U.S. v. Gipp, 97-2327

Decision Date10 July 1998
Docket NumberNo. 97-2327,97-2327
Citation147 F.3d 680
PartiesUNITED STATES of America, Appellee, v. Charles David GIPP, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

David A. Pfeifle, Pierre, South Dakota, argued, for Appellant.

Mikal G. Hanson, Asst. U.S. Atty., Pierre, South Dakota, argued, for Appellee.

Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Charles David Gipp appeals from a judgment entered upon a jury verdict in the United States District Court for the District of South Dakota 1 finding appellant guilty of seven counts (six drug trafficking offenses plus one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C § 924(c)(1)). The district court sentenced appellant to a total of 211 months imprisonment (151 months for the drug trafficking counts plus 60 months for the § 924(c)(1) count), five years supervised release, a $5,000 fine, and a special assessment of $300. Appellant raises seven issues for our consideration: (1) suppression of his April 5, 1996, statement to an FBI agent; (2) validity of a car stop made by a Montana state trooper on October 13, 1995; (3) validity of a search warrant to search his car; (4) exclusion of the testimony of his clinical psychologist; (5) sufficiency of the evidence for count 1 (conspiracy), count 3 (possession with the intent to distribute), and count 9 (the § 924(c)(1) gun count); (6) improper jury instruction; and (7) a sentencing error.

JURISDICTION

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231; and this court's jurisdiction is found in 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The notice of appeal was timely filed pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure.

BACKGROUND

On February 14, 1996, Mike Halfred, a 17-year-old juvenile, stole a stereo system from one of his neighbors in Eagle Butte, South Dakota. Halfred testified that about a week later he, his cousin, Sam LeBeau, and Sam's girlfriend, Myrna LeClaire, took the stolen stereo to the apartment of appellant's girlfriend, Donita Dupris, where he traded it to appellant for an ounce of marijuana. At trial Myrna LeClaire testified that, almost a month later on March 8, 1996, she told tribal detective Stephen Brings Plenty, who was investigating the theft of the stereo, about the transfer of the stereo to appellant by Halfred for marijuana, and that appellant told her that he planned to move the stereo away from Eagle Butte. After Detective Brings Plenty's conversation with LeClaire, he reported the entire conversation to Chief Detective William Pretty Weasel.

Ten days later on March 18, 1996, Chief Detective Pretty Weasel saw appellant's car in Eagle Butte, and thereafter prepared and received a search warrant for appellant's car from a tribal judge. On the same day, Tribal Sergeant William Pretends Eagle saw stopped, and searched appellant's car. As Sgt. Pretends Eagle entered appellant's car, he smelled the odor of marijuana. While searching the car, Sgt. Pretends Eagle found seven rolled baggies of marijuana which were concealed in the gear shift compartment of the car.

On April 5, 1996, appellant initiated and requested an interview with FBI Special Agent Joe Weir. Prior to questioning appellant, Weir advised him that he was free to end the interview at any time and that he was not under arrest. Weir testified that he made no promises or threats to appellant and noted that appellant did not appear to be under the influence of any drugs or alcohol. During the interview, appellant admitted that he had traded one ounce of marijuana to Halfred for the stolen stereo. He also admitted that the seven bags of marijuana found in his car were intended for resale. Appellant further told Weir that from May 1995 to October 1995, on nine different occasions, he had received 10 to 12 pounds of marijuana, one and one-half pounds of cocaine, three pounds of methamphetamine, and 4-5 grams of heroin from a cousin, Ann Solano, in Salem, Oregon. He told Weir that in October 1996, while on his way to make another drug deal with Solano in Montana, he had been stopped and arrested. According to appellant, the arresting officer found in appellant's possession $6500 in cash, and small amounts of cocaine, methamphetamine, and marijuana. Prior to the Montana stop, the arresting officer had seen appellant stop twice on the roadside. While appellant was stopped on the roadside, the officer pulled along side appellant's car to make what he called a "welfare check" of the vehicle. The officer testified that, when appellant got out of his car, he could smell burnt marijuana and that he saw marijuana roaches inside of appellant's car. Additional facts, statements and details are set forth in the opinion.

