U.S. v. Harris

• Citation: 903 F.2d 770
• Decision Date: 16 May 1990
• Docket Number: 89-6181,Nos. 89-6133,s. 89-6133
• Parties: 30 Fed. R. Evid. Serv. 586 UNITED STATES of America, Plaintiff-Appellee, v. Mark A. HARRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 770

903 F.2d 770

30 Fed. R. Evid. Serv. 586

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. HARRIS, Defendant-Appellant.

Nos. 89-6133, 89-6181.

United States Court of Appeals, Tenth Circuit.

May 16, 1990.

Mary E. Bane, Oklahoma City, Okl., for defendant-appellant.

Nancy S. Jones, Asst. U.S. Atty., (Robert E. Mydans, U.S. Atty., W.D. Okl., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

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

SAFFELS, District Judge.

Defendant-Appellant Mark A. Harris was charged in a three count indictment. Count I charged possession with intent to distribute three-quarters pound of marijuana in violation of 21 U.S.C. Sec. 841(a)(1); Count II charged that defendant traveled in interstate commerce to facilitate possession of marijuana with intent to distribute in violation of 18 U.S.C. Sec. 1952(a)(3); and Count III charged forfeiture of U.S. currency, silver bars and coins seized from four locations under 21 U.S.C. Sec. 853. The trial in this case began on January 31, 1989. The jury returned a verdict of guilty on Counts I and II on February 7, 1989, and a verdict of partial forfeiture on Count III on February 8, 1989.

FACTS

On January 27, 1988, a Oklahoma Highway Patrol trooper stopped a truck driven by defendant for defective taillights. Defendant On January 29, 1988, a search warrant was obtained and another search of defendant's truck was conducted. This search resulted in the seizure of a silver metal box containing 19 marijuana cigarettes, rolling papers, roach clips, newspapers from Virginia, and motel receipts from Tennessee and Virginia. On February 8, 1988, search warrants were issued for two safe deposit boxes registered in defendant's name at banks in Texas. The searches of these boxes recovered silver and gold coins and currency in excess of $300,000. On February 12, 1988, three additional search warrants were issued: one for a third safe deposit box and one for defendant's home, and one for a ranch, of which defendant was a co-owner. Defendant raises numerous issues on appeal.

sat in the patrol car while the trooper was writing a warning ticket. The trooper detected the odor of marijuana and obtained the defendant's written consent to search the truck. The search resulted in the discovery of brown containers and several large plastic trash bags each with marijuana residue inside. Rolling papers and roach clips were also discovered. Thereafter, defendant was placed under arrest. The truck was impounded and an inventory search was conducted which revealed three boxes of ziplock bags, plastic bags containing traces of marijuana leaves, two plastic bags containing marijuana seeds, a bag of rubber bands, rolling papers, roach clips, four gold coins and U.S. currency in excess of $400,000 placed in five grocery sacks. These items can be characterized as general drug trafficking paraphernalia. After defendant was advised of his Miranda rights, the FBI conducted an interview of the defendant. During this interview, defendant told an agent that at the time of arrest he was traveling through Oklahoma to his home in Texas returning from a trip to Maryland.

DISCUSSION OF ISSUES ON APPEAL

A. The Travel Act Violation.

Defendant contends the government presented insufficient evidence at trial to support a finding that he violated the Travel Act, 18 U.S.C. Sec. 1952(a)(3). The essential elements of this crime are: (1) defendant used facilities of interstate commerce, (2) with intent to promote, manage, establish, carry on or facilitate any unlawful activity, and (3) the performance or an attempt to perform that unlawful activity. United States v. Stevens, 612 F.2d 1226, 1231 (10th Cir.1979), cert. denied 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). The third element requires an overt act in furtherance of the illegal activity, performed after the interstate travel. Id.

In the present case, this court finds that sufficient evidence was presented to find a violation of this Act. The illegal activity charged was possession of marijuana with intent to distribute. Defendant traveled into Oklahoma from Maryland, Virginia, and Tennessee. He performed various overt acts in furtherance of the crime charged after arriving in Oklahoma, including possessing and transporting a quantity of marijuana with the intent to distribute it and possessing and transporting paraphernalia relating to marijuana trafficking. See United States v. Sanchez DeFundora, 893 F.2d 1173, 1176-77 (10th Cir.1990) (possession of cocaine constitutes an overt act for the purposes of the Travel Act).

