U.S. v. Nicholson

• Decision Date: 05 January 1993
• Docket Number: No. 92-3083,92-3083
• Citation: 983 F.2d 983,37 Fed.R.Evid.Serv. 721
• Parties: 37 Fed. R. Evid. Serv. 721 UNITED STATES of America, Plaintiff-Appellee, v. Wendall NICHOLSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 983

983 F.2d 983

37 Fed. R. Evid. Serv. 721

UNITED STATES of America, Plaintiff-Appellee, v. Wendall NICHOLSON, Defendant-Appellant.

No. 92-3083.

United States Court of Appeals Tenth Circuit.

Jan. 5, 1993.

Daniel E. Monnat of Monnat & Spurrier, Wichita, KS, for defendant-appellant.

D. Blair Watson, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him on the brief), Wichita, KS, for plaintiff-appellee.

Before LOGAN, TACHA and EBEL, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Wendall Nicholson appeals his convictions for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Defendant argues that (1) heroin and other evidence presented at trial was obtained as the result of an illegal detention, and should have been suppressed; (2) the district court prejudiced his defense by advancing the trial date six days; (3) the evidence adduced at trial was insufficient to support the convictions; (4) the district court improperly admitted hearsay under the co-conspirator exception of Fed.R.Evid. 801(d)(2)(E); (5) the district court should have given his proposed jury instruction concerning testimony of admitted addicts; and (6) the cumulative effect of these errors, even if not themselves sufficient to warrant reversal, denied him due process.

I

Defendant was arrested as a result of a Drug Enforcement Agency (DEA) investigation into heroin trafficking in Wichita, Kansas. Detective Bruce Watts of the Wichita Police Department, assigned to a DEA task force, testified that the primary target of the investigation was Johnnie Davis, who was suspected of being a large-scale heroin distributor. With the help of informant Ronnie Williams, a convicted felon and recovering heroin addict, Watts conducted a number of controlled buys from Davis, in which the DEA gave Williams money, Williams purchased heroin from Davis, and the narcotics were turned over to the DEA for use as evidence.

Williams also told Watts that defendant was a multi-ounce heroin dealer, and that defendant bought his heroin from Davis. Williams stated that he had purchased heroin from defendant on a number of occasions. In late 1990, Detective Morse of the Wichita Police Department conducted a controlled buy from defendant. One call from Williams to Davis to set up a controlled buy was recorded by the DEA. In the course of the conversation, Williams indicated that he wanted a "half." Davis responded that "[y]ou probably better find Wendall then." II R. at 304. Williams understood this statement to mean that if he did not want to purchase more than $500 worth of heroin, he would have to buy it from defendant. Williams then told Davis that he wanted half an ounce, not half a gram, and Davis agreed to meet with him. ¹

On March 12, 1991, Watts set up another controlled buy between Williams and Davis. Even though the transaction occurred near a local grocery store, DEA agents maintained surveillance on Davis' home, "to see Mr. Davis come and go during the transactions." I R. at 189. After the deal was completed, other agents followed Davis, who returned to his residence. Soon after Davis arrived home, the surveilling agents reported over the radio that a black and silver Cadillac with dealer license plates had parked in front of Davis' house, and that a black male had gone inside. A few minutes later, the individual left the house and drove away. At this time Williams and Watts were in the DEA office with the radio on, and Williams told Watts that the Cadillac might be defendant's. Further, Watts and another agent testified that they had seen defendant driving this car on prior occasions. ² Concluding that the individual in the Cadillac was probably defendant, Watts requested that the Wichita police department stop the car, which it did.

After stopping the car, Officer Phillip Smith of the Wichita police asked for defendant's license and told him that he was being stopped at the request of the highway patrol. ³ Defendant told Smith that he was dropping off some documents at the attorney's office in whose parking lot they had stopped. Smith asked defendant for permission to search the vehicle, which defendant granted orally. Smith also asked defendant to sign a written consent form, and defendant accompanied Smith to the patrol car to execute the waiver. A second officer, Gerald Dickerson, then went to defendant's car, and observed a grey plastic film canister on the front seat. He retrieved it, opened the lid, and saw a number of small plastic baggies with a powdery substance in them. Dickerson replaced the lid and put the canister back on the seat. At that point, members of the DEA task force arrived and took over the search.

