U.S. v. Johnston, s. 85-1268

• Decision Date: 20 February 1986
• Docket Number: 85-1269 and 85-1281,Nos. 85-1268,s. 85-1268
• Citation: 784 F.2d 416
• Parties: 20 Fed. R. Evid. Serv. 434 UNITED STATES of America, Appellee, v. Ralph JOHNSTON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Michael ANDREWS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward RIST, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 416

784 F.2d 416

20 Fed. R. Evid. Serv. 434

UNITED STATES of America, Appellee, v. Ralph JOHNSTON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Michael ANDREWS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edward RIST, Defendant, Appellant.

Nos. 85-1268, 85-1269 and 85-1281.

United States Court of Appeals, First Circuit.

Argued Nov. 14, 1985.

Decided Feb. 20, 1986.

Richard M. Egbert, Boston, Mass., with whom Edward J. Romano, Providence, R.I., were on brief, for defendant, appellant Ralph Johnston.

James R. Rosencranz, Boston, Mass., was on brief, for defendant, appellant Michael Andrews.

Francis J. DiMento, and DiMento & Sullivan, Boston, Mass., were on brief, for defendant, appellant Edward Rist.

E. Sydney Hanlon, Asst. U.S. Atty., and William F. Weld, U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, WYZANSKI, ^* Senior District Judge.

COFFIN, Circuit Judge.

Appellants Ralph Johnston, Michael Andrews, and Edward Rist appeal from jury convictions on narcotics charges. They raise numerous claims challenging the legality of their convictions. We reject these claims, and affirm the judgment of the district court.

The facts as presented at trial showed that the three appellants and others conspired during Memorial Day weekend in 1982 to bring a multi-ton load of marijuana into the Fairhaven, Massachusetts harbor. Robin Dodge, an unindicted co-conspirator, was the government's primary witness at trial. His testimony was substantially corroborated by his wife's testimony, post-arrest statements by Rist, and other government evidence, including telephone records, hotel records, and physical evidence seized from Johnston.

In May, 1982, Dodge was approached by Richard Curry, whose friends had a boat filled with marijuana but did not have an off-load site. Dodge arranged to provide a site, and enlisted Andrews to help him. Dodge and his wife, Ellen, met with Andrews and codefendant-fugitive Welch, who both agreed to work with Dodge on the off-load.

Andrews, Welch, and Dodge met with Curry's friend, Johnston, who was a partial owner of the marijuana. In exchange for payment, Dodge agreed to provide Johnston with security and assistance for the off-load. Johnston, Dodge, and others rented hotel rooms near Fairhaven, and spent the night before the off-load in the hotel, discussing finances and using drugs. The next day, Dodge, Johnston, and Welch went to the dock to await the boat, while Andrews and another man communicated with the boat by radio.

When the boat arrived, Dodge unloaded the first thousand pounds of marijuana into his van. Dodge and Johnston then began offloading more of the shipment into the first of two tractor trailers. Rist, a co-owner of the shipment, was also unloading at the dock and remained there until the trucks left. Johnston and Dodge walked around the dock to ensure that no strangers were present.

Dodge returned to the hotel, met Ellen Dodge and Andrews, and drove with them to the Dodges' residence. Several days later, Dodge telephoned Johnston, and then Rist, demanding the remainder of his payment. Johnston met Dodge and paid him partially. Dodge collected the remaining money from the sale of the first thousand pounds, which were in his possession. After learning of events that put him in danger of criminal charges and physical harm, Dodge offered to cooperate with the government in the prosecution stemming from this off-load.

In August, 1984, a federal grand jury returned a four-count indictment against Rist, Johnston, Andrews, and Welch. They were charged with the following offenses: possession with intent to distribute more than 1,000 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(6); conspiracy to do the same in violation of 21 U.S.C. Sec. 846; importation of marijuana in violation of 21 U.S.C. Sec. 952(a); and conspiracy to do the same in violation of 21 U.S.C. 963. Johnston, Rist, and Andrews were arrested and arraigned. Welch was and remains a fugitive.

The district court held hearings on many pretrial motions, including a motion to suppress physical evidence. The court allowed in part and denied in part Johnston's motion to suppress. The trial lasted eight days, and at the close of evidence the court entered judgment of acquittal for all appellants on the importation counts. The jury returned a verdict finding Johnston guilty on both remaining counts, and Andrews and Rist guilty of conspiracy to possess, but not guilty of possession.

