U.S. v. Salmon

• Decision Date: 17 September 1991
• Docket Number: No. 90-3363,No. 90-3438,No. 90-3355,No. 90-3366,90-3363,R,Nos. 90-3355,90-3366 and 90-3438,J,90-3355,90-3366,90-3438,s. 90-3355
• Citation: 944 F.2d 1106
• Parties: , 34 Fed. R. Evid. Serv. 302 UNITED STATES of America, v. Amos SALMON, Appellantaymond E. Washington, Appellantichard Fitzpatrick, Appellantohn Surratt, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 1106

944 F.2d 1106

60 USLW 2228, 34 Fed. R. Evid. Serv. 302

UNITED STATES of America, v. Amos SALMON, Appellant No. 90-3355 Raymond E. Washington, Appellant No. 90-3363 Richard Fitzpatrick, Appellant No. 90-3366 John Surratt, Appellant No. 90-3438.

Nos. 90-3355, 90-3363, 90-3366 and 90-3438.

United States Court of Appeals Third Circuit.

Argued Jan. 25, 1991.

Decided Sept. 17, 1991.

Bruce A. Antkowiak (argued), Greensburg, Pa., for appellant Raymond E. Washington.

Marianna Specter (argued), Pittsburgh, Pa., for appellant Amos Salmon.

Thomas S. White (argued), Acting Federal Public Defender, Pittsburgh, Pa., for appellant Richard Fitzpatrick.

Vincent R. Baginski (argued), Pittsburgh, Pa., for appellant John Surratt.

Thomas W. Corbett, Jr., U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee U.S.

Before BECKER and HUTCHINSON, Circuit Judges, and ATKINS, District Judge. ^*

OPINION OF THE COURT

ATKINS, Senior District Judge.

Richard Fitzpatrick, Amos Salmon, John Surratt and Raymond Washington appeal to this court from final judgments of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania following a jury trial in which they were found guilty of conspiracy and substantive crimes relating to possession and distribution of cocaine. We address the following questions raised by their appeals: (1) whether the evidence against Fitzpatrick, Salmon and Surratt was sufficient to prove their convictions; (2) whether a variance between the indictment and proof as to the number of conspiracies existed to the prejudice of any defendant; (3) whether the district court erred in refusing to suppress a weapon found in Washington's car trunk during a warrantless search following the vehicle's seizure under Pennsylvania forfeiture law; (4) whether the court's refusal to give the entrapment instructions requested by Washington was an abuse of discretion; (5) whether the court's refusal to permit Washington to examine Surratt as to whether the confidential informant used cocaine while arranging sales was an abuse of discretion; and (6) whether the sentences imposed on Washington, Salmon and Surratt are clearly erroneous or otherwise contrary to law. For the reasons that follow, we will REVERSE Fitzpatrick's convictions and vacate his sentences; AFFIRM the convictions and sentences of Salmon and Surratt; and REVERSE Washington's conviction and vacate his sentence for felony weapon possession, but AFFIRM his other convictions and sentences imposed under the career offender Guidelines.

A. BACKGROUND

Because the evidence is crucial to several issues, we review the record in significant detail. In the Spring of 1989, a woman named Sandra Mithani sought to avoid prosecution for writing bad checks by cooperating as a confidential informant with the City of Greensburg Police Department. After telling Detective James Williams of the Greensburg Police Department that she had purchased small amounts of cocaine from Washington, at William's behest Mithani contacted Washington and told him she had an out-of-town cousin who wanted to purchase cocaine. Mithani asked Washington if her cousin could buy an ounce of cocaine from Washington, who told her it would be no problem. Appellants' Appendix ("App.") at 151-61. Mithani arranged a meeting between Washington and Detective Terrence Kuhns of the Westmoreland County District Attorney's office, who posed as Mithani's cousin. On the day the meeting was to occur, however, Mithani did not appear. Later that day Washington visited Mithani and insisted she help him get rid of the cocaine he possessed. Mithani contacted Detective Williams, who instructed her to set up a deal for the next day. Id. at 163-66.

Washington arrived at Mithani's residence the following day, August 10, 1989, in the company of Surratt, known as "Yogi" to Mithani. Detective Kuhns arrived and got in the back seat of the car, identifying himself as Mithani's cousin. Kuhns examined the package containing cocaine and told Washington it looked "light." Washington told Kuhns to contact Mithani if the package contained less than one ounce of cocaine. Id. at 222-26. Kuhns then told Washington he was looking for a new source of cocaine. Surratt commented that the cocaine was of good quality and that Kuhns couldn't buy cocaine of comparable quality in the Greensburg area. Washington then handed the cocaine to Surratt, who handed it to Kuhns. Detective Kuhns next handed $1,500 to Surratt, who handed the money to Washington. After Washington told Kuhns he could obtain more cocaine on a day's notice, Washington and Kuhns discussed the purchase of four additional ounces. Washington stated that the price would vary depending on the source. Before leaving, Kuhns told Washington and Surratt they should treat him well because he would make future transactions with them. Surratt responded by stating, "we're like Allstate; you're in good hands with us." Id. at 227-30.

