U.S. v. Moore
| Decision Date | 10 July 1992 |
| Docket Number | 1809,1583,Nos. 1582,1554,D,s. 1582 |
| Citation | 968 F.2d 216 |
| Parties | UNITED STATES of America, Appellee-Cross-Appellant, v. William Andrew MOORE, James A. Carrington and Joseph Donahue, Defendants-Appellants-Cross-Appellees. ockets 91-1024, 91-1025, 91-1026, 91-1066. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles L. Roberts, El Paso, Tex., for defendant-appellant-cross-appellee Moore.
Thomas M. Flannery, Albany, N.Y., for defendant-appellant-cross-appellee Carrington.
Meave M. Tooher, Albany, N.Y., for defendant-appellant-cross-appellee Donahue.
Bernard J. Malone, Jr., Asst. U.S. Atty., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., Northern District of New York, Barbara D. Cottrell, Asst. U.S. Atty., Albany, N.Y., of counsel), for appellee-cross-appellant.
Before WINTER, MAHONEY and ALTIMARI, Circuit Judges.
This appeal and cross-appeal arise out of the convictions and sentences of Joseph F. Donahue, James A. Carrington, and William A. Moore by a jury before Judge Gagliardi in the Northern District of New York. All were found guilty of conspiring to possess with intent to distribute in excess of 100 kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1), 846 (1988). Defendants Donahue and Carrington were also convicted of the substantive offense of possession with intent to distribute. 21 U.S.C. § 841(a)(1).
Donahue argues that evidence obtained after the execution of a search warrant at his residence was admitted in violation of the Fourth Amendment because the warrant was not supported by probable cause and because the "good faith" exception to the exclusionary rule does not apply. We disagree. Despite the warrant's technical deficiencies, the officers acted reasonably in relying on the magistrate's finding of probable cause. We reject Donahue's other arguments.
The government cross-appeals Donahue's sentence on the ground that his driving while ability impaired ("DWAI") convictions should have been counted in the determination of his Criminal History Category under Guidelines Section 4A1.2. The government also contests the district court's two-level reduction in Donahue's Base Offense Level pursuant to Guidelines Section 3E1.1(a) for acceptance of responsibility. We vacate and remand the sentence on the first ground.
Carrington and Moore also appeal the district court's determination of the applicable Base Offense Level. We reject their arguments. The government cross-appeals the two-level reduction of Carrington's Base Offense Level for acceptance of responsibility. We reject this argument.
Moore challenges the sentencing court's finding of Career Offender status pursuant to Guidelines Section 4B1.1 because it was predicated on a conviction that fell outside the statutory time frame designated by Guidelines Section 4A1.2. We remand for a finding as to the proper time frame and as to the nature of Moore's sentence for the prior offense.
On June 7, 1989, Sergeant Robert Kroll of the East Greenbush (Rensselaer County), New York police department received a phone call from a narcotics officer in El Paso, Texas. Kroll was informed that a drug surveillance dog at the United Parcel Service ("UPS") El Paso branch had alerted officers to two large packages containing drugs. The packages were addressed to Donahue, who lived in Rensselaer County.
The following morning, police officers went to the UPS office near Albany where drug surveillance dogs again alerted to the packages addressed to Donahue. The officers then obtained a search warrant and opened one of the packages. Inside they found a large cooler stocked with marijuana bricks. The officers planned a controlled delivery of the boxes to Donahue by undercover police officers posing as UPS delivery men.
Meanwhile, Kroll, who appears to have been somewhat innocent of the complexities of Fourth Amendment warrant requirements, had drafted a typewritten application for a search warrant of Donahue's residence. Detective Timothy Murphy, who was more experienced than Kroll in preparing applications for search warrants, sought to provide assistance. He gave Kroll handwritten notes describing the contents of the packages and their approximate weight. Believing that the warrant would be obtained only after the packages were actually delivered, Murphy's notes Unknown to Murphy, Kroll took Murphy's handwritten notes, attached them to the typewritten application, and proceeded to the office of Judge Charles Assini in East Greenbush. Although Kroll had signed the search warrant application, he did not actually appear before Judge Assini and take an oath as to its contents. Instead, he remained in the patrol car to monitor the radio while another East Greenbush police officer, Michael Davidson, brought the application and proposed warrant to the judge. Davidson described the events that led to the investigation, the fact that the dogs had alerted to the packages, and the prospect of a controlled delivery sometime in the future. Judge Assini read the application, asked some questions about the case, and signed the warrant. He did not put Officer Davidson under oath. The warrant permitted a search of Donahue's apartment for the El Paso coolers and records or documents relating to the drug scheme. At the suppression hearing, Judge Assini testified that when he signed the warrant, he was well aware that the packages had not been delivered to Donahue's apartment, despite the statement to the contrary in Murphy's handwritten addendum.
