U.S. v. Herbst
| Decision Date | 08 April 1981 |
| Docket Number | No. 80-7341,80-7341 |
| Citation | 641 F.2d 1161 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alan Forest HERBST, Mark Blane Griffin and Stephen Dale McGowan, Defendants- Appellants. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth T. Humphries (Court appointed), Atlanta, Ga., for Herbst.
Jay Strongwater, Asst. Federal Public Defender, Atlanta, Ga., for Griffin.
Michael A. Kessler (Court appointed), Atlanta, Ga., for McGowan.
Richard W. Hendrix, Asst. U. S. Atty., Atlanta, Ga., for United States.
Appeals from the United States District Court for the Northern District of Georgia.
Before TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges and SCOTT *, District Judge.
Facts
Appellant Alan Herbst was convicted after a non-jury trial of knowingly, intentionally and unlawfully possessing 110.1 grams of cocaine hydrochloride with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. 1 Appellants Mark Griffin and Stephen McGowan were charged with aiding and abetting Herbst; Griffin and McGowan were also found guilty by a jury of violating 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Our review of the record reveals that appellants' contentions that the district court erred by denying their motion to suppress and by failing to grant use immunity to a defense witness are without merit. Accordingly, their convictions are affirmed.
On November 15, 1979, Officers Brennan and Green of the Broward County Sheriff's Airport Detail observed the movements of Herbst, McGowan and Griffin at the Ft. Lauderdale, Florida, airport. The officers saw a man, later identified as appellant Herbst, enter the terminal and briefly scan the area around him; he ceased his scanning activity when he apparently made eye contact with two men, later identified as appellants Griffin and McGowan, who had entered through a different entrance. Officer Brennan overheard Griffin and McGowan identify themselves as Garrett and Davis at the Delta ticket counter; Griffin and McGowan were requesting new seats in the coach section for Delta Flight # 906 to Atlanta and then Flight # 333 to Memphis since the third member of their party, a Mr. Cleveland who had made the reservations, would not be joining them. Meanwhile, Officer Green observed Herbst at a ticketing position several feet away identify himself as A. Cleveland; Herbst told the ticketing agent that the first class reservations had been made by Garrett and Davis but that they were unable to make the trip.
After the three men left the ticket counter they were observed meeting together at a bar in the terminal. Officer Brennan also learned from the Delta ticket agent that passenger Cleveland (Herbst) stated that he had no identification and paid for his ticket in cash. None of the appellants checked any luggage; Herbst had a garment bag which he carried with him and Griffin and McGowan had one small blue suitcase between them which was also carried on board.
Officer Brennan decided he needed assistance in interviewing the three men that he suspected were drug couriers. He relayed the information he had to Drug Enforcement Administration (DEA) Agent Mathewson in Atlanta. Agent Mathewson made a further check on the Passenger Number Reservations (PNRs) histories of the three suspects and learned the following information from three separate PNRs. First, a party of three consisting of S. Davis, M. Garrett and Cleveland had reservations on Delta Flights # 906 and # 333 that were made after reservations for an earlier flight had been changed; this PNR had a local call back number that was listed as the Wilton Manors, Florida, Police Department. Second, Cleveland's PNR for Flight # 906 did not have a local telephone contact and revealed that this reservation was made two minutes prior to those made by passengers Davis and Garrett. Third, Cleveland's PNR cancelling his reservation for the earlier flight to Memphis again showed that the three men were to travel together and that this reservation was also made within two minutes of the ones made by passengers Davis and Garrett; moreover, the local call back number on this PNR (which was only one digit different than the call back number to the Police Department) was listed to the Gateway Hotel in Ft. Lauderdale. A night manager at the hotel told Mathewson that a Mark Garrett had registered for two people at 5:45 a. m. that same day and had checked out before noon; moreover, Garrett had paid in cash, gave no address, and arrived without a car.
