U.S. v. Milham

• Decision Date: 08 January 1979
• Docket Number: 78-1180,Nos. 78-1154,s. 78-1154
• Citation: 590 F.2d 717
• Parties: 3 Fed. R. Evid. Serv. 894 UNITED STATES of America, Appellee, v. Jane Elizabeth MILHAM, Appellant. UNITED STATES of America, Appellee, v. Calvin MERCHANT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 717

590 F.2d 717

3 Fed. R. Evid. Serv. 894

UNITED STATES of America, Appellee, v. Jane Elizabeth MILHAM, Appellant.

UNITED STATES of America, Appellee, v. Calvin MERCHANT, Appellant.

Nos. 78-1154, 78-1180.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 19, 1978.

Decided Jan. 8, 1979.

Phillip S. Resnick, Minneapolis, Minn., for appellant Milham.

Tyce S. Smith, Waynesville, Mo., for appellant Merchant; Allan Ackerman, Chicago, Ill., on brief.

Ann D. Montgomery, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on brief.

Before LAY, ROSS and McMILLIAN, Circuit Judges.

ROSS, Circuit Judge.

Appellants in this case challenge their convictions for heroin distribution, possession of heroin and cocaine with intent to distribute, and conspiracy to distribute heroin, all in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. ¹ Several grounds are alleged for reversal; however, we affirm.

The evidence which follows was adduced at trial and led to the appellants' arrests and convictions. Minneapolis Police Officer Susan Belkair, working in an undercover capacity, purchased heroin on two occasions from Michael McWhite. ² Appellant Jane Milham was observed picking McWhite up in her automobile and driving him away after the first sale. Subsequent analysis revealed appellant Merchant's left thumbprint on the heroin bindles used in the first transaction.

Appellant Milham also drove McWhite to make the second sale of heroin to Officer Belkair. In the course of the second sale McWhite, in talking to Belkair, implicated both appellants in the conspiracy to distribute heroin.

The third sale of heroin by McWhite to Belkair resulted in the arrest of appellants and McWhite. On that occasion Belkair drove McWhite to a hotel where McWhite had indicated his source and his source's partner were staying. ³ Belkair advanced $1,500 of marked government currency to McWhite for the purchase. McWhite proceeded to the appellants' hotel room which was registered under the name of J. E. Milham of Merchant Enterprises. He then returned to Belkair's car with the heroin, completed the transaction, and returned for a second time to appellants' hotel room. The next time he left the room he was arrested. ⁴

Later the same day, pursuant to a search warrant, D.E.A. agents searched appellants' hotel room and arrested the appellants. A frisk search of appellant Merchant revealed $1,460 of the marked government currency. A search of the bathroom area revealed a sophisticated torsion balance scale on which Merchant's fingerprints were later found. Finally, the search of a suitcase to which Milham possessed the keys yielded one hundred grams of heroin and fifty grams of cocaine.

After appellants were in custody a warrantless search of appellant Merchant's van by D.E.A. agents yielded a loaded pistol as well as evidence of similar heroin dealings by Merchant in Wisconsin. The search was conducted pursuant to 21 U.S.C. § 881(a) and (b), a forfeiture statute which permits the seizure of vehicles used in illegal drug transactions. The government introduced the evidence from the automobile search in the rebuttal portion of its cross-examination of appellant Merchant.

I. MERCHANT

Appellant Merchant challenges his conviction on three grounds. First, he argues that the warrantless search and seizure of his van was unreasonable and that the district court erred in overruling his motion to suppress the evidence yielded by its search. Second, he contends that the introduction of the pistol in the rebuttal portion of the government's case was unrelated to the drug charges and constitutes prejudicial error. Finally, Merchant argues that the district court's failure to give a cautionary instruction on the proper use of the rebuttal evidence constitutes plain error. We find Merchant's arguments to be without merit and affirm his conviction.

