774 F.2d 368 (10th Cir. 1985), 83-2449, United States v. Gay

Docket Nº:83-2449.
Citation:774 F.2d 368
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Norman GAY, Defendant-Appellant.
Case Date:September 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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774 F.2d 368 (10th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,


Thomas Norman GAY, Defendant-Appellant.

No. 83-2449.

United States Court of Appeals, Tenth Circuit

September 26, 1985

Rehearing Denied Oct. 18, 1985.

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[Copyrighted Material Omitted]

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David J. Mintz, Denver, Colo. (Emerson B. Semple, Denver, Colo., was also on brief) for defendant-appellant.

William D. Welch, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was also on brief) for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and BREITENSTEIN and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

In a bench trial after a jury was waived, defendant Gay was convicted on one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). On this direct appeal from his conviction, Gay challenges the sufficiency of the evidence, the sufficiency of the chain of custody established by the Government, several searches and seizures which produced most of the Government's evidence, and the admissibility of certain statements made prior to his being advised of the Miranda rights.


The Factual Background

The Government's evidence tended to show the following facts:

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On the morning of August 12, 1983, Colorado State Troopers Crandall and Witt were notified at their Idaho Springs office by telephone to watch for a late model blue Chrysler with out-of-state tags traveling west toward their location. The driver was suspected of driving under the influence. Trooper Crandall went outside the office to a position where he could observe the exit from Interstate 70. Subsequently, Trooper Crandall observed a blue Chrysler, heading west, being driven erratically by the defendant.

Gay drove past Trooper Crandall some 150 yards. He stopped briefly in the traffic lane and continued on until he parked in a lot off Colorado Boulevard. Both Troopers Crandall and Witt observed Gay exit his automobile and saw him stagger and sway as he walked. The troopers both testified that Gay's words were understandable but slurred and his eyes bloodshot, clothes wrinkled, and hair unkept. (Tr. III, 23, 23, and 41-42).

The troopers asked Gay for his driver's license. When the license had been produced, Trooper Witt asked Gay to empty his "bulgy" pockets. (Tr. III, 42). Gay emptied his pockets and placed the contents on the trunk of the Chrysler. With Gay's permission, Trooper Witt looked inside the automobile for the purpose of checking the registration in the glove box. While looking inside the automobile Trooper Witt observed a piece of cardboard and a vial containing a white liquid. Trooper Witt returned to the rear of the vehicle and looked through the contents of Gay's pockets. Trooper Witt picked up a small tin container, at which time Gay stated, "That's cocaine, too!" (Tr. III, 45). When Trooper Witt asked permission to look inside the trunk, Gay responded, "No. If [you] look in there, then I'd really be in trouble." (Tr. III, 45).

Gay was then arrested and advised of his rights. After sealing the automobile with tape, the troopers obtained a warrant to search the automobile. In their search, the troopers found a canvas gym bag containing two ziplock bags and a box of baking soda. The two bags each contained 1.2 pounds of 73% to 74% pure cocaine, with a total street value of between $55,000 to $65,000.

Gay offered no testimony. He did introduce an exhibit (Defendant's Exhibit C) which was a 1982 article from the Journal of Psychoactive Drugs 1 on cocaine smoking. In substance, the article stated that smoking of cocaine free base (as opposed to intranasal ingestion of cocaine) was increasing in popularity among all classes of drug users. It further stated that a cocaine free base user can typically consume from one to thirty grams of cocaine per day, from 30 to 900 grams per month. Therefore, the personal needs of the cocaine free base user are significantly greater than those of the traditional intranasal user.

After the bench trial the judge heard arguments by counsel. He denied a motion for a judgment of acquittal by the defendant and then found that the following matters had been proved beyond a reasonable doubt.

The court found that on August 12, 1983, the defendant was in possession of about 2.4 pounds of cocaine in the state and district of Colorado. Cocaine was found to be a controlled substance listed in Schedule 2 of 21 U.S.C. Sec. 812. The court further found that defendant knowingly and intentionally possessed the cocaine at that time.