DISCUSSION
Motion to Suppress Statement

Appellant's first argument is that the district court erred in denying his motion to suppress his April 1996 statement made to FBI Agent Weir. "We review the question of whether a confession is voluntary as a question of law subject to de novo consideration. However, we review determination of historical facts underlying this legal conclusion under the clearly erroneous standard." United States v. Hornbeck, 118 F.3d 615, 618 (8th Cir.1997) (citation omitted); see United States v. Cody, 114 F.3d 772 (8th Cir.1997). The appropriate test for determining whether a statement or confession is voluntary is whether the alleged statement or confession was "extracted by threats, violence, or direct or indirect promises, such that [a person's] will is overborne and his [or her] capacity for self-determination critically impaired." United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995), citing Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.1988) (internal citation omitted). In making this determination, we look and inquire into "the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect's capacity to resist any pressure." United States v. Kilgore, 58 F.3d at 353.

Here, appellant argues that his confession regarding drug deals from May 1995 to March 1996 was involuntary because law enforcement officers conducting the interview "psychologically coerced" him. According to appellant, this psychological coercion occurred when Weir told him that his level of drug involvement did not qualify him to enter into the federal witness protection program. Because appellant testified neither at any of the suppression hearings nor at trial, the district court found there was no direct evidence concerning the psychological coercion. The record did contain evidence that after appellant's cooperation with the Montana authorities, he received a telephone threat from his cousin, Ann Solano, or her friends. The record also reveals, however, that even after this alleged threat, the district court found that appellant continued to maintain a high profile in the community by driving his car up and down Main Street in Eagle Butte and patronizing bars and house parties. In considering this issue, the district court noted that appellant did not act in any manner like an individual who was seriously afraid for his life.

We hold that appellant's statements on April 5, 1996, were voluntarily made. The statements made were given after appellant himself initiated contact with the law enforcement authorities. Prior to the interview, Weir advised appellant that he was not in custody or under arrest and that he could stop the interview at any time. Weir also testified that appellant did not appear to be under the influence of any drugs or alcohol and that he neither threatened nor promised appellant anything. We further note that Weir allowed appellant to leave the interview room twice to use the restroom and permitted him to leave the station after the interview. Moreover, Weir did not arrest appellant that day. In conclusion, we hold that appellant failed to establish that his statements were involuntary or that his will was overborne or that his capacity for self determination was critically impaired by Weir's truthful statement that he did not qualify for the witness protection program. Furthermore, the district court's finding that there was no evidence that the law enforcement officers conducting the interview misrepresented anything to appellant is not clearly erroneous.

Montana Investigatory Stop

Appellant next argues that the district court erred in denying his motion to suppress evidence and statements obtained following the Montana stop in violation of his Fourth Amendment rights against unreasonable searches and seizures. United States v. Dodson, 109 F.3d 486, 488 (8th Cir.1997); United States v. Jefferson, 906 F.2d 346, 348 (8th Cir.1990) (citing United States v. Archer, 840 F.2d 567, 571 (8th Cir.), cert. denied, 488 U.S. 941, 109 S.Ct. 364, 365, 102 L.Ed.2d 354 (1988)).

On October 13, 1995, Montana highway patrol officer Chris Costello was patrolling I-90 between Cardwell and Butte, Montana. At approximately 7:45 p.m., he observed appellant's car parked on a frontage road in front of a fence that led into private property. He noted that the headlights were off, the dome lights on, and that there were some occupants in the vehicle. Trooper Costello continued on to Cardwell and on his return trip to Butte, he saw appellant's car again parked at the same location. Officer Costello testified that he approached appellant's car to see if the car was having any problems, conduct which he described as a "welfare check." At this time Officer Costello did not suspect any criminal activity and appellant's car had sufficient room to back up and leave the scene. Appellant did not attempt to leave but instead got out of the car as Officer Costello approached. When appellant was close to him, Officer Costello testified that he smelled the odor of burnt marijuana on appellan...

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