U.S. v. Davidson

• Decision Date: 25 July 1991
• Docket Number: No. 90-1695,90-1695
• Citation: 936 F.2d 856
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William DAVIDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 856

936 F.2d 856

UNITED STATES of America, Plaintiff-Appellee, v. William DAVIDSON, Defendant-Appellant.

No. 90-1695.

United States Court of Appeals Sixth Circuit.

Argued March 15, 1991.

Decided June 18, 1991.

Rehearing Denied July 25, 1991.

F. William Soisson, Office of the U.S. Atty., Detroit, Mich., E. James King (argued), Detroit, Mich., for plaintiff-appellee.

Stephen T. Rabaut (argued), Roseville, Mich., for defendant-appellant.

Before MARTIN and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.

MILBURN, Circuit Judge.

Defendant-appellant William Davidson appeals his conviction for conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. For the reasons that follow, we reverse.

I.

On October 20, 1988, a ten-count federal indictment was returned against William Davidson, William Guild, Marvin Mulligan, and Joy Mulligan. Defendant-appellant William Davidson was charged only in Count VII of the indictment with the offense of conspiring with Marvin Mulligan and William Guild to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

Count I of the indictment charged Marvin Mulligan with evading the payment of taxes for the calendar years 1977 and 1978. Counts III through VI charged Marvin Mulligan with filing false income tax returns for the years 1982 through 1985. Counts VIII and IX charged Marvin Mulligan and William Guild with aiding and abetting the distribution of cocaine and heroin in 1984, and Count X sought criminal forfeiture of certain property owned by Marvin Mulligan. Count II of the indictment, which charged Marvin and Joy Mulligan with conspiracy to defraud the United States, was dismissed by the government prior to trial. William Guild pleaded guilty to the charges against him, and he testified as a government witness against William Davidson and Marvin Mulligan.

The trial of Davidson and Mulligan was scheduled to commence on January 4, 1990; however, as Mulligan failed to appear, the district judge issued a bench warrant for Mulligan and, being unable to cause him to appear, adjourned the trial. Thereafter, the government filed a motion to proceed in absentia as to Mulligan, and the motion was granted on January 17, 1990.

The trial of Davidson and Mulligan, in absentia, commenced on February 26, 1990, and on March 1, 1990, the jury returned verdicts convicting Davidson of Count VII and Mulligan of Count I and Counts III through X. On June 4, 1990, Davidson was sentenced to a term of ten years imprisonment. Davidson timely filed the present appeal.

The principal issues on appeal are (1) whether the search warrant for Davidson's residence was supported by probable cause, (2) whether counts in the indictment were misjoined under Federal Rule of Criminal Procedure 8(b), and (3) whether counts in the indictment should have been severed pursuant to Federal Rule of Criminal Procedure 14.

II.

A. Search Warrant

On August 11, 1989, a search warrant was obtained for William Davidson's residence at 30300 Twelve Mile Road, Apartment 101, Farmington Hills, Michigan. The warrant was supported by an affidavit submitted by Drug Enforcement Administration Special Agent Richard Fling. The affidavit stated that Fling was currently working with the Internal Revenue Service (IRS) and the Michigan State Police on an investigation of the distribution of large quantities of cocaine and heroin by an organization whose members included Marvin Mulligan and William "Candy" Davidson. Fling stated in the affidavit that he was aware that Mulligan had a criminal history which included a 1978 conviction for possession with intent to distribute heroin, and that Davidson had a criminal record of narcotics violations. The affidavit described surveillance reports from November 2, 1988, until August 9, 1989, of meetings between Mulligan, Davidson and "other individuals known to have criminal records for illegal drug distribution."

The affidavit states that on March 14, 1989, IRS agents observed Marvin Mulligan depart from his residence at 1771 Alexander Road, Bloomfield Township, Michigan, and drive to a Denny's Restaurant in Southfield, Michigan. At the restaurant, Mulligan was observed meeting with an individual who later departed in a 1987 Lincoln bearing Florida license plate DCZ 58H. The affidavit states that Florida Department of Motor Vehicle records indicate that the Lincoln is registered to Benigno Fernandez. The affidavit also states that Drug Enforcement Administration intelligence files indicate that Benigno Fernandez is a suspected cocaine trafficker.

