U.S. v. Graham

• Decision Date: 26 January 1977
• Docket Number: 76-1368 and 76-1419,76-1356,Nos. 76-1346,s. 76-1346
• Citation: 548 F.2d 1302
• Parties: 1 Fed. R. Evid. Serv. 778 UNITED STATES of America, Appellee, v. Joanne GRAHAM et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1302

548 F.2d 1302

1 Fed. R. Evid. Serv. 778

UNITED STATES of America, Appellee, v. Joanne GRAHAM et al., Appellants.

Nos. 76-1346, 76-1356, 76-1368 and 76-1419.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 8, 1976.

Decided Jan. 26, 1977.

Philip F. Miller, and Robert W. Pratt, Des Moines, Iowa, for appellants; James E. Brick and Robert A. Wynn, and Naomi S. Mercer, Des Moines, Iowa, on briefs.

George H. Perry, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Allen L. Donielson, U. S. Atty., on brief.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

GIBSON, Chief Judge.

Joanne Graham, Marsha Binns, Walter Jackson, Jr., and Jewell Anderson appeal their convictions of violating various provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (1970), as amended, (Supp. V, 1975). These defendants were indicted with David Binns and Billy Pickens in Count I for conspiring to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (1970). Count II charged Marsha Binns with unlawfully distributing heroin and Count III charged her with unlawfully possessing heroin with intent to deliver in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) (1970). ¹ Count IV charged Pickens with illegally possessing heroin with intent to deliver.

All defendants except David Binns ² tendered pleas of not guilty to these charges and the case proceeded to trial. The jury acquitted Marsha Binns on Count II and Pickens on Counts I and IV. Guilty verdicts were returned against Graham, Marsha Binns, Jackson and Anderson on the Count I conspiracy charge and against Marsha Binns on the Count III possession charged. The District Court ³ sentenced Marsha Binns to ten years on Count I to be followed by a three-year special parole term and gave her a ten-year concurrent sentence on Count III. Jackson, Anderson and Graham were sentenced to eight years, four years and three years respectively, with all sentences to be followed by a three-year special parole term.

The facts in this multi-defendant narcotic conspiracy case are characteristically extended. The heroin distribution scheme here was pursued primarily in Des Moines, Iowa, but its reach encompassed a four-state area. The conspiracy extended over a three and one-half month period and involved many individuals in addition to the present defendants. Little purpose would be served in detailing the day-to-day distribution activities of the defendants in this case since, as to all the defendants except Anderson, the evidence of participation in the conspiracy is nothing less than overwhelming. However, we will briefly discuss the general nature of the conspiratorial scheme and the roles the various defendants played.

Merilyn Allen, an unindicted co-conspirator in this case, testified for the Government at trial. Allen testified that on August 11, 1975, she was contacted by Graham and was requested to go to Graham's apartment. Allen complied and, upon arriving at the apartment, Graham introduced her to David Binns, Marsha Binns, Jackson and Anderson. Allen, Graham and David Binns discussed the profitability of distributing heroin in Des Moines and, after agreeing that such a venture would be successful, David Binns asked Allen to assist them in the distribution of heroin; Allen agreed to participate. David Binns and Jackson immediately went to Binns' automobile and secured the heroin. Marsha Binns, Jackson and Graham then prepared the heroin for sale by diluting it with dorman and quinine. For the next several days, Allen and Graham would go on the street, solicit known heroin users and obtain money for the heroin. The money would be taken to Marsha Binns and Jackson and exchanged for heroin. The heroin would then be taken back to the customers by Allen and Graham. During this process, Jackson acted as the "overseer" and "protector" for the sales agents, Allen and Graham.

Most of the heroin for this distribution scheme was brought into the Des Moines area by David Binns and Anderson. The evidence shows that David Binns and Anderson often distributed heroin personally when Allen and Graham presented them with money from heroin sales. In addition to distributing heroin in Des Moines, members of this scheme travelled to Omaha, Nebraska, and Waterloo, Iowa, to market heroin. Many other individuals, including Barry Smith, an unindicted co-conspirator who testified for the Government at trial, became involved in the scheme.