We address each of appellants' claims below.

1. Johnston's Motion to Suppress

Johnston argues that the district court erred by not fully granting his motion to suppress certain evidence. The district court found that the search in question was lawful, but that in several respects it exceeded the scope of the warrant and the plain view doctrine. Accordingly, the court granted Johnston's motion to suppress some evidence, but denied his motion as to other evidence.

Before discussing the propriety of the district court's ruling, we will review the circumstances of the search. Pursuant to a valid search warrant, Detective Hyde, Sergeant Yoo, and officers Canney and Kurisko searched the house of Johnston's mother-in-law. The warrant authorized a search for "[c]ontraband consisting of marijuana, marijuana deratives [sic], and any other substance classified under Chapter 94C of the Massachusetts Drug Laws." During the search, Hyde retained full authority to determine what items would be seized.

The police first searched the dining room, where they observed a pipe with residue that smelled like marijuana, a cannister containing marijuana, and a spiral-bound notebook that was closed when first seen. Only a printed seal and the name of a local university appeared on the outside cover of the notebook. Yoo opened and scanned the notebook.

Kurisko discovered two plastic bags containing marijuana in a teapot in the dining room. In a sugar bowl, she found adding machine tapes. On the dining room floor, Kurisko and Yoo observed sheets of paper torn from a spiral notebook. They examined the loose pages and saw that the top sheet contained two columns of figures. Yoo showed the loose pages to Hyde, who suspected their evidentiary value but did not at that point draw any firm conclusions.

The search extended to the downstairs level of the house. The police found $20,000 in a liquor box; in a briefcase, they found some cocaine and marijuana. Elsewhere on the lower level, they found various amounts of marijuana, other drugs, and drug paraphernalia. In a downstairs bedroom closet, the police found a large wooden chest, which held several cannisters that contained differing amounts of marijuana, other drug-related items, and a single sheet of ledger paper. The sheet of paper was folded and had no writing on the outside. Yoo unfolded the sheet and discovered notations similar to those on the loose pages found on the dining room floor.

The warrant, by its terms, did not support the seizure of the notebook, the adding machine tapes, the loose pages found on the dining room floor, the $20,000, or the single sheet of folded ledger paper. The district court found that some of these items were seized lawfully pursuant to the "plain view" doctrine, an exception to the warrant requirement of the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion). The plurality opinion in Coolidge created a three-step requirement for the admission of plain view evidence: that the seizing officer have a prior justification for being in a position to see the item in plain view, that the discovery of the item be inadvertent, and that the evidentiary value of the item be "immediately apparent" to the officer.

The district court determined that the officers' search of the house was valid and their discovery of evidence found by looking into closed containers that might contain marijuana was inadvertent. Thus, when the officers opened the sugar bowl, the liquor box, and the wooden chest, they were justified in viewing the adding machine tapes, the cash, and the folded sheet of ledger paper. Similarly, the loose pages on the dining room floor and the closed notebook on the dining room table were in plain view. Johnston does not contest these findings.

The court next examined whether the evidentiary value of each item was immediately apparent to the officers. ¹ The court suppressed the spiral notebook and the folded sheet of ledger paper. The writing on these items' covers, which were in plain view, was minimal or nonexistent, and could not have raised any suspicion about the items. ² The incriminating nature of the items was not "immediately apparent" to the officers but was revealed only after an examination of their contents. ³

In contrast, the district court found that the writing on the loose pages and on the adding machine tapes was open to plain view and was therefore subject to the officers brief perusal. The court then considered whether the exposure of these items gave the police, considering their experience, probable cause to believe they were viewing evidence of illegal conduct. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983). See also United States v. Strahan, 674 F.2d 96, 100 (1st Cir.1982) (seizure supported by plain view doctrine if before seizure "there is 'probable cause' to believe the matter seized is evidence of a crime"). The court determined that Detective Hyde had probable cause to believe that the loose pages, the adding machine tapes, and the $20,000 constituted evidence, and thus he seized them legally.

Johnston claims that the admission into evidence of the loose pages and the adding machine tapes constituted grievous error. He argues that whether the evidentiary value of the items was immediately apparent to the officers should be examined...