U.S. v. Meirovitz, 90-5017MN

• Citation: 918 F.2d 1376
• Decision Date: 21 November 1990
• Docket Number: No. 90-5017MN,90-5017MN
• Parties: 31 Fed. R. Evid. Serv. 936 UNITED STATES of America, Appellee, v. Sherman Ray MEIROVITZ, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1376

918 F.2d 1376

31 Fed. R. Evid. Serv. 936

UNITED STATES of America, Appellee, v. Sherman Ray MEIROVITZ, Appellant.

No. 90-5017MN.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 15, 1990.

Decided Nov. 21, 1990.

Mark W. Peterson, Minneapolis, Minn., for appellant.

Thorwald Anderson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON, Circuit Judge, HEANEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Sherman Ray Meirovitz was convicted of conspiracy to distribute cocaine and possession of cocaine with the intent to distribute and was sentenced to life imprisonment without parole. Meirovitz appeals his conviction, claiming (1) that his Miranda waiver, confession and consent to search his home were involuntary; (2) that the district court ¹ erred in admitting weapons and ammunition seized from his home; and (3) that the government failed to prove predisposition to possess cocaine with the intent to distribute. Meirovitz also claims that his sentence is constitutionally disproportionate to his convictions and therefore violates the eighth amendment guarantee against cruel and unusual punishment. We affirm both Meirovitz' convictions and his sentence.

I.

Meirovitz was arrested on November 30, 1988, after he tried to purchase two kilograms of cocaine from undercover agents. His arrest was the result of an investigation into narcotics trafficking involving persons in Colorado, New York and Minnesota. In April 1988 the agents followed Munir Ahmed, the central figure in a narcotics trafficking organization, to the Embassy Suites Hotel in Bloomington, Minnesota. They saw Jack Sears and another suspect board Ahmed's flight from Denver to Minnesota; all three men stayed at the Embassy Suites Hotel. The agents did not see these men participating in drug activity on this occasion.

After continued surveillance of Sears in Denver, the police seized Sears' car, believing it had been used for a drug transaction. Sears agreed to cooperate in the investigation. Sears told the investigators that he was introduced to Meirovitz in December 1986, and that five months afterwards, Meirovitz asked Sears if he could put together a deal for one pound of cocaine. Sears sold the cocaine to Meirovitz for approximately $17,000. Sears also told the investigators that he sold Meirovitz one to four pounds of cocaine approximately every two months.

Sears agreed to call Meirovitz and attempt to set up a deal. Sears told Meirovitz that he had a new source who could provide cocaine for $18,500 per kilogram. Meirovitz said he was interested in two kilograms and that he would like to make partial payment in methamphetamine. Sears agreed and the deal was set up for the end of November 1988.

After Sears and the investigators arrived in Minnesota and wired the hotel room to record the conversations, Sears called Meirovitz to complete the transaction. Meirovitz arrived with $35,700 in cash, one ounce of methamphetamine (worth $1,300), a scale, calculators, plastic baggies, a mirror, and chemicals to test the quality of the cocaine. Meirovitz was given the two kilograms of cocaine and one of the undercover agents began counting the money. Meirovitz began explaining in detail the source of the methamphetamine and said that he expected a larger quantity later. As Meirovitz tested the cocaine's quality, the other agents entered the room and arrested him.

Meirovitz was advised of his rights and agreed to be interviewed by the agents. Meirovitz confirmed Sears' account of their initial meeting and subsequent drug deals. He also told the agents of a lab in California that was being set up to produce twenty pounds of methamphetamine. Meirovitz then consented to a search of his home and car. The search of his home produced $9,500 in $100 bills, seven handguns in a laundry chute, a small-caliber handgun and ammunition, papers characterized by the government as "drug notes," drug-cutting agents (lactose, mannitol and nicotinamide), an electronic digital scale, drug-related books, numerous plastic baggies, and a hollow battery that contained twelve grams of methamphetamine.

