U.S. v. McNeil

• Decision Date: 15 June 1999
• Docket Number: No. 98-4013,98-4013
• Citation: 184 F.3d 770
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. CHARLES MCKAY MCNEIL, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 770

184 F.3d 770 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. CHARLES MCKAY MCNEIL, APPELLANT.

No. 98-4013

U.S. Court of Appeals, Eighth Circuit

Submitted: June 15, 1999

Filed: July 16, 1999

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Robert J. Ramsey, Jr., Los Angeles, CA, for appellant.

Jeffrey S. Paulsen, Minneapolis, MN, argued (B. Todd Jones, U.S. Attorney, on the brief), for appellee.

Before Richard S. Arnold and Loken, Circuit Judges, and BYRNE,¹ District Judge.

Byrne, District Judge.

Charles McKay McNeil appeals his conviction following a jury trial for conspiring to distribute and distributing methamphetamine in violation of 21 U.S.C. §§ 841, 846. We affirm.

I. BACKGROUND

On July 1, 1997, McNeil was indicted on one count of conspiring to distribute and one count of distributing approximately 30 pounds of methamphetamine. On December 9, 1997, a jury found McNeil guilty on both counts.

Valdemar Posadas testified against McNeil at trial. Posadas had earlier pleaded guilty to conspiring to distribute methamphetamine and agreed to cooperate with the government. Posadas testified that Eustolio Vargas, a California resident, sold large quantities of methamphetamine and cocaine on a regular basis to a person in Minnesota named Narcisco Delgado, a/k/a "Geuro." Vargas, who remains a federal fugitive, employed couriers to transport the drugs from California to Minnesota. Posadas worked for Vargas. His role was to fly to Minnesota and supervise the delivery of the drugs from the courier to Delgado or Delgado's designee.

In October 1996, Vargas sent Delgado a shipment of 30 pounds of methamphetamine from California to Minnesota. McNeil was the courier who transported the drugs to Minnesota in a newly acquired white Dodge pickup truck. Prior to the trip, Vargas and McNeil decided to re-register the truck in Utah with Utah license plates, which Vargas and McNeil thought would attract less police attention than California plates. While McNeil was driving across country, Posadas flew to Minnesota to await McNeil's arrival. Posadas stayed in an apartment in St. Paul provided by Delgado.

When McNeil got to St. Paul, he called for directions to the apartment, where Posadas, Delgado, and Delgado's girlfriend, Rosalina Lopez, were awaiting his arrival. Because Posadas spoke little English, he had Lopez give McNeil the directions. Delgado and Lopez got tired of waiting for McNeil and left. McNeil arrived later and gave the 30 pounds of methamphetamine to Posadas. Posadas then called Lopez and had her come and pick up the drugs. Later, Vargas told Posadas to pay McNeil for driving the drugs to Minnesota. Posadas testified that he paid McNeil $9,000 and then went back to California.

In early November 1996, Posadas returned to Minnesota because Delgado was slow in paying Vargas for the methamphetamine, which had been provided to him on credit. The plan was for Posadas to repossess 15 pounds of methamphetamine from Delgado and then for McNeil to drive it back to California. However, Vargas later decided it was too risky to transport the drugs back to California. At Vargas' direction, Posadas sold the 15 pounds of methamphetamine to another co-conspirator in Minnesota, Javier Nunez. That methamphetamine was subsequently seized by FBI agents during a search of Nunez's storage locker.

Lopez, who had also pleaded guilty to methamphetamine conspiracy charges and agreed to cooperate with the government, corroborated Posadas' testimony. Lopez confirmed that her boyfriend, Delgado, distributed large quantities of cocaine and methamphetamine in Minnesota that were supplied by Vargas. Lopez testified that she gave McNeil directions to the apartment on the day the drugs were delivered. After McNeil delivered the drugs to Posadas, Lopez picked up the drugs from Posadas and stored them for Delgado until they could be sold. Lopez testified that she met McNeil face-to-face when she was told by Delgado to pay McNeil some money. McNeil came to her daughter's house and Lopez paid him $10,000 or $11,000.

Elizabeth Cordova, Vargas' girlfriend, testified that she was aware that Vargas was selling large quantities of cocaine and methamphetamine to a person in Minnesota named "Guero" and that McNeil was a frequent drug courier for Vargas. Cordova was aware of at least three to five drug trafficking trips that McNeil made for Vargas, and she personally made at least one drug trafficking trip to Minnesota for Vargas. Cordova testified that Vargas paid McNeil $10,000 for each trip. The government granted immunity to Cordova in return for her testimony against McNeil.

