U.S. v. Davis

• Decision Date: 05 May 1981
• Docket Number: Nos. 80-1867,80-1901,s. 80-1867
• Parties: UNITED STATES of America, Appellee, v. Eddie Joe DAVIS, Appellant. UNITED STATES of America, Appellee, v. Mary Tiek DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1298

646 F.2d 1298

UNITED STATES of America, Appellee, v. Eddie Joe DAVIS, Appellant.

UNITED STATES of America, Appellee, v. Mary Tiek DAVIS, Appellant.

Nos. 80-1867, 80-1901.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1981.

Decided May 5, 1981.

Stuart Cofman (argued), Cofman, Townsley, Nissenholtz & Weinstein, St. Louis, Mo., for appellant Eddie Joe Davis.

Robert D. Kingsland, U. S. Atty., Charles A. Shaw, Asst. U. S. Atty. (argued), St. Louis, Mo., for appellee.

C. David Keith, St. Louis, Mo., for appellant Mary Tiek Davis.

Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Appellants Eddie Joe Davis and Mary Tiek Davis appeal from final judgments of the district court ¹ finding them guilty of knowingly and intentionally distributing methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). Each appellant was sentenced to a term of thirty months imprisonment to be followed by a three-year special parole term. ² The cases have been consolidated on appeal.

For reversal appellants argue that the district court erred in (1) refusing to suppress drugs purchased by undercover agents, (2) refusing to suppress an inculpatory statement made on the telephone, (3) failing to dismiss appellants' indictment on the grounds that the government's conduct violated appellants' constitutional rights, and (4) not ordering a new trial because the government violated Fed.R.Crim.P. 16 by failing to produce a recorded statement made by Mr. Davis prior to using information contained in that statement at trial. For the reasons discussed below, we affirm the judgments of the district court.

On September 12, 1979, Agent Robert M. Zambo of the Drug Enforcement Administration (DEA) was telephoned by an informant, Thea Preston, an acquaintance of appellant Mary Tiek Davis. The informant advised the agent that she had had a telephone conversation with Ms. Davis about purchasing a quarter ounce of methamphetamine. The informant asked the agent whether he would be interested in purchasing this amount of drugs from appellants and Agent Zambo agreed to do so.

On September 13, 1979, Zambo and Agent Hubert Simpson went to Ms. Preston's residence. Ms. Preston then telephoned Ms. Davis and advised her that she was going to visit appellants at their residence for the purpose of purchasing the methamphetamine. Ms. Preston asked Ms. Davis if she could bring someone along and Ms. Davis consented. The agents, dressed in plain clothes and using their undercover identities, accompanied Ms. Preston to appellants' residence.

Ms. Preston and the agents were met at the door by Ms. Davis who invited them inside. Ms. Preston introduced the agents to appellants; thereafter, Ms. Preston and Ms. Davis stepped aside and conversed with one another while the agents negotiated the drug transaction with Mr. Davis, her husband. Before leaving, a quantity of methamphetamine was purchased by the undercover agents.

A few days after the visit, Ms. Preston gave her consent to allow the DEA agents to record a telephone conversation between Ms. Davis and Ms. Preston. Ms. Preston initiated various topics of conversation relating to the prior visit and drug transaction in order to elicit incriminating information from Ms. Davis regarding her participation in the prior sale. The recording of the telephone conversation was admitted into evidence over objection by Ms. Davis' counsel.

On May 30, 1980, both appellants were arrested and attorneys were appointed. Agent Zambo attempted to gain both appellants' cooperation in disclosing the identity of their supplier of the methamphetamine without securing the prior approval of their attorneys. Later that day, pursuant to advice received from his attorney, Mr. Davis refused to cooperate with Zambo. Zambo thereupon became abusive and threatened appellants with confiscation of property if they refused to cooperate.

On the day Mr. Davis was to be cross-examined, Assistant United States Attorney Charles Shaw received a tape recording of a conversation between Mr. Davis and "Gary Pruett," the alias used by Agent Simpson, that contained incriminating evidence regarding the interstate drug dealings of appellant. On cross-examination, Mr. Davis was questioned about the conversations contained in the recording. Counsel for Mr. Davis had filed a pretrial discovery request pursuant to Fed.R.Crim.P. 16, but was not supplied with a recording or transcript of that conversation until Mr. Davis had completed his testimony.

On September 4, 1980, following a jury trial, appellants were found guilty of distributing methamphetamine. ³ This appeal followed.

