U.S. v. Edmonson

• Decision Date: 06 May 1992
• Docket Number: No. 90-3189,90-3189
• Citation: 962 F.2d 1535
• Parties: 35 Fed. R. Evid. Serv. 614 UNITED STATES of America, Plaintiff-Appellee, v. Mitcheal EDMONSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1535

962 F.2d 1535

35 Fed. R. Evid. Serv. 614

UNITED STATES of America, Plaintiff-Appellee, v. Mitcheal EDMONSON, Defendant-Appellant.

No. 90-3189.

United States Court of Appeals, Tenth Circuit.

May 6, 1992.

John J. Ambrosio, Topeka, Kan., for defendant-appellant.

Kim Martin Fowler, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with her on the brief), Wichita, Kan., for plaintiff-appellee.

Before BALDOCK and BARRETT, Circuit Judges, and DAUGHERTY, District Judge. ^*

DAUGHERTY, District Judge.

The Defendant/Appellant has appealed from his conviction on drug-related charges following a lengthy investigation into drug trafficking activity in Wichita, Kansas. Defendant Edmonson was named, along with four other individuals not parties to this appeal, in three counts of a seven-count indictment returned in July, 1989. Count I charged Edmonson and others with conspiracy to possess cocaine with intent to distribute, Count VI charged Edmonson and others with possession of cocaine with intent to distribute, and Count VII charged Edmonson and others with possession of marijuana with intent to distribute. The case was tried to a jury in February, 1990, and Defendant Edmonson was convicted on all three counts of the indictment in which he was charged. The Defendant's post-trial motions for a new trial and motions for judgment of acquittal were both denied and Edmonson was sentenced in June, 1990 to ten years and one month in a federal correctional institution, with a fine for costs of incarceration and supervised release in the amount of $151,916.05.

On appeal, Edmonson has questioned the propriety of the proceedings before the grand jury; the existence of probable cause concerning the search warrant; the legal sufficiency of the indictment; the decision of the trial court to try Edmonson's codefendant in absentia; the decision of the trial court to allow the admission of fingerprint evidence during the trial; the admission during the trial of recorded statements of a codefendant concerning a death from "bad" cocaine; the sufficiency of the evidence; the denial of due process to the Defendant given the cumulative negative effect of errors committed during trial; and the imposition of a fine for costs of incarceration and supervised release under the Federal Sentencing Guidelines. As will be shown, except for the last issue concerning the fine under the Sentencing Guidelines, which has been conceded in Edmonson's favor by the Government, none of the Appellant's contentions has merit and his conviction will be affirmed.

I.

In the district court, Defendant Edmonson attacked the grand jury proceedings by filing a motion to dismiss the indictment, on the grounds that the indictment was tainted by the misconduct of government agents before the grand jury. Edmonson argues that such misconduct so prejudiced the grand jury that the grand jury was prevented from exercising independent judgment concerning Edmonson's indictment.

Specifically, Edmonson alleges that the government commented upon the Defendant's refusal to communicate with the officers after he was given his Miranda warnings. The government agent stated that when he arrived at Edmonson's cabin on the farm and attempted to question Edmonson about his knowledge of his codefendant's activities, "he mentioned he wasn't going to say anything." Record on Appeal, Document 196, Page 9. Edmonson also claims that during the testimony of the government agent, who was the only witness before the grand jury, that certain inflammatory and irrelevant statements were made which prejudiced the grand jury against all of the Defendants, including Edmonson. Edmonson asserts that those statements were elicited improperly by the prosecutor and were sufficiently damaging to have warranted dismissal of the indictment. Edmonson claims that it was improper for the prosecutor to show the members of the grand jury a photo of the cocaine and marijuana seized at the farm, which also included certain guns seized along with the drugs. In addition, the government agent improperly speculated concerning the source of the cocaine and made comments regarding the drug's purity. Finally, Edmonson asserts that the mention by the agent of a phone conversation in which a codefendant stated that someone had recently died from bad cocaine cumulatively resulted in an overwhelming prejudice against Edmonson and the other Defendants.

