U.S. v. McNeese

Citation901 F.2d 585
Decision Date02 May 1990
Docket NumberNos. 88-1951,88-1952,s. 88-1951
Parties30 Fed. R. Evid. Serv. 383 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. McNEESE and Laura Conwell, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

James L. Santelle, R. Jeffrey Wagner, Maxine A. White, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Matthew L. Jacobs Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Marna M. Tess-Mattner, Jeffrey A. Kaufman, Franklyn M. Gimbel, Gimbel, Reilly, Guerin & Brown, Milwaukee, Wis., for Michael J. McNeese.

Robert J. Lerner, Milwaukee, Wis., for Laura Conwell.

Before CUMMINGS and KANNE, Circuit Judges, and GRANT, Senior District Judge. *

GRANT, Senior District Judge.

Following a jury trial in the United States District Court for the Eastern District of Wisconsin, defendants Michael McNeese and Laura Conwell were convicted of conspiracy to possess with intent to distribute cocaine and of possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and of 18 U.S.C. Sec. 2. McNeese and Conwell appeal their convictions and sentences on six grounds. On all issues we affirm.

Background

When narcotics courier Thomas Chase was arrested in late January 1987, with a supply of cocaine obtained from Michael McNeese and Laura Conwell in his possession, he chose to plead guilty and to cooperate with the police investigation of the cocaine distribution scheme in which he had been involved. Chase identified McNeese and Conwell (the appellants before this court) and Peter Zink as participants in the drug conspiracy. 1 Chase himself had been Zink's courier in drug transactions since August 1985, and had picked up cocaine from McNeese, Zink's source, on fifteen to twenty occasions between August 1986 and January 1987. According to Chase, at five of these meetings Laura Conwell accompanied McNeese.

Evidence of this drug conspiracy also came from another informant, a drug "customer" named Mark Stauss, who identified Zink as his source of cocaine. In October 1986 Stauss cooperated with the police by engaging in a controlled purchase of cocaine from Zink. When Zink heard that the police were seeking to arrest him for his cocaine sale to Stauss, Zink ordered Chase to kill Stauss. Chase did in fact shoot Stauss; it was following his arrest for the attempted murder of Stauss that Chase identified Zink and the defendants McNeese and Conwell as conspirators in a cocaine distribution scheme. On March 19, 1987, Chase gave his statement to law enforcement agents; on April 1, he identified Laura Conwell's residence and automobile.

When agent John Schaefer sought warrants to search the residences of McNeese and Conwell on August 28, 1987, he filed an affidavit in support of the warrants that described the information from Chase and the subsequent evidence collected for a sufficient showing of probable cause. Beginning on March 30, 1987, as part of the drug investigation sparked by Stauss' arrest, federal and local drug enforcement agents began conducting surveillance of the residences of McNeese and Conwell, and regularly searched the garbage containers placed on the curbs in front of their houses. The affidavit reported that kilogram-size packaging materials with cocaine residue were found in the garbage left outside Conwell's residence on March 31 and April 28, 1987. Moreover, in that second search the latent fingerprints of Michael McNeese were discovered on one of the paper bags in which were the wrappers and plastic bags with trace amounts of cocaine. McNeese's garbage, searched May 17, 1987, revealed a torn note from Peter Zink's wife to McNeese alerting him that Chase was cooperating with law enforcement in the investigation of the drug conspiracy. Between June 12 and August 12, 1987, as part of their investigation, the police and special agents collected data about telephone calls made from the residences of McNeese, Conwell, Zink and Chase. They listed hundreds of calls back and forth between the co-conspirators themselves and between them and others identified as narcotics customers. Surveillance of McNeese and Conwell between July 23 and 27, 1987 revealed five incidents of extremely brief meetings with others, often in cars. After listing this evidence, agent Schaefer concluded the affidavit by presenting the knowledge he had gained about drug trafficking, based on his training and experience in controlled substance investigations.

