U.S. v. Baldwin

• Decision Date: 10 March 1993
• Docket Number: No. 92-30027,92-30027
• Citation: 987 F.2d 1432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lee BALDWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1432

987 F.2d 1432

UNITED STATES of America, Plaintiff-Appellee, v. David Lee BALDWIN, Defendant-Appellant.

No. 92-30027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1993.

Decided March 10, 1993.

Allen R. Bentley, Bukey & Bentley, Seattle, WA, for defendant-appellant.

Leonie G. Hellwig, Asst. U.S. Atty., Seattle, WA and Thomas M. Gannon, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding.

Before: FARRIS and KLEINFELD, Circuit Judges, and DAVID ALAN EZRA, District Judge. ^*

FARRIS, Circuit Judge:

David Lee Baldwin appeals his conviction on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (1988), and two counts of distributing cocaine in furtherance of the conspiracy, in violation of 21 U.S.C. § 841(a)(1)-(b)(1)(C) (1988). He argues that his residence was searched pursuant to an invalid warrant, that the district court improperly instructed the jury on the conspiracy charge, and that his trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Eugene Kubera and Ricardo Garza were arrested on July 27, 1990, as they tried to complete a drug deal in a hotel parking lot. Baldwin was arrested later that day in connection with that transaction. His home was then searched, and a triple beam scale, a small mirror, and a small brown vial were seized. These items were admitted at trial, over Baldwin's objection. Baldwin and Garza were tried jointly. Garza was convicted, but the jury hung as to Baldwin. Baldwin was then reindicted and convicted.

I. SEARCH WARRANT

Baldwin argues that the district court erred by denying his motion to suppress evidence seized during the execution of the search warrant. He contends the warrant was not based on probable cause, and that it failed to describe the items to be searched with sufficient particularity. We reject these contentions.

We review the magistrate judge's determination of probable cause for clear error. United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). We examine de novo the warrant's particularity. United States v. McLaughlin, 851 F.2d 283, 285 (9th Cir.1988).

A. Probable Cause

For an affidavit in support of a search warrant to establish probable cause, the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued. Based on the nature of the evidence and the type of offense, a magistrate may draw reasonable inferences about where evidence is likely to be kept. We have previously recognized that in the case of drug dealers, evidence is likely to be found where the dealers live.

United States v. Garza, 980 F.2d 546 (9th Cir.1992) (internal quotations and citations omitted). Baldwin argues that his role in the transaction was merely peripheral, and that it therefore was unreasonable to issue a warrant to search his home. The warrant affidavit indicated that: (1) Baldwin told the undercover DEA agent that he had been distributing cocaine--at times up to fifty to sixty kilograms per month--for fifteen years, and (2) Kubera informed the agent that Baldwin kept assets at his home that were purchased with drug proceeds. The magistrate judge had sufficient evidence to support an inference that evidence would be found at Baldwin's home. Cf. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) ("When the traffickers consist of a ringleader and assistants, a fair probability exists that drugs will be present at the assistants' residence....").

Baldwin attacks the affidavit piecemeal, arguing that probable cause did not exist to search for some items listed in the warrant, while sufficient particularity was lacking as to the same or other items. This "hypertechnical" approach is inconsistent with the Supreme Court's statement in Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), that probable cause is to be determined on the basis of the "totality-of-the-circumstances."

"A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."

Id. (quoting United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)); see also Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (reviewing court should consider "affidavit in its entirety," as opposed to dissecting the affidavit and judging "bits and pieces of information in isolation").

Perhaps recognizing the tenuousness of his position under the totality-of-the-circumstances, Baldwin invokes, for the first time on appeal ¹, an innovative argument: that the warrant was fatally flawed by the affiant's failure to specify how he knew that the house listed in the warrant application was Baldwin's residence.

Baldwin's reliance upon United States v. Brown, 832 F.2d 991 (7th Cir.1987), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 L.Ed.2d 243 (1988), is misplaced. In Brown, the Seventh Circuit upheld the search of an apartment based on the officers' good faith reliance on a seemingly valid warrant. Id. at 992. The apartment allegedly served as one of several "mail-drops" for the defendant's mail fraud scheme. In the discussion preceding its good faith analysis, the court noted that the warrant affidavit failed to indicate how the police knew the apartment was used by the defendant. Id. The court also stated that there was a "paucity of information" suggesting that a search of the apartment would uncover evidence of wrongdoing. Id. Together, these two factors sufficed to invalidate the warrant.

A clear link existed between Baldwin's residence, wherever located, and evidence of wrongdoing. Probable cause was established to show that Baldwin was involved in cocaine distribution. The magistrate judge therefore was entitled to infer that evidence would be found at his home. Garza, 980 F.2d at 550. No analogous inference is drawn in mail fraud cases. Moreover, the affidavit recited the basis for the affiant's belief that a search of Baldwin's residence would uncover assets purchased with drug money.

The affiant's failure to delineate how he discovered the location of Baldwin's residence does not render clearly erroneous the probable cause determination.

B. Particularity and Severance

The Fourth Amendment requires that a search warrant "particularly describe[ ] the place to be searched and the persons or things to be seized." Baldwin argues that certain provisions in the warrant were invalid because they were not sufficiently particular. For example, he argues that the phrase "things of value which may have been acquired through the sale of cocaine" is impermissibly broad. He may be correct. See United States v. Holzman, 871 F.2d 1496, 1509 (9th Cir.1989) (invalidating portion of warrant authorizing search for "any property or devices used or obtained through fraud"); United States v. LeBron, 729 F.2d 533, 536 (8th Cir.1984) (invalidating warrant to search for "stolen property"); cf. United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.) (search warrant partially invalid where it lacked "objective guidelines to aid the determination of what may or may not be seized"), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984).

Under the rule of severance, however, only those items seized pursuant to invalid portions of a warrant must be suppressed. Gomez-Soto, 723 F.2d at 624; see Holzman, 871 F.2d at 1510. The scale, mirror, and vial are within the warrant's description of "paraphernalia used to weigh, store, and distribute cocaine." That description is not overbroad or "unduly generic." United States v. Hinds, 856 F.2d 438, 440-41 (1st Cir.1988). Baldwin concedes, as he must, that these items were described adequately. Their admission was proper. The warrant was supported by probable cause and was not rendered invalid by the particularity requirement.

II. JURY INSTRUCTIONS

Baldwin contends that the district court erred by failing to instruct the jury that proof of an overt act was necessary to convict him of conspiracy to distribute cocaine.

"Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo." United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). Where a defendant fails to object to a faulty instruction, we review only for plain error. United States v. Boone, 951 F.2d 1526, 1541 (9th Cir.1991); United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Where the defendant himself proposes the jury instruction he later challenges on appeal, we deny review under the invited error doctrine. United States v. Guthrie, 931 F.2d 564, 567 (9th Cir.1991).

At trial, the government excepted to the court's proposed instruction because it omitted the overt act requirement. The district court sought Baldwin's view. Baldwin, through his attorney, indicated that he did not believe an overt act was required. The government withdrew its exception, and the court approved the instruction without the overt act requirement.

Baldwin contends that because he did not actually "propose" the instruction, the invited error doctrine is inapplicable. The scope of the doctrine is not so narrow. See, e.g., United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976) (doctrine applicable where error "was induced" by defendant's counsel), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977); Guthrie, 931 F.2d at 567 (error invited where defendant declined court's offer to instruct jury on elements...