U.S. v. Lambert, 88-8716

• Citation: 887 F.2d 1568
• Decision Date: 14 November 1989
• Docket Number: No. 88-8716,88-8716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Bryce LAMBERT and Audra Brown Lambert, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1568

887 F.2d 1568

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Bryce LAMBERT and Audra Brown Lambert, Defendants-Appellants.

No. 88-8716.

United States Court of Appeals Eleventh Circuit.

Nov. 14, 1989.

Herbert Shafer, Atlanta, Ga., for V. Lambert.

Paul H. Kehir, Snellville, Ga., for A. Lambert.

Mary Jane Stewart, Asst. U.S. Atty., AUSA, Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, Circuit Judge, HILL ^*, Senior Circuit Judge, and POINTER ^**, Chief District Judge.

POINTER, Chief District Judge:

Audra and Vincent Lambert were convicted of conspiring to possess (Count 1), and possessing (Count 2), cocaine with the intent to distribute it. Vincent was also convicted (Count 3) of carrying a firearm while committing these offenses. Audra appeals from her conviction on Counts 1 and 2; Vincent appeals only from his conviction under Count 3. Stressed by appellants during oral argument were Audra's claim that a search warrant was issued without the requisite supporting affidavit and Vincent's claim that the trial court committed error by failing to give an erroneous instruction to the jury. We affirm.

I. Audra Lambert.

Audra Lambert challenges the warrantless search of her car incident to her arrest, arguing that the officers lacked probable cause to arrest her. She also challenges the search of her home the following day, asserting that the warrant for the search was obtained from the Magistrate without any supporting affidavit and that the search exceeded the scope of the warrant. Finally, she challenges the sufficiency of the evidence to support her conviction on the possession charge, Count 2. We first address this latter contention because a discussion of the evidence places in context her claim that she was arrested without probable cause.

A. Sufficiency of Evidence.

Sufficiency of the evidence is reviewed according to the standard stated by the Supreme Court in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942): "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." See, e.g., United States v. Greer, 850 F.2d 1447, 1450 (11th Cir.1988). Viewed in the light most favorable to the prosecution, the evidence establishes the following:

In early October 1987, Vincent Lambert asked his old friend, Andread Shivers, to fly with his wife (Audra Lambert) from Atlanta to Miami and then return by bus to insure that a fourth individual brought a package to Atlanta. Vincent said that Shivers was better off not to know what would be in the package, but referred to it as "that girl", a street reference to cocaine.

Although not present during this conversation, Audra called Shivers the next day to see if she had decided to go with her to Miami. Shivers agreed to make the trip.

Audra picked Shivers up and took her to their house, where Shivers spent the night. Vincent and Audra asked Shivers to carry some money to Miami, and Audra taped some money to Shivers' back, as well as some between her own thighs. On the drive to the Atlanta airport, they picked up Tony Davis. The four flew to Miami, using tickets purchased by the Lamberts.

While in a Miami motel room shared with Audra, Shivers removed the money from her body and took a nap. When she awoke, a fifth individual--identified as "Al"--was in the room with them. Shivers noted that, after Vincent and Al left the room, the money was gone. When Vincent returned, he had the gray bag which Davis had brought from Atlanta and told Shivers to make sure Davis got back to Atlanta with the bag. Vincent gave Shivers money for the bus trip to Atlanta.

Vincent, Audra, Shivers and Davis took a cab to the bus station, where tickets were bought for Shivers and Davis. Audra gave Shivers three telephone numbers to call if anything went wrong. Shivers and Davis, carrying the bag, then departed on the bus.

At Fort Lauderdale narcotics officers boarded the bus, arrested Shivers and Davis and took the bag, which contained approximately three and one-half kilograms of cocaine. Shivers agreed to cooperate with the authorities. Approximately half of the cocaine was removed from the bag; the remainder was left in the bag for the expected controlled distribution.

Audra and Vincent, who had flown back from Miami, arrived at the Atlanta bus depot in separate cars a few minutes before the Miami bus was scheduled to arrive. After speaking briefly to Audra, Vincent went inside the depot alone. Shivers, who along with narcotics agents had reboarded the bus shortly before its arrival, handed Vincent the bag, explaining that Davis had gotten off the bus earlier.

