U.S. v. Nembhard

• Citation: 676 F.2d 193
• Decision Date: 19 April 1982
• Docket Number: No. 81-1125,81-1125
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edward NEMBHARD and James Wilson, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 193

676 F.2d 193

UNITED STATES of America, Plaintiff-Appellant, v. Edward NEMBHARD and James Wilson, Defendants-Appellees.

No. 81-1125.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1982.

Decided April 19, 1982.

Richard A. Rossman, U. S. Atty., Maura D. Corrigan, Detroit, Mich., Joel Shere, Southfield, Mich., for plaintiff-appellant.

Howard J. Diller, Domenick Porco, New York City, for defendants-appellees.

Before BROWN and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BAILEY BROWN, Circuit Judge.

Appellees, Edward Nembhard and James Wilson, were arrested in Detroit Metropolitan Airport shortly after they deplaned from a flight from New York City when heroin was found in the luggage that Wilson was carrying. After they were indicted on four counts for possession of heroin with intent to distribute ¹ and aiding and abetting each other, ² the district judge heard and overruled their motion to suppress the evidence.

The case then went to trial. The testimony of the drug enforcement officer who had testified before the grand jury was supplied to the court and defense counsel, and it developed at the trial that part of this grand jury testimony was hearsay. The district judge then took under advisement defendants' motion to dismiss the indictment on the ground that the grand jury had been misled. Further, during the trial, defendants reasserted their motion to suppress on the ground that, they contended, the trial testimony showed that one of the officers who participated in the surveillance and arrest of defendants, in making his decision to approach and question them, in part relied upon the fact that defendants are black. The district judge also took this motion under advisement. The defendants were found guilty by the jury on all counts.

On the day the guilty verdicts were returned, the district judge filed an order, supported by two separate memoranda, granting the motions to suppress and to dismiss the indictment and setting aside the guilty verdicts. United States v. Nembhard, 512 F.Supp. 15 and 19 (D.C.E.D.Mich.1980). She determined that the conduct of the government and its witness before the grand jury in misleading the grand jury as to the hearsay nature of part of the testimony was so egregious as to require, in the exercise of supervisory capacity, a dismissal of the indictment. The district judge further determined that one of the surveillance officers had relied on inappropriate "racial stereotypes," that this reliance also tainted the decisions of all the officers who participated in the surveillance and questioning of the defendants, and that therefore the evidence must be suppressed.

The government then brought the instant appeal of the district court's decision suppressing the evidence and dismissing the indictment. We conclude that the record does not reflect a legitimate basis for dismissing the indictment. We further conclude that the district judge was correct in denying the motion to suppress prior to the trial and that the evidence adduced at the trial was not an adequate basis to change her decision. Accordingly, we vacate the order suppressing the evidence, dismissing the indictment and setting aside the guilty verdicts and remand for reinstatement of the indictment and the guilty verdicts and for entry of judgments of conviction.

I.

On April 21, 1980, Detective Sergeant Paul Cleaves of the Michigan State Police and Special Agent William Modesitt of the Drug Enforcement Administration (DEA) were observing deplaning passengers at Detroit Metropolitan Airport from an American Airlines flight from New York City, a source city for white heroin. Edward Nembhard and James Wilson were the first two passengers to deplane, Nembhard carrying a tan vinyl suitcase and Wilson carrying a black briefcase. Nembhard, who was in the lead, appeared to be in a hurry, and nervously scanned the deplaning area as if he were looking for someone. The two men did not walk together or speak to each other, and appeared not to know each other.

Both men walked to a bank of telephones near the deplaning lounge, made telephone calls while looking back in the agents' direction, and hung up at about the same time. Agent Modesitt left the lounge area to follow another passenger, a young white woman, before the termination of the phone calls, and Cleaves was left to continue the surveillance. Wilson hung up the telephone and began walking slowly toward the concourse. Nembhard also hung up his telephone, breezed past Wilson, and began walking up the concourse, staying about ten to twenty feet ahead of Wilson, who quickened his pace when Nembhard passed him. Nembhard constantly looked back toward the trailing agent as he continued up the concourse and slowed down periodically, allowing Wilson to catch up. The lead changed at one point, with Wilson passing Nembhard, but Nembhard regained the lead and eventually a sizeable interval between the two men emerged. Nembhard then stopped at a bank of telephones near the airport restaurant, and dialed a number without apparently depositing any money in the telephone. Nembhard hung up when Wilson caught up with him, and they began conversing as they entered the restaurant together. Wilson and Nembhard had not spoken to each other at any time during their journey down the concourse nor acknowledged each other's presence until this point.

