U.S. v. Eisenberg

• Decision Date: 31 December 1986
• Docket Number: No. 86-5095,86-5095
• Citation: 807 F.2d 1446
• Parties: 22 Fed. R. Evid. Serv. 352 UNITED STATES of America, Appellee, v. Judd Carver EISENBERG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1446

807 F.2d 1446

22 Fed. R. Evid. Serv. 352

UNITED STATES of America, Appellee, v. Judd Carver EISENBERG, Appellant.

No. 86-5095.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1986.

Decided Dec. 31, 1986.

William Tilton, St. Paul, Minn., for appellant.

Elizabeth De La Vega, Minneapolis, Minn., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and NICHOL, ^* Senior District Judge.

NICHOL, Senior District Judge.

Judd Carver Eisenberg appeals from his jury conviction on one count of distribution of cocaine and one count of possession of cocaine with intent to distribute, both in violation of 21 U.S.C. section 841(a)(1). Eisenberg now raises a number of issues on appeal: 1) That the district court ¹ erred in denying his pretrial motion to suppress; 2) That several evidentiary errors were made including the admission of a co-conspirator's statement; refusal to allow an expert witness; and admission of Exhibit 28, a scrap of paper found in the defendant's wallet upon arrest. Eisenberg further claims that the prosecutor committed reversible error through improper cross-examination of a defense witness. Lastly, Eisenberg contends that the evidence is insufficient to support the jury's verdict. We affirm the conviction.

I. FACTS

The record, construed in the light most favorable to the verdict, reveals that on August 12, 1985, a number of arrests resulted from a sale of cocaine that transpired between an undercover police officer and a man by the name of David Vanzo. One of those arrested was the appellant, Eisenberg.

Officer Kenneth VandeSteeg of the Minneapolis police department met Vanzo at a local gymnasium where Vanzo stated that he could sell VandeSteeg a pound of cocaine. After some negotiations, arrangements were made to complete the transaction. VandeSteeg followed Vanzo to a restaurant parking lot where they met up with Special Agent Pederson of the Drug Enforcement Administration (DEA) who was posing as VandeSteeg's money man. From this point forward, the transaction was under constant surveillance by a number of law enforcement personnel. The officers followed Vanzo to the residence of his drug source, 737 Van Buren Way in Hopkins, Minnesota, the apartment of Wayne Aronson. Once at the residence, the officers remained outside while Vanzo entered. When he returned, Vanzo was carrying a canister and told the officers to follow him back to the parking lot where the transaction was completed. Before he was arrested, the officers learned that Vanzo was only able to supply eight ounces of cocaine but that the remainder was due to arrive shortly.

Soon afterward, Aronson was arrested in his apartment and was taken to this same parking lot. Knowing that only eight ounces of cocaine had been delivered, Aronson was asked where the remaining amount could be found. Aronson, fully advised of his rights, stated that his sources, two white males, were due to arrive shortly with the remaining cocaine and that they would be in a 1977 or 1978 red car. He added that he thought that one of the men was from North or South Carolina. This information was relayed back to the officers who had remained at the Aronson apartment. Moments later, two officers noticed a red vehicle as it began to turn onto the street in the direction of Aronson's apartment. The officers observed two males in the vehicle and it appeared to the officers that when the occupants noticed the police near Aronson's, the vehicle did not complete the turn, but rather, turned back onto the street on which it had been traveling. The officers radioed that they were in pursuit of a vehicle matching the description provided by Aronson. After following the vehicle for several miles, the officers stopped the vehicle and the occupants. The passenger Eisenberg, and the driver Phil Hoffman, were asked to exit the vehicle. Both parties cooperated and when the officers asked where he was from, Eisenberg answered, "North Carolina." ² At this time, both parties were placed under arrest. A search of the interior of the vehicle was conducted and when the key to the trunk could not be found, Eisenberg was searched and the trunk key was found in Eisenberg's front shirt pocket. In the trunk, the officers found a shoe box containing nine baggies of cocaine.