The details of this heroin distribution ring were disclosed to law enforcement officials when Allen was arrested for soliciting for prostitution on October 26, 1975, and she agreed to cooperate with the Des Moines Metropolitan Area Narcotics Squad (MANS Unit). On November 7, 1975, Barry Smith also agreed to assist the MANS Unit in its investigation of this scheme. Through surveillance and the cooperation of Allen and Smith, the MANS Unit was able to identify the participants in the continuing scheme. On November 14, 1975, Smith informed the MANS Unit officers that he, Marsha Binns and Pickens had registered at the Kirkwood Hotel in Des Moines under the name "James Carr" and that they would be in possession of a quantity of heroin. An officer verified that a "James Carr" had checked into Room # 606 at the Kirkwood Hotel and that two Negro males and one Negro female had entered the room. A search warrant was secured and four officers went to the Kirkwood Hotel to execute the warrant. They knocked on the door of Room # 606 and Marsha Binns opened the door. After she ascertained that they were police officers, she attempted to thwart their entry into the room but was unsuccessful. A search of her person disclosed a firearm and several packets of heroin. Other contraband was found in the room. She was placed in custody and the other defendants were arrested later.

I

Defendants' initial contention is that the search of Marsha Binns' room at the Kirkwood Hotel on November 14, 1975, was not supported by probable cause and, thus, the District Court erred in refusing to suppress the fruits of that search. The search was conducted pursuant to a warrant issued by a state court judge. The request for the warrant was accompanied by an affidavit prepared by Officer Loren Zimmerman of the MANS Unit. In the affidavit, Officer Zimmerman stated that he had been advised by an informant that Marsha Binns had just returned from Chicago with a quantity of heroin and had checked into Room # 606 at the Kirkwood Hotel in Des Moines. The affiant stated that he had verified Marsha Binns' registration into Room # 606 at the Kirkwood Hotel. The informant advised Officer Zimmerman that Pickens would be accompanying Marsha Binns and that Pickens and Barry Smith would be in possession of heroin. The affidavit recited that the informant had gained this information from personal conversations with Marsha Binns, Pickens and Smith. The informant was a close associate of Marsha Binns and had gone with her on previous trips to Chicago to secure heroin. Also, the informant had observed Marsha Binns, Pickens and Smith in possession of heroin on prior occasions. According to the affidavit, the informant had given reliable information in a previous narcotics case and the information had been used to secure a search warrant.

It is clear that a search warrant affidavit need not be based solely on the personal observations of the affiant, but may contain hearsay information supplied by an informant. See Draper v. United States, 358 U.S. 307, 311-12, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In order to credit this hearsay information and permit it to be used in determining whether or not the affidavit establishes probable cause, the magistrate or issuing judge must be informed of (1) some of the underlying circumstances from which the affiant determined that the informant was credible or his information reliable and (2) some of the underlying circumstances from which the informant reached the conclusions contained in the tip. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Cummings, 507 F.2d 324, 328 (8th Cir. 1974). Even if an informant's tip, standing alone, is deficient under the dual criteria of Aguilar, it may be constitutionally adequate if it is sufficiently detailed or sufficiently corroborated to be as trustworthy as a tip passing the Aguilar tests. Spinelli v. United States, 393 U.S. 410, 415-17, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see Draper v. United States, supra.

The first prong of Aguilar is amply satisfied in this case. "The fact that an informant has previously given accurate information adequately establishes his reliability." United States v. Scott, 545 F.2d 38 at 40 (8th Cir. 1976). The informant's reliability here was bolstered by the affiant's verification that Marsha Binns had in fact checked into Room # 606 at the Kirkwood Hotel. This corroboration made it clear "that the informant had not been fabricating his report out of whole cloth." Spinelli v. United States, supra 393 U.S. at 417, 89 S.Ct. at 590; see United States v. Scott, supra.

The affidavit also set forth the underlying circumstances from which the informant concluded that Marsha Binns, Pickens and Smith were in possession of heroin and, thus, fulfilled the second requirement of Aguilar. Although the affidavit did not specify that the informant had personally observed heroin in the possession of these individuals on November 14, 1975, see United States v. Regan, 525 F.2d 1151, 1156 (8th Cir. 1975), the informant did derive his conclusion from "personal conversations" with them. Furthermore, the informant was a close associate of Binns, Pickens and Smith, see United States v. Regan, supra at 1154, 1156, and his tip contained a statement against penal interest as he admitted that he had accompanied Binns to Chicago on previous occasions for the purpose of...