U.S. v. Duncan

• Decision Date: 08 November 1990
• Docket Number: Nos. 90-5111,90-5191,s. 90-5111
• Citation: 918 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Wayne DUNCAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 647

918 F.2d 647

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Wayne DUNCAN, Defendant-Appellant.

Nos. 90-5111, 90-5191.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 21, 1990.

Decided Nov. 8, 1990.

Joseph M. Whittle, U.S. Atty., Terry Cushing (argued), James A. Earhart, Asst U.S. Attys., Louisville, Ky., for plaintiff-appellee.

Allen W. Holbrook (argued), Holbrook, Wible, Sullivan & Helmers, Owensboro, Ky., for defendant-appellant.

Before KEITH and MILBURN, Circuit Judges, and ZATKOFF, District Judge ^*.

MILBURN, Circuit Judge.

Defendant-appellant Jeffrey Wayne Duncan appeals his conviction and the sentence imposed after a jury found him guilty of distributing and possessing with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), but not guilty of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). Duncan also appeals the district court's refusal to order the return of some cash seized at his arrest. For the reasons that follow, we affirm.

I.

A.

On February 22, 1989, a federal grand jury sitting in Louisville, Kentucky, indicted Duncan on one count of distributing and possessing with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The grand jury also charged Duncan with one count of using and carrying a firearm (a .357 magnum revolver) during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). A jury trial began on October 10, 1989, and the jury returned a verdict on October 11, 1989, finding Duncan guilty of the possession and distribution count but not guilty of the firearms charge.

The district court held a sentencing hearing in which it concluded that the sentence should be enhanced by two levels under the United States Sentencing Guidelines ("Guidelines") for possession of a firearm during the commission of the drug offense. In an order entered December 28, 1989, the court imposed a sentence of twenty-one months imprisonment and three years supervised release plus payment of a $50 special assessment and payment of $380 toward the costs of investigation and prosecution. On January 4, 1990, the defendant filed a notice of appeal (No. 90-5111) which served to appeal from the December 28, 1989, judgment of conviction and sentence.

In the meantime, on December 8, 1989, the defendant filed a motion for the return of personal property seized from him and his vehicle on May 11, 1988, including cash "not part of marked bills." In an order entered December 28, 1989, the district court granted the motion as to "all items seized ... and introduced as evidence at trial with the exception of $397.25 cash."

On January 8, 1990, the government filed a motion to alter or amend the order releasing personal property arguing that the order should only have released items not introduced as evidence. In an order entered January 16, 1990, the district court amended the order of December 28, 1989, to release "all items seized from Duncan on May 11, 1988, and not introduced as evidence at trial with the exception of $397.25 cash." (Emphasis added). Like the original order, the amended order specified that $380 of the cash was to be applied toward the costs of investigation and prosecution and the remainder was to be applied toward the special assessment. On January 24, 1990, the defendant filed a notice of appeal (No. 90-5191) from the amended order of January 16, 1990. In an order filed February 13, 1990, this court ordered consolidation of case numbers 90-5111 and 90-5191.

B.

There are essentially two versions of the facts in this case depending upon whether one accepts the testimony of Pamela Johnson, a police informant, or the testimony of the defendant. According to Johnson, she first met the defendant at the Bamboo Lounge in Nashville, Tennessee. She next saw the defendant at her home in Madisonville Kentucky, when he made a delivery of cocaine to be picked up by a third party. In January and February of 1988, the defendant left cocaine for a third party at Johnson's home on one occasion and on two occasions delivered cocaine to Johnson's home for her to distribute. J.A. 185-86. On one of these occasions, the defendant left approximately thirty, twenty-five dollar bags of cocaine for distribution.

