for the District of Kansas subsequently sentenced Mr. Avery to a total of 198 months in prison and a total of four years of supervised release, with some of the sentences on the individual counts running concurrently, and some of the individual sentences running consecutively.

Mr. Avery now appeals his convictions and sentences on six grounds. First, he alleges that the district court erred in not suppressing evidence found in a search of his home, contending that the affidavit supporting the search warrant contained "false and reckless" information. Second, he contends that his conviction and sentence on one of the weapons charges should be set aside in the wake of the Supreme Court's decision in Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000). Third, he argues that all five of his convictions under § 924(c)(1) for possessing a firearm in furtherance of a drug trafficking crime must be reversed because of deficiencies in the indictment. Fourth, he asserts that all of his convictions should be overturned because they were not supported by sufficient evidence. Fifth, he contends that one of his cocaine base convictions must be set aside because the prosecution violated a motion in limine order by inquiring at trial into a statement he made to police after being placed under arrest but before receiving his Miranda warnings. Finally, he raises a claim based on the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We reject all of Mr. Avery's arguments, and we affirm his convictions and sentences on all counts.

I. Background

On the evening of December 2, 1997, Paul Shade, an officer with the Wichita Police Department, was conducting surveillance on a residence suspected of housing drug trafficking activity. At some point that night, Officer Shade observed Mr. Avery leave the residence, get behind the wheel of a vehicle registered in Mr. Avery's name, and depart the scene. Another man sitting in the front passenger seat of the car rode with Mr. Avery. Because of previous contacts with Mr. Avery, Officer Shade suspected that Mr. Avery was driving with a suspended license, and he began following the car. After receiving confirmation that, in fact, authorities had suspended Mr. Avery's license, Officer Shade stopped the vehicle.

Officer Shade then approached the car and asked Mr. Avery for his driver's license and proof of insurance. As Mr. Avery opened the glove compartment to search for the requested documents, Officer Shade observed two baggies containing a white powdery substance protruding from the open pocket of Mr. Avery's wind-breaker. Based on his police experience, Officer Shade immediately believed the substance was powder cocaine and placed Mr. Avery under arrest. Subsequent police tests revealed that the baggies contained 3.03 grams of cocaine, though Mr. Avery was never charged in connection with these narcotics.

After arresting Mr. Avery, Officer Shade asked him if there were any other drugs in the car. Mr. Avery responded that the car's glove compartment contained "crack cocaine," but he denied owning

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these drugs. Officer Shade proceeded to open the glove compartment, where he discovered 13.72 grams of cocaine base.¹

On January 30, 2000, a little over two years after the December 1997 arrest, a confidential informant told agents "assigned to the Drug Enforcement Administration State and Local Task Force" that a man identified by the informant as "Big John" was "selling crack cocaine" from his Wichita home at 1534 North Broadview. The informant specifically told officers that on January 30, 2000, he had seen four ounces of cocaine at the residence. After reviewing police photos, the confidential informant identified Jonathan Avery as "Big John."

Based on the information obtained from the confidential informant, agents "formulated plans to make a controlled purchase of crack cocaine from Avery." On February 2, 2000, an agent strip-searched the confidential informant, found him free of "currency and contraband," gave him "$100.00 in recorded money issued by the Wichita Police Department," and took him to 1534 North Broadview. Agents then watched as the confidential informant entered the residence and, after approximately eight minutes, exited the home. The informant, who "remained under constant surveillance,"² then rendezvoused with a law enforcement officer and handed the agent a package "containing a white, rock substance, which later field-tested positive for the presence of cocaine." An agent then searched the confidential informant a second time, and the informant was again found free of currency or other contraband.

Later that same day, an agent submitted to a federal magistrate judge an application for a warrant to search Mr. Avery's home.³ The affidavit accompanying the search warrant application described the controlled buy in the detail discussed above, and it noted that on ten previous occasions the confidential informant had supplied law enforcement authorities with accurate information. The affidavit also explained that the confidential informant had used and sold drugs in the past, though it failed to mention that the informant had a lengthy criminal history that stretched several decades and included convictions for crimes involving theft, forgery, and dishonesty.

Based on this and other information contained in the affidavit, the magistrate judge issued a warrant to search 1534 North Broadview, and agents then executed the search warrant. Mr. Avery was not at the residence at the time of the search, but his eighteen-year old girlfriend and her ten-year old brother, both of whom lived with Mr. Avery, were at the home.

During the subsequent search, agents uncovered a .22 caliber rifle with a folding stock located in a closet near the front door.⁴ In a small, twelve-foot-by-fourteen-foot bedroom located in the southwest portion of the home, officers discovered 20.3 grams of cocaine and 4.07 grams of cocaine base sitting in a plate atop a dresser.⁵ In

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this same plate sat several bullets, and within the dresser on which the plate sat, police found a .380 caliber pistol.⁶ Police found a loaded .40 caliber Glock pistol between the mattress and box spring of the bed next to the dresser.⁷ The closet of this bedroom also contained firearms, including a slug-loaded 12 gauge shotgun with pistol grips and a loaded Colt AR 15 .223 caliber rifle, which also had a large capacity magazine.⁸ A small safe containing cash, including four of the five twenty-dollar bills that the confidential informant had used to purchase drugs earlier in the evening, was also located in this closet.

Besides the weapons, cash, and narcotics, agents found a set of scales and two boxes of baggies in the southwest bedroom. No other drugs or drug paraphernalia were uncovered in the home.

Police officers later interviewed Mr. Avery, who had been arrested away from the home on an outstanding warrant immediately before the search commenced. During this interview, he (1) admitted owning the weapons, (2) identified the weapons, (3) acknowledged selling cocaine from the residence during the previous two-to-three years, and (4) stated that he sometimes personally delivered the cocaine to his customers.⁹

II. Search Warrant

Mr. Avery first argues on appeal that the evidence obtained during the police search of the 1534 North Broadview residence must be suppressed because the affidavit supporting the search warrant application omitted information concerning the credibility of the government's confidential informant. Specifically, Mr. Avery argues that the law enforcement agents failed to inform the federal magistrate judge who authorized the search warrant that the informant had a "lengthy criminal history" that spanned several decades and included "thefts, forgeries, or evidence of dishonesty or false statement." In light of these omissions, Mr. Avery contends, the agents violated the rule announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct....