U.S. v. Chavis

• Decision Date: 24 July 1989
• Docket Number: Nos. 88-7208,88-5093,88-5092,s. 88-7208
• Citation: 880 F.2d 788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horace CHAVIS, Defendant-Appellant. (Two Cases) UNITED STATES of America, Plaintiff-Appellee, v. Clement CHAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 788

880 F.2d 788

UNITED STATES of America, Plaintiff-Appellee, v.Horace CHAVIS, Defendant-Appellant. (Two Cases)

UNITED STATES of America, Plaintiff-Appellee, v.Clement CHAVIS, Defendant-Appellant.

Nos. 88-7208, 88-5092, 88-5093.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1989.

Decided July 24, 1989.

James R. Nance, Jr.(Nance, Collier, Herndon, Jenkins & Wheless, Fayetteville, N.C., on brief), Evander Munn Britt, Sr.(Britt & Britt, Lumberton, N.C., on brief), for defendant-appellant.

Mervyn Hamburg, Washington, D.C., (Margaret P. Currin, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, CHAPMAN, Circuit Judge, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.

DOUMAR, District Judge:

Horace Chavis was convicted by a jury of operating a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848; conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846; distributing cocaine to a person under twenty-one years of age, in violation of 21 U.S.C. Sec. 845(a); and carrying a firearm while conducting drug trafficking, in violation of 18 U.S.C. Sec. 924(c)(1).Clement Chavis was convicted of conspiracy to possess cocaine with intent to distribute and of carrying a firearm while conducting drug trafficking.Horace and Clement appeal from these convictions.

Clement asserts that the district court improperly admitted into evidence a handgun taken from the automobile that he was operating at the time of his arrest.The handgun was discovered during the course of a warrantless station house search of the vehicle.Clement also claims error in the district court's refusal to grant a mistrial following the failure of a paid government informant to return to the trial for further testimony after having contacted defense counsel and others and suggesting that he possessed additional evidence.Horace assigns error to the district court charging the jury on both continuing criminal enterprise and conspiracy to possess cocaine with intent to distribute based on his assertion that he could not properly be convicted of both crimes.Horace further asserts that the district court abused its discretion in failing to suppress the testimony of a paid government informant in a reverse sting operation and to charge the jury on entrapment.

Finding no error in the district court proceedings, we affirm.

I

Prior to his arrest in this case, Horace Chavis successfully operated a cocaine distribution enterprise from his home in rural Maxton, North Carolina.Beginning in 1986, Horace began moving cocaine in multi-ounce quantities.By September 1986, Horace was purchasing cocaine in kilogram quantities.Horace stored the cocaine on his own property or on the nearby property of his parents.Customers typically came to Horace's home to purchase cocaine.On occasion, Horace utilized his minor son to retrieve or to distribute packets of cocaine.If Horace was not at home when customers stopped by, Clement would handle the cocaine transactions.

In April 1987, Willie Campbell, one of Horace's steady customers, was arrested after selling cocaine that he had purchased from Horace to an undercover detective.Following his arrest, Campbell agreed to cooperate with law enforcement officers.Under law enforcement surveillance, Campbell, Horace, and on occasion Clement discussed further drug transactions and Horace providing Campbell with cash and free cocaine for resale in order for Campbell to retain an attorney to represent him on his pending charges.A two-ounce cocaine transaction between Horace and Campbell led to Horace's first arrest, on July 20, 1987.The arresting officer discovered a loaded handgun on the front seat of the automobile that Horace was driving.A consensual search of Horace's home located some $3,000 in cash and two additional firearms.In addition, Horace led police officers to a pump house on his parents' property where he had concealed three one-ounce bags of cocaine.

Following his arrest, Horace notified law enforcement officials that he wished to cooperate.Horace related to them the names of some of his customers and discussed his cocaine sources.A bond reduction hearing was held and Horace was released on bail pending trial.While on bail, however, Horace continued to purchase and to distribute cocaine.

