U.S. v. Erwin, 94-1766

• Decision Date: 08 December 1995
• Docket Number: No. 94-1766,94-1766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James ERWIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 218

71 F.3d 218

UNITED STATES of America, Plaintiff-Appellee, v. James ERWIN, Jr., Defendant-Appellant.

No. 94-1766.

United States Court of Appeals, Sixth Circuit.

Argued May 16, 1995.

Decided Dec. 8, 1995.

Christopher P. Yates (argued and briefed), Office of U.S. Atty., Detroit, MI, for plaintiff-appellee.

Kenneth M. Mogill (argued and briefed), Mogill, Posner & Cohen, Detroit, MI. for defendant-appellant.

Before: JONES and RYAN, Circuit Judges; MATIA, District Judge. ^*

MATIA, District Judge, delivered the opinion of the court, in which JONES, J., joined. RYAN, J. (pp. 223-26), delivered a separate dissenting opinion.

MATIA, District Judge.

Defendant-appellant, James Erwin, Jr., appeals his conviction entered after he pleaded guilty to possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). We are asked to determine whether the district court erred in (1) denying defendant-appellant's motion to correct improper assignment of the case, and (2) denying defendant-appellant's motion to suppress. For the reasons that follow, the conviction is reversed and remanded.

I.

At about 6:45 p.m. on July 31, 1992, Livingston County Sheriff's Deputy Jeffrey Wagner was on patrol when he received a police radio broadcast concerning a silver vehicle, including a license plate number, being operated by a possibly intoxicated black male. In response to the radio broadcast, Deputy Wagner drove to the Oasis Truck Stop, a large gas station and restaurant facility at the intersection of M-59 and U.S. 23 in Livingston County, Michigan.

When Deputy Wagner arrived at the truck stop, he saw defendant James Erwin, Jr. standing outside a car matching the broadcast description. Upon making eye contact with Erwin, Deputy Wagner noted that he appeared "a little more nervous" than average. As Erwin attempted to return to his car, Deputy Wagner advised him to "stay there" and explained the nature of the contact. Although Deputy Wagner testified that he neither smelled alcohol on Erwin's breath nor perceived any other signs of intoxication, he proceeded to ask Erwin for his license, car registration and proof of insurance. Erwin produced his driver's license and a car rental agreement, stating that he had borrowed the rental car from a friend. Upon running a routine license check, Deputy Wagner learned that Erwin had a prior record for drugs and weapons and was recently off parole.

It was at this point that Livingston County Sheriff's Deputy Michael Lawry, ¹ who was privy to the same radio communication, arrived at the scene and asked Deputy Wagner whether he had had a chance to "pat down" Erwin, to which Wagner responded that he had not. Upon performing the pat down search, Deputy Lawry discovered a pager, $846.00 in cash and $135.00 in food stamps. While he was conducting the search, Deputy Lawry noticed a cellular phone and what appeared to Lawry to be drug paraphernalia on the front seat of Erwin's car. In response to the question of whether Erwin had anything in the car which he shouldn't, such as drugs or guns, Erwin responded that he did not. Deputy Lawry then stated, "Well, then, you don't mind if I look around in the car then, do you?", to which Erwin replied, "No." Lawry proceeded to search the car. A search of the car revealed a one-kilogram package of cocaine.

Approximately seven weeks prior to this incident, on June 7, 1992, a warrant-based search of a house located in Saginaw, Michigan, turned up various drugs, a firearm and papers bearing Erwin's name. The search also produced papers and mail indicating that Erwin was connected to a second residence located in Saginaw. Consequently, a warrant-based search was conducted later that same day at the second residence. This search yielded drug paraphernalia with heroin residue, $4,500.00 in cash, a pager, a police scanner and documents linking Erwin to both residences.

On June 16, 1993, in the Northern Division of the United States District Court for the Eastern District of Michigan ("Northern Division") at Bay City, Erwin was charged in a one-count criminal complaint with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841. Although the complaint outlined the searches and seizures that occurred in Saginaw, the sole charge referred exclusively to the July 31, 1992, arrest of Erwin at the Oasis Truck Stop in Livingston County.