stated that the boxes had been delivered and accepted by Donahue.
Undercover officers then attempted the controlled delivery at Donahue's apartment, but he was not there. The officers left a UPS notice that the packages could be picked up at its office. Soon thereafter, a man claiming to be Donahue arrived at the UPS office and picked up the drugs. When Kroll learned by radio of the description of the man, he realized that the man was not Donahue. Kroll attempted to follow the car but lost it in a ninety-mile-per-hour chase in heavy traffic.
Several hours later, Kroll executed the search warrant at Donahue's apartment, finding drug records, marijuana, drug paraphernalia, and Donahue, who was arrested. The UPS packages from El Paso were not found.
While Donahue's apartment was being searched, another officer found the car used in the UPS pick-up and the driver, Scott Rehme. Rehme later agreed to cooperate with the authorities in return for immunity from prosecution. As part of the agreement, Rehme told police about the El Paso-Albany drug connection and provided details regarding past shipments, their recipients, and dates of future shipments. Rehme also agreed to participate in a sting operation and called Moore in Texas to order marijuana to be shipped to Donahue. On June 13, accompanied by police, Rehme picked up a large parcel sent by Moore to Albany. Rehme then made a controlled delivery to Carrington, and Carrington was arrested. Moore was arrested in El Paso.
Donahue moved for suppression of the drugs, drug paraphernalia, and drug records found at his residence, arguing that the evidence was admitted in violation of the Fourth Amendment. Judge McAvoy granted Donahue's request for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), 1 to test the truthfulness of the information contained in the application for the search warrant. The suppression hearing was before Judge Munson, who denied the motion. United States v. Moore, 742 F.Supp. 727 (N.D.N.Y.1990). In doing so, he parsed the warrant into anticipatory and non-anticipatory aspects:
[T]he warrant was anticipatory insofar as it sought to recover the two packages which were to be delivered to the defendant's residence. However, insofar [as] the warrant sought records or documents related to the delivery of the two packages it was not contingent upon the delivery of the packages and was therefore, in that aspect, non-anticipatory.
Regarding the two boxes (the "anticipatory aspect" of the warrant), Judge Munson However, Judge Munson held that the "good faith" exception to the exclusionary rule applied because "the officers were entitled to rely on Judge Assini's determination that there was probable cause that the records or documents would be located [at Donahue's apartment]." Id. at 739. He therefore denied the motion to suppress.
held that issuance of the warrant violated the Fourth Amendment. He reasoned that the "anticipated probable cause vanished with the car," because, absent delivery of the packages to Donahue's residence, there was no probable cause to search for them there. Id. at 736. Judge Munson also held that the warrant's provisions regarding documents or records concerning drug transactions (the "non-anticipatory aspect") violated the Fourth Amendment: "With the description of only one planned delivery of marijuana, the facts contained in the warrant application did not give rise to a fair probability that Donahue's residence would yield records of drug transactions." Id. at 737 (citation omitted). Additionally, Judge Munson stated that the warrant in its entirety violated the Fourth Amendment because its contents were not supported by oath or affirmation as the Amendment expressly requires. Id. at 735
After a jury trial before Judge Gagliardi, each appellant was found guilty on Count I of the indictment, conspiring to possess with intent to distribute more than 100 kilograms of marijuana. See 21 U.S.C. §§ 846 and 841(a)(1). Donahue and Carrington were also found guilty of possession with intent to distribute more than 100 kilograms of marijuana, 21 U.S.C. § 841(a)(1), on Counts III and IV respectively.
Donahue's Base Offense Level was calculated at 26, after a two-level...
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