4 F.3d 1338 (6th Cir. 1993), 91-3553, United States v. Jenkins

Docket Nº:Sabrina JENKINS (91-3553); Reginald Peacock (91-3554);
Citation:4 F.3d 1338
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:August 20, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1338

4 F.3d 1338 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sabrina JENKINS (91-3553); Reginald Peacock (91-3554);

Michael Warren (91-3555); Vincent Sample (91-3562);

Michael Brown (91-3563); Ned Warren, III (91-3564); and

Ralph D. Warren (91-4129), Defendants-Appellants.

Nos. 91-3553 to 91-3555, 91-3562 to 91-3564 and 91-4129.

United States Court of Appeals, Sixth Circuit

August 20, 1993

Argued Nov. 17, 1992.

Rehearing En Banc Denied in Nos.

91-3554, 91-3564, and 91-4129

Oct. 21, 1993.

Page 1339

Joseph R. Wilson, Asst. U.S. Atty., Thomas A. Karol, Asst. U.S. Atty. (briefed), Office of U.S. Atty., Western Div., Toledo, OH, for plaintiff-appellee.

Richard A. Nystrom (argued and briefed), Dayton, OH, for defendant-appellant Michael Joseph Warren.

Douglas A. Wilkins (argued and briefed), Toledo, OH, for defendant-appellant Reginald Peacock.

Gordon A. Senerius (argued and briefed), Toledo, OH, for defendant-appellant Sabrina Jenkins.

E. Winther McCroom (argued and briefed), Breckenridge & McCroom, Youngstown, OH, for defendant-appellant Vincent Sample.

Mark D. Berling (briefed), Toledo, OH, for defendant-appellant Michael Brown.

Michael G. Dane (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for defendant-appellant Ralph Darrell Warren.

William S. O'Brien (argued and briefed), Findlay, OH, for defendant-appellant Ned Warren, III.

Before: KEITH and SUHRHEINRICH, Circuit Judges, and JOINER, Senior District Judge. [*]

JOINER, Senior District Judge.

Following trial by jury, defendants Ralph Warren; Ned Warren, III; Michael Warren; Michael Brown; Sabrina Jenkins; Reginald Peacock; and Vincent Sample were convicted of conspiracy to distribute cocaine under 21 U.S.C. Secs. 846 and 841(b)(1)(B). Six defendants were convicted of substantive counts relating to the possession and sale of cocaine under 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2. Ralph Warren was also convicted of engaging in a continuing criminal enterprise under 18 U.S.C. Sec. 848; 1 firearms charges under 18 U.S.C. Secs. 922 and 924; and possession of cocaine with intent to distribute within 1000 feet of an elementary school under 21 U.S.C. Secs. 860 and 841(a)(1).

Page 1340

Defendants were indicted along with six other persons in a 27-count indictment in October 1989. The court conducted two two-month trials, first in 1990, and then again in 1991 after the jury was unable to reach a unanimous verdict on all of the counts. Defendants raise numerous issues on appeal, most of which do not merit publication under Rule 24(a) of the Sixth Circuit Court of Appeals. Those issues are addressed and decided in the unpublished appendix to this opinion. We limit our discussion below to the following issues: whether the district court erred in refusing to order the disclosure of a confidential informant; whether the enhanced sentence of life imprisonment was properly imposed for Ralph Warren's violation of 21 U.S.C. Sec. 860; whether the exclusionary rule prohibits consideration of illegally seized cocaine in the calculation of a defendant's offense level under the sentencing guidelines; and whether a conspirator is properly found accountable for the full amount of the drugs involved in the conspiracy based solely on a finding that the amount involved was foreseeable to him.

I.

