995 F.2d 964 (10th Cir. 1993), 92-6070, United States v. Wicks

Docket Nº:92-6070.
Citation:995 F.2d 964
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Theodore WICKS, also known as Theodore T. Wicks, also known as Theodore Theron Wicks, also known as James Theodore Watts, also known as James Theron Wicks, also known as Jimmy Ray Bertrano, also known as James Paul Egdahl, also known as James T. Wicks, also known as James Wicks, also known as J
Case Date:June 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 964

995 F.2d 964 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Theodore WICKS, also known as Theodore T. Wicks, also

known as Theodore Theron Wicks, also known as James Theodore

Watts, also known as James Theron Wicks, also known as Jimmy

Ray Bertrano, also known as James Paul Egdahl, also known as

James T. Wicks, also known as James Wicks, also known as

James Theron Watts, Defendant-Appellant.

No. 92-6070.

United States Court of Appeals, Tenth Circuit

June 4, 1993

Page 965

William P. Earley, Asst. Federal Public Defender, Oklahoma City, OK, for defendant-appellant.

Leslie M. Kaestner, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with her on the briefs), Oklahoma City, OK, for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and LUNGSTRUM, [*] District Judge.

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STEPHEN H. ANDERSON, Circuit Judge.

Defendant James T. Wicks appeals his conviction, after a jury trial, on eight counts relating to drug trafficking, resulting in a total sentence of 387 months imprisonment. Wicks raises three issues on appeal: (1) whether the district court erred in denying his motion to suppress evidence; (2) whether the district court erred in overruling his objection to the admission of certain evidence on hearsay grounds; and (3) whether the district court erred in sentencing Wicks as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1). We affirm.

BACKGROUND

Wicks was convicted of the following offenses: (1) conspiracy to possess with intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. § 846; (2) interstate travel to promote unlawful activity in violation of 18 U.S.C. § 1952(a)(3); (3) distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1); (4) use of a telephone to facilitate a conspiracy in violation of 21 U.S.C. § 843(b); (5) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); (6) possession of a firearm moved interstate after a felony conviction in violation of 18 U.S.C. § 922(g)(1); and (7) carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

The charges against Wicks arose from an investigation of Wicks conducted by Drug Enforcement Administration ("DEA") agents in Oklahoma City. The DEA agents were assisted in their investigation by Darryl Skaggs, who was arrested on drug charges on August 7, 1991 and who agreed, after his arrest, to help the DEA investigate Wicks, who Skaggs said was a supplier of methamphetamine. Skaggs told DEA agents the following pertinent information about Wicks: he traveled back and forth between California and Oklahoma in an eight-day cycle, during which he would pick up drugs in California, distribute them during his journey from California to Oklahoma, and receive payment for the drugs on his return trip; he usually stayed in two adjoining rooms at the Drover's Inn while in Oklahoma City, from which he conducted his drug-related business; that, on one occasion, perhaps on "numerous" occasions, Wicks had carried a firearm.

The DEA agents then arranged for Skaggs to stay at a different motel--the Meridian Plaza--from which Skaggs placed several telephone calls to Wicks, from the afternoon of August 8th to the morning of August 9th. The calls were taped and monitored by the agents. One of the DEA agents, Agent Ricker, testified that the substance of the calls was that Wicks was waiting for Skaggs to pay him for methamphetamine previously supplied. The telephone conversations generally corroborated what Skaggs had told the DEA agents and also revealed that Wicks was trying to recruit Skaggs to obtain a chemical used in the manufacture of methamphetamine.

Agent Ricker further testified that the agents attempted on several occasions to get Wicks to come to the Meridian Plaza motel where Skaggs was staying. Wicks apparently did come to the motel on the morning of August 9th, but left "rather suddenly and abruptly." R.Vol. III at 9. Agent Ricker testified that a subsequent telephone conversation between Wicks and Skaggs revealed that Wicks was suspicious of and uncomfortable around the Meridian Plaza. The district court found that the "agents reasonably concluded that Mr. Wicks felt some anxiety about consummating a transaction at the Meridian Plaza, fearing that that was a setup." Id. at 67.