At trial, Meirovitz testified that he had not been involved in the use or distribution of drugs since his release from prison in December 1984. Meirovitz said that Sears asked him to distribute drugs, but that he refused. Meirovitz claimed that Sears kept on pressuring him, threatening violence and exposure of Meirovitz' involvement with a prostitute. Meirovitz maintained that he agreed to go along with Sears' deal out of fear. Meirovitz claimed that Sears told him to bring the methamphetamine and to act like he knew what he was doing.

Meirovitz testified that he did not recall receiving any Miranda warnings. Furthermore, he claimed that the agents' emphasis on cooperation led him to say what he thought they wanted to hear. He also testified that he signed the Miranda waiver forms and consent to search forms without being given an opportunity to read them.

Meirovitz also testified that the drug paraphernalia and drug-related items in his house were either vestiges of his drug-dealing past or property of other persons. Meirovitz presented witnesses who testified that they knew Sears coerced Meirovitz to get involved in drugs.

After a three-day jury trial, Meirovitz was convicted on both counts of conspiracy to distribute and possession with the intent to distribute. The United States Probation Officer calculated his offense level at thirty-eight and his criminal history category at VI due to his status of career offender. Therefore, Meirovitz' appropriate sentencing range was thirty years to life. Judge Devitt sentenced Meirovitz to the maximum sentence because of his substantial criminal record which included a history of drug-dealing and the shooting death of his mother-in-law.

II.

A.

We review the district court's decision to deny the defendant's motion to suppress under a clearly erroneous standard. United States v. Williams, 917 F.2d 1088, 1090 (8th Cir.1990). Therefore, we must affirm the district court unless its decision is "unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989).

Meirovitz first argues that his waiver of his Miranda rights and his consent to search were involuntarily obtained. The arresting officers testified that Meirovitz was given a Miranda warning and that he signed a Miranda waiver form and consent to search forms. Meirovitz testified that he did not recall having his rights read to him and that he felt pressured to sign the Miranda waiver form and the consent to search forms. The officers' testimony and the signed forms are substantial evidence that support the district court's denial of the motion to suppress. Since there was no erroneous interpretation of the applicable law and since the totality of the record leaves us with no firm and definite conviction of mistake, we affirm the district court's denial of the motion to suppress Meirovitz' Miranda waiver and consent to search.

Meirovitz also argues that his post-arrest confession was involuntarily obtained. The appropriate test for determining the voluntariness of a confession is "whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will." Jorgensen, 871 F.2d at 729. The two factors that must be considered in applying the "overborne will" doctrine are "the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess." Id. (citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). The officers' conduct in this case did not create an unbearably coercive atmosphere. At first, Meirovitz was thrown to the floor and handcuffed, but the handcuffs were then removed and he was seated at a table with one hand handcuffed to a chair. With Meirovitz in this position, the agents conducted their post-arrest interview. Meirovitz claims he was coerced by threats of a long prison sentence if he failed to cooperate and by the promise of a lenient sentence if he did cooperate. The agents admit that they told Meirovitz that the seriousness of the charges and his criminal history probably meant a tough sentence, but they categorically denied promising Meirovitz anything more than informing the district attorney of his cooperation. Meirovitz failed to show that he was especially susceptible to police pressure. In fact, his criminal history may have made him less likely to buckle under the pressure exerted by the police. The arresting officers' testimony provided substantial evidence supporting the voluntariness of the confession and in light of the totality of the circumstances, we determine that the pressures exerted upon Meirovitz by the arresting officers did not overbear Meirovitz' will. Furthermore, we are not left with a firm and definite conviction that a mistake has been made, and affirm the denial of the motion to suppress the confession.

B.

Meirovitz next claims that the guns and ammunition found in his home should not have been admitted into evidence because their prejudicial effect substantially outweighed their probative value. Firearms are generally considered tools of the drug dealer's trade and can be admitted as evidence of intent to distribute. See United States v. Brett, 872 F.2d 1365, 1370 (8th Cir.1989). Meirovitz claims that the seven handguns found in his laundry chute were merely collateral for an outstanding debt. It is significant to note that the guns were found with plenty of ammunition and that some of the "collateral" was even loaded. Given the clear relevance to the charge, and the unlikelihood that Meirovitz would have legitimate reasons for having that much firepower in his...