8 F.3d 1455 (10th Cir. 1993), 92-3140, United States v. Perdue

Docket Nº:92-3140.
Citation:8 F.3d 1455
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vincent Anthony PERDUE, Defendant-Appellant.
Case Date:November 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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8 F.3d 1455 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Vincent Anthony PERDUE, Defendant-Appellant.

No. 92-3140.

United States Court of Appeals, Tenth Circuit

November 1, 1993

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Lee Thompson, U.S. Atty., Thomas G. Luedke, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

Benjamin C. Wood, Lawrence, KS, for defendant-appellant.

Before McKAY, Chief Judge, SETH and BRORBY, Circuit Judges.

McKAY, Chief Judge.

Mr. Vincent Perdue appeals his conviction in federal district court for possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and use of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). Mr. Perdue alleges that two confessions, one made just prior to his arrest and another made after his arrest, were erroneously admitted into evidence. Mr. Perdue further contends that the district court erred in instructing the jury and that insufficient evidence existed to support his firearms conviction.

State and local law enforcement officers executed a search warrant at a rural location in Jefferson County, Kansas, after aerial surveillance indicated that marijuana was being cultivated on the property. The property was thought to be owned by Robert or Gary Lathron. (R.Vol. II at 11.) Two helicopters and fifteen to twenty law enforcement officers were involved in the search. Inside a metal building on the property, police found roughly 500 marijuana plants, weighing scales, containers and plastic bags with marijuana, and other paraphernalia. Inside the bedroom of the building, police found a loaded 9 mm. pistol lying on the bed and an unloaded 12-gauge shotgun with shotgun shells nearby.

Jefferson County Deputy Sheriff Carreno and Kansas Highway Patrolman Tate were assigned to perimeter security during the search. Through radio communications, the two officers became aware that weapons were found in the building. While the police were conducting the search, a car entered the long dirt road leading to the property. At a fork in the road, the car turned right toward the metal building being searched. Officers Carreno and Tate became suspicious because it was a remote, rural area and anyone using the road was probably visiting the property being searched. After proceeding a short distance down the road, the occupants of the car observed the large gathering of police officers surrounding the shed. The car quickly stopped and reversed its direction. With weapons drawn, Officers Carreno and Tate stopped the car and ordered Mr. Perdue and his fiancee to get out of the car and lie face down. Mr. Perdue obliged but his fiancee could not, because she was nearly nine months pregnant. Although the record is unclear, Mr. Perdue may have been handcuffed while lying on the ground. 1

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Officer Carreno testified that, with guns still drawn and Mr. Perdue lying face down on the road, he asked Mr. Perdue what he was doing on the property and Mr. Perdue replied that he was there to check on his stuff. Officer Carreno then asked Mr. Perdue "What stuff?" and Mr. Perdue replied, "The marijuana that I know that you guys found in the shed." Officer Carreno further inquired whose marijuana it was, and Mr. Perdue replied it was his and his fiancee's. 2 (R.Vol. III at 154.)

Immediately following this encounter, the police escorted Mr. Perdue a short distance to where they encountered an Agent Christy. Deputy Carreno informed Agent Christy that Mr. Perdue was the owner of the building and had come to check on its contents. At this point, Officer Carreno advised Mr. Perdue of his Miranda rights.

Agent Christy conducted the next segment of the interrogation, which lasted from forty-five minutes to an hour. During the course of the interview, Mr. Perdue was asked questions regarding the marijuana and drug paraphernalia found on the premises. Mr. Perdue made incriminating statements regarding the possession and distribution of marijuana. His fiancee, crying and visibly upset, was present during the interview. Sometime during the interview, Agent Christy was joined by a Jefferson County Attorney. Mr. Perdue testified that the Jefferson County Attorney told him that if he did not cooperate he would be charged in federal rather than state court, and thus would spend more time in jail. (R.Vol. V at 30.) The attorney told Mr. Perdue that this would interfere with the bonding between him and his child. Id. The County Attorney also told Mr. Perdue that if he cooperated, his fiancee would not go to jail. 3 Id. After about forty-five minutes of questioning, Mr. Perdue began to exercise his right to remain silent in response to particular questions, and then abruptly terminated the conversation. (R.Vol. V at 8-11.)