These cases have been consolidated on appeal; however, with one exception, appellants present separate questions for our review. We will first address the two claims unique to Ms. Davis. Then we will turn our attention to the mutual claim concerning the indictment, and our analysis will conclude with Mr. Davis' Rule 16 assertion.

I. Purchase of Drugs Fourth Amendment

Ms. Davis asserts that the undercover officers were in her residence without her knowledge and consent to engage in a drug transaction and that this conduct violated her fourth amendment rights.

A purchase of drugs by a law enforcement officer acting as an undercover agent is not a search or seizure under the fourth amendment. Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966). When outsiders are invited into a home for the purpose of transacting unlawful business, a law enforcement officer, acting as a private citizen, may accept an invitation to do business and may enter the premises for the very purpose contemplated by the occupant without infringing upon the occupant's fourth amendment rights. ⁴ Id. at 211, 87 S.Ct. at 427.

Prior to trial, Ms. Davis had asserted that there were no unlawful drugs at her residence but was aware of the purpose of Ms. Preston's and the agents' visit. Later she testified that she and her co-appellant, Mr. Davis, spoke with Ms. Preston and one or both of them "set up" the drug transaction.

The record establishes that Ms. Davis conversed with the informant, Ms. Preston, and discussed with her the sale of methamphetamine. At trial Ms. Davis conceded that she personally admitted the agents into her residence but asserts that she did not become aware of the drug transaction until after their departure.

The crucial element in deciding issues like the one presented here is not whether the agents' identities were known, but rather whether the illegal activity that took place on the premises was known by the party extending the invitation to enter. The conclusion supported by the record is that appellant knew of the purpose of the agents' visit, i. e. to purchase the drugs, and consented to their presence in her residence for that purpose. See United States v. Baldwin, 621 F.2d 251, 253 (6th Cir. 1980).

Thus, the drugs obtained at appellants' home came into possession of the undercover agents through a valid purchase from appellants. ⁵ Such a purchase does not violate the fourth amendment as a matter of law. See Lewis v. United States, supra, 385 U.S. at 212, 87 S.Ct. at 428.

II. Recorded Conversation

Ms. Davis argues that the district court violated her fifth amendment right against self-incrimination by refusing to suppress the recorded conversation between herself and Ms. Preston. We disagree.

A necessary element of compulsory self-incrimination is some kind of compulsion. Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966). No evidence of compulsion exists in this case. Ms. Davis disclosed the incriminating information voluntarily. See Andresen v. Maryland, 427 U.S. 463, 470-75, 96 S.Ct. 2737, 2743, 49 L.Ed.2d 627 (1975).

In the present case no valid claim has been made that Ms. Davis' incriminating statements were the product of any sort of coercion, legal or factual. Where a defendant's conversations with an informant are voluntary and the informant's presence was wholly voluntary, admissions made by the defendant do not violate the fifth amendment privilege against compulsory self-incrimination. ⁶ Hoffa v. United States, supra, 385 U.S. at 303-04, 87 S.Ct. at 414.

Ms. Davis' reliance on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in her brief is misplaced. No arrest took place prior to or during the telephone conversation. See United States v. Gocke, 507 F.2d 820 (8th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975). The telephone conversation contained no "inherently compelling pressures which worked to undermine (Ms. Davis') will to resist and to compel (her) to speak where (she) would not otherwise do so freely " Miranda v. Arizona, supra, 384 U.S. at 467, 86 S.Ct. at 1624.

Although probable cause for arrest may have existed, there is no constitutional right to be arrested at the moment probable cause to do so is established. Andresen v. Maryland, supra, 427 U.S. at 475, 96 S.Ct. at 2745; United States v. Craig, 573 F.2d 455, 474 (7th Cir. 1977), cert. denied, 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978). In sum, the decision to admit the telephone conversation into evidence was not violative of appellant's fifth amendment right against self-incrimination.

III. Dismissal of the Indictment

Next, both appellants assert that the government's conduct before trial constituted an invasion of the relationships between them and their attorneys sufficient to dismiss the indictment against them. We follow the decision of the district court and hold that Agent Zambo's conduct was an intrusion on Mr. Davis' privacy rights but no sixth amendment violation existed because no incriminating information was gleaned from Zambo's contacts with Mr. Davis.

After Mr. Davis was arrested, an attorney was appointed. On May 30, 1980, Zambo entered into conversation with Mr. Davis...