At trial, the testimony of agents, officers, fingerprint and narcotic experts, and the unindicted co-conspirator Thomas Chase presented evidence of the defendants' participation in the drug conspiracy that filled in the interstices between the facts offered in the affidavit. Several witnesses described the frequent movement of Conwell and McNeese between their residences and together to other locations, sometimes carrying packages. Officers on surveillance observed Conwell placing the garbage outside her home on March 30, 1987, before driving to McNeese's residence. Those garbage bags, retrieved by officers in the early hours of March 31, contained cocaine residue. McNeese's garbage contained other evidence of drug activity, according to the testimony: notes to "Mike" from "Laura" and from "Bobby" (the nickname of Zink's wife), scraps of paper with handwritten notes referring to "Eastern" and "Northwestern," airline baggage tags and telephone messages.

On August 28, 1987, McNeese and Conwell were arrested and their homes searched pursuant to a warrant. Various types of gambling equipment and $25,000 in cash were found in McNeese's house; a small amount of cocaine and a scale were seized in Conwell's apartment.

McNeese and Conwell were subsequently indicted and charged with one count of conspiracy to possess with intent to distribute cocaine and two counts of possession with intent to distribute approximately one kilogram of a mixture containing cocaine. The defendants' motion to suppress was denied without an evidentiary hearing. Following a jury trial McNeese was convicted on all three counts; he was fined $20,000 and was sentenced to a total of twelve years of imprisonment, five years of which are mandatory with no eligibility for parole, plus a supervised release term of four years. Conwell was convicted on counts one and two and was sentenced to five mandatory years in custody, without eligibility of parole, followed by four years of supervised release. Their appeals were timely filed.

Issues Presented

On appeal, McNeese and Conwell have raised six objections to the decision below. The first focus of their appeal is the magistrate's probable cause determination and the district court's denial of their motion to suppress evidence obtained in the searches of their residences. Other evidentiary issues raised are the district court's admission of evidence of the acts of co-conspirators and the sufficiency of evidence of cocaine possession. In addition, appellants challenge the court's striking of the citation to 21 U.S.C. Sec. 846 from counts 2 and 3 of the indictment; its unconstitutional application of the mandatory minimum penalty of 21 U.S.C. Sec. 841(b)(1)(B) in the sentencing of Conwell; and its improper jury instructions on the legal concepts of aiding and abetting.

I. Probable Cause and the Motion to Suppress

Defendant McNeese challenged the magistrate's probable cause determination in his and Conwell's motion to suppress the evidence obtained by the government during a search of their homes on August 28, 1987.

A. Decisions below

The disposition of this suppression and other pretrial motions was referred to United States Magistrate Robert L. Bittner, who recommended that each defendant's motion to suppress be denied. The magistrate found that the affidavit in support of the search warrants established probable cause to believe that a crime was being committed. Examining the search warrants he determined that they contained neither material omissions of fact nor overbroad descriptions of the property to be seized; furthermore, they were presented in good faith and issued by a neutral magistrate. Finally, he recommended that the defendants' request for an evidentiary Franks hearing 2 be denied because he found no false statements or material omissions of fact in the affidavit that would require such a hearing.

Senior District Judge John W. Reynolds, adopting the magistrate's recommendation, denied defendants' motion to suppress. The district court agreed that the affidavit clearly disclosed probable cause to believe that the defendants were engaged in a drug conspiracy, and found personal observations of drug trafficking in the defendants' houses unnecessary to establish probable cause to search those residences.

The court was unpersuaded by defendants' arguments that the affidavit was based on stale information gathered by the affiant seven months before the warrant application was filed. Such a time period was of less significance in the eyes of the court when considering a conspiracy that had continued for more than two years. Moreover, surveillance of the two defendants less than one month prior to the warrant application revealed a pattern of fleeting meetings consistent with cocaine distribution. Therefore the court was satisfied that the information supporting the warrant was current and reliable, and that the warrant was based on probable cause. It was also satisfied that the warrant was sufficiently definite in its description of the evidence related to drug trafficking that the agents could determine what properties were sought with reasonable certainty.

Finally, the court concluded that a Franks hearing was not necessary, despite defendants' listing of facts omitted from the affidavit in support of the search warrant, because the omissions cited by the defendants were not material.

Although the affidavit does not disclose that the government's...

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