U.S. v. Cody, s. 92-7023

• Decision Date: 01 November 1993
• Docket Number: Nos. 92-7023,92-7024,s. 92-7023
• Citation: 7 F.3d 1523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Edward CODY and Pauline W. Cody, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1523

7 F.3d 1523

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Edward CODY and Pauline W. Cody, Defendants-Appellants.

Nos. 92-7023, 92-7024.

United States Court of Appeals, Tenth Circuit.

Nov. 1, 1993.

Sheldon J. Sperling, Asst. U.S. Atty. (John Raley, U.S. Atty., with him on the briefs), Muskogee, OK, for plaintiff-appellee.

Tom Hebree, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Muskogee, OK, for defendants-appellants.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Clarence Edward Cody ("Mr. Cody") and Pauline W. Cody ("Mrs. Cody") appeal their convictions on identical drug charges, and in Mr. Cody's case, a firearms charge. The

                Codys contend that agents of the Oklahoma Bureau of Narcotics ("OBN") violated the Fourth Amendment in conducting a warrantless search of their residence and surrounding area.   They specifically challenge the district court's finding that Mr. Cody voluntarily consented to the search.   They also challenge as unreliable the evidence that they possessed 1,028 marijuana plants, and contend that the plant/weight equivalency scheme in Sentencing Guidelines violates due process.   We affirm their convictions, but remand with instructions to vacate one count of their convictions because it is multiplicious
                

BACKGROUND

Before dawn on August 4, 1991, OBN agents entered a large marijuana patch, spotted earlier by helicopter, on an 80-acre open field tract in southeastern Oklahoma. The agents camouflaged themselves and waited. Shortly after sunrise Mr. Cody drove up to the marijuana patch, got out of his truck, and began to adjust some sprinklers in the patch. He was immediately arrested.

Mr. Cody was taken to a nearby home serving as base for the OBN stakeout. There he signed a form consenting to an OBN search of buildings around the marijuana patch. Transcript of Hearing on Motion to Suppress, Appellee's Appendix, at 95 (hereinafter "S.H.Tr."). The Codys do not challenge the validity of this search on appeal.

OBN agents videotaped and otherwise observed the marijuana patch and surrounding area. Agents eventually gathered, counted, and destroyed 1,028 marijuana plants. They also seized loaded firearms in plain view on the front seat of the truck Mr. Cody had driven to the patch.

Mr. Cody was later taken to the county jail where he met with two OBN agents. The facts of what took place in this meeting are in dispute. The agents testified that Mr. Cody voluntarily signed two forms, one waiving his Miranda rights and the other consenting to a search of his residence and surrounding area, located some distance from the marijuana patch. S.H.Tr. at 63. Mr. Cody admitted meeting with the agents at the jail, but denied signing either the Miranda waiver or the second consent form. S.H.Tr. at 95, 98-99.

After obtaining the disputed consent form, agents searched the Codys' home and a nearby building seizing marijuana seeds, pounds of processed marijuana, various documents, utility bills, and cultivation equipment. Mrs. Cody was arrested at this time. The Codys were indicted by a grand jury for the Eastern District of Oklahoma on identical charges, except for Mr. Cody's additional charge related to the firearms in his truck. ¹

The Codys filed a motion to suppress the evidence obtained from the truck, residence, and area surrounding the residence. The district court held a two-day evidentiary hearing on the motion, and most of the evidence at this hearing focused on whether Mr. Cody in fact signed the disputed consent form. Mr. Cody admitted signing the consent form pertaining to the buildings near the marijuana patch, but he flatly denied signing a second consent form. S.H.Tr. at 95, 99. When shown the disputed form with the signature bearing his name, he testified that the signature was not his own. S.H.Tr. at 98. Two OBN agents, on the other hand, testified that they watched Mr. Cody sign the disputed form. S.H.Tr. at 49, 100. Handwriting experts for both the prosecution and defense were unable to reach conclusive opinions as to whether the challenged signature was Mr. Cody's. S.H.Tr. at 149, 164. At the conclusion of the evidence, the district court made findings that Mr. Cody had in fact The Codys' first jury trial ended in a hung jury, but they were convicted on all counts in a second jury trial. They now appeal.

