U.S. v. Calloway, 95-6206

• Decision Date: 25 July 1997
• Docket Number: No. 95-6206,95-6206
• Citation: 116 F.3d 1129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Auburn CALLOWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1129

116 F.3d 1129

UNITED STATES of America, Plaintiff-Appellee, v. Auburn CALLOWAY, Defendant-Appellant.

No. 95-6206.

United States Court of Appeals Sixth Circuit.

Argued Dec. 2, 1996.

Decided June 20, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied July 25, 1997.

John T. Fowlkes, Assistant U.S. Atty., (argued and briefed), Office of the U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.

Robert C. Brooks (argued and briefed), Memphis, TN, for Defendant-Appellant.

Auburn Calloway, Atlanta, GA, pro se.

Before: LIVELY, NELSON, and RYAN, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

Convicted on federal charges of attempted aircraft piracy and interference with flight crew members, defendant Auburn Calloway received concurrent sentences of life imprisonment. On appeal, Mr. Calloway presents six assignments of error: (1) the district court erred in refusing to suppress certain evidence; (2) the evidence as a whole was insufficient to support the conviction for attempted aircraft piracy; (3) the district court's jury instructions constructively amended the indictment; (4) the jury was not properly instructed on the wrongful intent element of the offense of attempted aircraft piracy; (5) the conviction for interference with flight crew members must be vacated as a lesser-included offense of attempted aircraft piracy; and (6) the district court erred in departing upward from the applicable sentencing guideline range.

The government concedes that interference with flight crew members is a lesser-included offense of attempted aircraft piracy. We shall vacate the interference conviction on the strength of that concession. We find no other reversible error, and the conviction and life sentence for attempted aircraft piracy will be affirmed.

I

Mr. Calloway worked as a flight engineer for Federal Express. The company began investigating irregularities in the reporting of Mr. Calloway's flight hours, and he was directed to appear at a hearing scheduled for April 8, 1994, in Memphis, Tennessee. (The company's headquarters are in Memphis, and Mr. Calloway was a resident of that city.)

Shortly before the date of the hearing Mr. Calloway began rearranging his financial affairs. He caused about $40,000 worth of securities to be sent to his former wife, and he sent her cashier's checks totaling nearly $14,000. He also paid a visit to the FedEx employee benefits office and changed the beneficiaries of an accidental death and dismemberment policy and a term life insurance policy.

One of the FedEx flights scheduled to operate out of Memphis on the day before the hearing date was Flight 705, a DC-10 cargo plane bound for California. Prior to the departure of this flight on April 7, 1994, Mr. Calloway presented himself at the plane in full flight gear and with carry-on items. Although he was not a member of the flight crew, he entered the cockpit and began adjusting instruments and controls as if he were. The real crew members--pilot David Sanders, co-pilot James Tucker, and flight engineer Andy Peterson--arrived later, and they assumed Mr. Calloway was a "jump-seater" (i.e., an employee passenger).

After the plane took off, Mr. Calloway entered the cockpit and began attacking the crew with a hammer. He then left the cockpit, armed himself with a spear gun and spear, and renewed his assault. At some point in the course of these events crew members were able to request--and were cleared for--an emergency return to the Memphis airport.

While two of the crew members struggled with Mr. Calloway, pilot Sanders successfully completed an emergency landing. A paramedic then entered the aircraft and handcuffed Calloway. The plane was later searched by FedEx security personnel, who found two claw hammers, two sledgehammers, a spear gun, and a spear. They also discovered a note from Mr. Calloway to his ex-wife, describing the author's apparent despair.

The crew of Flight 705 sustained serious injuries. Co-pilot Tucker suffered severe skull fractures, and he developed motor control problems in his right arm and right leg. He was also partially blinded in one eye as a result of Mr. Calloway's attempt to gouge the eye out. Pilot Sanders suffered several deep gashes in his head, and doctors had to sew his right ear back in place. He was stabbed in his right arm and had a dislocated jaw. Flight engineer Peterson's skull was fractured and his temporal artery severed.

Douglas Kinzie, a FedEx employee who shared an apartment with Mr. Calloway, called the Federal Bureau of Investigation after learning of the attack. Mr. Kinzie reported that he had seen a note in the apartment, presumably written by Mr. Calloway, listing the names of the Flight 705 crew. FBI agents also learned from FedEx officials about the note found in the plane and about the change of beneficiaries on the insurance policies.