Telephone records and search warrant evidence corroborated the testimony of the cooperating witnesses. FBI agents executed a search warrant at McNeil's residence in Minnetonka, Minnesota on April 2, 1997. In McNeil's bedroom, they found a piece of paper with both Posadas' and Lopez's telephone numbers on it, as well as the address of the apartment where McNeil had delivered the 30 pounds of methamphetamine. Agents also found documents relating to the re-registering of the white Dodge pickup truck in Utah approximately a week before McNeil's trip to Minnesota.

McNeil testified in his own defense. He acknowledged that he knew Vargas, Cordova, and Posadas. He also admitted speaking with and meeting Lopez, but he denied receiving any money from her. McNeil, who was in the automobile credit repair and insurance business, stated that he and Vargas, who worked for an automobile dealer, would refer business to one another and that it was through this association that he met Cordova and Posadas. When McNeil moved to Minnesota, Vargas told him to contact Posadas, who had earlier moved there and opened a Mexican restaurant. McNeil testified that Posadas telephoned him in late October and asked if McNeil would visit him. McNeil agreed, and a woman gave him directions to the apartment where Posadas was staying. McNeil denied delivering or seeing any drugs at the location and, when Posadas subsequently contacted McNeil and requested that he send $118,000 to Vargas, McNeil declined. A number of defense witnesses corroborated various parts of McNeil's testimony.

Following McNeil's conviction, the district court denied McNeil's motion for a new trial. The court sentenced McNeil to the mandatory minimum term of 120 months imprisonment, to be followed by five years of supervised release. The sentence included a 31-month downward departure pursuant to U.S.S.G. § 5K2.0.

II. DISCUSSION

McNeil contends on appeal that the district court erred when it: (1) denied his motion to suppress evidence; (2) admitted prior bad act evidence; (3) failed to charge the jury on the theory of his defense; and (4) denied his motion for a new trial.

A. Motion to suppress

McNeil claims that the district court erred in denying his motion to suppress evidence obtained from his Minnesota residence pursuant to a March 25, 1997 search warrant. In the warrant affidavit, an FBI agent stated that a wiretap investigation into the drug trafficking organization of which McNeil was a part began on September 9, 1996. The agent averred that a search of Nunez's locker on December 5, 1996, turned up 15 pounds of methamphetamine and that, shortly after that search, twelve persons, including Lopez and Posadas, were indicted for federal drug violations. The agent's affidavit set forth Lopez's and Posadas' statements to him regarding McNeil's October 1996 drug delivery.

McNeil asserts that the information contained in the search warrant affidavit was stale and insufficient to establish that contraband or evidence of crime would be found at his residence. McNeil also contends that the search warrant affidavit contained false statements and material omissions and that he was entitled to a Franks hearing to determine the validity of the warrant.

1. Staleness

We review de novo the trial court's ruling on a motion to suppress, "evaluating only for clear error, however, any findings of fact by the trial court and giving appropriate deference to the inferences apparently drawn from those facts by law enforcement officers, the court that issued the search warrants, and the trial court." United States v. Hall, 171 F.3d 1133, 1142 (8th Cir. 1999). Because McNeil never challenged the search warrant on staleness grounds in the district court, the issue has not been properly preserved for appeal, and our review is for plain error. See United States v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994). Plain error is "clear or obvious" error that affects a defendant's substantial rights. United States v. Johnson, 12 F.3d 827, 835 (8th Cir. 1994). "Even clear errors will only matter if a miscarriage of Justice would otherwise result that might seriously affect the fairness, integrity, or public reputation of the judicial proceedings." United States v. Tulk, 171 F.3d 596, 599 (8th Cir. 1999).

"There is no bright-line test for determining when information is stale... and the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit." United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993). Rather, "[t]ime factors must be examined in the context of a specific case and the nature of the crime under investigation." Id. The evidence sought under the search warrant in this case-- primarily books and records relating to drug trafficking, as well as names, addresses, and photographs of co-conspirators -- is of a type that might have remained on the premises for some time after McNeil's drug courier activities were complete. See United States v. Humphrey, 140 F.3d 762, 764 (8th Cir. 1998). Moreover, even if the information in the warrant affidavit was impermissibly stale, the warrant was not so facially lacking in probable cause as to preclude the executing...