Prior to trial, the district court held a hearing on Mr. Perdue's motion to suppress his statements to Agent Christy (i.e., the

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statements made after Mr. Perdue's arrest and subsequent receipt of Miranda warnings). Mr. Perdue argued that his statements were coerced by the government agents' promises to prosecute Mr. Perdue in state rather than federal court and not to prosecute Mr. Perdue's fiancee.

The district court denied the motion to suppress, holding that the statements were voluntary. However, the admissibility of the statements made to Officer Carreno during the initial road stop was not raised at the pretrial hearing because defense counsel was unaware of the statements' existence. The government first advised defense counsel of the statements during trial. After holding a bench conference, the district court found the statements to Officer Carreno were also admissible. The two statements by Mr. Perdue were admitted into evidence, and the jury returned guilty verdicts on both counts.

After trial, Mr. Perdue moved for a judgment of acquittal on the firearms charge, notwithstanding the verdict. The district court denied the motion, finding substantial evidence to support the jury's verdict. (D.Ct. Memorandum & Order at 3.) Mr. Perdue also moved for a new trial alleging that the court erred in admitting the statements to Officer Carreno and in instructing the jury. The district court denied the motion for a new trial, finding that the defendant's arrival at the scene during the search "created reasonable suspicion" that warranted stopping and questioning Mr. Perdue under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. at 5, 88 S.Ct. at 1871. The court alternatively found that if the admission of the statements was erroneous, it was harmless error. Mr. Perdue's allegation concerning the jury instructions was deemed to be without merit.

Mr. Perdue appeals, alleging that (1) the district court erred in admitting the statements to Deputy Carreno and Agent Christy; (2) the district court gave an erroneous jury instruction; and (3) evidence was insufficient to sustain the firearms charge.



We first address Mr. Perdue's contention that the district court erred by admitting into evidence his statements to Officer Carreno. Mr. Perdue bases his argument on four grounds: (1) the government withheld evidence of the statement in violation of discovery obligations; (2) the statements were taken in violation of Miranda; (3) the statements were involuntary; and (4) there was not a proper hearing on the statements' admissibility in violation of due process.

A. Discovery Violation

We begin with Mr. Perdue's contention that the government violated the discovery order. The flaw in this argument is that there is no evidence in the record that Mr. Perdue requested discovery of evidence pertaining to his incriminating statements. Therefore, Fed.R.Crim.P. 16(a)(1)(A), which requires the government to disclose information "[u]pon request," was not violated. 4

Mr. Perdue further contends that the government indicated it was conducting a "full discovery" case and, therefore, the government was obligated to release information concerning the statement. (R.Vol. I, tab 32 at 1.) Under the circumstances, we do not find this a compelling reason to exclude Mr. Perdue's statements.

By the phrase "full discovery," Mr. Perdue presumably means that the government informed defense counsel that it would divulge case evidence within its control. If the government tells the defense it is conducting a case under principles of "full discovery," it undertakes a moral obligation to disclose relevant evidence within its knowledge so as not to lull defense counsel into not making a discovery motion. While the government may have been careless in this case, there is

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no indication that it acted in bad faith by failing to advise defense counsel of the statement.

The government was not aware of Mr. Perdue's brief statements to Officer Carreno until the day Officer Carreno testified. The government did, however, warn Mr. Perdue of the incriminating statements prior to Officer Carreno's testimony, and if Mr. Perdue needed more time to prepare an argument for excluding the statements, he should have sought a continuance. Moreover, the existence of the incriminating statements was effectively communicated to Mr. Perdue during the suppression hearing where Agent Christy twice testified that he learned of Mr. Perdue's interest in the contents of the building from a conversation between Mr. Perdue and Officer Carreno. (R.Vol. V at 6, 17.) This provided Mr. Perdue with notice that statements to Officer Carreno existed, and if Mr. Perdue desired more information he should have sought a discovery order. Thus, even though the government apparently told Mr. Perdue that this was a "full discovery" case, we see no reason to exclude the statements under these circumstances.

Finally, the government's failure to expressly disclose the...

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