U.S. v. Elkins

• Decision Date: 26 April 1984
• Docket Number: No. 83-5200,83-5200
• Parties: 15 Fed. R. Evid. Serv. 1023 UNITED STATES of America, Plaintiff-Appellee, v. James I. ELKINS and Carol A. Dichtel, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1280

732 F.2d 1280

15 Fed. R. Evid. Serv. 1023

UNITED STATES of America, Plaintiff-Appellee, v. James I. ELKINS and Carol A. Dichtel, Defendants-Appellants.

No. 83-5200.

United States Court of Appeals Sixth Circuit.

Argued Feb. 13, 1984.

Decided April 26, 1984.

Lionel R. Barrett, Jr. (argued), Nashville, Tenn., for defendants-appellants.

W. Hickman Ewing, U.S. Atty., Daniel A. Clancy, R. Larry Brown, Asst. U.S. Attys., Memphis, Tenn., (argued), for plaintiff-appellee.

Before LIVELY, Chief Judge, EDWARDS, Circuit Judge, TAYLOR, District Judge. ^*

ANNA DIGGS TAYLOR, District Judge.

This is a direct appeal from the jury conviction of both appellants on all counts of a five-count indictment on February 15, 1983. Both Elkins and Dichtel were found guilty on count I of aiding and abetting each other to distribute, and count II of distribution, of the controlled substance cocaine, in violation of the 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Elkins was found guilty on counts III and IV, which charged possession with intent to distribute of cocaine and methaqualone, respectively. Dichtel was found guilty of count V, which charged her with assisting Elkins to prevent and hinder his apprehension, in violation of 18 U.S.C. Sec. 3.

For the reasons discussed below, the conviction of appellant Elkins on all relevant counts is affirmed. The Dichtel conviction on count V as an accessory after the fact is affirmed, as well. However, as the district court erred in its denial of her motion for judgment of acquittal for insufficiency of evidence on counts I and II, her conviction on those two counts is reversed.

I. FACTS

Charles Keely, the government informant in this case, testified that he had met James Elkins in late 1981 and by November of 1982 had conducted more than ten cocaine transactions with him. Elkins, who had homes in both Fort Lauderdale, Florida and Memphis, Tennessee, would procure the cocaine in Florida and "front" it to Keely: deliver it to him on consignment. Keely would then pay Elkins after selling the substance to Keely's customers.

In August, 1982, however, their business relationship had been disrupted by their arrests during a transaction in which Elkins was delivering a half kilo of cocaine from Florida to Keely in Nashville, Tennessee. After that arrest, Keely became apprehensive of further dealings with Elkins, although Elkins continued to call him, indicating a need to generate enough income to repay his Florida sources for the large quantity of cocaine seized in Nashville. Elkins reminded Keely of the California customers Keely once had mentioned, and asked him to sell cocaine to them for him. Keely, concerned that Elkins had become an informant, arranged through his attorney to become a Drug Enforcement Administration (DEA) informant, himself.

In the presence of DEA Special Agents, Keely called Elkins and indicated that his California customers were prepared to buy ten ounces of cocaine. Elkins had previously told him that ten ounces was the maximum quantity his Florida sources would entrust to him at once, after his large loss. The transaction was scheduled for November 5, 1982, in Memphis.

On November 5, Keely and a group of DEA agents, Shelby County Tennessee Deputy Sheriffs, and local officers, all of whom were participants in the Memphis Metropolitan Narcotics team, met at a Memphis motel room from which Keely called Elkins and advised that his California customer, although prepared to buy, wanted a sample first.

Pursuant to their telephonic arrangements Keely proceeded, accompanied by DEA undercover agent Chapman, after search and under surveillance, to meet Elkins in an industrial district of Memphis and to procure from him a quarter-ounce sample of cocaine. It field tested 94% pure.

Back at the motel room that afternoon, Keely again called Elkins, then put DEA Special Agent Chapman (the "customer from California") on the telephone and they agreed to proceed to Elkins' Memphis residence to consummate a four-ounce purchase. The balance of the ten-ounce buy was to be delivered on the following day.

Keely was again searched and, still under surveillance by the large federal, state and local law enforcement team, he set out to make the four-ounce controlled purchase. He parked in the long driveway of Elkins' home on rural Shelby Drive, but remained in the car and raced the motor to signal his presence, because of his fear of Elkins' large and vicious dogs. After the noise of the racing motor raised the barking of the dogs, Elkins came out. He reached into a red Lincoln Town car parked outside the house, obtained a brown paper bag, and took it to Keely. He told Keely to bring back $9,400. Keely handed the bag over to agent Chapman and was sent home. The four ounces of cocaine in the bag field-tested 94% pure.