As part of her agreement to cooperate with the Madisonville, Kentucky police department, Johnson was supplied money, through detective Langdon, for purchasing cocaine from Duncan. On May 11, 1988, at approximately 1:30 a.m., the defendant arrived at Johnson's home to supply Johnson with one-eighth ( 1/8) ounce of cocaine in exchange for $380. Initially Johnson was able to purchase only one-sixteenth ( 1/16) ounce for $190 because she had not been advanced enough money to buy the full one-eighth ( 1/8) ounce. The exchange was made in the front seat of the automobile the defendant was driving, and, during the transaction, a .357 magnum revolver lay in the front seat between the defendant and Johnson.

The defendant returned to Johnson's home at about 11:15 a.m. the same morning to complete the transaction. In the meantime, Johnson contacted detective Langdon for additional money and told him what had transpired. The final exchange of drugs for money took place inside Johnson's residence on Oates Street in Madisonville, Kentucky, while the defendant's automobile was parked on the street outside.

Duncan's testimony as to what happened was quite different from Johnson's. Duncan characterized himself as an out-of-work employee who was looking for some type of business venture he could enter with some money he had saved during his previous employment. Duncan learned that Ms. Johnson's cousin owned a night club which was for sale. During meetings concerning Duncan's possible purchase of the night club, Johnson introduced Duncan to cocaine. Duncan testified that thereafter Johnson continually asked him for cocaine. At Johnson's request, Duncan purchased approximately one-quarter ( 1/4) ounce (one-half of which was for Johnson) of cocaine "on the street" from an unknown person.

According to Duncan, the initial exchange of one-sixteenth ( 1/16) ounce occurred inside Ms. Johnson's residence instead of in the front seat of the automobile. After the exchange, Duncan and Johnson left the Johnson residence and traveled to a store to purchase some beer. According to Duncan, the firearm belonged to another person and was in the back seat of the car in a bag at all times. As to the sentence imposed, it is clear that the district judge accepted Johnson's version of the events and rejected Duncan's.

Also testifying at the trial was detective Langdon. Langdon watched Duncan depart from Johnson's residence by automobile at about 1:05 p.m. on May 11, 1988. Langdon surmised that Duncan had completed the final transaction, and he ordered Duncan stopped. Langdon was present when Duncan was stopped, arrested and searched. Langdon testified that during a warrantless search of the defendant and the passenger compartment of his automobile conducted pursuant to the arrest, officers found cocaine in the defendant's jacket, a loaded .357 magnum revolver in a black bag in the back seat of the vehicle, and over $300 in cash. By matching serial numbers, Langdon was able to identify $210 as money supplied to Johnson. Two extra rounds of ammunition for the .357 magnum revolver were found in the defendant's pants pocket.

The issues presented in this appeal are: (1) whether, given the defendant's acquittal on the firearms charge and possible ambiguity in the indictment, the district court abused its discretion by imposing an enhanced penalty under the Guidelines for possession of a firearm during commission of a drug offense; (2) whether the district court erred by refusing to suppress evidence secured from the warrantless arrest and subsequent search; and (3) whether the district court erred in refusing to order the return of unmarked cash seized from Duncan at the time of his arrest.

II.

A.

Appellate review of sentences imposed under the Sentencing Guidelines is governed by 18 U.S.C. Sec. 3742, which provides in relevant part:

(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

. . . . .

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

As it pertains to sentencing under the Guidelines, a district court's finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review. See United States v. Moreno, 899 F.2d 465, 470 (6th Cir.1990); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989); United States v. Gillock, 886 F.2d 220, 223 (9th Cir.1989); see also United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); but see United States v. Rush, 890 F.2d 45, 52 (7th Cir.1989).

On review of motions to suppress evidence, findings of fact will be upheld unless clearly erroneous; however, a district court's conclusions of law are reviewed de novo. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988).

B.

1.

Duncan contests the enhancement of his sentence as an abuse of discretion. His sentence was enhanced by two levels under Sec. 2D1.1(b) of the Sentencing Guidelines which provides that "[i]f a firearm or other dangerous weapon was possessed during commission of the [drug] offense, increase [the base offense level] by 2 levels." The commentary to that section states:

The enhancement for weapon possession reflects the increased danger of...