U.S. v. Parker, s. 93-3236

• Decision Date: 20 October 1994
• Docket Number: Nos. 93-3236,93-3273,s. 93-3236
• Citation: 32 F.3d 395
• Parties: UNITED STATES of America, Appellee, v. Timothy Paul PARKER, Appellant. UNITED STATES of America, Appellee, v. William August PARKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 395

32 F.3d 395

UNITED STATES of America, Appellee, v. Timothy Paul PARKER, Appellant.

UNITED STATES of America, Appellee, v. William August PARKER, Appellant.

Nos. 93-3236, 93-3273.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 18, 1994.

Decided Aug. 29, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 20, 1994 in No. 93-3273.

Frank Burnette and Andrew J. Dunn, Des Moines, IA, argued, for appellant.

Gary L. Hayward, Des Moines, IA, argued (Cliff Wendel, on brief), for appellee.

Before McMILLIAN, WOLLMAN and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

Timothy Paul Parker and William August Parker appeal from final judgments entered in the District Court ¹ for the Southern District of Iowa finding them guilty, upon jury verdicts, of conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846 and possession with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). For reversal, appellants argue that the district court erred in (1) denying their motions to suppress certain physical evidence, (2) finding there was sufficient evidence to support the jury verdicts of conspiracy to distribute drugs, (3) admitting certain expert opinion testimony, (4) refusing to give a "lesser included offense" instruction, (5) refusing to give an "addict-informer" instruction, and (6) giving an instruction allowing an inference of intent to distribute drugs based on possession of a large quantity of drugs. For the reasons discussed below, we affirm the judgments of the district court.

I. BACKGROUND

On February 3, 1992, Phyllis Salts delivered a duffel bag to United Parcel Service (UPS) in Ottumwa, Iowa, for delivery to Timothy Parker in California, and insured it for $4,000.00. UPS opened the package to ensure it was packed correctly pursuant to its standard policy of inspecting packages insured for more than $1,000.00. UPS discovered $4,000.00 cash in the package and notified the United States Drug Enforcement Administration (DEA). The DEA did not inspect the package but asked UPS to ship the package and notify them of any return package to the Ottumwa area from the vicinity of the California address.

On February 7, 1992, UPS notified the DEA of a return package. The unopened package was delivered by UPS to the DEA office where a drug dog tried to open the package, indicating the package contained narcotics. The police obtained a search warrant, opened the package and discovered over 100 grams of methamphetamine and a note to "Billy" from "Tim" which stated "Hi! You'll like it. The white is better as far as I'm concerned, but this is pretty good. 16 X 4 equals 6,400." Timothy Parker's fingerprints were found on the note.

The DEA removed most of the methamphetamine, dusted the contents with fluorescent powder and inserted a device into the package that would signal when the package was opened. A controlled delivery was made to the address indicated on the package, the residence of William Parker. The officers executed a search warrant for the premises after the device alerted that the package had been opened. A black light was used to determine that William Parker and another individual named Scott Hootman had come into contact with the fluorescent powder placed on the drugs within the package.

Appellants and Phyllis Salts ² were charged with conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1), 846. Appellants claimed the initial search by UPS of the duffel bag containing $4,000.00 cash was a warrantless search by a private party acting as an agent of the government in violation of the Fourth Amendment, and moved to suppress the $4,000.00 cash, the package containing the methamphetamine and all items seized as a result of the search warrant. The district court found that there was no showing that the government knew of the action by UPS and that UPS did not intend to further the government's interests by initially opening the package, and denied the motions to suppress.

