U.S. v. Kinsey
| Decision Date | 01 April 1988 |
| Docket Number | 87-1183,Nos. 87-1182,s. 87-1182 |
| Citation | 843 F.2d 383 |
| Parties | 25 Fed. R. Evid. Serv. 523 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Samuel KINSEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Albert KINSEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles M. Bonneau, Sacramento, Cal., for defendant-appellant Joseph kinsey.
Jesse S. Kaplan, Sacramento, Cal., for defendant-appellant Albert Kinsey.
William J. Portanova, Sp. Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before NOONAN and THOMPSON, Circuit Judges, and TEVRIZIAN *, District Judge.
The District Court found appellants Joseph Samuel Kinsey and Albert Kinsey guilty of both conspiracy to distribute and possession with intent to distribute cocaine. Joseph and Albert Kinsey now raise numerous arguments on appeal. First, Joseph Kinsey contends that the District Court improperly admitted the expert opinion testimony of a narcotics officer regarding his, Joseph Kinsey's, involvement in the distribution of the cocaine. Second, Albert Kinsey contends that the warrantless arrest of Joseph Kinsey was not justified by exigent circumstances. Third, Joseph and Albert Kinsey contend that the District Court improperly denied them their right to a jury trial on the validity of their alleged prior narcotics trafficking convictions. Fourth, Joseph and Albert Kinsey contend that the mandatory minimum penalty provisions of Title 21 U.S.C. Section 841(b)(1)(A) are unconstitutional as applied to them. We disagree with the foregoing contentions and we conclude there are no grounds which warrant reversal of Joseph and Albert Kinsey's convictions. Accordingly we affirm.
On December 28, 1986, at approximately 3:45 a.m., a Sacramento police officer stopped a vehicle after he observed the vehicle moving erratically. The officer recognized the driver of the vehicle as a state parolee by the name of Leon Williams ("Williams"). The passenger in the vehicle identified himself as John Wayne Porter ("Porter"). The officer allowed both Williams and Porter to leave after he conducted an authorized search of Williams and the vehicle. During the search the assisting officer had, however, discovered approximately 100 feet from the vehicle, a leather pouch containing one ounce of suspected base or "rock" cocaine, a rental receipt for a Motel 6 room dated December 27, 1986 in the name of John Wayne Porter, and a key. The officers thereafter arrested Williams and Porter when they returned to retrieve the pouch approximately forty-five minutes later.
During the booking procedure an officer discovered four photographs in the lining of Porter's jacket, two of which depicted Porter holding weapons, including an automatic Thompson style submachine gun. The Sacramento police narcotics detail organized a SWAT team to go to the Motel 6 and proceeded to obtain a search warrant for the motel room. At approximately 10:00 a.m. on December 28, 1986, the members of the SWAT team observed a female occupant looking out Porter's motel room window. At that point they entered Porter's room. Joseph Kinsey and a young woman, later identified as Sedilia Thomas, were the only persons in the motel room. At the time of entry Joseph Kinsey was in the process of dividing large chunks of "rock" cocaine with a razor blade. Albert Kinsey was not present in the room. Although the officers arrested both Joseph Kinsey and Sedilia Thomas they "froze", or sealed off, the scene, and did not search the room until approximately 1:00 p.m. when they were advised that a search warrant had been issued. The subsequent search of the room led to the seizure of several ounces of "rock" cocaine, $6,000.00 in cash, narcotics sales paraphernalia, and a telephone pager.
On December 29, 1986, Sacramento Narcotics Detective Daniel Torres ("Detective Torres") received a phone call from a James Covert ("Covert"). Covert identified himself as Joseph Kinsey's driver and offered to work for the police as a paid informant. Covert thereafter informed the police that Joseph Kinsey's father, Albert Kinsey, had continued the cocaine trafficking operation while his son, Joseph Kinsey, was in prison. On January 7, 1987, Joseph Kinsey was released from prison. On January 11, 1987, Covert informed Detective Torres that Joseph and Albert Kinsey had instructed Covert to pick them up at the Sacramento airport that day as they were arriving on a flight from Los Angeles.
The police pre-arranged for Covert to signal from the vehicle he was driving if Covert discovered that Joseph and Albert Kinsey were transporting cocaine from Los Angeles. When Covert gave the pre-arranged signal numerous marked and unmarked law enforcement vehicles stopped Covert's vehicle. After the occupants exited the vehicle the officers discovered approximately 12 ounces of "rock" cocaine and two shredded airline tickets on the floorboard directly below the seat which Albert Kinsey had occupied. The police arrested Joseph and Albert Kinsey.