Later in the day on March 14, 1989, IRS agents observed Mulligan arrive at William Davidson's residence at 30300 Twelve Mile Road, Farmington Hills, Michigan. At approximately 5:00 p.m., Mulligan and Davidson departed the residence in a black Mercedes and drove to a Wendy's restaurant about two blocks away where Mulligan used a public telephone. After a few minutes, Mulligan and Davidson drove to the Mama Loricchio Restaurant, located next to the Wendy's restaurant. Mulligan and Davidson entered the restaurant and remained there approximately ten minutes before leaving and driving to the Golden Mushroom Restaurant in Southfield, Michigan. In the parking lot of the restaurant, surveillance officers observed the Lincoln registered to Benigno Fernandez which had been seen earlier in the day at the Denny's restaurant. Mulligan and Davidson entered the restaurant and remained there for approximately two and one-half hours. Mulligan left the restaurant driving the black Mercedes in which he and Davidson had arrived. Davidson left the restaurant in the Lincoln with at least two other individuals, one of whom was the same person earlier observed meeting with Mulligan at Denny's. The Lincoln was driven to Davidson's residence, where all the occupants exited the vehicle.

On May 3, 1989, IRS special agents observed Mulligan meeting with Davidson and an individual named Arturo Montano at an apartment building located at 5064 Heather Drive, Dearborn, Michigan. Davidson and Montano arrived at the meeting in the Lincoln registered to Benigno Fernandez. Agent Fling states in the affidavit that he is aware that Arturo Montano has a criminal history of at least one federal drug violation conviction.

On July 14, 1989, surveillance officers observed Marvin Mulligan depart from his residence and drive to William Davidson's residence. Mulligan then traveled to a Bob Evans Restaurant in Livonia, Michigan, where he was observed meeting with an individual named Robert "Sonny" Habucke. While at the restaurant, a Michigan State Police Officer overheard a conversation between Mulligan and Habucke during which Habucke said, "I need that stuff. I need two." Mulligan responded, "Look, don't worry about it, I just talked to Candy [Davidson] and he said that he would take care of it."

On July 18, 1989, surveillance officers again observed Mulligan depart from his residence and drive to Davidson's residence. Within ten minutes Mulligan and Davidson exited the residence and drove to the Bob Evans Restaurant in Livonia, Michigan, where they were observed meeting with Habucke. On August 8, 1989, officers observed Mulligan depart from his residence and drive to Davidson's residence where he remained for approximately forty-five minutes. Mulligan then departed Davidson's residence and drove to the Bob Evans restaurant, where he was again observed meeting with Habucke. While at the restaurant, an officer overheard Mulligan say to Habucke that "he could make one or one and one-half."

At the conclusion of the affidavit, agent Fling stated that based upon his experience and training, and upon the information cited in the affidavit, he had probable cause to believe that Davidson, in association with Mulligan and others, was conducting an illicit narcotics business from his residence. The search of Davidson's apartment was conducted on August 11, 1989, during which a quantity of fentanyl, a schedule II controlled substance, was seized.

Prior to the trial, Davidson and the other defendants filed a consolidated motion to suppress evidence discovered during searches conducted in the investigation of this case, and the district court denied the motion on January 16, 1990. Davidson argues that the search of his apartment was unconstitutional because it was conducted without probable cause to believe that evidence or contraband would be found at his apartment. Davidson argues that the affidavit of agent Fling is barren of any factual averments pertaining to his apartment. Davidson notes that officers did not observe drugs or evidence going into or out of his apartment on any occasion.

Davidson also argues that although the affidavit described various meetings among the defendants, the surveillance officers did not claim to have actually witnessed any crimes, and he contends that the alleged "expertise and experience" of law enforcement officers regarding drug trafficking is not a proper substitute for missing facts. Davidson argues that while the information in Fling's affidavit may have led officers to suspect that he was involved in "nefarious" activities, it did not establish probable cause to believe that fruits, instrumentalities or evidence of criminal acts would be found at his apartment. Therefore, Davidson argues that the evidence seized from his apartment should have been suppressed.

"The standard of review in this case is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited." United States v. Loggins, 777 F.2d 336, 338 (6th Cir.1985) (per curiam). "The courts should not undertake a de novo review of the sufficiency of an affidavit, nor should they 'invalidate [a] warrant by interpreting [an] affidavit in a hypertechnical, rather than a...