880 F.2d 209 (9th Cir. 1989), 87-3093, United States v. Linn

Docket Nº:87-3093.
Citation:880 F.2d 209
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Herbert LINN, a/k/a Dennis Kenneth Long, Defendant-Appellant.
Case Date:July 18, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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880 F.2d 209 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Herbert LINN, a/k/a Dennis Kenneth Long, Defendant-Appellant.

No. 87-3093.

United States Court of Appeals, Ninth Circuit

July 18, 1989

Argued Aug. 1, 1988.

Submitted Nov. 23, 1988.

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[Copyrighted Material Omitted]

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Robert J. Wayne, Seattle, Wash., for defendant-appellant.

Kenneth G. Bell, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

The opinion of the court, reported at 862 F.2d 735 (9th Cir.1988), as well as the order and opinion filed July 10, 1989, are withdrawn. The following opinion is filed in their place.

The petition for rehearing is denied.

On Appeal From the United States District Court for the Western District of Washington.

Before KOELSCH, ALARCON, and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Kenneth Linn, appellant, was convicted of conspiring to distribute, and of distributing, cocaine in excess of 500 grams, in violation of 21 U.S.C. Secs. 846, 841(a), and 841(b)(1)(B) (counts I and III). Appellant was also convicted of unlawful use of a communications facility, in violation of 21 U.S.C. Sec. 843(b) (count II). Appellant received a sentence of ten years imprisonment on counts I and III, and four years on count II. The sentences run concurrently.

Linn appeals, claiming (1) illegal search and seizure of evidence from his automobile, (2) insufficient evidence on count II, (3) a right to bifurcation of guilt and forfeiture proceedings, (4) error by denial of

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severance, (5) improper jury instructions, and (6) unconstitutional sentencing under 21 U.S.C. Sec. 841(b)(1)(B).

We affirm.

FACTS

On December 3, 1986, the Royal Canadian Mounted Police (RCMP) received detailed information from a confidential informant relating to an incipient cocaine transaction. On the basis of this information, RCMP officers placed Terry Germain under surveillance. Germain was located in West Vancouver, B.C., Canada.

On December 5, 1986, Germain met appellant. Following this meeting, appellant immediately withdrew cash (in the form of cashier's checks) from two Vancouver banks and made or appeared to make, withdrawals at four other Vancouver banks. Into each bank, appellant carried a brown briefcase.

On December 8, 1986, while the RCMP kept appellant under surveillance, appellant travelled from Vancouver to Seattle. In Seattle, appellant registered at the Vance Hotel. The Drug Enforcement Administration (DEA) began surveillance of appellant.

On December 9, 1986, at approximately 6:25 p.m., a DEA agent observed appellant placing a telephone call from the Vance lobby. The agent overheard appellant inquire about the arrival of a flight due from Florida. The call lasted no more than one minute. Appellant immediately placed a second telephone call. The DEA agent overheard this second call. In it appellant informed another party that their previous arrangement was running late and that he would make contact again in one hour. The second call lasted no more than ninety seconds. Appellant promptly ascended by elevator to his hotel room. A computer record, introduced at trial, indicated that a telephone call was placed from appellant's room at the Vance to coconspirator Adler's room at the Sheraton. This call was recorded at 6:29 p.m. (Sheraton time).

At trial, a DEA agent testified that approximately three minutes passed from the time appellant left the Vance lobby until appellant entered his Vance Hotel room. Appellant's ascent occurred between 6:25 p.m. and 6:35 p.m.

At 6:35 p.m., DEA agents observed appellant leaving the Vance Hotel. He walked to the Sheraton Hotel. He carried a brown briefcase.

At 7:30 p.m., appellant emerged from an elevator at the Sheraton. That elevator served floors twenty and above. Appellant carried the brown briefcase. Appellant entered the Sheraton lounge. Appellant was soon joined by coconspirator Adler in the lounge.

An airline ticket later recovered from Adler's hotel room indicated that Adler had, shortly before, arrived from Florida. Immediately prior to joining appellant in the Sheraton lounge, Adler placed a "bulky" manila envelope in the Sheraton hotel safety deposit box.

After sitting with Adler in the lounge for approximately ten minutes, appellant departed the Sheraton. He carried his briefcase. Appellant was promptly met by coconspirator Leo Klein, who sat waiting in a pickup truck outside the hotel. Appellant and Klein undertook activities which required attention to the seat of Klein's pickup truck. Appellant was then returned to the Vance Hotel by Klein. Adler immediately returned to his room at the Sheraton.