B. Validity of the Search Warrants.

After defendant's arrest, five search warrants were issued in Texas. Three for safe deposit boxes, one for defendant's home and one for a ranch co-owned by defendant.

1. Whether The Warrants Were Based On Probable Cause.

Defendant contends that no probable cause was shown that evidence would be found at the locations to support the issuance of the five search warrants in Texas. The places to be searched in the five search warrants, which were issued at least twelve days after defendant's arrest, were over 700 miles away from where defendant was arrested. The first two search warrants were issued on February In finding that probable cause existed to support the search warrants, the magistrate stated that although the places to be searched were over 700 miles away from where the defendant was arrested, it was logical and reasonable to believe that defendant was heading toward his home in Texas, at the time of his arrest, and that the large amount of cash he was carrying in his truck would not be left in his truck. The fact that defendant had more than one safe deposit box also caused the magistrate to conclude that there was probable cause to search the safe deposit boxes for other evidence of a narcotic business in which defendant was allegedly involved.

8, 1988, to search two safe deposit boxes. Defendant contends that the affidavit submitted in support of these search warrants set forth no facts that could support a reasonable belief that the items sought would be located in the safe deposit boxes.

A search generally must be made pursuant to a warrant based on probable cause. U.S. Const. amend IV. The court when reviewing a magistrate's issuance of a search warrant must determine whether the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). The magistrate must make a practical, common sense determination from the totality of the circumstances presented whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238, 103 S.Ct. at 2332. The affidavits in support of the February 8, 1988, search warrants of the safe deposit boxes indicate that at the time of defendant's arrest he had handwritten ledger-type notes, a large quantity of U.S. currency, and numerous containers and plastic bags with marijuana residue. Also defendant was traveling towards his home in Ingram, Texas. These facts together with common sense provide sufficient probable cause to support the magistrate's determination that a fair probability existed that evidence of a marijuana trafficking operation might be found in the safe deposit boxes. Three additional search warrants were issued on February 12, 1988, to search defendant's home, a ranch he co-owned, and a third safe deposit box. The affidavits in support of these warrants included the same information as given in the previous affidavit plus information that defendant had purchased large floor safes and that defendant's co-owners in the ranch were individuals who had prior involvement in drug activity and that in a fly-over observation of the ranch, an officer had seen the burning of green plant material which appeared to be marijuana. The affidavits set forth sufficient grounds to support a probable cause finding for issuance of the search warrant for these locations.

2. Whether the Warrants Were Overbroad.

Defendant contends that the five Texas warrants were overbroad and did not give the executing officers sufficient guidance on what evidence was to be seized. The warrants listed seven categories of items to be seized: (1) travel records and receipts; (2) bank safe deposit records; (3) currency; (4) stocks, bonds or other securities; (5) gold, silver and/or jewelry; (6) books, records, memorandum, notes, bank records, investment records, or any other documents evidencing the obtaining, secreting, transfer, and/or concealment of assets and/or money obtained through illegal means, the source of which has been attempted to be hidden from the government in effort to circumvent, thwart, conceal or otherwise impair and impede the U.S. government; and (7) marijuana and/or processing and/or packaging material for marijuana.

The issue of whether a warrant is overbroad is a legal question subject to de novo review on appeal. United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988). The fourth amendment requires that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. A search warrant must be sufficiently particular in describing the things to be seized to prevent a "general, exploratory rummaging Defendant contends that the warrant does not limit the search to any alleged violation of a particular criminal law. However, the affidavit attached to and incorporated by reference in the warrants did state the alleged crime under investigation. Thus, the warrants are not overbroad for failure to specify a crime to which the sought evidence relates. Also, defendant contends that the warrants failed to provide adequate limitations or guidelines to officers executing the warrants. Defendant contends that the language in the warrants was so overbroad as to allow...