U.S. v. Newton

• Decision Date: 19 November 2004
• Docket Number: No. 03-1060.,03-1060.
• Citation: 389 F.3d 631
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee NEWTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 631

389 F.3d 631

UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee NEWTON, Defendant-Appellant.

No. 03-1060.

United States Court of Appeals, Sixth Circuit.

Submitted: March 10, 2004.

Decided and Filed: November 19, 2004.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: James C. Mitchell, Assistant United States Attorney, Flint, Michigan, for Appellee. Ricky Lee Newton, Bradford, Pennsylvania, pro se.

Before: SILER, MOORE, and SUTTON, Circuit Judges.

SILER, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE, J. (pp. 639-44), delivered a separate opinion concurring in part and dissenting in part.

SILER, Circuit Judge.

Defendant Ricky Lee Newton appeals his conviction and sentence for conspiracy to possess with intent to distribute 100 to 1000 kilograms of marijuana in violation of 21 U.S.C. § 846. He raises questions concerning searches, competency at trial, and sentence computation. For reasons stated hereafter, the conviction and sentence are AFFIRMED.

BACKGROUND

On January 10, 2002, state police stopped Eduardo Romero in Missouri driving a truck with a false compartment containing marijuana. Romero confessed that he had made nineteen previous marijuana deliveries from Texas to Michigan to a man named "Rick," whom Romero identified later as Newton. Romero gave details of his prior trips that were corroborated later by motel ledgers, phone records and his truck odometer. He also identified the location where he unloaded the marijuana at a rural residence of a man named "Tim," later identified as Tim Wilson, who helped unload the marijuana. Romero agreed to cooperate in a controlled delivery of the marijuana.

Upon arrival in Michigan, the delivery on January 11, 2002 occurred exactly as Romero indicated it would. Romero arrived at Wilson's barn where Wilson began unloading the marijuana from Romero's truck and placing it into black plastic garbage bags. Newton arrived later and backed the truck he was driving into the barn where Wilson and Newton then began loading the marijuana into Newton's truck. Upon Romero's signal, officers descended on the scene, seizing 33 bundles of marijuana from Newton's truck and two stored in the rafters of the barn.

Upon arrest, Newton was found with two insurance receipts listing 6220 Fort Street, Birch Run, Bridgeport Township, Michigan as his address, which he had also given to his probation officer as his address. An additional receipt for building supplies dated January 4, 2002 was found in the glove box of the truck Newton was driving. It listed 8205 East Dodge Road, Forest Township, Michigan as his address. A receipt dated January 11, 2002 for building supplies made out to his fiancee, Lori Cool, was also found on Newton listing the same Dodge Road address. Newton informed officers that he resided at 9439 East Vienna Road, Forest Township, Michigan, which was determined by public records to be owned by Newton's father. Finally, the truck Newton was driving was registered to Cool, at an address of 2307 Vassar Road.

After a public records search, Sergeant Terence Green submitted an affidavit to a state judge for a search warrant for all four addresses. Included in the affidavit was information from a previously reliable informant stating a belief that Newton was engaged in drug dealing. However, the informant provided no facts in regard to drug dealing, but generally stated a series of beliefs. The judge granted the warrant on January 16, 2002. However, while executing the warrant, the Dodge Road address was identified as a house under construction. A marijuana package identical to those recovered from Romero's truck was found in an outbuilding at this address. Additionally, the Vassar Road address turned out to be a rental property with no connection to Newton's criminal activities.

Newton was indicted for substantive drug offenses and conspiracy with Wilson, and both known and unknown parties, to possess with intent to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C. § 846. Before trial, Newton moved to suppress evidence seized from the addresses as derived from an affidavit made with reckless disregard for the truth and lacking any information linking the addresses to criminal activity. He specifically pointed to the informant's non-factual conclusions and Sergeant Green's perceived lack of due diligence in not making more effort to verify the status of the house under construction and the rental unit. The government did not defend much of the information in the affidavit, but argued that when stripped of questionable material, the affidavit still contained probable cause to search the four addresses. The district court agreed as to all the addresses except for Vassar Road. In relation to that address, the district court found insufficient information had been presented to support a search. However, the court upheld the search as being based on the police's good faith reliance on the warrant.