                signed the second consent form, that his consent was "freely and voluntarily given," and that the agents "had the authority to make the search they did." 2  The district court denied the motion to suppress.   S.H.Tr. at 190
                

DISCUSSION

I. Fourth Amendment Violation

The standard of review of a district court's denial of a motion to suppress is well established. The district court's findings of fact must be accepted on appeal unless clearly erroneous, with the evidence viewed in the light most favorable to the district court's findings. United States v. Pinter, 984 F.2d 376, 378 (10th Cir.1993); United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). Moreover, "[a]t a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). The question of whether a Fourth Amendment violation occurred is a question of law that we review de novo. United States v. Corral, 970 F.2d 719, 723 (10th Cir.1992).

In separate but similar briefs on appeal, Mr. and Mrs. Codys' sole contention pertaining to the denial of their motion to suppress is that "the government failed to introduce any evidence that [Mr. Cody's] consent was knowing and voluntary." Brief of Clarence Edward Cody, at 7. ³ "To admit evidence obtained in a consent search, the district court must find from the totality of the circumstances that (1) the defendant's consent to an officer's search was voluntary and (2) the search did not exceed the scope of the defendant's consent." United States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991) (citation omitted). The government always has the burden of proving voluntary consent. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Walker, 933 F.2d at 818.

After hearing hours of testimony and viewing numerous exhibits, the district court found that the government met its burden. We accept the court's findings. Ample evidence in the record supports the finding that Mr. Cody signed the disputed consent form, including the form, itself, and two agents' testimony that they watched Mr. Cody sign it. The inconclusive expert testimony and Mr. Cody's denial do not show clear error in the district court's findings, but they do underscore the importance that witness credibility, weighing of the evidence, and inferences and deductions drawn from the evidence-- all matters strictly for the district court--had in the court's deliberations.

The district court made the required findings in this case, stating that Mr. Cody's consent was "freely and voluntarily given" and that the "agents had the authority to make the search they did." S.H.Tr. at 189-90. In making these findings, the court discussed the totality of the circumstances surrounding Mr. Cody's disputed consent. As we accept these findings, we hold that Codys do not allege a Fourth Amendment violation. A search conducted without probable cause and without a warrant does not violate the Fourth Amendment if the search is conducted pursuant to voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); United States v. Guglielmo, 834 F.2d 866, 868 (10th Cir.1987).

II. Sentencing Considerations

The Codys also challenge (1) the accuracy and method of the OBN agents' count of 1,028 marijuana plants, which was used to fix their sentences, and (2) the constitutionality of United States Sentencing Guideline (U.S.S.G.) § 2D1.1 under the Due Process Clause. These contentions have no merit.

The district court found that the Codys had 1,028 marijuana plants and sentenced them to 10 years imprisonment, the mandatory minimum under 21 U.S.C. § 841(b)(1)(A) for offenses involving 1,000 or more marijuana plants, regardless of weight. Under the Sentencing Guidelines, the court must find the quantity of drugs by a preponderance of the evidence, and we will reverse such a finding only if it is without factual support in the record, or if after reviewing all the evidence we are left with a definite and firm conviction that a mistake has been made. United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990). The Codys contend that OBN agents did not use a "sufficient process" to ensure an accurate count. Specifically, they complain that no written record of the count was introduced into evidence and that "one of the officers ... kept a running total in his head...." Briefs of Mr. and Mrs. Cody, at 8.

A sentencing court may consider any reliable source of information that has some minimum indicia of reliability. United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992). The Codys cite no authority that requires the government to introduce a written record of its marijuana-plant count. To the contrary, courts have permitted even hearsay testimony, inadmissible for trial purposes, to support a finding of drug quantity at sentencing, provided that the testimony has sufficient indicia of...