Finally, after further observation of Wicks' motel rooms, and after summoning more DEA agents to provide assistance, the agents concluded that there was sufficient probable cause to arrest Wicks. 1 They decided, however,

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not to procure an arrest or search warrant. The agents testified that they decided there was insufficient time to procure a search warrant because: in a previous monitored phone conversation Wicks had told Skaggs that his (Wicks') time in Oklahoma was about up; Wicks had been increasingly nervous, "he was certainly anxious and certainly would have destroyed the evidence," id. at 11; Wicks "appeared ... [to be] divorcing himself from Mr. Skaggs," id. at 31; and, based on their information that Wicks had carried a firearm on at least one prior occasion, the agents felt it would be safer for them and for the public if Wicks was apprehended in his motel room, and with a presumed check-out time of noon, and with Wicks' car parked in front of his motel rooms, they feared Wicks would be leaving the motel shortly. 2 Agent Ricker testified he did not believe that Wicks was aware that there were agents outside the Drover's Inn observing him. Id. at 11. Agent Schickedanz testified that no one checked with the motel office to see if in fact Wicks planned to leave that day.

The agents then called Wicks' motel room and confirmed that someone was inside. When an unidentified person answered the door and allowed the agents to enter the room, the agents arrested Wicks. Two of the agents left with Wicks and two remained behind to safeguard the motel rooms. The agents observed a white powder in plain view on a nightstand in one of the rooms. One of the agents testified that he suspected it was either methamphetamine or a cutting agent.

Agent McCullough then drafted an affidavit seeking a search warrant to search Wicks' motel rooms. 3 In doing so, he relied heavily on information provided by Agent Ricker, who had worked closely with Skaggs in the two-day investigation of Wicks, and on the taped and monitored telephone conversations between Skaggs and Wicks. The affidavit also specifically mentioned the white powder in plain view on the nightstand in the motel room.

The affidavit then stated that a search of the motel rooms "would result in the seizure of narcotics, documents and items which reflect drug trafficking or cultivation." Appellant's Brief, Attachment B at 7. The affidavit specified that those items would be "large amounts of United States currency ... books, records, receipts, notes, ledgers, and other papers relating to the transportation, ordering, sale and distribution of controlled substances ... contraband, proceeds of drug sales and/or records of drug transactions, drug sources, and drug customers ... safe deposit boxes ... caches of drugs, large amounts of currency, financial instruments, precious metals, jewelry ... addresses or telephone numbers in books or papers ... photographs ... paraphernalia ... includ[ing] syringes, bottles, scales, plastic bags, balloons, heat sealers, glassware, chemicals, mechanical stirrers, and/or heat sources[,] ... stolen weapons or goods." Id. at 2-4.

Agent McCullough testified that he did not have "specific information" that the individual items listed in the affidavit attached to the search warrant, with the exception of methamphetamine itself, would be in the motel rooms. R.Vol. III at 51-52. Rather, the agent testified that they were "items [he] would generally think might be present in a case such as this," id. at 52, "based upon [his] past experience, education and training ... as items that are commonly used or assist with the conducting of a drug business." Id. at 55.

After obtaining the search warrant, the agents searched the motel rooms and seized

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numerous pieces of incriminating evidence, including firearms and controlled substances. They also found two locked briefcases, which they opened, and in which they found documents, two guns, small quantities of controlled substances and sheets of paper containing formulae for making crack cocaine and methamphetamine and a list of precursor chemicals for methamphetamine.

Wicks filed a motion to suppress the evidence seized from his motel rooms. After holding an evidentiary hearing, the district court denied the motion.

At trial, Skaggs and two other individuals, Wesley Callison and Tony Nelson, testified against Wicks. Skaggs testified that he obtained methamphetamine from Wicks at the Drover's Inn. Over an objection that the sheets taken from the briefcases were inadmissible as hearsay, the court permitted them into evidence. They were identified as containing methamphetamine "recipes." Wicks was convicted on all counts.

The government thereafter filed a Notice of Eligibility for Imposition of Sentence Under the Enhanced Penalty Provision of 18 U.S.C. § 924(e)(1), on the grounds that Wicks was convicted of three counts of first degree robbery in California in 1963.

Wicks argues the district court erred in refusing to grant his motion to suppress evidence: (1) discovered in plain view by the DEA agents incident to an illegal arrest of Wicks in his motel room; (2) gathered pursuant to a post-arrest search warrant, the affidavit in support of which failed to establish the existence of probable cause, and was overbroad and reliant on evidence seen during the illegal arrest...

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