Wilson and Newton were tried separately. Before Newton's trial, Wilson was acquitted of conspiracy, and the substantive charges against Newton were dismissed. Throughout Newton's trial, the government's main contention was the evidence supported a conspiracy between Newton and Wilson.

At the beginning of the second trial day, Newton's counsel complained to the court that Newton had not been able to sleep for three days due to being in a small holding cell with sixty other people, was not allowed to shower and was being denied basic hygiene. Counsel requested the court aid in securing at least "basic accommodations." The Deputy U.S. Marshal was directed to look into the matter. At the beginning of the third day of trial, Newton's counsel again complained to the court that Newton was not being allowed to sleep due to the conditions in the holding cell. Counsel also informed the court that "the difficulty with — with Mr. Newton being sleep deprived, he's constantly babbling during the course of the trial. I'm trying to tell him to keep quiet, unfortunately he's not making any sense. I think — I think the jailer can do something to at least allow him to sleep." The court again directed the Deputy U.S. Marshal to address the matter. The issue was not brought up again during trial and appears to have been satisfactorily corrected.

During closing arguments, the defense prominently referred to an audio tape that had been made of Newton's conversations with Romero while unloading the truck. A government agent had testified that the tape did not pick up any identifiable conversation and was just static. The defense asked the jury to consider that the government did not play the tape for them, insinuating it was exculpatory and that was the reason why the tape was not played. In rebuttal, the prosecutor argued that if Newton wanted the tape played, he could have played it himself. The defense objected, calling the argument impermissible burden shifting since the defense has no obligation to produce evidence. The objection was overruled. The jury found Newton guilty of conspiring to possess with intent to distribute an amount of 100 kilograms or more of marijuana, but less than 1000 kilograms.

Before trial, the government served enhancement notice of two prior felony drug convictions under 21 U.S.C. § 851. Based upon these convictions, Newton was classified, over his objection, as a career offender under USSG § 4B1.1, with a guideline range of 360 months to life imprisonment. The court sentenced Newton to 360 months.

Newton appeals issues concerning: 1) the denial of his suppression motion; 2) the sufficiency of the evidence supporting his conviction; 3) whether a competency hearing was required due to sleep deprivation; 4) prosecutorial misconduct; and 5) whether his career offender status is a factual issue that must be submitted to a jury.

ANALYSIS

A. Fourth Amendment seizure-insufficiency of the affidavit

Newton claims the court erred in denying his motion to suppress. In reviewing a suppression motion, we review a court's factual findings for clear error, while conclusions of law are reviewed de novo. United States v. Helton, 314 F.3d 812, 820 (6th Cir.2003). However, great deference is given a judge's decision to issue a warrant, which should only be set aside if it is found to have been "arbitrary." Id.

Newton contends, and the government stipulated, that much of the information contained in the affidavit was speculation, which the district court took into account during its review. If sufficient cause remains in an affidavit after being stripped of false or unwarranted information, the warrant may still be upheld. United States v. Ursery, 109 F.3d 1129, 1132-33 (6th Cir.1997).

The judge had strong reason to suspect that Newton was a drug dealer with continuing and ongoing operations based on the detailed information supplied by Romero. "[I]n the case of drug dealers, evidence is likely to be found where the dealers live." United States v. Jones, 159 F.3d 969, 975 (6th Cir.1998) (internal citations omitted). Additionally, with continuing criminal operations, any issue of staleness, or the lack of a direct known link between the criminal activity and residence, becomes minimal. See United States v. Greene, 250 F.3d 471, 481 (6th Cir.2001).

Based on evidence obtained upon Newton's arrest, the police had cause to suspect that Newton maintained residences at three different locales, which was relayed to the judge in the supporting affidavit: 6220 Fort Street due to the insurance receipts and the information provided to his probation officer; 9439 East Vienna Road due to Newton's statement to police corroborated by public records that Newton's father owned the property; and 8205 East Dodge Road based on the receipts for building supplies listing Newton's residence at that address, which also corroborated information from the informant that Newton was moving into a house he was building.¹

Given that probable cause...