His suspicions fully aroused, Cleaves called for assistance and he was eventually joined by Agents Bruce Bryda, Robert Dunn and Richard McCoy. Agent Modesitt also rejoined the surveillance at the restaurant. Wilson and Nembhard spent about thirty-five minutes in the restaurant, sitting at the same table and conversing. Nembhard stared at Cleaves several times as Cleaves, seated at the bar, glanced in their direction. When the suspects exited the restaurant, the agents noticed that they had exchanged their luggage, Wilson now carrying the tan vinyl luggage and Nembhard the black briefcase. Nembhard paced up and down waiting for Wilson to finish a phone call he made upon leaving the restaurant. They then walked together at a normal pace through the north terminal.

When they reached the end of the concourse, Nembhard glanced back down the concourse, then both men scurried down an escalator, through the baggage claim area for United Airlines (although their flight had been on American Airlines), and left the terminal. As they headed for a taxicab, three of the agents, who had used another exit, approached them. Agent Modesitt, addressing Wilson, identified himself as a police officer, showed Wilson his badge, and asked if Wilson would step aside out of the path of traffic from the terminal exit to answer some questions, which Wilson assented to do. Modesitt then asked if he could see Wilson's airline ticket and some identification. Wilson, his hands shaking, produced a New York driver's license with his proper identification, but claimed he had no airline ticket, contending that he had been in Detroit for two days visiting friends. He also denied knowing Nembhard, claiming they had never met.

Agents Bryda and McCoy simultaneously approached Nembhard, who also stepped off to the side of the terminal exit. In response to Agent Bryda's inquiries, Nembhard claimed he had neither identification nor an airline ticket but stated that his name was Edward Nembhard. He at first claimed that he did not know Wilson, but when challenged by the agents' recitation of his restaurant rendezvous with Wilson, Nembhard maintained that they had met on the airplane. When asked to accompany the agents to the first aid office inside the terminal for further questioning, both Wilson and Nembhard agreed to do so.

At the first aid room about thirty-five yards away, Modesitt and Wilson waited in the hall for several minutes while the other agents spoke to Nembhard. Nembhard's briefcase was searched with Nembhard's consent, but nothing illicit was discovered, although it contained papers belonging to Wilson. After Nembhard was thanked for his cooperation and left the room, Wilson and Modesitt entered the room. Agent Modesitt advised Wilson that he was a federal narcotics agent, said he was looking for narcotics coming into the airport, and told Wilson he believed Wilson could be carrying narcotics. Wilson did not respond. Modesitt asked for Wilson's consent to search his luggage and person; Wilson was advised of his right to refuse. Wilson told Modesitt he could search the suitcase but denied it was his luggage and claimed he was paid to carry it. Modesitt opened the suitcase, seized approximately ten ounces of 67% pure heroin, and placed defendants under arrest.

Agent Modesitt was the only witness who testified before the grand jury as to the events leading up to the search and arrest. The United States Attorney elicited Modesitt's explanation that he and Detective Sergeant Cleaves had met the New York City flight and initially began observing the defendants' activities. The queries concerning defendants' behavior were framed in terms of what "you" observed. Modesitt responded with details of what "we" and "us" observed and thought. The United States Attorney did not seek further clarification of who "we" and "us" constituted. Consequently, the grand jury was never informed that Modesitt's personal observations were temporarily discontinued when he briefly instituted surveillance of another deplaning passenger while defendants were both engaged in their initial telephone calls and that Modesitt's personal knowledge of defendants' activities did not resume until he rejoined the surveillance team at the restaurant. When Modesitt's grand jury testimony was challenged at trial, he explained that he knew hearsay evidence was admissible before the grand jury, and he followed his regular procedure of merely describing the activities of the entire surveillance team without differentiating between personal observations and the...