75 F.3d 761 (1st Cir. 1996), 95-1291, United States v. Wihbey

Docket Nº:95-1291, 95-1394.
Citation:75 F.3d 761
Party Name:UNITED STATES, Appellee, v. Robert WIHBEY, Defendant, Appellant. UNITED STATES, Appellee, v. Claude WHITMAN, Defendant, Appellant.
Case Date:February 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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75 F.3d 761 (1st Cir. 1996)

UNITED STATES, Appellee,

v.

Robert WIHBEY, Defendant, Appellant.

UNITED STATES, Appellee,

v.

Claude WHITMAN, Defendant, Appellant.

Nos. 95-1291, 95-1394.

United States Court of Appeals, First Circuit

February 6, 1996

Heard Nov. 8, 1995.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the District of Massachusetts; Frank H. Freedman, Senior U.S. District Judge.

Jack St. Clair with whom Barbara J. Sweeney, Springfield, was on brief, for appellant Wihbey.

Vincent A. Bongiorni, Springfield, MA, for appellant Whitman.

Dina Michael Chaitowitz, Assistant United States Attorney, with whom Donald K. Stern, Boston, MA, United States Attorney, was on brief, for appellee.

Before CYR, BOUDIN, and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Robert Wihbey and Claude Whitman were tried by a jury and convicted of conspiracy to distribute marijuana. The jury also convicted Wihbey of possession of marijuana with

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intent to distribute. Both Wihbey and Whitman challenge their convictions on the grounds that the prosecutor made improper remarks in closing argument, and that the government proved multiple conspiracies, not the single conspiracy charged in the indictment. Wihbey argues that the warrantless entry of his home was not justified by exigent circumstances and that the evidence against him does not support the drug quantity used to calculate his sentence under the guidelines. Whitman also challenges his sentence, asserting that he did not play a leadership role in the conspiracy that justified an increase in offense level. Finding no error, we affirm the convictions and the resulting sentences.

I.

FACTUAL OVERVIEW

The evidence, taken in the light most favorable to the verdict, permitted the jury to find the following facts. See United States v. Twitty, 72 F.3d 228, 229-30 (1st Cir.1995). In the spring of 1991, Richard Britt and Thomas Rohan agreed to work together dealing marijuana. Initially, they intended their source of supply to be appellant Claude Whitman and one Frank Camyre, but when Camyre and Whitman repeatedly failed to produce as promised, Rohan cultivated another supplier, Robert Wihbey. Meanwhile, an informant for the Drug Enforcement Administration ("DEA"), David DeCastro, had convinced Britt and Rohan that he had the desire and ability to buy 250 pounds or more of marijuana (about $500,000 worth). Britt and Rohan, eager to recoup an earlier loss in a failed marijuana deal, agreed to act as middlemen in a large sale to informant DeCastro. Britt and Rohan informed both of their sources that they had a big buyer on the hook. On or about November 22, 1991, both sources independently obtained shipments of marijuana. On November 23, 1991, DEA agents arranged for DeCastro to conduct controlled buys the following day from both the Wihbey source and the Whitman/Camyre source. Britt and Rohan were arrested during a buy from Wihbey's associate, Michael Weiner, who was also arrested; all three immediately agreed to cooperate. Weiner led the DEA agents to Wihbey's home, where they arrested Wihbey and searched the premises. Later that day, Britt and Rohan cooperated with the DEA on a second controlled buy, from the Whitman/Camyre source, leading to the arrest of Whitman, Camyre and Whitman's source, Roger Brandt. Further factual details will be provided as needed to analyze the several issues presented.

II.

PROCEDURAL BACKGROUND

In March 1993, a federal grand jury returned a four-count indictment that charged: in Count One, that from May 1991 through November 23, 1991, Britt, Rohan, Wihbey, Weiner, Whitman, and Camyre conspired to possess with intent to distribute, and to distribute, marijuana in violation of 21 U.S.C. § 846; in Count Two, that on October 4, 1991, Camyre possessed marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1); in Count Three, that on November 22, 1991, Wihbey possessed marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and in Count Four, that on November 23, 1991, Wihbey used a pistol during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).

Wihbey filed a motion to suppress physical evidence and a statement obtained from him during the warrantless arrest and search at his home, but the motion was denied after an evidentiary hearing. Prior to trial, all of the defendants except Wihbey and Whitman pleaded guilty and agreed to cooperate with the government. After a five-day trial in May 1994, the jury found Wihbey and Whitman guilty of the conspiracy count and Wihbey guilty of the possession with intent to distribute count. The jury, however, acquitted Wihbey on the firearm count. Wihbey and Whitman were sentenced in November 1994 and promptly filed notices of appeal.