It is clearly established, and the Appellant acknowledges, that an indictment should not be dismissed for errors in grand jury proceedings unless such errors prejudiced the Defendant. Bank of Nova Scotia v. U.S., 487 U.S. 250, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988); United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). When prosecutorial misconduct is charged, an indictment may only be dismissed if it is "shown that such conduct significantly infringed on the ability of the grand jury to exercise independent judgment." United States v. Cederquist, 641 F.2d 1347, 1353 (9th Cir.1981). This "presumption of regularity" given to all grand jury proceedings is a difficult burden to overcome and requires very significant misconduct on the part of the prosecutor or other government agents.

This Court is persuaded that no such misconduct occurred in this case, certainly no error of the magnitude required to dismiss the indictment as requested by the Appellant. The Government's evidence against the codefendants was more than sufficient to support the indictment even absent the statements that Appellant urges were improper, inflammatory and prejudicial. In any event, "[t]he validity of an indictment is not affected by the type of evidence which is considered by a grand jury, even though inadequate or incompetent." United States v. Battista, 646 F.2d 237, 242 (6th Cir.1981), cert. denied, 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981), citing United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The comments alleged by the Appellant to be prejudicial are simply not sufficiently inflammatory to support the Appellant's theory that, absent the improper comments, the indictment would not have been returned. This Court has reviewed the partial transcript of the grand jury hearing submitted by the Appellant in support of his Motion to Dismiss the indictment in the district court, and this Court is persuaded that the district court's refusal to grant the Motion was correct and should be affirmed.

II.

The Appellant next contends that the trial court erred in overruling his Motion to Suppress the evidence seized pursuant to a search warrant of his property, on the grounds that the search warrant was issued without probable cause. Appellant Edmonson asserts that the affidavit presented to the district judge did not contain any facts from which the judge could have found probable cause to issue a warrant to search the Edmonson property. The Appellant asserts that there are no factual allegations relating to Edmonson in either the affidavit or the oral testimony, and that the only allegation relating to the Edmonson property is that a codefendant was observed on the evening of one of the arranged buys of cocaine at the Edmonson property. Edmonson claims that there were no allegations that the codefendant was seen removing anything from the Edmonson property or that the codefendant was seen with Edmonson himself. The Appellant contends that the Edmonson property was searched only because the area was "tangentially associated with an individual, Rick Lacey, who was involved in cocaine distribution," Appellant's Brief at 18, and such an association does not amount to probable cause.

This Court has previously stated that the duty of the reviewing court in determining whether probable cause existed for a search warrant "is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." The magistrate's determination of probable cause should be given great deference on review. United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985), quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). In Gates, the Supreme Court determined that the "totality of the circumstances" should be considered when determining whether probable cause exists to issue a search warrant. The Court stated that:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 462 U.S. at 238, 103 S.Ct. at 2332.

In applying the test enunciated in Gates, this Court has stated that the "affidavit should be considered in a common sense, nontechnical manner...." United States v. Massey, 687 F.2d 1348, 1355 (10th Cir.1982), citing United States v. Rios, 611 F.2d 1335, 1347 (10th Cir.1979).

In the case at bar, the affidavit stated in part that a confidential source was informed by a codefendant that Lacey was having difficulty retrieving the cocaine due to recent rains because the cocaine was buried. The affidavit also stated that on the date of one of the arranged buys of cocaine, Lacey was seen at Edmonson's residence near Udall, Kansas.

The FBI agent Armand also provided oral testimony in support of the application for the search warrant of Edmonson's property. Agent Armand stated in part as follows:

"Surveillance agents observed Rick Lacey depart his residence and go to a number of locations around the Wichita area. He thereafter drove to the described location near Udall, Kansas, at which time he was observed entering the said location at 7:30 p.m. and departing at approximately 9 p.m. Shortly thereafter, [codefendant] Friesen and Lacey were observed on 127th Street South, meeting...