U.S. v. Finney
| Decision Date | 29 November 1993 |
| Citation | 28 F.3d 113 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before MOORE, ANDERSON and KELLY, Circuit Judges. 2
Defendant-appellant Linda Finney appeals from her convictions of conspiracy to (a) possess with the intent to distribute cocaine and marijuana, and (b) distribute cocaine and marijuana, 21 U.S.C. 841(a)(1), 846 [Count I]; possession with intent to distribute cocaine, 21 U.S.C. 841(a)(1); 18 U.S.C. 2 [Count III]; possession with intent to distribute marijuana, 21 U.S.C. 841(a)(1), 18 U.S.C. 2, [Counts IV & XIII]; possessing or using a firearm in the commission of a drug trafficking offense, 18 U.S.C. 924(c)(1), 2 [Count V]; possession of a firearm by a convicted felon; 18 U.S.C. 922(g)(1), 924(a)(2) [Counts VII & XVI]; distribution of cocaine, 21 U.S.C. 841(a)(1), 18 U.S.C. 2 [Count VIII]; use of a telephone to facilitate a drug transaction, 21 U.S.C. 843(b) [Count IX]; employment of a minor in a drug transaction, 21 U.S.C. 861(a)(1) [Count X]. She was sentenced to concurrent terms of imprisonment, the longest of which was 210 months, with a mandatory five-year consecutive sentence of imprisonment on the 18 U.S.C. 924(c)(1) count. We have jurisdiction under 28 U.S.C. 1291 and we affirm in part and reverse in part.
On appeal, Ms. Finney argues that the searches of her residence violated federal and Oklahoma law, and challenges the sufficiency of the evidence on the conspiracy count [Count I], two of the firearms counts (felon in possession of a firearm, and use of a firearm during a drug trafficking offense) [Counts V & VII], and the two substantive counts charging possession with intent to distribute cocaine and marijuana [Counts III & IV]. She also argues that double jeopardy principles render her conviction for distribution of cocaine [Count VIII] or, alternatively conspiracy to distribute cocaine and marijuana [Count I], incompatible with her conviction for use of a minor to distribute cocaine [Count X].
Based upon information from two informants, Tulsa police originated a "controlled buy" of marijuana at Defendant's residence on December 15, 1992. A few days later, the officers executed a state search warrant at the residence and recovered $7,500 in cash, three scales, a Llama .45-caliber loaded pistol between the mattresses in a bedroom, 320 grams of cocaine packaged in one-ounce bags, and two one-ounce bags of marijuana. Defendant and her companion and codefendant, Javier Gonzalez, were arrested on state charges.
While out on bond, an informant telephoned Ms. Finney to purchase a half-pound of cocaine. The informant accompanied Defendant to a parking lot where Melissa Noe, Defendant's daughter, was waiting reportedly with marijuana. The informant indicated that there had been a mix-up and pressed for cocaine, not marijuana. Sometime later, the informant again accompanied Defendant to a parking lot where the daughter met them and provided the informant with 29 grams of cocaine. Defendant and her daughter were arrested.
Tulsa police observed Defendant and her daughter leave the residence, return, and leave again prior to their arrest. After their arrest, the police waited until Javier Gonzalez departed the residence. Gonzalez was arrested on outstanding warrants, and pursuant to an inventory search of his vehicle, two guns and a gram of cocaine were discovered. The police executed another search warrant at the residence, finding scales, $4,095 in cash, a Davis .38-caliber semiautomatic handgun and two pounds of marijuana. The latter two items were buried in a shed in the backyard. Although state charges were filed, prior to a preliminary hearing, Ms. Finney and Mr. Gonzalez were indicted on federal charges and tried jointly. Mr. Gonzalez has not appealed the resulting federal convictions.
Ms. Finney challenges the searches of her residence. Regarding the first search (December 18, 1992), Ms. Finney argues that the warrant was obtained improperly because it was based, at least in part, upon a controlled buy in which the police recruited a minor and private citizen to purchase the drugs, rather than a police officer pursuant to his special powers. She relies upon State v. Stuart, 855 P.2d 1070 (Okla.Crim.App.1993) which held that an affidavit for a search warrant was fatally defective when the evidence supporting it was based upon officers exercising power outside their territorial jurisdiction. Id. at 1074. The officers had utilized a private citizen to make a controlled buy, and the Oklahoma court disapproved of this practice reasoning that only law enforcement officers were granted such power under Oklahoma law. Id. at 1073. Ms. Finney further argues that the grounds offered in the affidavit to support a "no knock" search warrant issued pursuant to Okla. Stat. Ann. tit. 22, 1228 (West Cum.Supp.1994), are inadequate. Finally, Ms. Finney argues that even if state law is ignored in this situation, the federal "knock and announce" requirement, 18 U.S.C. 3109, was violated. This argument is similar to that made, but not decided, in United States v. Finney, 897 F.2d 1047 (10th Cir.1990).