Mathewson then relayed all of this information to Atlanta based DEA Agents Markonni and Chapman and Police Detective Burkhalter. The officers met Flight # 906 and, relying on Brennan's descriptions, noted that suspect Cleveland (Herbst) was one of the first passengers to deplane. Herbst then waited and watched the other passengers deplane; suspect Davis (Griffin) deplaned and spoke briefly to Herbst. Suspect Garrett (McGowan) exited next, carrying the blue suitcase, and the three men had a brief conversation before they walked to the departure gate for their connecting flight to Memphis. Agents Mathewson and Chapman approached Griffin, who was the first of the three suspects to exit from a rest room. The agents identified themselves as police officers and asked if he minded talking to them, and Griffin indicated his consent. Griffin's ticket envelope contained two tickets issued to S. Davis and M. Garrett; in response to a question from Mathewson, Griffin said he was Steve Davis. Griffin said he had no other identification and appeared very nervous.
Agent Markonni and Detective Burkhalter observed Herbst and McGowan leave the rest room and walk toward Griffin and the other agents. After a brief conversation, McGowan approached the area where Griffin was being interviewed while Herbst walked past the interview area. Agent Mathewson asked McGowan if he was Garrett and McGowan replied yes. However, when asked for identification, McGowan gave the agent his driver's license which read Stephen Dale McGowan. McGowan then admitted his name was not Mark Garrett. In response to further questions about the nature of their trip, Griffin stated he was visiting a relative and had been there for two or three days. The agents then identified themselves as federal narcotic agents and asked them if they were carrying drugs; McGowan and Griffin said no. The agents then asked if McGowan and Griffin would agree to a search of themselves and the blue suitcase. They agreed and followed Mathewson's suggestion that the search be conducted in the more private Delta employees' lounge.
Once in the lounge, Mathewson read Griffin and McGowan their rights concerning the search; both again agreed to be searched. Agent Chapman then informed them that he observed McGowan throw a suspected marijuana cigarette on the floor as they had walked into the lounge. The search of the two men and the suitcase did not reveal any other drugs but did disclose Griffin's true identity and an airline ticket on Griffin showing travel from Memphis to Miami during the early morning hours of that same day.
During the search, the other officers maintained surveillance of Herbst. Herbst continually watched the search from a distance and appeared nervous and concerned about the search. A few minutes later Agent Markonni and Detective Burkhalter approached Herbst and after identifying themselves asked if they could talk to him for a few minutes. Herbst agreed, showed his ticket issued to A. Cleveland and said his name was Al Cleveland. In response to further questions Herbst stated that he had no identification, he was traveling alone, and he had stayed at a friend's house for several days. Herbst also said that he was not carrying drugs and would consent to a search. Agent Markonni again asked him if he was traveling alone and he said no. Agent Markonni gave Herbst the option of being searched in public or inside an office and Herbst indicated he preferred the Delta office. Upon entry, Mathewson announced that both of his suspects had been lying and that a marijuana cigarette had been found. Markonni pointed at Griffin and McGowan and asked Herbst if he knew them and he denied knowing them. Markonni advised Herbst that he had the right to refuse or to allow a search and that he had the right to consult an attorney prior to a search; Herbst indicated he understood and agreed to a search of his garment bag. However, Herbst, who appeared very nervous, would not allow the agents to search his body as it was a personal embarrassment to him, a reputable businessman.
The search of the bag revealed two used tickets issued to A. Cleveland and S. Davis for a flight from Memphis to Miami that arrived during the early morning hours of the same day. Herbst was searched over his protest and approximately 146.4 grams of suspected cocaine were found concealed in his right boot. Agent Markonni formally placed Herbst under arrest while Agent Mathewson arrested Griffin and McGowan.
Appellants made a pretrial motion to suppress the evidence seized by the DEA agents. After a full evidentiary hearing, United States Magistrate Dougherty found that probable cause existed for the arrests and recommended that the motion to suppress be denied. The United States District Court for the Northern District of Georgia adopted the United States Magistrate's report and recommendation (with a few exceptions) 2 and held that the search was legal.
One day prior to McGowan's and Griffin's trial, Griffin's counsel moved for a continuance on the basis of representations made by Herbst's attorney that Herbst could give exculpatory testimony if he could testify after his sentencing. Herbst had already been convicted on the basis of stipulated facts and indicated he was willing to testify if he was granted immunity. The district court denied the motion for continuance; after the Government rested its case, McGowan...
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