The DEA made no further search of the vehicle at the scene, but drove it to their headquarters, where a complete search was conducted. The agents discovered, in addition to the substance in the film canister, a loaded .357 Smith & Wesson revolver under the driver's seat, a number of small Ziploc bags, and a large box of matchbooks. Although defendant was taken to DEA headquarters, he was not charged that day. Four months later, DEA agents arrested defendant and charged him with conspiracy to distribute heroin and with possession of a firearm during a drug trafficking crime.

At trial, the government offered the testimony of three former heroin addicts, all of whom claimed to have purchased heroin from defendant. Williams, one of the witnesses, stated that he had bought heroin from defendant in Davis' presence, and that on one occasion Davis had intervened when defendant refused to continue to be Williams' supplier. Williams also testified as to his understanding that Davis would only deal in quantities of $500 or more worth of heroin; for any amount less than that, the buyers were directed to defendant. The government offered the recorded telephone conversation to corroborate this claim.

Each of the former addicts testified that defendant would sell heroin in small Ziploc bags hidden inside matchbooks. Williams stated that, in the dozens of times he purchased heroin from defendant, it was always packaged in this fashion. Davis' house had been searched by the DEA, and a quantity of lactose was discovered, a substance often used to dilute heroin. A government chemist testified that both the heroin purchased by Williams from Davis during the controlled buys and the heroin seized from defendant's car had been diluted with lactose.

The jury convicted defendant on both the conspiracy and firearm counts. This appeal followed.

II

A district court's denial of a motion to suppress evidence is reviewed under a clearly erroneous standard, and the evidence is considered in the light most favorable to the district court's ruling. United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992); United States v. Evans, 937 F.2d 1534, 1536 (10th Cir.1991). The ultimate determination of reasonableness under the Fourth Amendment, however, as well as other conclusions of law, is reviewed de novo. Horn, 970 F.2d at 730; United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible. United States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991).

A

To justify an investigative detention for questioning, the detaining officer must have a reasonable articulable suspicion that the detainee has been, is, or is about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); United States v. Ward, 961 F.2d 1526, 1529 (10th Cir.1992). The presence of reasonable suspicion is not determined by any one factor, but by the totality of the circumstances, Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), and the detaining officer may rely on the representations of other law enforcement officials to form the basis of the suspicion. United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 682, 83 L.Ed.2d 604 (1985).

In this case, an individual was observed entering the house of a person from whom the DEA had just completed a controlled heroin purchase. The individual remained in the house only a few minutes. Given the description of the car and person by the officers on the scene, Agent Watts concluded that the driver might be defendant, who was suspected of drug trafficking. Based on the totality of the circumstances, Agent Watts had an objectively reasonable suspicion that the driver of the car was engaged in illegal activity, and was justified in requesting the Wichita police to detain the driver for identification and questioning.

This holding is consistent with numerous other cases from this circuit in which reasonable suspicion was found to exist. See, e.g., United States v. Morgan, 936 F.2d 1561, 1567-68 (10th Cir.1991) (officer knew that particular car had been seen leaving earlier robbery; knew that individual was a suspect; saw car, with suspect as passenger, soon after hearing report of robbery), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992); United States v. Gonzales, 897 F.2d 504, 507 (10th Cir.1990) (border patrol agents received bulletin for car possibly carrying narcotics; defendant's car matched description; bulletin based on reliable informant); United States v. Rutherford, 824 F.2d 831, 833 (10th Cir.1987) (defendant arrived at suspected drug dealer's house emptyhanded; left ten minutes later carrying bag; police had prior information that large amounts of marijuana were in house); United States v. Romero, 692 F.2d 699, 702 (10th Cir.1982) (two persons left suspected drug dealer's house carrying grocery sacks; one suspected of...