U.S. v. Fox

Citation902 F.2d 1508
Decision Date09 May 1990
Docket NumberNo. 88-2007,88-2007
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John FOX, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David M. Conner, Asst. U.S. Atty., Denver, Colo. (Michael J. Norton, U.S. Atty. and James K. Bredar, Asst. U.S. Atty Denver, Colo., were also on the brief), for plaintiff-appellee.

Mark J. Rosenblum, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., was also on the brief), for defendant-appellant.

Before HOLLOWAY, Chief Judge, GARTH * and McKAY, Circuit Judges.

HOLLOWAY, Chief Judge.

Defendant-appellant John Fox (Fox) appeals his conviction of conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (Count I), and of interstate travel for the purpose of promoting unlawful activity, in violation of the Travel Act, 18 U.S.C. Sec. 1952 (Count VI). On appeal, Fox asserts that: (1) the district court erred by denying his motion to suppress evidence seized at his arrest; (2) the evidence is insufficient to support his conspiracy conviction; (3) the district court erred in refusing to give Fox's tendered jury instruction concerning the difference between a conspiracy and a buyer-seller relationship; and, (4) the government failed to prove a "business enterprise" within the meaning of the Travel Act.

I. Factual Background

Viewing the evidence in the light most favorable to the jury's verdict, United States v. Kendall, 766 F.2d 1426, 1429 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986), the record shows these facts:

In August 1987 Irene Jassick informed agents of the United States Drug Enforcement Administration (DEA) that certain associates of hers were engaged in the distribution of cocaine in the Denver area. (R. IV, at 35-37.) Jassick agreed to cooperate with DEA agents and was registered as a DEA informant. Over the course of the next three and a half months, with Jassick's assistance, DEA agents conducted an investigation into alleged cocaine distribution by John Moresco and John Dente, Fox's co-defendants. Jassick purchased cocaine from Moresco and Dente on three occasions while under the supervision of DEA agents. (Id. at 38.) Those drug sales were the basis of three substantive counts against Moresco and Dente.

Sometime during October 1987, DEA agents asked Jassick to determine whether Moresco and Dente were interested in purchasing a large quantity of cocaine from a supposed acquaintance of hers, who would in fact be a DEA agent. (Id. at 40-41.) Moresco reportedly was interested in making such a purchase, and agreed to meet Jassick's acquaintance. Eventually, Jassick set up a meeting between the two men.

On November 25, 1987, Moresco, Jassick, and DEA undercover agent Robert Castillo met at a Denny's Restaurant in Denver. (R. V, at 52.) Castillo was working in an undercover capacity, posing as a Mexican national interested in selling cocaine. Jassick was wearing a radio transmitter which was monitored by DEA agents Musso and Topper in a car parked at a motel adjacent to the restaurant. (Id. at 53.) The agents had a recording device in their car, but because of background noise and equipment failure, they were unable successfully to record the conversation. (Id. at 155-56.)

Castillo is fluent in Spanish and he and Moresco conducted the first part of their meeting in Spanish. (Id. at 86.) Moresco told Castillo that he and his associate were interested in purchasing two kilograms of cocaine, and that they had approximately $16,000 available to purchase one kilogram immediately. (Id.) Moresco then indicated that he worked with an associate with whom he divided sales territory, and that their present source of supply was an individual in Los Angeles. (Id. at 87.) Castillo then offered to sell Moresco two kilograms of cocaine. (Id. at 88.) At that point, the defendant-appellant, John Fox, entered the restaurant and joined the conversation. 1 (Id.)

Agent Castillo testified that Moresco introduced Fox, while Fox was sitting there right in front of Castillo, as "his associate who was responsible for the southern part of Denver in the coke traffic." Fox took no exception to this statement. (Id. at 88.) After Castillo informed Fox of his earlier offer to Moresco, the following exchange occurred, according to Castillo:

Q Then what happened?

A Well, then Mr. Fox also advised me they had present $16,000 for one kilo of cocaine. I then advised him to purchase a couple. We then agreed we would wait a couple of weeks.

(Id. at 89). Fox then advised Castillo about a beeper system, a "system they would use, him and Mr. Moresco, to communicate with each other." 2 (Id.) Agent Musso testified that Fox left the restaurant in the company of Moresco and that they engaged in a brief conversation before departing separately. (Id. at 55.)