Klein was apprehended on December 9, 1986, heading toward Spokane, Washington. From Klein's pickup truck, two one-kilogram "bricks" of cocaine were seized. These cocaine bricks were wrapped in duct tape.

Adler was arrested on December 10, 1986. Adler's room was immediately searched pursuant to a search warrant. In Adler's room, DEA agents found a small quantity of cocaine, cocaine paraphernalia, a Sheraton safety deposit box key, $1,641 in United States currency, an airline ticket from Florida to Seattle, a professional card bearing the name "Tide Financial Investment Corporation," and receipts and check stubs for two cashier's checks drawn on Vancouver banks.

DEA agents opened the Sheraton safety deposit box. Inside, they found two cashier's

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checks. These checks matched receipts and stubs found in Adler's room and were drawn on Canadian banks visited by appellant on December 5, 1986. The two checks were payable to the "Tide Water Financial Corporation" and totalled $14,271 (Canadian currency). DEA agents also discovered in the box a "bulky" manila envelope. The envelope contained ten smaller envelopes, totalling $45,000 cash.

Adler's fingerprints were removed from one of the cash envelopes found in the safety deposit box, as well as from the inside plastic packaging around one of the one-kilogram bricks of cocaine seized from Klein's truck, and from the duct tape surrounding the cocaine.

Appellant was arrested at 10:05 a.m. on December 10, 1986, travelling north from Seattle on Interstate 5. From appellant, DEA agents seized a small amount of cocaine, a Vance Hotel receipt, a brown briefcase, a telephone book which contained a listing for the "Tide Financial Investment Corp.," and Sheraton Hotel matchbooks.

Following the arrest of appellant and his wife (who was travelling with him), DEA agents moved appellant's vehicle from Interstate 5 to a side road. Within three hours, appellant's vehicle had been searched at DEA headquarters. A warrant was not obtained for this search.

In appellant's vehicle, agents found three rolls of tape, including at least one roll of duct tape. Laboratory tests matched the pieces of duct tape around the cocaine bricks in Klein's truck to the duct tape found in appellant's vehicle. The pieces of tape wrapped around the cocaine were torn from the roll of tape found in appellant's vehicle.

Laboratory analysis indicated that the two packages of cocaine removed from Klein's truck weighed 995.1 grams and 996.6 grams. Cocaine in both packages was 92 percent pure.

The trials of appellant and Adler were not severed.

Prior to trial, the court granted appellant's in limine motion to exclude reference to appellant's use of a false name. The proscription on reference to appellant's alias was applied against the government and against Adler.

Appellant sought by pretrial motion to bifurcate the forfeiture and guilt determinations and to have the minimum mandatory sentences under 21 U.S.C. Sec. 841(b)(1)(B), as amended by the Anti-Drug Abuse Act of 1986, declared unconstitutional. These motions were denied.

On the first day of trial, after appellant's opening statement, counsel for Adler stated: "I am going to have a motion to make. Maybe I can make it after my opening statement." The trial judge responded: "Please." At the close of that day, the still unspecified motion was put over until the second day of trial.

On the second day of trial, Linn moved to sever the trials on the ground that appellant's defense and Adler's defense were antagonistic. The court declined to grant a severance, finding that Adler's defense and appellant's defense were not mutually exclusive.

Following closing arguments, appellant proposed one jury instruction on multiple conspiracies and another on lesser included offenses. The court declined to give the requested instructions.

At the close of the government's case, appellant moved for acquittal on count II. Appellant claimed insufficient evidence had been presented to prove use of a telephone for unlawful purposes. Appellant further argued that the computer printout of the recorded telephone call was inadmissible. The court denied this motion.

Appellant was convicted of conspiring to distribute, and of distributing, cocaine in excess of 500 grams, in violation of 21 U.S.C. Secs. 846, 841(a), and 841(b)(1)(B) (counts I and III). Appellant was convicted of unlawful use of a communications facility, in violation of 21 U.S.C. Sec. 843(b) (count II).

Appellant received concurrent ten-year terms of imprisonment on counts I and III. On count II, he received a sentence of four years, to run concurrently.

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Appellant timely appeals. This court has jurisdiction under 28 U.S.C. Sec. 1291.

I

Appellant claims that the district court erred when it refused to suppress the duct tape found in appellant's automobile, since search and seizure of the automobile was undertaken absent a warrant and a warrant was necessary.

Appellant argues that the automobile exception to the warrant requirement, articulated in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), does not apply. Second, appellant argues that under United States v. Vasey, 834 F.2d 782 (9th Cir.1987) (per curiam), the search...

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