U.S. v. Buchanan, 92-1983

• Decision Date: 07 April 1993
• Docket Number: No. 92-1983,92-1983
• Citation: 985 F.2d 1372
• Parties: UNITED STATES of America, Appellee, v. Chris BUCHANAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1372

985 F.2d 1372

UNITED STATES of America, Appellee, v. Chris BUCHANAN, Appellant.

No. 92-1983.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1992.

Decided Feb. 16, 1993.

Rehearing Denied April 7, 1993.

Gregory G. Fenlon, St. Louis, MO, argued, for appellant.

Dorothy Lear McMurtry, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Chris Buchanan appeals convictions for conspiring to possess cocaine with intent to distribute, attempting to possess with intent to distribute 500 or more grams of cocaine, and knowingly and intentionally possessing cocaine. He asserts that the evidence was insufficient to support the convictions and raises objections to the sentence that he received.

The district court ¹ sentenced Buchanan to concurrent sentences of 210 months and to four years of supervised release on each count and fined him on each count. Because Buchanan has challenged the sufficiency of the evidence, we set out such facts as the evidence would support a reasonable jury in believing.

I.

Six specific events furnished the substance of the trial. The first was on August 24, 1988, when a Federal Express package from Los Angeles was delivered in St. Louis. The package had been intercepted as suspicious and a narcotics-detection dog had reacted positively to it. DEA agents notified agents in St. Louis, and the package was intercepted and found to contain two kilograms of cocaine, most of which was removed before the package was delivered to the stated address. The package was addressed to Michelle Jackson, but Buchanan accepted and signed for it. During and after this incident, agents provided surveillance on various relevant premises. A few minutes after the delivery, agents executed a federal search warrant at the apartment to which the package was delivered and found a loaded .38 firearm under a couch and the open package, but no drugs. Buchanan was not at the apartment, but he was spotted at that time exiting the rear door of the building searched and entering a second building with another man. Although it was August, the second man was wearing a heavy coat and appeared to be hiding something under it. Agents therefore acquired a search warrant for the second building, and executed it approximately an hour and a half later. Five people were apprehended inside an apartment in this second building, and agents found Buchanan's photograph and nine ID cards in his name, two pagers, a nine-millimeter semi-automatic weapon, a twelve-gauge shotgun, and Federal Express air bills and overnight mail receipts that bore the Lynwood, California, return address of the original cocaine package. The receipts were quite recent and coincided with one another in date and alternate address. Buchanan had also signed for one of those packages.

When the controlled delivery was made, Buchanan was paying rent on both apartments at issue. He also admitted to having a third apartment. He had telephones at each apartment, mobile phones for both his Blazer and his Jaguar, and seven leased pagers with "group call" capability. Records revealed that approximately 400 telephone calls per month were made between residences and cars, as well as to California.

The next incident of importance occurred on September 13, 1988, when agents intercepted two packages being sent from California to St. Louis. The sender and both recipients had the same surnames as individuals apprehended in the second apartment on August 24. The packages each contained more than a kilogram of cocaine. The courier carrying the packages was driving a car registered to a Lynwood, California address, and a Lynwood address was found on a Western Union money transfer receipt in the car. That Lynwood address was the same as the address on the August delivery.

On December 12, 1988, a St. Louis police detective recognized Buchanan, rushing to board a flight to Los Angeles. He produced an airline ticket in another name, then consented to a search of his locked briefcase. In the briefcase was $920 in loose cash and a brown paper bag containing another $20,000 in cash. Buchanan told the officer that he had received the money from his father's estate when his father died. The government determined, however, that his father had actually died eight months previous. His father's estate, moreover, showed an inventory of over $5,000 less than Buchanan was carrying upon arrest.