Scott Hootman was granted immunity and testified during the trial that he had purchased methamphetamine from William Parker several times over a period of one to two years. Another acquaintance of William Parker, Ned Jeffrey, also testified at trial that he had purchased methamphetamine from William Parker several times, both for personal use and to sell as a dealer. Ned Jeffrey testified that William Parker told him that his brother Timothy Parker was his source, and that he subsequently purchased methamphetamine directly from Timothy Parker. The government introduced into evidence the methamphetamine and the note found in the package, documentation showing prior shipments of express mail packages and Western Union money transfers between William and Timothy Parker. Special Agent Jerry Nelson of the Iowa Department of Public Safety, Division of Narcotics Enforcement, testified as an expert at trial that the note found in the package and certain notations made in a notebook found in William Parker's residence were consistent with records of drug transactions, that is, "drug notes." The district court overruled defense objections that this testimony was an improper comment on the evidence and improper opinion testimony.

Appellants were represented by separate defense counsel but presented a coordinated defense. Appellants proposed two jury instructions which the district court refused to give. The first was a "lesser included offense" instruction for simple possession. The second was an "addict-informer" instruction which would have cautioned the jury to examine with "greater care and caution" the testimony of Hootman and Jeffrey, both of whom admitted under cross-examination that they suffered from memory loss and hallucinations as a result of many years of drug use. Appellants also objected to a "large quantity inference" instruction that provided that the jury could infer the intent to distribute drugs from possession of a large quantity.

At the close of the government's case, appellants moved for directed verdicts and the district court denied the motions. The jury found each appellant guilty on both counts, and the district court sentenced each to 87 months of imprisonment, 5 years of supervised release and a special assessment of $100.00. These appeals followed and were consolidated.

II. SEARCH BY UPS

Appellants first argue the district court erred in denying their motions to suppress because the search by UPS implicates the Fourth Amendment. They contend that UPS was operating as an agent of the government when UPS employees cooperated with the DEA for purposes that furthered only the interests of the government. The government argues that the search was a private search conducted pursuant to a UPS policy to open packages insured for over $1,000.00 in order to ensure that they are properly packaged. Rather than acting as an agent of the government, the government argues that UPS notified the DEA of suspected criminal activity discovered during a routine inspection and cooperated with the investigation by watching for the return package.

We review the district court's denial of the motion to suppress evidence for clear error. United States v. Chadwick, 999 F.2d 1282, 1284 (8th Cir.1993); United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981) (Walther ). A search by a private party not acting as an agent of the government does not implicate the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Walther, 652 F.2d at 791. Whether a private party is acting as an agent of the government depends on the degree of the government's participation in the private party's activities. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989) (the fact that the government does not compel the private party to search does not establish that the search is private for purposes of the Fourth Amendment); Walther, 652 F.2d at 791-92.

Two critical factors in assessing whether a private party acts as an agent of the government are (1) the government's knowledge of and acquiescence in the search, and (2) the intent of the party performing the search. United States v. Malbrough, 922 F.2d 458, 462 (8th Cir.1990) (police informant directed to participate in narcotic purchases discovered marijuana while trespassing on private property; held to be a private search), cert. denied, 501 U.S. 1258, 111 S.Ct. 2907, 115 L.Ed.2d 1071 (1991); Walther, 652 F.2d at 790-92 (DEA informant, who was routinely paid for discovering drugs, was acting as a government agent when he opened a package for the sole purpose of searching for drugs). Here, the government did not direct UPS to open the package addressed for delivery to California; UPS opened the package pursuant to its policy to inspect the packaging of packages insured for more than $1,000.00. The present case is factually similar to United States v. Livesay, 983 F.2d 135 (8th Cir.1993). In that case, UPS employees notified police after they opened a package pursuant to a company policy to check for hazardous chemicals and found $3,200.00 in cash. Like the present case, UPS notified police of the return package, which was opened pursuant to a search warrant. This court affirmed the district court's denial of the motion to suppress evidence because there was no evidence that UPS had opened the package for any reason other than its concern about hazardous chemicals. 983 F.2d at 136-37. The district court correctly denied the motions to suppress.

III. SUFFICIENCY OF THE EVIDENCE OF CONSPIRACY

Appellants next argue that there was insufficient evidence for a reasonable jury to find beyond a reasonable doubt that a conspiracy existed to distribute methamphetamine. They argue that the only basis for the verdicts was the testimony of Scott Hootman and Ned Jeffrey, both...