On the strength of this information, the FBI applied for a warrant to search Mr. Calloway's apartment. A magistrate judge issued the warrant, which authorized seizure of "[d]ocuments listing names of Federal Express crew members, notes concerning Federal Express Flight 705, [and] records pertaining to insurance beneficiary transfers." When FBI agents executed the warrant, they seized among other things a note listing the Flight 705 crew members, a note listing the weapons used in the attack, two bank receipts, Mr. Calloway's will, and a power of attorney form.

On May 17, 1994, a federal grand jury handed up a two-count indictment charging Mr. Calloway with attempted aircraft piracy in violation of 49 U.S.C. § 1472(i) (now codified at 49 U.S.C. § 46502) and interference with flight crew members in violation of 49 U.S.C. § 1472(j) (now codified at 49 U.S.C. § 46504). Mr. Calloway moved to suppress the evidence seized from the apartment, arguing that the magistrate judge lacked probable cause to issue the warrant and that the FBI agents exceeded the scope of the warrant in executing it. The motion was denied in all respects relevant to this appeal.

At sentencing, after the petit jury had found the defendant guilty on both counts of the indictment, the district court departed from a sentencing guideline offense level of 38 and used a level of 43 instead. The guideline range for offense level 38, absent any significant prior criminal history (and Mr. Calloway had none), is imprisonment for 235-293 months. The guideline range for offense level 43, irrespective of criminal history, is life imprisonment.

II

On appeal, Mr. Calloway challenges his convictions on several grounds. First of all, he says, the district court erred in denying his motion to suppress the evidence obtained in the search of his apartment. We disagree.

A

A magistrate's determination of probable cause is entitled to "great deference" and must not be reversed in the absence of clear error. United States v. Dotson, 49 F.3d 227, 229-30 (6th Cir.), cert. denied, 516 U.S. 848, 116 S.Ct. 141, 133 L.Ed.2d 87 (1995). Probable cause is determined by examining the totality of the circumstances, and it must be given a "practical, nontechnical" construction. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983) (quotation and citation omitted).

We believe that the magistrate judge had ample support for his finding of probable cause in this case. As we have seen, FBI agents knew of the note written by Mr Calloway to his ex-wife, and they knew that the suspect had recently changed the beneficiaries of his life insurance policies. Mr. Calloway's roommate had informed the agents of a note, believed to be written by Mr. Calloway and located in his apartment, listing the names of the Flight 705 crew. The magistrate judge thus had highly pertinent information from a named informant, and the finding of probable cause was not erroneous. See United States v. Pelham, 801 F.2d 875, 878 (6th Cir.1986)("When a witness has seen evidence in a specific location in the immediate past, and is willing to be named in the affidavit, the 'totality of the circumstances' presents a 'substantial basis' for conducting a search for that evidence"), cert. denied, 479 U.S. 1092, 107 S.Ct. 1305, 94 L.Ed.2d 160 (1987).

B

The warrant authorized seizure of "[d]ocuments listing names of Federal Express crew members, notes concerning Federal Express Flight 705, [and] records pertaining to insurance beneficiary transfers." Several documents not described in the warrant were seized and introduced at trial: (1) a note listing weapons; (2) two bank receipts; (3) Mr. Calloway's will; and (4) a power of attorney. Mr. Calloway argues that these items should have been suppressed because their seizure exceeded the scope of the warrant.

The seizure was justified, in our opinion, by the plain view exception to the warrant requirement. To invoke the plain view doctrine, the evidence must be "(1) in plain view; (2) of a character that is immediately incriminating; (3) viewed by an officer lawfully located in a place from where the object can be seen; and (4) seized by an officer who has a lawful right of access to the object itself." United States v. Roark, 36 F.3d 14, 18 (6th Cir.1994)(citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). In this case the agents were executing a valid search warrant that required them to seize certain documentary evidence. Unless they were to seize every scrap of paper in the apartment, the agents had to examine such documents as they came across--and the seized documents were obviously in plain view of the agents responsible for examining them.

The incriminating character of the evidence in question was "immediately apparent" within the meaning of that term as used in the relevant caselaw. The standard does not demand an "unduly high degree of certainty;" rather, a plain view seizure is "presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Texas v....