On February 6, 1987, the Grand Jury for the Eastern District of California charged Joseph Kinsey, Albert Kinsey and Porter in Count 1 of the Indictment with violation of Title 21 U.S.C. Section 841(a)(1), 846--Conspiracy to Distribute Cocaine Base. Count Two of the Indictment charged Porter with violation of Title 21 U.S.C. Section 841(a)(1)--Possession with Intent to Distribute Cocaine Base on December 28, 1986. Count Three of the Indictment charged Joseph Kinsey with violation of Title 21 U.S.C. Section 841(a)(1)--Possession with Intent to Distribute Cocaine Base on December 28, 1986. Count Four charged Joseph and Albert Kinsey with violation of Title 21 U.S.C. Section 841(a)(1)--Possession with Intent to Distribute Cocaine Base on January 11, 1987.
On March 4, 1987, Porter entered a guilty plea to Count Two of the Indictment and on April 15, 1987, Porter was sentenced to eight years in prison with a ten-year special parole term. April 1, 1987, the government filed an Information in the within case against Joseph and Albert Kinsey charging prior felony narcotics offenses pursuant to Title 21 U.S.C. Section 851. The jury trial as to Joseph and Albert Kinsey commenced on April 7, 1987. At the trial Covert testified that Joseph and Albert Kinsey were active "rock" cocaine dealers at and before the time of their arrests. Albert Kinsey testified that he was not a "rock" cocaine dealer and he had only visited Sacramento to help his son, Joseph Kinsey, with his legal troubles. Joseph Kinsey did not testify during the trial.
On April 14, 1987, the jury reached a verdict and found Joseph and Albert Kinsey guilty of all counts as charged against them. On May 27, 1987, the District Court denied Joseph Kinsey's motion challenging the prior narcotics trafficking conviction. Accordingly, on June 17, 1987, the District Court found that on September 23, 1977, Albert Kinsey was convicted of two violations of California Health and Safety Code Section 11351--possession of cocaine and heroin for purpose of sale. The District Court also found that on February 18, 1986, Joseph Kinsey was convicted of a violation of California Health and Safety Code Section 11360(a)--sale of marijuana. In light of appellants' prior convictions, the District Court imposed separate 20 year sentences upon both Joseph and Albert Kinsey as to Count 1 and placed them on probation for a period of five years as to the remaining counts. Joseph and Albert Kinsey timely filed Notices of Appeal on June 17, 1987.
Joseph Kinsey contends that the District Court committed reversible error by admitting the expert testimony of Detective Torres. Joseph Kinsey's argument revolves around the following relevant portions of Detective Torres' trial testimony:
"BY MR. PORTANOVA:
Q. Detective Torres, is it your opinion that there was more than one person involved in the distribution of the cocaine that was found in Room 260?
A. Yes, sir.
* * *
Q. Is there anybody in this room who, in your opinion, was involved in the distribution of that cocaine?
* * *
A. Yes, sir.
Q. And who was that?
* * *
A. Joseph Kinsey.
Q. And what led you to that conclusion?
A. Joseph Kinsey had the major stash, the amount, the large amount of cocaine with him. Even though this bag had the name of Porter, he had access to the bag. Mr. Porter did not. Mr. Porter had a small amount of cocaine, was probably making deliveries, also had a small amount of cash, probably also making pickups, and that was my opinion.
Q. The--when you walked into the motel room, where was Mr. Joseph Kinsey relative to the narcotics on the nightstand?
A. Approximately two feet away.
Q. And what's the approximate value of that cocaine if it's broken up into small gram quantities?
A. Well, each ounce is $2,800.00.
Q. So four--
A. Times four--
Q. Times four.
A. So somewhere over $10,000.00?
Q. Somewhere there."
Joseph Kinsey asserts that since one's intent to distribute is a necessary element of the counts charged against him the District Court should not have allowed Detective Torres to testify that he, Joseph Kinsey, was "involved in the distribution of that cocaine." Joseph Kinsey contends that the inference which the jury allegedly drew from such testimony was that he was not merely in the presence of the cocaine but that he also intended to distribute it.
The decision to admit expert testimony is committed to the discretion of the court and will not be disturbed unless manifestly erroneous. United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987). See United States v. Andersson, 813 F.2d 1450, 1458 (9th Cir.1987); United States v. McCollum, 802 F.2d 344, 345-46 (9th Cir.1986); United States v. Fleishman, 684 F.2d...
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