DEA Special Agent Thomas Sprague, the agent in charge, radioed DEA Special Agent Buster Griggs to go with Shelby County Deputy Sheriff G.A. Marcom to obtain a search warrant for the house and car. The remaining contingent was ordered to maintain surveillance of the premises and to permit no departures until a search warrant could be executed.

Then, almost immediately, two cars including the red Lincoln Town car from which Elkins had extracted the cocaine drove down the driveway towards the main road, obviously departing the premises. The entire surveillance team of four or five cars converged upon the driveway to halt and arrest the departing drivers. Griggs and Marcom were delayed for that purpose, as well. It should be noted at this point that all officers participating in this event were aware that, at the time of his Nashville arrest, Elkins had possessed a MACH-10 semi-automatic gun, and silencer.

At least six law enforcement officers and three cars flashing blue lights drove up into the driveway to confront the exiting vehicles and arrested their two drivers. Those persons turned out to be Elkins' teenaged son and one Richard Ackerman. The latter was charged but acquitted in this matter.

Agent-in-charge Sprague then determined that the occupants of the house, obviously still including Elkins, had seen the lights and commotion in the driveway and were probably in the process of destroying evidence. Sprague accordingly directed the surveillance team to surround the house and permit no departures while he and two others knocked, announced, and were admitted, to secure the premises until the arrival of the search warrant. This was at 6:30 p.m., November 5.

As Sprague announced the identity of the officers at the door to the young man who opened it, Carol Dichtel emerged from the rear rooms, asked who they were, and made a hasty retreat upon being advised. The officers were temporarily blocked from moving beyond the front room by two large dogs, which were removed by the young man when he was told they would have to be shot.

While Sprague was still blocked at the front room Officer Hall, moving around the outside of the house, observed Dichtel and Elkins through a bathroom window, each dumping the contents of plastic bags into the commode. He rammed his pistol through the window and ordered them to halt. Although Dichtel did "freeze", Elkins continued to dump.

Inside, Sprague then met Elkins emerging from a bedroom, arrested him, and secured him with the other known occupants in the den while a protective sweep for other persons and weapons was made. Fifteen to twenty firearms were located during that sweep. Three police riot shotguns were found in the living room.

On reaching the bathroom, Sprague found the window broken by Hall's pistol, empty plastic bags containing a residue of white powder, and more powder as well as a number of pills on the floor surrounding the commode, which had just been flushed.

After the protective sweep, all officers and occupants sat in the den together until approximately 8:00 p.m., waiting for the search warrant.

Deputy Sheriff Marcom and Special Agent Griggs had been delayed in their departure for a warrant by the recall to be present when the suspect cars attempted to leave the premises. Captain Joe Holt, of the Memphis Metropolitan Narcotics Division, had ordered Marcom (after Marcom reported the field-test results on the four-ounce purchase) to apply for a search warrant from a Tennessee Court of General Sessions Judge for the Elkins residence on Shelby Drive. The General Sessions Court is not a court of record in Tennessee. Marcom and Griggs called ahead to the home of Judge William Hackett, arrived there around 7:00 p.m., and presented the handwritten affidavit which the two of them prepared on a search warrant form from the General Sessions Court of Shelby County. Deputy Marcom testified that he had been present at the motel with Keely earlier that day, had personal knowledge of the manner in which negotiations by telephone had proceeded, and had seen Keely set out for and return with cocaine under controlled circumstances. He further testified that he and Griggs had not recited all that they knew of Elkins' operations on the affidavit because of their haste. They had only stated the facts they felt necessary to obtain the warrant.

Marcom, who had been obtaining search warrants since 1976, had always been directed by superiors to the General Sessions Court, and had never made such a request of a Tennessee Criminal Court Judge. Griggs testified that, after Sprague radioed him to go with Marcom, and Marcom had then told him where they were going, he had thought to himself that the case might then be a state prosecution, but he could not recall saying anything.

DEA Agent Lawrence testified that it was routine for the DEA and Memphis Metropolitan Narcotics Division to make cases cooperatively, and to obtain search warrants from General Sessions Judges. Thereafter, whether state or federal prosecutions resulted, members of both agencies have testified. He had never before realized any potential problem or...