30 F.3d 774 (7th Cir. 1994), 93-2745, United States v. Robinson

Docket Nº:93-2745, 93-2778.
Citation:30 F.3d 774
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Franklin D. ROBINSON and Brian S. Beal, Defendants-Appellants.
Case Date:July 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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30 F.3d 774 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Franklin D. ROBINSON and Brian S. Beal, Defendants-Appellants.

Nos. 93-2745, 93-2778.

United States Court of Appeals, Seventh Circuit

July 12, 1994

Argued Feb. 7, 1994.

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[Copyrighted Material Omitted]

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Christopher T. Van Wagner, Office of U.S. Atty., Madison, WI (argued), for U.S.

T. Christopher Kelly, Madison, WI (argued), for Franklin Robinson.

Robert Glickman, Madison, WI (argued), for Brian S. Beal.

Before CUDAHY and COFFEY, Circuit Judges, and NORGLE, District Judge. [*]

COFFEY, Circuit Judge.

A grand jury indicted defendants Brian S. Beal and Franklin D. Robinson for conspiracy

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to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and 18 U.S.C. Sec. 2. Both defendants filed motions to suppress evidence, challenging the legality of the stop prior to their arrests and the seizure of the controlled substance. The district court denied the motions to suppress. Robinson entered a conditional guilty plea on Count I, the conspiracy count, reserving his right to appeal the district court's ruling on the suppression motion. Count 2 was dismissed as to Robinson in exchange for his guilty plea. Robinson was found guilty and sentenced to 126 months' imprisonment. Beal proceeded to trial, was convicted on both counts, receiving a concurrent sentence of 170 months' imprisonment on each count. Beal and Robinson were also sentenced to a five-year period of supervised release following the completion of their respective terms of imprisonment. Beal appeals his sentence and conviction while the defendant Robinson appeals only his conviction. We affirm each of the defendants' convictions as well as Beal's sentence.

I. BACKGROUND

Robinson and Beal filed motions to suppress the evidence against them based upon an allegedly illegal stop that escalated into an illegal arrest. This motion was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B), for a report and recommendation. Following an evidentiary hearing, the magistrate judge filed his report on April 30, 1993, recommending that the motions to suppress the evidence and statements be denied. Robinson filed timely objections to the magistrate judge's report and recommendation, while the defendant Beal failed to file his objections. On May 11, 1993, the district court adopted the magistrate judge's recommendations and denied the motions to suppress the physical evidence and the statements. Two days after the district court issued its order adopting the magistrate judge's suggestions, Beal filed late objections to the magistrate judge's recommendation. Beal's untimely filing of objections to the magistrate judge's recommendation usually would be construed as a waiver of his right to appeal the district court's order adopting the report and recommendation. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Videos Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir.1986). The government has not claimed prejudice by Beal's late filing and the objections were not "egregiously late," thus we will not impose the sanction of dismissal for missing the deadline by two days. See Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir.1994) (failure to meet deadline for filing objections does not mandate dismissal if objections are not egregiously late and the opponent has not been prejudiced). Testimony and evidence presented at the suppression hearing revealed the following facts.

On March 3, 1993, officers of the Madison, Wisconsin Police Department executed a search warrant at an apartment at 2105 Allied Drive, Madison, Wisconsin, rented by a Dwight Walker. The officers found cocaine base in the apartment and arrested the lessee, Dwight Walker, for possession of the drug. Detective William Searls questioned Walker about his drug source. Walker told Searls that he obtained the cocaine from two men who were staying at the Highlander Motel on the Beltline Skyway, and that the men had been selling the drugs out of his apartment. Walker informed Searls that both men were black and that one of the men was named Brian, who was approximately five feet ten inches tall with a heavy build, while the other, named "D" or "Derail," was about five feet tall with a small build and straight black hair combed straight back over his head to his collar in a pompadour style. Walker stated that the previous night the two men had sold a large amount of cocaine base out of his apartment, and that a third man named Vincent was involved in the operation. Walker described Vincent as a heavyset black male with a light complexion who was about six feet in height and weighed between 180 to 200 pounds. The officers involved in the drug investigation who obtained Walker's description of Derail, Brian, and Vincent testified at the hearing on the motion to suppress that they believed there was a description of their clothing, but they could not recall the specifics. No witness

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testified that Walker provided them his cohorts' approximate ages.