A search of the Aronson apartment also produced several baggies, some with only tracings of cocaine and one with a small amount of cocaine. Eisenberg's fingerprints were found on one of the baggies found at Aronson's apartment and on five of the nine baggies found in the shoe box as well as on the shoe box itself.

Eisenberg and Hoffman were roommates and resided in southern California near Los Angeles. They had arrived in Minneapolis the day before the arrest after traveling under fictitious names from San Francisco along with a man named Steve. Hoffman's parents lived in Minneapolis and the evidence showed that the three travelers went directly to the Hoffman parental home from the airport where they left their luggage. They then went to a nearby Thrifty Scot Motel where Eisenberg registered, using the same fictitious name as his airline ticket, and paid for one night's lodging in cash. Sometime later, Eisenberg watched as Steve removed several baggies of cocaine which had been strapped to his body and worn under a pair of woman's panty hose. Eisenberg then picked up several of the baggies and examined their contents.

Eisenberg testified that he had been at Aronson's apartment on the day of his arrest. Eisenberg, Hoffman and Steve had traveled to Aronson's and upon arrival, Steve removed Hoffman's briefcase from the trunk and all three of them proceeded into Aronson's apartment. Eisenberg claims to have immediately gone into the bathroom and when he returned, they left.

Additional evidence demonstrated that earlier in this same week Aronson had been in contact with another undercover police officer, Special Agent Michele Leonhart, DEA. Aronson informed Leonhart that his source was due to arrive in Minneapolis with a large quantity of cocaine and asked if Leonhart was interested in making a purchase. Aronson's telephone records indicate that several calls were placed the week of August 6-9 to a telephone number listed to 2901 Grayson Avenue, Santa Monica, California. This is the California address of Eisenberg and Hoffman.

After the arrest of Eisenberg and Hoffman, a search of the Hoffman parental home was conducted. This search produced a box of baggies identical to those found in the shoe box containing nine baggies of cocaine and to those found in Aronson's apartment containing tracings of cocaine. The baggies were confiscated from a suitcase that also housed Eisenberg's shirts.

II. DISCUSSION

A. Suppression Issue

The district court, through its adoption of the magistrate's ³ report and recommendation, following the hearing on the pretrial motion to suppress, determined that the initial stop of the vehicle was a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court further held that once the officers established that Eisenberg was from North Carolina (the information supplied by Aronson having thus been further corroborated), probable cause existed to lawfully arrest Eisenberg pursuant to Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949).

In reviewing the district court's determination made in the context of a motion to suppress, we apply a clearly erroneous standard of review. United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Under this standard, we must affirm the decision of the district court unless it is not supported by substantial record evidence, it reflects an erroneous view of the applicable law, or upon review of the entire record, we are left with a definite and firm conviction that a mistake has been made. Id.; See also, United States v. McBride, 801 F.2d 1045, 1046 (8th Cir.1986). Eisenberg's claim is that the district court erred in its application of the law. We disagree.

It is now firmly established that police officers may stop persons in the absence of probable cause under limited circumstances. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); United States v. Doffin, 791 F.2d 118 (8th Cir.1986) (per curiam); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officers may stop a moving vehicle, "to investigate a reasonable suspicion, based on specific and articulable facts, that its occupants are or have been involved in criminal activity." United States v. Doffin, 791 F.2d at 120. This reasonable suspicion may be based on a tip from an informer. United States v. McBride, 801 F.2d at 1047; Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). The degree of reliability of an informant that must be shown to justify an investigatory stop is less than that required to establish probable cause. McBride at 1047.

This circuit's recent decision in McBride provides the correct analysis to apply when presented with facts similar to those presented here. In McBride, the court addressed the question of the degree to which police officers may rely on an anonymous tip in forming the reasonable, articulable suspicion necessary to justify an investigatory stop. McBride, 801 F.2d at 1046. The police had received a tip from an anonymous caller stating that a man had just left his house with four ounces of heroin and was driving a small silver foreign car. The caller provided the police with a license number and the direction in which the car was headed. The police checked the license number and found that it had been issued to a gray or silver Volkswagen, a car very similar to the car described by the caller. Almost five hours later, the vehicle was spotted about eight blocks from the intersection mentioned...