Confidential Informant

Ralph Warren, Reginald Peacock and Vincent Sample claim that the district court erred in refusing to order the disclosure of the identity of a confidential informant. The informant accompanied undercover detectives on three occasions to purchase drugs from defendant Michael Brown. On the first two occasions, the informant merely drove the detectives to Brown's house. On the third occasion, the informant again drove to Brown's house with the detectives, and then, at Brown's direction, to two other locations so that Brown could obtain cocaine. Both undercover detectives testified that during this drive, Brown stated: that he was just with Ralph and "he sold an ounce and a half and they had two kilos"; that the "house on Melrose is Ralph's, and that's where the rocks are at and it is being run by Reggie Peacock"; and that "Ralph was his main man, and he didn't like doing business with Peanut [Ned Warren]." Brown testified at trial and denied making the statements attributed to him by the detectives.

The role of the informant was extremely limited. There was no evidence of any attempted drug purchase by the informant, nor of any conversations between the informant and the defendants. The informant merely drove the car as directed by Michael Brown. While driving the car, however, he was presumably in a position to hear Brown's statements regarding Ralph Warren and Peacock.

With the undercover detective present, the district judge conducted an in camera interview of the informant during the first trial, and asked him questions that had been submitted by the defendants. Peacock did not submit any questions. The judge took notes, and read the questions and answers into the record. The judge offered to read the interview to the jury if all defendants agreed. Since they did not all agree, this was not done. The court refused to require the government to disclose the informant's identity, and stated:

Except perhaps for one question and answer in that entire interview, this interview corroborates [the detective] in very important respects, even down to the amount of money that he received as an informant.

...

I make this very positive finding, that it would not assist the defendants, on the contrary it would confirm [the detective's] testimony at all of the important points, certainly, every aspect of the various transactions he confirmed.

There is only one point at which there might be any help to Ralph Warren, and that is this question and answer ... "What, if anything, do you recall Michael Brown saying in the car about Ralph Warren?"

And the answer, and I have it in quotes "I don't remember him in my presence mention Ralph Warren."

The court stated that it would allow any defendant to cross-examine the detective on the informant's failure to remember Brown's statements about Ralph Warren. "And counsel is entitled to use that or any other

Page 1341

part of that interview in cross-examination of [the detective]."

The Supreme Court has recognized the government's privilege not to reveal the identity of persons who furnish information regarding violations of the law. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This privilege is especially important in the enforcement of controlled substance laws where there is usually no complaining witness. United States v. Lloyd, 400 F.2d 414, 415 (6th Cir.1968). The privilege has limits, however. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 628.

We review the district court's refusal to order the disclosure or production of the confidential informant under an abuse of discretion standard. United States v. Moore, 954 F.2d 379, 381 (6th Cir.1992) (citing Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 103, 107 L.Ed.2d 67 (1989)). The Sixth Amendment does not require the government to call every witness competent to testify, including special agents or informants. Moore, 954 F.2d at 381. If the evidence on which the defendant was convicted was obtained personally by the government agents who did testify, the government is not required to produce the cooperating individual. Mere invocation of the right to compulsory process does not automatically outweigh the public interest in protecting confidential informants. "An informant must be disclosed only upon a showing by the defendant that disclosure is essential to a fair trial." Id.

The district court found that in every respect save one, the informant would have corroborated the undercover detectives' testimony. The question is whether the district court was required to order the disclosure of the informant's identity in light of its acknowledgement that the informant's failure to remember Brown's statements about Ralph Warren might have been of help to Warren. The answer to this question is no. The district court correctly accommodated the government's privilege to protect the identity of its informant with any interest Warren might have had in personally interrogating the informant. 2

Essential to our determination is the fact that Warren was not prohibited from presenting to the jury the fact that an informant who was present to hear Brown's alleged statements about him did not recall those statements. This was the only subject on which the informant could have been of help, and Warren makes no persuasive showing to the contrary. The court stated that it would permit Warren to cross-examine the undercover detective on the informant's inability to remember the contested statements. This, coupled with the fact that Brown himself denied making the statements, was sufficient to address the issue of whether the statements had in fact been made. Moreover, while the court allowed defendants to explore the informant's faulty memory through cross-examination of the detective, the court stated that the government would not be allowed to examine the detective on redirect to establish those facts which the informant did remember.

We remain mindful of the Supreme Court's admonition in Roviaro:

[N]o fixed rule with respect to disclosure of an informant's identity is justifiable. The...

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