Walker indicated that he had known Derail and Brian for about six months. Derail was Walker's sister's boyfriend, and lived upstairs with her in another apartment at the Allied Drive address. Walker saw Derail almost daily and was in contact with Brian every few weeks. As Walker described the operation, Brian would transport the cocaine to Madison from Chicago. Derail and Brian, who were friends as well as partners in crime, would then distribute the cocaine base to their Madison customers, and usually kept large amounts of cocaine and money on or near their person.

Within the month prior to the search at Walker's apartment, a confidential informant revealed to Detective Searls that a person named Brian from California was residing in the area of 2105 Allied Drive and was selling cocaine base. The Dane County, Wisconsin Sheriff's Department had also informed Searls that one of its undercover officers had been purchasing cocaine base at 2105 Allied Drive from a short black male named "D," who was around five feet tall and had a very small frame and straight hair combed back.

In an attempt to arrest Walker's suppliers, Sergeant Peterson of the Madison Police Department instructed two of his officers, Parrell and Frey, to set up surveillance at the Highlander Motel, which Walker had identified as the base of operations of his cocaine suppliers. Peterson gave Parrell and Frey a description of Brian and Derail and told them to stop anyone matching those descriptions in order that they might ascertain their identity. Peterson informed the officers that both men were black and that the one named Brian was approximately five feet ten inches tall with a heavy build, while the other, named "D" or "Derail," was about five feet tall with a small build and straight black hair combed straight back over his head to his collar in a pompadour style. Both officers were aware that the surveillance was related to a drug investigation.

As part of their surveillance, Parrell and Frey went to the front desk of the motel to inquire if two black males matching the descriptions were registered as motel guests. Yinchang Wang, the motel's owner, told them that two men matching the descriptions were staying in Room 49 at the east end of the motel. Wang stated that the room was registered to a Vincent Townsend. Parrell and Frey set up surveillance on March 3, 1993, the same day as Walker's arrest, in an unmarked truck one and a half blocks behind the motel. Officers Kinney and Endl were assigned to assist in the surveillance, setting up a position west of the motel.

At approximately 11:45 a.m. on March 3, two more policemen, Dane County police officers Brown and Twing, joined in the surveillance of the Highlander Motel. Peterson instructed them to watch for a heavy-set black male with a light complexion who was about six feet in height and weighed between 180 to 200 pounds suspected of being involved in the drug operation at 2105 Allied Drive. Neither Brown or Twing had any knowledge that there were other suspects under surveillance. Brown and Twing parked their car and patrolled the area on foot.

Approximately five to ten minutes after instituting the surveillance, Brown saw a black male who in his opinion did not match the description he had been given exit the east entrance of the motel, pick up some snow and throw it, and return to the motel. Brown shortly thereafter observed one tall black male and a short black male depart from the same exit. The shorter of the two men was the one who had picked up the snow moments earlier. Although neither of the two men matched the description of the heavyset black male they were looking for, Brown and Twing informed the other four officers conducting surveillance that two black males had exited the motel from the door they had under surveillance.

Upon hearing Brown and Twing's radio message that two black males of notably disparate height were leaving the east motel entrance, Frey and Parrell drove to that location. The two officers drove down a frontage road at about 35 miles per hour and caught sight of the two men walking in front of them on the road. Officer Frey noticed that the two men matched the description

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they had been given of the two black men of markedly different height, but could not immediately discern if they fully matched the descriptions because the shorter suspect's hair was covered by a stocking cap, but the suspect's hair stuck out the back of the cap to his shoulders. The two suspects stepped to the side of the road and onto an adjacent snow covered grassy area. The officers...

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