As to the second search (January 22, 1993), Ms. Finney argues that the search warrant was executed after 10 p.m. and before 6 a.m. in violation of Okla. Stat. Ann. tit., 22, 1230 (West Cum. Supp.1994), because there was no information that contraband existed in the place to be searched, and furthermore, probable cause was lacking.
Fed.R.Crim.P. 12(b)(3) requires that a motion to suppress be made prior to trial, and the failure to do so normally constitutes a waiver. Fed.R.Crim.P. 12(f). Ms. Finney, however, requests that we review for fundamental error. We recently noted that despite the waiver provision, our cases have made such a review. See United States v. Meraz-Peru, No. 93-2230, 1994 WL 176886, * 1 (10th Cir. May 11, 1994). Plain error must be obvious or clear from the record, and it is quite difficult to establish in the absence of evidence which points to but one reasonable conclusion. See id. In this case, it is well to remember that federal law governs, so the standard is one of reasonableness under the Fourth Amendment. See United States v. Moland, 996 F.2d 259, 260-61 (10th Cir.1993), cert. denied, 114 S.Ct. 722 (1994); United States v. Morehead, 959 F.2d 1489, 1497-98 (10th Cir.), on reh'g on other grounds, 971 F.2d 1461 (10th Cir.1992); United States v. Mitchell, 783 F.2d 971, 977 (10th Cir.), cert. denied, 479 U.S. 860 (1986); United States v. Gibbons, 607 F.2d 1320, 1325-28 (10th Cir.1979). On this record, we find no plain error. Although Ms. Finney urges us to review the Fourth Amendment issues as a violation of her Sixth Amendment right to counsel, we leave that for postconviction proceedings. See Meraz-Peru, 1994 WL 176886, * 2; Mitchell, 783 F.2d at 978.
We view the evidence and its inferences in the light most favorable to the government in deciding whether any rational trier of fact could find the Defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
For the conspiracy conviction, the government was required to prove an agreement to violate the law, Defendant's knowledge of the essential objectives of the conspiracy, Defendant's knowing and voluntary participation in the conspiracy, and an interdependence among the coconspirators. United States v. Riggins, 15 F.3d 992, 994 (10th Cir.1994). Ms. Finney argues that the government failed to prove that the named parties to the conspiracy, Ms. Finney and codefendant Javier Gonzalez, knew of the activities of one another, but admits that if there was a conspiracy proved, it was between Ms. Finney and her daughter. As discussed below, Ms. Finney contends that the conspiracy count insofar as based on the activities of her daughter, is inconsistent with her conviction for use of a minor to distribute cocaine due to double jeopardy principles.
The government contends that evidence of a conspiracy between Ms. Finney and Mr. Gonzalez was overwhelming based on the following: (1) Mr. Gonzalez was present in the residence when the first search warrant was executed (some two days after the first controlled buy), together with the person who purchased marijuana, (2) officers found drugs, money and a gun during the first search, including a small quantity of cocaine and $640 in cash on Mr. Gonzalez's person, (3) Mr. Gonzalez left the house after Ms. Finney and her daughter did not return, and was himself arrested, while the search of his car revealed a gun and a small quantity of cocaine. At trial, the government argued that the recovery of items associated with drug dealing in the house, and in particular, the bedroom apparently shared by Ms. Finney and Mr. Gonzalez, suggested interdependence. VII R. 328-31. The government also argued that Mr. Gonzalez was attempting to look for Ms. Finney and her daughter when he left the residence with the daughter's child, claiming to be taking the child to the hospital.
Although the government proved that Mr. Gonzalez unlawfully possessed cocaine, we agree with Ms. Finney that the government did not establish that codefendant Javier Gonzalez was part of the conspiracy described in Count I. In this regard, we note that the district court granted a motion for judgment of acquittal on Count II of the superseding indictment which charged Mr....
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