U.S. v. Decoud
| Decision Date | 02 August 2006 |
| Docket Number | No. 04-50318.,No. 04-50374.,No. 04-50478.,04-50318.,04-50374.,04-50478. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sedrick Roshun DECOUD, Jr., a/k/a Rab; Shaun Dee Merced; and Shaun Vance, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kendra Trice, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Audra Israel, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vincent J. Oliver, Los Angeles, CA, argued the cause for appellant Decoud.
Gail Ivens, Glendale, CA, argued the cause for appellant Trice.
Richard D. Rome, Van Nuys, CA, argued the cause for appellant Israel.
Craig H. Missakian, Assistant United States Attorney, argued the cause for the government. With him on the consolidated brief were Debra Wong Yang, United States Attorney for the Central District of California, Thomas P. O'Brien, Assistant United States Attorney, and Nancy Kardon, Assistant United States Attorney.
Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. Nos. CR-02-00063-VAP-03, CR-02-00063-VAP-12, CR-02-00063-VAP-8.
Before B. FLETCHER, FERGUSON, and CALLAHAN, Circuit Judges.
This case involves the Drug Enforcement Administration's ("DEA") investigation and the prosecution of a drug-trafficking organization in Riverside, California. Sedrick Decoud, Kendra Trice, and Audra Israel (collectively, "the appellants") challenge their convictions and sentences for engaging in a conspiracy to distribute cocaine base and, in Decoud's case, for being a felon in possession of a firearm. They raise a number of issues ranging from the government's non-disclosure of its confidential informant's identity to the district court's dismissal of a juror based on her claimed inability to discharge her duties in light of her religious views. We hold that under the various standards that govern our review, the appellants fail to show that the district court committed reversible error. The government concedes, however, that a limited remand is appropriate to give the district court the opportunity to correct the supervised-release term that it imposed as part of Israel's sentence. Accordingly, we affirm the judgments entered by the district court and remand Israel's sentence for further proceedings.
The investigation beginning in April 2001 uncovered the appellants' participation in an enterprise that manufactured and distributed cocaine base, otherwise referred to as "crack" cocaine. The organization was run by Cleo Page, Israel's then-boyfriend.
Israel met with drug customers at her home and gave them cocaine base in exchange for money. Israel allowed Page to store drugs at her home and introduced Page to her sister, Trice, as someone who could also sell drugs. From then on, Trice was involved in selling drugs for Page and would deliver cocaine base to buyers at prearranged locations. Decoud was also a member of the organization, selling and manufacturing cocaine base for Page.
Six or seven months into its investigation, the government approached the district court with a wiretap application and supportive declaration by a DEA Special Agent ("case agent"), requesting authority to intercept calls to and from a cellular telephone primarily used by Page. In addition to Page, the affidavit named Trice as a principal subject of the investigation. The stated purpose of the wiretap was primarily to investigate an alleged conspiracy to manufacture and distribute controlled substances. The affidavit detailed the probable cause for the wiretap, relying on discoveries made during the pre-wiretap investigation and stating that "Special Agents of the DEA have received information concerning an organized cocaine trafficking and distribution network including[] Page ... and others as yet unknown[] from Confidential Sources[.]" The affidavit also explained that the wiretap was necessary because normal investigative procedures had been exhausted and other methods of investigation had already been used by or were unavailable to law enforcement.
On November 28, 2001, the district court authorized the initial interception of wire communications, which began the following day. On December 31, 2001, based on the same affidavit, the district court authorized continued interceptions of Page's cellular telephone through mid-January 2002. The wiretap uncovered evidence of the conspiracy: mainly intercepted phone calls with Page.
In a December 7, 2001 intercepted call, Page stated that Decoud was "cooking" cocaine base. The DEA then contacted the California Highway Patrol to ask for help in stopping Decoud's automobile, with the expectation that a stop would be made as long as there was a legitimate, independent basis for doing so.
Later that day, a highway patrol officer traveling with a narcotics canine pulled Decoud over for speeding and having improperly tinted windows. Once stopped, Decoud provided the officer with his driver's license. After running a Department of Motor Vehicles check on Decoud's license, the officer learned that the license had been suspended on account of his failure to appear for a prior violation. The officer arrested Decoud and impounded the automobile pursuant to the California Vehicle Code, which authorizes a peace officer to take possession of a vehicle when the driver has been arrested or cited for driving on a suspended license. CAL. VEH. CODE § 22651(p) (West 2001).