At his detention hearing, Erwin requested that the case be transferred to the Southern Division of the United States District Court for the Eastern District of Michigan ("Southern Division") at Flint, pursuant to Local Rules 200.1 and 100.1(c) and (d) of the Eastern District of Michigan. Over the government's objection, the magistrate judge granted Erwin's motion.

On June 30, 1993, a grand jury in the Northern Division returned a six-count indictment against Erwin, charging conspiracy to distribute cocaine within the Northern Division of the Eastern District of Michigan, various other drug and weapons charges stemming from the warrant-based searches that took place in Saginaw on June 7, 1992, and a single charge mirroring the June 16th complaint flowing directly from the events that transpired on July 31, 1992, at the Oasis Truck Stop in Livingston County.

The six-count indictment was assigned to the Northern Division docket; accordingly, Erwin was arraigned in the Northern Division on July 20, 1993. On July 29, 1993, Erwin filed, in the Southern Division case, a motion to correct improper assignment of the Northern Division indictment. On August 24, 1993, the district judge denied Erwin's motion, declaring void the magistrate judge's June 16th order transferring the original case to the Southern Division.

On October 18, 1993, Erwin filed a motion seeking to suppress the fruits of the two warrant-based searches in Saginaw as well as the cocaine seized in the warrantless search in Livingston County. After the motion to suppress was denied, Erwin entered into a plea agreement that allowed him to appeal from the district court decisions denying his motion to suppress as well as his motion to correct improper assignment of indictment. On June 28, 1994, Erwin was sentenced to a 264-month prison term. Erwin's timely appeal followed.

II.

In his first assignment of error, Erwin contends that the district court violated a clear legal duty to correct the improper assignment of the case to the Northern Division after the return of the indictment. As a basis for his argument, he cites the Local Rules of the Eastern District of Michigan. However, because the Bay City (Northern Division) and Flint (Southern Division) courthouses are both located within the Eastern District of Michigan, Erwin has no constitutional or statutory right to venue in Flint. United States v. Truglio, 731 F.2d 1123, 1130 (4th Cir.1984); United States v. Balistrieri, 778 F.2d 1226, 1229 (7th Cir.1985), cert. denied, Balistrieri v.United States, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 573 (1986); United States v. Rosier, 623 F.Supp. 98, 99 (W.D.Mo.1985). Accordingly, Erwin must establish that the district court abused its discretion in refusing to transfer the case from Bay City to Flint. Truglio, 731 F.2d at 1130.

Rule 18 of the Federal Rules of Criminal Procedure provides that each prosecution must occur "in a district in which the offense was committed." Furthermore, "[t]he trial court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." Id. According to the notes accompanying Rule 18, a 1966 amendment eliminated a previous requirement that the prosecution shall be in a division in which the offense was committed and distinctly vested discretion in the court to fix the place of trial at any place within the district with due regard to the convenience of the defendant and the witnesses. There has been no allegation by Erwin that the trial in Bay City (Northern Division) inconvenienced either himself or the witnesses, or that it delayed the administration of justice. Erwin has alleged, on the other hand, that the prosecution engaged in judge-shopping by trying the case in the division in which the six-count indictment was returned. This allegation is directed toward the prosecution rather than the district judge; consequently, it is an insufficient basis for reversing the district court's decision. For this reason, and because five of the six offenses were committed within the area encompassed by the Northern Division, we find that the district court did not abuse its discretion in holding the trial in the Northern Division of the Eastern District of Michigan.

III.

In his second assignment of error, Erwin contends that the district court erred in denying his motion to suppress the cocaine that was discovered as a result of the July 31 search of Erwin's car on the basis that the deputies exceeded their authority to detain Erwin and search his vehicle after the suspicion that gave rise to the initial stop had been resolved. When reviewing the denial of a motion to suppress evidence, the appellate court must consider the evidence in the light most favorable to the government. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992). This Court applies the clearly erroneous standard to findings of fact when reviewing the ruling of a district court on a motion to suppress, but reviews conclusions of law de novo. Id.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), permits a "stop and frisk" by police where the stop is based on specific, articulable facts indicating reasonable suspicion that a crime has been committed. Id. at 21, 88 S.Ct. at 1879-80. Furthermore, the scope of activities permitted during an investigative stop is determined by the circumstances that initially justified the stop. United States v. Obasa, 15 F.3d...