In September 1987Richard Bell was employed as a member of a construction crew installing siding on Horace's parents' home.Upon noticing the stream of traffic at the residence, Bell revealed to Horace that Bell's father had been engaged in drug trafficking in Florida for many years.Bell and Horace discussed a delivery of three kilograms of cocaine from Bell's father to Horace.Horace told Bell that he was distributing two or three kilograms of cocaine every two weeks and that if Bell's price was attractive, they could repeat such a delivery every other week.

Although at first Bell contemplated brokering cocaine between his father and Horace, he subsequently changed his mind.Bell contacted the local sheriff's department, relating his willingness to assist in a reverse sting operation for a fee.This information was relayed to the North Carolina Bureau of Investigation and a state officer was assigned to arrange an undercover transaction through Bell.

As instructed by the state officer, Bell quoted a selling price of $21,000 per kilogram to Horace through Clement.Over the next two or three days, Bell discussed the details of the proposed three kilogram transaction with both Horace and Clement.On the morning of September 30, Bell arranged for a meeting that afternoon between Horace or Clement and an undercover officer acting as a distributor's representative.Clement met the undercover officer, discussing the cocaine's low price, the possibility for future sales, and the approximately two to three kilogram biweekly volume of Clement's distribution.Clement and the undercover officer agreed to meet later that evening at a welcome center on Interstate 95 to consummate the transaction.

At the agreed upon time and location, Clement arrived alone by automobile with a bag containing $58,000 in cash.The undercover officer placed a bag containing three kilograms of cocaine on the passenger seat of the car and received the money.Clement was immediately arrested.The arresting officers seized the car upon Clement's arrest.A crowd began to gather.The officer in charge of the scene directed an officer to drive the automobile to the highway patrol station some fifteen miles away.Clement was also taken to the station for processing.Approximately two hours later a warrantless search of the vehicle was conducted at the station house prior to impounding the vehicle for possible forfeiture.During the course of this search a .38 caliber handgun was discovered under the front passenger seat of the car.

II

At trial, Clement objected to the introduction of the handgun.The district court held a suppression hearing and at its conclusion admitted the handgun into evidence.The district court found that the station house search was valid under the fourth amendment based on the vehicle having been seized for forfeiture at the time of Clement's arrest and the officers having searched the car as soon as manpower became available to do so.

Clement does not contest the legality of the seizure and impoundment of the automobile for possible forfeiture.His fourth amendment argument is that the station house search does not fall into any of the exceptions to the general warrant requirement.We disagree.

It is well recognized that where law enforcement officers possess probable cause to search an automobile at the scene of an arrest, a warrant is not required for a subsequent station house search of the vehicle.SeeTexas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209(1975)(per curiam);Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970);United States v. Muhammad, 658 F.2d 249(4th Cir.1981), cert. denied, 456 U.S. 947, 102 S.Ct. 2015, 72 L.Ed.2d 470(1982);United States v. Chulengarian, 538 F.2d 553(4th Cir.1976).The Supreme Court has made it abundantly clear that neither the passage of several hours between the arrest and the search nor the immobilization of the vehicle by placing it in police custody invalidates the probable cause basis for conducting a warrantless automobile search.SeeFlorida v. Meyers, 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381(1984);Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750(1982)(per curiam).

The district court found that there was probable cause to search the automobile at the scene of Clement's arrest.This finding is amply supported by the evidence and validates the station house search.

During the course of the meeting between Clement and the undercover officer at which the time and welcome center site for the three kilogram cocaine transaction were agreed upon, Clement related to the officer the substantial volume of his cocaine distribution enterprise.This discussion corroborated information that agents had received from Campbell following Horace's release on bail.The arresting officers knew that Horace and Clement were not small-time distributors.By the terms of the agreement for the three kilogram undercover transaction, Clement was to arrive at the welcome center with $63,000 in cash.The arresting officers had sufficient factual knowledge to form a probable cause belief that the automobile in which Clement arrived contained contraband or the fruits of cocaine distribution.

Additionally, the arresting officers knew sufficient facts to form a probable cause belief that Clement would bring a weapon to the welcome center transaction site.At the time of Horace's prior arrest, a loaded handgun was on the front seat of the car from which he was arrested.At the close of the meeting between...