A. D.E.A. agents searched and seized Merchant's van pursuant to 21 U.S.C. § 881(a) and (b), a forfeiture statute which permits the warrantless seizure of a vehicle if there is probable cause to believe that it has been used to facilitate the sale of illegal drugs. United States v. Capra, 501 F.2d 267, 280 (2d Cir.), Cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1974). Furthermore, the Supreme Court has held that where there is probable cause to seize a vehicle under a forfeiture statute, no warrant is required for an attendant search of the vehicle. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1966). Under a similar Treasury Department forfeiture statute, this court held that a warrantless search and seizure of an automobile was reasonable where there was probable cause to believe the vehicle was used to transport counterfeit money. United States v. Young, 456 F.2d 872, 875 (8th Cir. 1972).

In this case D.E.A. agents had probable cause to believe that appellant's van was used to facilitate the transportation and sale of illegal drugs. McWhite stated to Officer Belkair that his drug sources were in town from Milwaukee, Wisconsin. Appellant's van was licensed in Wisconsin. McWhite also stated that his sources were staying at a local hotel. It was at that hotel that appellant was arrested. One hundred grams of heroin and fifty grams of cocaine were seized from the hotel room at the time of appellant's arrest. Clearly, illegal drug transactions had occurred and were verified by undercover agents. From the circumstances it was certainly reasonable to infer that the out-of-state drug dealers, residing temporarily in a hotel room and hiding the drugs there, had transported the drugs in the Wisconsin-licensed van they had parked outside. ⁵ We conclude that the requisite probable cause showing under the forfeiture statute was supplied, and that the evidence yielded as a result of the search is admissible at trial. United States v. Capra, supra,501 F.2d at 279-80; United States v. Young, supra, 456 F.2d at 873, 875. The district court properly denied Merchant's motion to suppress the evidence seized from his van.

B. Alternatively Merchant argues that even if the search was proper, the district court erred in admitting a gun into evidence in the rebuttal portion of the government's case. He urges us to hold that the prejudicial impact of this evidence is so great as to require a reversal of his conviction. We disagree.

Merchant testified that he was in Minneapolis on business and denied any knowledge of the presence of controlled substances in the hotel room. He further denied any involvement in the September 11, 1977 drug sale. During cross-examination and in response to questions designed to test his veracity regarding his presence in Minneapolis for valid business purposes, he denied any knowledge of the presence of a gun in his van. In rebuttal the government introduced the gun yielded in the search of appellant's van. ⁶

The Supreme Court has stated that if a criminal defendant "takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness * * *." Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1957). See also United States v. Webb, 533 F.2d 391, 395-96 (8th Cir. 1976). A matter is relevant for impeachment if the fact could be proved for a purpose independent of the contradiction. See United States v. Harris, 542 F.2d 1283, 1306-07 (7th Cir.), Cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1976).

The gun was relevant to the issues upon which Merchant was tried. "Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment." United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), Cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976). Additionally, the weapon was probative of the fact that appellant "took the natural precautions that might be expected when goods are sold for a large amount of cash." United States v. Pentado, 463 F.2d 355, 360 (5th Cir.), Cert. denied, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972), 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973). United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.), Cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). See also United States v. Phillips, 433 F.2d 1364, 1367 (8th Cir. 1970), Cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971).

Admissibility of evidence, as well as rulings governing cross-examination, lie within the discretion of the trial judge and will not be disturbed absent an abuse of discretion. United States v. Merry, 514 F.2d 399, 400 (8th Cir. 1975); Wangrow v. United States, 399 F.2d 106, 115 (8th Cir.), Cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). Furthermore, the task of balancing the probative value of the evidence against its prejudicial impact falls within the sound discretion of the trial court. United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1978). Accordingly we hold that the district court did not abuse its discretion in admitting the gun into evidence.

C. Finally Merchant contends that the trial court erred in failing, Sua sponte, to instruct the jury on the limited purposes for which the government's rebuttal evidence was offered. ⁷ Merchant concedes that his failure to request the instruction at trial requires him to demonstrate plain error to prevail on this issue. Fed.R.Crim.P. 52(b).

In judging the adequacy of the district court's jury instructions we have considered the court's charge to the jury as a whole. United States v. Kershmann, 555 F.2d 198, 201 (8th Cir.), Cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977). We are satisfied that the omission of the limiting instruction was not prejudicial and does not rise to the...