Vincent walked away carrying the bag, with his other hand in a pocket of his windbreaker. When arrested, he refused to remove his hand from the jacket, even after one agent placed the barrel of a gun to his head. Ultimately the agents were able to get Vincent's hands into the air, and inside his pants behind the front belt buckle they found a loaded Rossi .38 special caliber revolver.

The officers then arrested Audra, who had continued to wait outside in the second car. Among the items found in the car during a search following her arrest were the bag that Shivers had taken for her overnight stay with Lamberts, a telephone beeper, and coupons reflecting the airline flights of the Lamberts, Shivers, and Davis. The following day agents obtained and executed a search warrant of the Lamberts' home, where they found paraphernalia used in the distribution of cocaine, additional weapons, and almost $90,000 in cash.

This evidence provides ample support for the jury's determination that Audra was guilty under Count 2 of possession with intent to distribute--not, obviously, for any personal possession, but rather for aiding and abetting Vincent in the offense. The jury was instructed about commission of an offense through aiding and abetting another, and Audra has not questioned the correctness of those instructions. The circumstantial evidence supports the conclusion that she actively participated in the commission of the crime and acted with the requisite wilfulness. That she would have been unaware that the contemplated crime had been consummated by delivery of the cocaine to Vincent inside the depot is immaterial.

B. Search of Car.

Also without merit is Audra's challenge to the search of her car, which is premised upon the alleged illegality of her arrest. The evidence clearly reflects that the officers had probable cause to arrest her outside the Atlanta bus depot--and this is so whether or not they also would have had probable cause to arrest her earlier.

C. Search of Residence--Missing Affidavit.

Defense counsel moved to suppress the evidence seized during the search of the Lamberts' residence on the basis of the undisputed fact that the court records did not contain an affidavit supporting the application for that search warrant. All agree that this warrant would be invalid under the Fourth Amendment and FED.R.CRIM.P. 41 unless it was supported by an affidavit establishing probable cause. ¹ The position of the prosecution is that, whatever may have happened to it later, a legally sufficient affidavit had been submitted to the Magistrate at the time the warrant was sought and approved.

We first hold that the failure to file and preserve a supporting affidavit in the clerk's office pursuant to FED.R.CRIM.P. 41(g) does not invalidate an otherwise proper search warrant. Of course, the absence from the court records of an affidavit constitutes some evidence that one did not exist and, depending on the circumstances, may preclude a determination that the warrant was issued on probable cause. However, other evidence may be presented to establish the fact that an affidavit was presented, as well as its contents.

In the present case the Magistrate conducted a lengthy evidentiary hearing on the defendants' motions to suppress. So far as pertinent to the issuance of the search warrant, the Magistrate's proposed findings of fact were accepted and adopted by the district court. These findings were, in essence, that at the time of obtaining the warrant Roderick Jordan, a state law enforcement officer assigned to the federal drug task force, had executed under oath before the Magistrate both the application and a supporting affidavit; that these documents had been returned to a deputy clerk in the Clerk's office; and that for unknown reasons the application and affidavit had subsequently become separated before docketing and filing, resulting in the loss of the affidavit. The contents of the affidavit were easily established because duplicates of the affidavit had been made and executed, one of which had been filed to support a Complaint. ²

Although the evidence before the trial court was not without conflict, these findings were not clearly erroneous. Accordingly, Audra's challenge to the validity of the search warrant must be rejected.

D. Search of Residence--Scope.

The warrant issued by the Magistrate respecting the search of the Lamberts' home directed the agents to search for and seize "large amounts of currency, documents relating to the receipt and distribution of controlled substances, weapons, and drug use and trafficking paraphernalia." Audra contends that the agents impermissibly exceeded the scope of this warrant by seizing many irrelevant items and, in essence, by conducting a general exploratory search of the home. The district judge found that the search did not constitute an unlawful "general search", and this finding is not clearly erroneous.

A search may be as extensive as reasonably required to locate the objects of the search. United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). The list of property seized from the...