The court further found from the amount being large, from the fact it was being transported, and from circumstances generally, that there was an intent to distribute this cocaine. It appeared to the court that even if one would speculate that the defendant were free basing, as counsel invited the court to speculate or find based on very little if any real evidence, then there was nothing inconsistent with his free basing and also distributing; at least there was no evidence of any such inconsistency. It was found highly unlikely because of the extremely large amount of

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value of the cocaine--$50,000.00 to $60,000.00 in value if uncut--that there was any purpose other than distribution involved. The expert opinion, undisputed and uncontradicted, was found to show that the amount was too large for any reasonable inference of personal use. The court found that the expert, Mr. Barnhill, was very credible and well qualified to state his opinion through many years of experience in law enforcement. The court found and concluded the defendant was guilty of having violated 21 U.S.C. Sec. 841(a)(1) as charged.

The court's written order of conviction followed, adjudging that the defendant was guilty of knowingly and intentionally possessing with intent to distribute approximately 2.4 pounds of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) as charged in Count I of the indictment. This appeal followed.


The Sufficiency of the Evidence

Gay contends on appeal that the evidence presented at trial was insufficient to support his conviction for possession of cocaine with the intent to distribute. Specifically, Gay argues that mere possession of such an amount of cocaine is insufficient for a conviction under Sec. 841(a)(1), absent any direct or circumstantial evidence to support an inference of intent to distribute.

The standard of evidentiary review in criminal cases is well settled. "The evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, the fact finder may find the defendant guilty beyond a reasonable doubt." United States v. Yates, 470 F.2d 968, 970 (10th Cir.1972) (quoting United States v. Ortiz, 445 F.2d 1100, 1103 (10th Cir.1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971) ); see also United States v. Petersen, 611 F.2d 1313, 1317 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980); United States v. Hubbard, 603 F.2d 137, 142 (10th Cir.1979). To be sufficient, the evidence must do more than raise a mere suspicion of guilt. United States v. Ortiz, 445 F.2d at 1103.

It was incumbent on the Government to prove that the defendant knowingly possessed the controlled substance with the intent to distribute. 2 21 U.S.C. Sec. 841(a)(1) (1982); see United States v. Compton, 704 F.2d 739, 742 (5th Cir.1983). The "intent to distribute" element is generally established through circumstantial evidence. See United States v. DuFriend, 691 F.2d 948, 951-52 (10th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983). The quantity of the drug possessed is a circumstance which may permit the inference that the possessor intended to sell, deliver, or otherwise distribute. United States v. Espinosa, 771 F.2d 1382, 1397 n. 17 (10th Cir.1985) (approximately 20,000 pounds of marijuana); United States v. DuFriend, 691 F.2d at 951-52 (approximately 600 pounds of marijuana); see also United States v. Kelly, 749 F.2d 1541, 1546 (11th Cir.1985) (approximately 28,000 pounds of marijuana); United States v. Dreyfus-de Campos, 698 F.2d 227 (5th Cir.1983), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983) (approximately fourteen ounces of cocaine); United States v. Flynn, 664 F.2d 1296 (5th Cir.1982), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982) (thirteen tons of marijuana); United States v. Grayson, 625 F.2d 66 (5th Cir.1980) (304.77 grams of cocaine). The underlying theme of such cases is that the defendant possessed a quantity which was more than he would possess for his own use. See, e.g., United States v. Ortiz, 445 F.2d at 1105.

It is clear that Gay possessed no small amount of cocaine. 3 However, here the evidence did not end with the quantity

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of the cocaine alone. Expert testimony at trial fixed the resale value of the cocaine at approximately $55,000 to $65,000. 4 The purity of the cocaine seized was well above the purity of the drug found on the street. 5 The seized cocaine was 73% to 74% pure. At about the time of the seizure, cocaine was being sold in Denver with from 30% to 50% purity. (Tr. IV, 90). The troopers also found a box of baking soda, a known dilutant, in the gym bag with the cocaine. (Tr. IV, 80).

It is true that the evidence supporting the conviction of possession with the intent to distribute is circumstantial. 6 United States v. Henry, 468 F.2d 892, 894 (10th Cir.1972); United States v. Ebey, 424 F.2d 376 (10th Cir.1970). Nonetheless, the circumstantial evidence required to support a verdict need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities save guilt. United States v. Henry, 468 F.2d at 894. We are satisfied that there was sufficient evidence to...

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