On November 30 Moresco telephoned agent Castillo and told him that he and Fox could not make the purchase as planned, saying they had been robbed of $25,000 that they had accumulated to purchase the cocaine. (Id. at 137-38.) Moresco indicated that he had only $8,000 left, which he would use for smaller cocaine purchases from someone else. (Id. at 92.) Castillo testified that Moresco said he needed a week or two to raise the funds necessary to proceed with the transaction. (Id.) Moresco testified, however, that he had lied about the theft, and that neither Moresco nor Fox ever intended to do business with Castillo because they suspected he was an undercover agent, and because they didn't have enough money to purchase two kilograms of cocaine. 3

Prior to the November 25 meeting, the DEA agents were unaware of Fox's association with Moresco; their investigation had focused exclusively on Moresco and Dente. (Id. at 82-95; 161-62.) Moresco testified, however, that during the three months prior to the November 25 meeting at the Denny's restaurant, he and Fox met on two or three occasions to sell each other small quantities of cocaine. (Id. at 118-19.) The two men executed these drug transactions, typically involving no more than half an ounce of cocaine, to ensure that they each had a sufficient supply of cocaine to meet the needs of their customers. (Id. at 119.) Moresco also testified that Fox accompanied him to Las Vegas on two occasions prior to December 1, 1987, to gamble and to purchase cocaine from their supplier, Steve Boubon. (Id. at 121-24; 132.) He and Fox pooled their money so that he could purchase a larger quantity of cocaine. (Id. at 121-24.) Fox never had any direct contact with Boubon, however, and did not receive his share of the cocaine from Moresco until they had returned to Denver. Id.

On December 1, 1987, DEA agents followed John Dente to Las Vegas, Nevada, expecting him to purchase a significant quantity of cocaine. Agent Musso had met with Dente in Denver, in an undercover capacity, and arranged to accompany him to Las Vegas to purchase twelve ounces of cocaine from Steve Boubon. (Id. at 57-59.) The sale took place as planned, in the Riviera casino, and agents promply arrested Dente and Boubon. (Id. at 63-64.) A consensual search of Boubon's room revealed approximately one and one-half kilograms of cocaine. (Id. at 64.)

Before Musso left Denver, Jassick had informed him that Moresco was also planning to purchase cocaine from the same supplier, Steve Boubon. (Id. at 57-59.) Therefore, after discovering the cocaine in Boubon's room, the DEA agents suspected that Boubon had expected to meet at least one other customer in Las Vegas, possibly Moresco. Shortly thereafter, agents located Moresco's truck in the parking lot next to the casino, and saw Fox playing the slot machines inside the casino near the "Sportsbook" where they had just arrested Boubon. (Id. at 67.) After several hours of surveillance, Fox and Moresco were arrested in the hotel parking lot. (Id. at 71-72.) A search revealed that Fox was carrying approximately $19,600 in cash. (Id. at 72.) 4 Moresco later testified that although he did not have specific plans to purchase cocaine on this particular trip, he was planning to introduce Fox to Steve Boubon, and Boubon had previously agreed to the introduction. (Id. at 127-28; 141-42.) He further testified that the purpose of the planned introduction was to permit Fox to do business directly with Boubon in the future. (Id. at 141-42.)

Fox was charged in two counts of a six-count Indictment. His co-defendants, Moresco and Dente, were named in the same two counts and, in addition, were charged with four substantive drug-related offenses in the remaining counts. After pleading guilty to two charges, but prior to sentencing, Moresco agreed to testify against Fox in return for immunity from further prosecution and in the hope of a lighter sentence. (Id. at 136.) The record does not reflect Dente's fate. Fox was convicted of both counts after a jury trial, and sentenced to seven years on Count I (conspiracy), 21 months on Count VI (the Travel Act violation), and following these concurrent terms, three years' supervised release. This appeal followed.

II. The Motion to Suppress

Fox first argues that the district court erred by denying his motion to suppress the evidence (the money) seized at his warrantless arrest because the arresting officers lacked probable cause. We disagree.

Fox does not challenge the officers' authority to conduct a warrantless search of his person incident to a lawful arrest, see New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979), or their authority to seize evidence of a crime discovered by such a search. Thus, the admissibility of the evidence derived from Fox's arrest depends solely on the lawfulness of the arrest.

The warrantless arrest here was valid only if at the...

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