On January 31, 1989, agents seized Buchanan's Chevrolet Blazer because they believed he had bought it with the proceeds of drug dealings. Evidence was introduced that Buchanan had purchased the Blazer for approximately $17,000 with two cashier's checks in August of 1988, even though he had been unemployed since November of 1987. When he was recalled to work in September of 1988, he had voluntarily quit his job at the General Motors plant. In addition, the government introduced evidence regarding several bank accounts that Buchanan had containing approximately $24,000. When Buchanan's Blazer was searched, the officers found one bag containing 2.01 grams of cocaine and another containing 2.36 grams of cocaine base under the driver's seat, and a pager and safety deposit key were in the car. The deposit box records revealed that Buchanan had entered the box on two occasions coinciding with the mailing of packages to California.

Another event of relevance was the November 29, 1990, search at Buchanan's residence, pursuant to a search warrant. Before the agents searched the residence, Buchanan arrived with another man and agents found that Buchanan was carrying two bags of cocaine totalling 2.27 grams, at which time he was arrested. In searching his dwelling, agents seized a loaded nine millimeter weapon, test tubes containing cocaine residue, and hundreds of small plastic baggies from a bedroom dresser.

The next event of importance occurred on November 30, 1990, when a Kansas City DEA police officer approached and questioned a man exiting a train from Los Angeles. The man's two train tickets, which showed a continuing trip to St. Louis, bore a name different from his identification card, which also revealed a Lynwood, California, address. During a consensual search of the man's luggage, officers found a 499.4 gram brick of cocaine packaged in a sealed detergent box. Upon finding the cocaine, the police arrested the man and notified St. Louis that a cocaine shipment destined for St. Louis had been seized. A police decoy posed as the drug courier and completed the trip to St. Louis. Two men in a van remained in the St. Louis train station parking lot until most passengers had departed. One then made a telephone call and the police officer heard him say, "The guy didn't show up with the stuff." The police approached the two men, and ascertained that one man, Richard Wright, was from Lynwood, California, and had flown to St. Louis the day before. Wright had Buchanan's telephone number in his pocket and telephoned Buchanan from the police station while police recorded the calls. The calls contained conversation regarding return calls on pagers, references to others known to the police, and Buchanan's request for one ounce. Buchanan was also recorded as saying he was scared but that, "I got a lot of people askin' for things, you know?"

On March 15, 1991, Buchanan called Special Agent Terry Bohan of the Alcohol, Tobacco, and Firearms office, who had arrested Buchanan in November of 1990. Buchanan identified himself and asked if it was too late to help himself. He requested a meeting with Bohan but did not appear for it. He later called Special Agent Bohan again and met with him. At that time, he identified three men for Agent Bohan and discussed which men handled two-kilo quantities and who worked for whom. Buchanan stated that he knew this information because he had worked for the distributor in the past. Buchanan also discussed the men arrested at the train station and their relationships to the distributor, saying that he was to have picked them up and arranged for an apartment for them. Buchanan agreed to meet with agents again but never did. The only further contact with him was through his attorneys.

II.

On appeal, Buchanan raises eight points: (A) whether there was sufficient evidence to support a verdict finding him guilty of conspiracy; (B) whether there was sufficient evidence to sustain a conviction for attempted possession with intent to distribute; (C) whether there was sufficient evidence that he engaged in distribution of cocaine and, as a matter of law, whether 2.27 grams was a sufficient amount to support an inference of intent to distribute; (D) whether a Franks hearing should have been held and whether the evidence and fruits obtained from the second search should have been suppressed, on the asserted ground that the sworn statements in the affidavit supporting the warrant were untrue; (E) whether it was error to admit the taped recordings of telephone conversations between the defendant and Richard Wright; (F) whether the government denied Buchanan due process of law, equal protection, and a fair trial by employing unlawful ex parte discovery techniques; (G) whether the base offense level upon which the sentence was based should be reduced two points because of an error as to the amount of cocaine seized on September 13, 1988; and (H) whether the sentence should be reduced.

A.

For his first argument, Buchanan addresses the sufficiency of the evidence to support the jury's conviction on Count I, which charged a conspiracy contrary to 21 U.S.C. § 841(a)(1), a statute prohibiting a person from knowingly or intentionally manufacturing, distributing, or dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance. Buchanan argues that there was no evidence that he chose to...