U.S. v. Baskin

Decision Date22 September 1989
Docket NumberNo. 88-3102,88-3102
PartiesUNITED STATES of America, Appellee, v. Gregory A. BASKIN, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Criminal Action No. 88-0041-01).

Virginia Veltrop, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief for appellee.

William J. Garber, Washington, D.C., for appellant Gregory A. Baskin.

Before MIKVA and WILLIAMS, Circuit Judges, and WILL, * Senior District Judge.

Opinion for the Court filed by Senior District Judge WILL.

WILL, Senior District Judge:

Gregory Baskin, defendant-appellant, was charged with unlawful possession with intent to distribute 500 grams or more of cocaine (Count I), in violation of 21 U.S.C. Secs. 841(a) and 841(b)(1)(B)(ii)(II), and unlawful possession of marijuana (Count II), in violation of 21 U.S.C. Sec. 844. A suppression hearing was held prior to trial and the defendant's motion was denied. Count II was dismissed at trial. The defendant was found guilty on Count I and sentenced to 262 months incarceration followed by five years supervised release. On appeal, the defendant contends that (1) physical evidence which was seized should have been suppressed, (2) certain expert testimony at trial should not have been admitted, (3) his tendered jury instruction on reasonable doubt was erroneously refused and (4) he was improperly sentenced under the Career Offender provisions of the Federal Sentencing Guidelines.

Based on the following analysis, the defendant's conviction is affirmed. However, we remand for reconsideration of the defendant's sentence and for resolution of the defendant's due process and eighth amendment challenges to the sentencing guidelines which were held in abeyance pending the Supreme Court's decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The defendant also argued that the sentencing guidelines violated the separation of powers doctrine and were an excessive delegation of power to the Sentencing Commission. These arguments were rejected by the Court in Mistretta and are no longer raised by the defendant.

I. BACKGROUND

At the suppression hearing, the government presented the testimony of Detective Floyd A. Johnston, a U.S. Park Police Officer assigned to the Drug Enforcement Task Force at Washington National Airport and Calvin Burns, an investigator assigned to the AMTRAK Police Narcotics Unit. Johnston and Burns were working with Detective Ed Curley, a dog handler with the Metropolitan Police Department, and a dog.

Burns testified that he initiated the investigation on January 11, 1988 by reviewing manifests from trains originating in Miami, Florida. Burns noticed that a reservation had been made on January 7th under the name "G. Dawson" for one-way travel from Miami to Chicago, a call back number was given in Illinois and the ticket was purchased in cash ($189) nine minutes before the train's scheduled departure on January 11th. Burns called the Illinois number and heard a recording saying it had been disconnected. Burns arranged to meet Johnston, Curley and the dog at the Union Station in Washington, D.C. to investigate.

After the train arrived at the platform, Burns asked the train attendant to identify who had been sleeping in accommodation No. 21, presumably reserved for G. Dawson. The attendant pointed to the defendant who was carrying a brown bag. Burns followed the defendant up the escalator to where Johnston was waiting and he pointed the defendant out to Johnston. They both walked up to the defendant, Burns on his left and Johnston on his right. They were dressed in plain clothes and their weapons were not showing.

Both officers identified themselves and asked the defendant if they could talk to him. Both officers testified that the defendant responded by saying "sure." Burns asked to see the defendant's train ticket which he handed to him. It confirmed that he had made a reservation in the name "G. Dawson." Burns handed the ticket back and asked the defendant for identification. The defendant said he had none but that he was Gregory Baskin and had been in Florida for a few weeks and was returning to Chicago.

Burns then told Baskin that he and Johnston were narcotics officers and asked if the dog could sniff his bag. Johnston testified that Baskin said he did not mind. Burns testified that he could not recall what Baskin's exact reply was but that he thought that Baskin said "sure, I don't mind." The two officers testified that they then asked Baskin if they could walk over to where Curley and the dog were, out of the flow of traffic, and he again said "sure." Baskin picked up his bag and the three men walked to Curley and the dog, approximately twenty to thirty feet away.

Baskin placed his bag on the floor and Burns picked it up and handed it to Curley for the dog to investigate. Johnston asked Baskin if he was carrying narcotics and, according to Burns, he said "no, you can look in there yourself if you want." By this time, the dog had indicated that narcotics were in the bag. Johnston told Curley that Baskin had given permission to search the bag and Curley responded "well, that's great because it has a very strong odor of narcotics."

Johnston picked up the bag and walked towards Baskin. He opened the bag and found packages containing "greenish stuff" and white powder. Baskin was placed under arrest and advised of his rights. The time between when Burns and Johnston identified themselves and the time Baskin was placed under arrest was estimated at four to five minutes. A rights card indicated that Baskin answered that he understood his rights but did not wish to talk then and wanted an attorney. The white powder tested positive for cocaine.

Baskin presented no evidence at the suppression hearing. He pointed out in cross-examining Johnston and Burns that neither of them ever told him that he did not have to talk to them, was free to walk away and did not have to consent to the dog's examination or the opening of his bag. He did not, however, dispute their testimony, including their recollections of his statements.

Baskin argued that he was stopped and detained at Union Station without reasonable or articulable suspicion of ongoing criminal activity and that any consent to the search was involuntary as a matter of law and as a product of his unlawful detention. The district court concluded that Baskin was not seized and that he had consented to the dog's sniff and the search of his bag. Baskin's motion to suppress was denied.

At the trial, the government presented the testimony of Johnston and Burns plus that of George Griswald, a Forensic Chemist with the DEA, and Detective Dwight Rawls, a Metropolitan Police Department investigator. Essentially, Johnston and Burns repeated their testimony given at the suppression hearing. Griswald testified that the two packages of powder seized from Baskin's bag contained 638 grams of 98-99% pure cocaine.

Rawls testified as an expert in narcotics trafficking, over Baskin's objection. He explained how drugs are sold in large cities such as Chicago or Washington, D.C. Before trial, he called the DEA's office in Chicago to get price estimates for the drug market in Chicago. He had worked in Chicago in 1987. He also testified over objection that 99% pure cocaine sold for $100 per gram in Washington, D.C., although the purity level is generally 20-30%. He stated that 98-99% pure cocaine in Chicago sells for $95-100 per gram and the purity level is generally 50%. He added that dealers buying 99% pure cocaine "cut" the purity with substances such as sugar, 638 grams of 98-99% pure cocaine would sell for about $128,000 and a wholesale purchaser in Miami could buy the cocaine for $15,000 between January and March 1988.

Rawls further testified, over objection, that the cocaine could be converted to "crack." He also explained what a courier is. Baskin also objected to the use of a government diagram and the scope of the expert testimony. Finally, Rawls opined that it would be uncommon for a consumer to buy as much as 50 grams since that would be about 200 usages. The defense presented no evidence at trial.

II. ANALYSIS
A. Suppression of Evidence

The government admits that at the time the officers approached the defendant, identified themselves and asked him questions, they did not have probable cause to arrest him. In addition, the government states that we can assume that the police lacked articulable suspicion to stop the defendant when they accosted him. Instead, the government's theory throughout has been and remains that the defendant was not "seized" until arrested after he had voluntarily consented to the search that yielded drugs.

Whether or not the defendant was seized depends on the totality of the circumstances. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct.1975, 1979, 100 L.Ed.2d 565 (1988). "Only when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The question becomes whether or not "a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (footnote omitted).

According to the government, questioning the defendant was not a seizure because a reasonable person would have felt free to leave and the defendant later voluntarily consented to the search of his bag. The government claims that we need not decide whether the dog's signals gave the police probable cause to arrest the defendant and search his bag. The...

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