U.S. v. Hager

• Decision Date: 07 July 1992
• Docket Number: No. 91-6310,91-6310
• Citation: 969 F.2d 883
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee HAGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 883

969 F.2d 883

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee HAGER, Defendant-Appellant.

No. 91-6310.

United States Court of Appeals Tenth Circuit.

July 7, 1992.

Frank Michael Ringer, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Susan M. Otto, Acting Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before TACHA and EBEL, Circuit Judges, and ROGERS, ^* District Judge.

ROGERS, District Judge.

Robert Lee Hager appeals from his convictions for possessing approximately 2.8 kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) [Count 1], possessing a firearm after a conviction of a felony in violation of 18 U.S.C. § 922(g) [Count 2], and using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) [Count 3]. In his appeal, he raises four arguments. He contends (1) the evidence seized subsequent to his arrest should have been suppressed because it was obtained in violation of the Fourth Amendment; (2) there was insufficient evidence to support his convictions for Counts 1 and 3; (3) the offense charged in Count 2 was duplicitous because it charged him with possession of various firearms at different places on the same date; and (4) the trial court improperly instructed the jury on the essential elements of Count 2. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court's judgment.

The defendant was arrested on February 13, 1989, while driving in his car with a female companion. He was stopped by the Oklahoma Highway Patrol on the authority of a federal parole violator's warrant. Hager exited his car at the request of the Oklahoma trooper. The trooper noticed a .38 caliber pistol on the driver's side of the front seat. The gun was seized. The car was subsequently searched, and a bag containing papers belonging to the defendant was discovered.

A search warrant for an apartment located at 3481 S.W. 44th Street in Oklahoma City, Oklahoma was subsequently obtained and executed on the date of the defendant's arrest. Cocaine, firearms and documents were found pursuant to the warrant. Cocaine was found in the following four locations within the apartment: (1) in five plastic peanut jars in a cardboard box located in the main closet; (2) in a green plastic cactus plant found on top of the refrigerator in the kitchen; (3) in a stuffed toy dog in a closet; and (4) in five plastic peanut butter jars in a vase found in the living room. A notebook discovered in the bag in the automobile driven by the defendant contained cryptic references to the stuffed toy dog, the vase and the plastic cactus and the number of packages of cocaine contained in each. The total weight of the cocaine found in the apartment was 2.8 kilograms. Hager's fingerprints were found on two of the plastic jars that contained cocaine. Law enforcement officials found the following firearms in the following locations during the search: (1) a twelve-gauge shotgun in a linen closet leaning on the left doorjamb; (2) a loaded .22 caliber pistol in a metal box in the same linen closet; and (3) a .22 caliber pistol in a pair of boots discovered in the living room. A number of documents related to Hager were found in the apartment. Authorities found several documents in the metal box which contained the .22 caliber pistol, including several bills of sale with Hager's name on them and Hager's passport. They also found items connected with Hager, including business cards and photographs, in other areas of the apartment.

I.

The defendant challenged the evidence seized at the apartment in several motions to suppress. The trial court, after conducting an evidentiary hearing, denied the motions. On appeal, the defendant raises three arguments concerning the seized evidence. First, he argues that the affidavit was defective because the affidavit was "completely silent on the particulars of [the] informant's reliability or the circumstances under which the informant allegedly obtained [the] incriminating information." Second, he asserts that the affidavit omitted critical information concerning the reliability of the informant. Hager contends that the affidavit omitted information that the informant had held a woman and a child hostage approximately one month prior to the submission of the affidavit. Finally, he asserts the affidavit contained incorrect information from the informant. Hager points out that the affidavit relates that the informant had told the affiant that Hager was a convicted murderer and drug dealer when, in fact, Hager had not been convicted of murder or drug dealing. Hager believes these combined deficiencies render the warrant fatally defective.

The search warrant was obtained upon the affidavit of Oklahoma Bureau of Narcotics Agent Kathryn Mays. The affidavit contains information provided by a "reliable" confidential informant which implicates Hager in cocaine trafficking. The informant supplied a number of details concerning Hager's drug operation. The affidavit also contains material concerning the efforts of law enforcement officers to corroborate the information provided by the confidential informant. Investigation by several law enforcement agencies did corroborate many of the details supplied by the informant. The affidavit does indicate that the informant stated that Hager was a "convicted murderer and drug dealer from Florida." The affidavit makes no mention of any recent criminal activities by the informant.

In reviewing the validity of a search warrant, we must determine whether, under the totality of the circumstances presented in the affidavit, the judicial officer had a substantial basis for finding a fair probability that contraband or other evidence of a crime would be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The judicial officer's initial determination of probable cause to issue a warrant must be afforded great deference on appeal. United States v. Bishop, 890 F.2d 212, 214-15 (10th Cir.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1164, 107 L.Ed.2d 1067 (1990).

Based upon Gates, we find that the issuing judicial officer had sufficient information to justify a finding of probable cause. The informant provided a number of details concerning the defendant and his activities. The informant's reliability was demonstrated by the accuracy of many of these details which were independently corroborated by law enforcement authorities. "[T]he totality of the circumstances analysis necessarily places importance on corroborating the details of an informant's tip by independent police work." United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985). In sum, the totality of the information contained in the affidavit provided a substantial basis for finding there was a fair probability that evidence of criminal activity would be found at the apartment.

We also find that the other matters noted by the defendant do not render the affidavit defective. Concerning the omission of the informant's involvement in criminal activity, the district judge, in denying defendant's motion to suppress, stated that this omission "does not rise to the level ... which would affect a magistrate's conclusion regarding the issuance of this warrant." We agree. Concerning the misinformation about Hager's criminal history, the district judge determined that there was sufficient probable cause to support the issuance of the search warrant even if the court deleted the word "convicted" from the warrant. Again, we agree. In sum, we find no error in the district court's determination that the search warrant was supported by probable cause. The district court properly denied the suppression motions.

II.

Hager next contends that the evidence supporting his convictions for Counts I and III was insufficient. He argues that the evidence was insufficient to connect him with the cocaine that was found in the apartment. He also contends that the evidence failed to demonstrate that he ever used or carried the pistol found in the boot in the living room of the apartment, much less during and in relation to a drug trafficking crime.

The standard for reviewing the sufficiency of evidence on criminal convictions is whether "[t]he evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). The evidence supporting conviction must be substantial, raising more than a mere suspicion of guilt. United States v. Brandon, 847 F.2d 625, 630 (10th Cir.), cert. denied, 488 U.S. 973, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988).

A.

In order to convict a defendant of possession of cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1), the government must prove the following essential elements beyond a reasonable doubt: (1) the defendant knowingly possessed cocaine, a controlled substance; and (2) the defendant possessed the cocaine with the specific intent to distribute it. See United States v. Gay, 774 F.2d 368, 372 (10th Cir.1985). Possession of narcotics, of course, may be either actual or constructive. Generally, a person has constructive possession of narcotics if he knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found. United States v. Parrish, 925 F.2d 1293, 1296 (10th Cir.1991). Constructive possession may be established by circumstantial evidence, but the government must show a sufficient nexus between the defendant and the narcotics. Id.

The evidence showed that Hager exercised...