4 F.3d 579 (8th Cir. 1993), 93-1130, United States v. Horne

Docket Nº:93-1130, 93-1131.
Citation:4 F.3d 579
Party Name:UNITED STATES of America, Appellee, v. Alex Derwin HORNE, Appellant. UNITED STATES of America, Appellee, v. Joseph Jon FRANKLIN, Appellant.
Case Date:August 31, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 579

4 F.3d 579 (8th Cir. 1993)

UNITED STATES of America, Appellee,

v.

Alex Derwin HORNE, Appellant.

UNITED STATES of America, Appellee,

v.

Joseph Jon FRANKLIN, Appellant.

Nos. 93-1130, 93-1131.

United States Court of Appeals, Eighth Circuit

August 31, 1993

Submitted June 14, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 16, 1993.

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F. Clayton Tyler, Minneapolis, MN, argued and briefed (Hersch Izek, on the brief), for appellant Alex Horne.

Bruce H. Hanley, Minneapolis, MN, argued and briefed (Lisa D. Dejoras, on the brief), for appellant Joseph Jon Franklin.

Byron T. Jones, Minneapolis, MN, argued (Francis X. Hermann and B. Todd Jones, on the brief), for appellee.

Before JOHN R. GIBSON, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Alex Derwin Horne and Joseph Jon Franklin appeal their convictions on federal drug and firearm charges. They challenge

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the constitutionality of various searches and seizures of evidence, and contend that their conviction by an all-white jury was constitutionally infirm. Both appellants also argue that their convictions on certain counts were not supported by sufficient evidence. In addition, Franklin maintains that his trial should have been severed from Horne's and that his sentence should not have been enhanced for his role in the conspiracy.

On June 4, 1992, Minneapolis Police Officers executed a search warrant for a house occupied by Horne at 1325 James Avenue in Minneapolis. After obtaining the search warrant but prior to its execution, Officer Tim Trebil contacted a member of the police department's narcotics unit to obtain additional information regarding Horne's suspected drug trafficking activities. Officer Chris Hauglid of the narcotics unit told Trebil that the narcotics unit had been conducting an ongoing investigation into Horne's activities and that he drove a white mini-van that he used in his drug business. When they arrived to execute the warrant, officers saw the mini-van parked on the street directly in front of the house at 1325 James. Soon after gaining entry to and securing the house, officers found Horne, a Colt 9 mm semi-automatic pistol, and approximately $6000 cash in the living room. They also found a Calico M950 9 mm semi-automatic weapon in an upstairs bedroom. After confirming that the white mini-van parked outside was registered to Horne, Officer Trebil ordered it impounded. Officer Trebil took the van keys from a living room table, gave them to another officer who was assisting in the search, and directed him to tow the mini-van. Consistent with standard operating procedures, the officer began an inventory search. He immediately saw a clear plastic bag containing what appeared to be crack cocaine tucked in the interior handle of the van's door. The officer seized the cocaine and completed the impound search of the van's interior. Police subsequently obtained a warrant for a detailed search of the van. No additional drugs were recovered in the second search, but a box of plastic baggies was seized.

On July 16, 1992, a second search warrant was executed at 1325 James Avenue. This federal warrant, executed by U.S. marshals, authorized a search of the house for Perry Horton, a fugitive from Mississippi for whom the marshals also had an arrest warrant. Following an announced entry into the house, the law enforcement officers found four individuals, two of whom were subsequently identified as Horne and Horton, seated and sleeping in a first-floor room. In conjunction with securing these individuals, law enforcement officers looked under the furniture where the individuals had been seated, and they conducted a security sweep of the rest of the house. Deputy U.S. Marshal Mark Postudensek discovered six ounces of cocaine, several rocks of crack cocaine, and a scale under the cushions of the loveseat in the room where Horne was arrested. In response to their query, Horne told the deputy marshals that he had a gun in his upstairs bedroom, and they recovered the weapon, a Ruger 9 mm semi-automatic weapon. After Horne was advised of his Miranda rights, he consented to a search of the entire upstairs bedroom where a large roll of cash and a loaded 9 mm ammunition clip were subsequently found.

Following this cocaine seizure, the Drug Enforcement Administration ("DEA") became involved in the investigation, and DEA agents obtained information regarding the source of the cocaine through witness interviews. Perry Horton described the source as a tall, well-built African-American male with short hair. Horton said the source was called "Mack", was from Los Angeles, and was driving a blue, late-model car. Later that same day, while federal officers were executing a third search warrant that permitted a more detailed search of the house, a DEA agent observed a man, subsequently identified as Joseph Jon Franklin, who matched the physical description of the source. He drove up to the house in a blue, late-model car. The man walked toward the front door, but before he reached the house, he appeared to speak to neighbors and then turned and walked away. DEA agents stopped the man, identified themselves as police officers, and requested that he come into the house. He complied, and when the

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agents asked his name, he replied "Mack". When asked where he was from, he told them California. The agents arrested Franklin and searched both him and his car. They found no drugs or sums of money but did seize a number of documents before returning the car to the agency where Franklin had rented it.

Prior to selection of a jury, both defendants, who are African-American, challenged the entire panel on the grounds that it lacked any persons of color. The district court denied the joint motion.

Several items seized during the various searches were admitted into evidence during the trial. The evidence included approximately 12.6 grams of crack cocaine, which was recovered along with two pagers, a box of plastic baggies, and $76 from inside Horne's mini-van on June 4, 1992. Horton testified that the crack cocaine in the mini-van was placed there by Horne, who had returned to 1325 James Avenue with Horton just minutes before execution of the search warrant. Two weapons and a large amount of currency were found in the house on June 4, 1992, and Officer Trebil testified that a loaded semi-automatic weapon and more than $6000 were found in the living room near Horne. A digital gram scale was recovered in the kitchen area. Minneapolis police retrieved a second weapon from Horne's upstairs bedroom, along with a shoulder holster, pager, and more than 150 rounds of ammunition. Horne had admitted ownership of the gun found in his bedroom at the time of his June 4, 1992 arrest. Police also recovered a Western Union money transfer receipt from Horne to Joseph Franklin in Los Angeles, reflecting a transfer of $3000 on May 28, 1992.

Certain evidence seized on July 16, 1992, was also admitted during the trial. Deputy Marshal Postudensek testified about his discovery of both powder and crack cocaine, as well as a digital gram scale, all found near Horne under a loveseat in the living room. These items were admitted into evidence, along with the semi-automatic pistol found in Horne's bedroom. More than $3000 in cash was found in Horne's bedroom, along with several loaded ammunition clips. Numerous documents and bills found in the house verified Horne's occupancy of it, as well as Horne's use of a pager that was recovered.

Perry Horton offered trial testimony of his knowledge of Horne's drug dealing and of Horne's relationship with Franklin. Horton testified that he knew Horne by the nickname "Bo" and Franklin by the nickname "Mack". Horton stated that while living at 1325 James Avenue between May and July, 1992, he saw Franklin at the house frequently, including Franklin's last visits during the week of July 11, 1992. Horton testified that sometime during that week he saw Horne give Franklin approximately $20,000. Franklin came to...

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