The officer conducted an inventory search of the automobile's contents while Decoud was still present and came across a cooking pot, duct tape, sandwich-size plastic baggies, cellular telephones, cash, and a locked metal briefcase. When asked about the briefcase, Decoud claimed that it did not belong to him and that he did not know how to open it. Decoud further stated that he had borrowed the automobile and that the briefcase belonged to the owner of the automobile. The officer then brought the canine over to the vehicle and the canine "alerted" to the presence of drugs in the briefcase. The officer forced it open and found inside a loaded semi-automatic handgun, a large supply of cocaine base, and a digital scale.
On June 6, 2002, a grand jury returned an eight-count indictment charging the appellants and nine others with various drug-and firearm-related offenses. After the nine other defendants pleaded guilty, the government filed a two-count superseding indictment charging the appellants with conspiring to possess with the intent to distribute and distributing more than 50 grams of cocaine base. Decoud alone was charged in count two with being a felon in possession of a firearm.
The government also filed a motion under Federal Rule of Evidence 404(b) to admit prior felony narcotics convictions for each of the appellants.1 The government sought to admit Israel's 1990 conviction for possession of cocaine base for sale, along with her 1997 and 2001 convictions for possession of cocaine base. After Israel argued that these convictions were too prejudicial, the trial court tentatively admitted the two more recent convictions and excluded the older conviction.
Decoud filed a motion to suppress the evidence derived through the wiretaps, claiming that the supporting affidavit showed that the DEA had failed to exhaust standard investigative techniques, including its use of informants, before seeking a wiretap.2 Decoud argued that the affidavit contained material misstatements and omissions relating to the alleged necessity of the wiretap investigation which, if redacted, may have resulted in denial of the wiretap application. The district court held a hearing and denied the motion, concluding that the affidavit "more than adequately explain[s] why the government either did not undertake other methods of investigation or to the extent that they did or they had, why such efforts in all likelihood, would not produce the evidence for which the wiretaps were needed."
Decoud also filed a motion to suppress the evidence that the highway patrol officer seized from him, including the contents of the briefcase. After holding a hearing the district court issued a written denial of the motion, explaining that the evidence established that (1) there was probable cause for the officer to believe Decoud was speeding and that the tinting on the automobile's windows violated the California Vehicle Code, (2) the officer performed a valid inventory search of the vehicle and that his subjective motivation to conduct the traffic stop "`play[s] no role in [the] ordinary, probable-cause Fourth Amendment analysis'" (quoting Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)), and (3) Decoud lacked standing to object to the search of the briefcase because he denied owning it.
At a pretrial status conference, Israel's counsel made an oral motion for the government to disclose the identity of its confidential source ("CS1"). The wiretap affidavit described CS1 as performing controlled drug buys with Page and two other defendants who had already pleaded guilty. Israel wanted CS1 to testify as a defense witness at trial to show that there was no contact between CS1 and Israel. Although the government did not dispute the lack of contact, Israel argued that she should not be limited to eliciting this fact from the case agent. Recognizing that the lack of contact between CS1 and Israel was undisputed, the court determined that CS1 did not have material testimony, but indicated that it would consider any authority Israel provided in support of her motion.
The following day, Israel filed a written motion for the disclosure of CS1, claiming, without further elaboration, that "testimony from the government's confidential source is not only material to ...
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...jury was required to start its deliberations over. Both of petitioner's arguments are unsupported by case law. In United States v. Decoud, 456 F.3d 996, 1016 (9th Cir. 2006), the Ninth Circuit considered the district court's dismissal of Juror No. 8, the only African American juror, during ......
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...conflict with jury service. See, e.g. , United States v. Whitfield , 590 F.3d 325, 360 (5th Cir. 2009) ; United States v. Decoud , 456 F.3d 996, 1003, 1005, 1016–17 (9th Cir. 2006) ; United States v. Burrous , 147 F.3d 111, 115, 117–18 (2d Cir. 1998) ; United States v. Pappas , 639 F.2d 1, ......
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