The following day, August 11, Kuhns telephoned Washington that he wanted to buy eight ounces of cocaine toward the end of the week. Government Tape Exhibit ("Tape") 22. Five days later, on August 16, 1989, Mithani telephoned Washington that her "cousin" wanted Washington to call. A few minutes later, an individual identifying himself as Ray's partner "Yogi" called Kuhns and told him Washington wanted to know what he wanted. Kuhns said he wanted eight ounces for $1,000 each. Yogi told Kuhns that Washington would call Kuhns back. A short time later, Washington called and told Kuhns the price was $1,200 per ounce. Kuhns asked whether he could buy sixteen ounces for $1,000 each. Washington answered that he and the other people were afraid of dealing that much cocaine and that he was afraid of being arrested. Kuhns indicated that the source could be present at the deal. Tape 23.

Three days later, on August 19, Kuhns called Washington, who called him right back. Washington told Kuhns that "they" wanted to do only five the first time but would do the rest after they saw Kuhns was "allright." Kuhns called Washington back and told him that they would do the transaction in two phases, the first phase involving the transfer of the five ounces of cocaine, to be followed by the remainder. Washington said he would contact Kuhns after speaking with his source. Tape 24. On August 22, 1989, Kuhns called Washington, who called Kuhns back, telling him that only one of three potential sources was willing to do the deal. Kuhns told Washington to have his source call Kuhns; shortly thereafter, an individual identifying himself as "Jerome" called Kuhns. He told Kuhns that there was a problem acquiring the cocaine, that he didn't want to deal with Kuhns directly, and that he didn't want to do anything right then because he was having trouble with the police. He also told Kuhns that he would call him as soon as "it" arrived, sometime that week. Three days later, Washington returned Kuhns' call and told him he hadn't spoken with his source in a while; Kuhns told Washington to have his source call him back. Tape 25.

On September 5, Washington returned another of Kuhns' calls and indicated that the source was ready to do business that night, but Kuhns told Washington he couldn't do it until the next day, September 6, 1989. Tape 26. The next day Washington returned yet another call from Kuhns and told him the transaction would take place at 8:00 p.m. in the parking lot of a McDonald's restaurant next to a shopping center on Route 30. Washington said everyone would be driving to the location separately. Id. Later that evening, Kuhns went to the designated parking lot. Washington pulled up in a white Cadillac, exited his vehicle, and walked over to Kuhns. Washington told Kuhns that he was going to look for the source, who may have gone to the wrong place, and that the source would be driving a red Cadillac with multiple antennae. App. at 245-46. As Washington left the parking lot, he passed a blue Oldsmobile pulling into the parking lot. As the vehicles passed, both vehicles' horns sounded. The blue Oldsmobile then exited the parking lot and followed Washington down Route 30. Both vehicles eventually returned to the parking lot. Id. at 357-58.

Upon returning, Washington exited his vehicle and met with a man subsequently identified as Salmon. As the two spoke, a man who turned out to be Fitzpatrick exited the blue Oldsmobile and opened its trunk. Id. at 360. Salmon eventually parted Washington's company and returned to the back of the Oldsmobile, where Fitzpatrick stood beside the open trunk. The surveillance officers were unable to see what, if anything, occurred there. Id. at 360. Meanwhile, Washington approached Kuhns' car, told Kuhns "that's him" and asked Kuhns if he had the money. Id. at 248-49. When Kuhns said he did, Washington walked across the parking lot and met with Salmon again. Id. at 251, 361. As Washington conversed with Salmon at a distance of approximately forty yards from Fitzpatrick, Fitzpatrick, who had already closed the trunk, stood by the hood of the Oldsmobile he had opened. Salmon again left Washington's company and returned to where Fitzpatrick stood near the Oldsmobile, its hood now closed. After the two conversed, Fitzpatrick returned to the Oldsmobile, entered the driver's side of the vehicle, and drove past Salmon to a gas station on Route 30. Salmon walked through a gravel lot, crossed Route 30, and walked along the highway. Id. at 362-64. Meanwhile, as Washington approached Kuhns' vehicle, Kuhns noticed a bulge in the area of Washington's waist. Washington entered Kuhns' vehicle, took the cocaine from his waist area, and gave it to Kuhns.

After Kuhns signaled the backup units, Washington was placed under arrest. Id. at 251-55. As two detectives approached Salmon along Route 30, he crossed back over the highway and began running toward the blue Oldsmobile parked at...