III.

DISCUSSION

  1. Warrantless Entry of Wihbey's Home

    1. Facts

    The magistrate judge found the following facts at the suppression hearing. The DEA

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    investigation that led to the arrests in this case was focused on a controlled buy of marijuana by the informant DeCastro from Whitman and Camyre, with Britt and Rohan acting as middlemen. It was only one day before the scheduled Whitman/Camyre buy that DEA agents learned that Rohan had another source, Robert Wihbey. Late in the afternoon of Friday, November 22, 1991, Rohan told the informant DeCastro that he had an unnamed source that could deliver 250 pounds of marijuana. When DeCastro expressed his interest in purchasing from both this new source and the Whitman/Camyre source, Britt and Rohan drove DeCastro to the Beekman Place condominiums in Agawam, Massachusetts. DeCastro wore a transmitter, and was under audio and visual surveillance by DEA special agent Sean McDonough and other agents. Rohan parked the car, got out, and returned shortly thereafter with a sample of marijuana for DeCastro's approval. The agents were unable to discern, however, which condominium unit Rohan had entered, nor did they learn the name of the new source. DeCastro approved the sample and he and Rohan scheduled a 250 pound deal to take place at Rohan's residence later that night.

    Early that evening, DeCastro called Britt to confirm the arrangements, but Britt stated that the delivery would have to be postponed until 8:00 a.m. the following morning, Saturday, November 23, 1991. The following day, Britt and Rohan met DeCastro and brought him to a house (owned by Wihbey, but not used as his residence) at 30 Arden Street in Springfield, Massachusetts. There, DeCastro examined ten pounds of marijuana, and was told by Wihbey's associate, Michael Weiner, that there were thirty more pounds in Weiner's car. Weiner advised the buyers that the rest of the marijuana would be produced in increments after the cash for the first forty pounds was delivered to the source. DeCastro said he had to get his "money man," but he returned instead with special agent McDonough, followed by a number of DEA agents. Britt, Rohan, and Weiner were arrested inside the Arden Street house at about 11:00 a.m.; the DEA still had not learned the identity of the source (Wihbey) or his unit number at Beekman Place.

    Britt, Rohan, and Weiner promptly agreed to cooperate with the DEA agents, and by 11:15 one or more of them had disclosed that Wihbey was the source and that he lived at 33 Beekman. At the hearing, agent McDonough conceded that at this point he had probable cause to arrest Wihbey and search 33 Beekman. Nonetheless, McDonough had doubts about the credibility of the three arrestees and decided to interview them individually at DEA headquarters; these interviews began at 11:30 that morning. Agent McDonough determined that the cooperating defendants were credible, and based on information they provided, that Wihbey would grow suspicious if Weiner did not return promptly with $68,000 or call to explain the delay.

    At about the same time, roughly noon, McDonough was also concerned with setting up the controlled buy from Whitman and Camyre. McDonough directed Britt to contact Whitman or Camyre, and the second deal was set up for 3:00 that same afternoon. Thus, McDonough was involved to some extent with setting up the Whitman/Camyre buy at the same time that he was preparing to arrest Wihbey.

    Because it was Saturday, McDonough believed that application for a warrant to arrest Wihbey in his home might take as long as several hours, and that quick action was necessary because Wihbey's growing suspicion might motivate him to flee or destroy evidence. At approximately 12:45 p.m., the DEA established surveillance of Wihbey's condo, and at 1:00 p.m. Weiner and Rohan entered, followed by special agent McDonough and other agents who "secured the apartment." Wihbey was found lying on the basement floor behind a pool table, with a loaded pistol a few feet away.

    Agent McDonough placed Wihbey under arrest and advised him of his rights. McDonough then told Wihbey that they had no search warrant, but would get one if needed; he asked Wihbey to show the agents where he had marijuana and guns. Wihbey agreed, and during the ensuing search the agents found 1200 grams of marijuana (about 2.7

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    pounds, which McDonough characterized as "personal use" marijuana) and some marijuana paraphernalia. Agent McDonough sought Wihbey's cooperation, asking him to name his source. Wihbey said that he would not give McDonough the name of the "guy above me" because he was a personal friend, but he would give the name of the "guy above him." Agent McDonough declined Wihbey's offer of partial cooperation.

    2. Analysis

    The Constitution requires that police normally obtain a warrant before entering a person's home to make an arrest. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). The government says, however, that in this case "exigent circumstances" excused the...

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