U.S. v. Parrish

Decision Date13 February 1991
Docket NumberNo. 90-4001,90-4001
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phillip A. PARRISH, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Ronald J. Yengich, Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, for defendant-appellant.

Dee Benson, U.S. Atty., and Tena Campbell, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Before TACHA and McWILLIAMS, Circuit Judges, and NOTTINGHAM, District Judge. *

TACHA, Circuit Judge.

Defendant-appellant Phillip Parrish appeals a conviction of attempting to possess one kilogram of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), using or carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1), and possessing 113.4 grams of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Parrish contends the district court erred by: (1) denying a motion to suppress evidence found at his apartment because the underlying affidavit for the search warrant lacked probable cause, (2) finding the evidence was sufficient to support the jury's finding that he possessed cocaine with intent to distribute and used or carried a firearm in connection with a drug trafficking offense, (3) failing to sever Parrish's trial from that of his co-defendants, and (4) refusing to instruct the jury on the minimum mandatory sentences. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm. 1

On March 7, 1989, Morgan Sayes, an undercover agent with the Metropolitan Narcotics Task Force, purchased one ounce of cocaine from Laura Snell and her boyfriend, Greg Efron, at the Sunburst Apartments in Salt Lake City, Utah. Sayes purchased cocaine from Snell and Efron again on March 23. During this transaction, agent Sayes told Efron he was going to purchase five kilograms of cocaine and asked Efron if he would like to purchase two of them. Efron said he would contact his source to see if his source was interested. During a telephone conversation between Efron and Sayes on March 29, Sayes again indicated he would contact "his man" but believed his source would only want to purchase one kilogram. Efron told Sayes to call him back in an hour.

When Sayes called later that evening, Efron told him to come over to the apartment. Sayes drove to the Sunburst Apartments followed at a distance by officers from the Metropolitan Narcotics Strike Force. When Sayes arrived at the apartment, he noticed the bedroom door was closed. After some preliminary negotiations, Sayes insisted on examining the money before the transaction went any farther. Snell went into the bedroom, making sure the door was closed after her. She quickly returned with $14,870 in cash.

After examining the money, Sayes told Efron and Snell he was going to get the cocaine. He then walked outside and signaled the officers to make the arrest. The officers entered the apartment and arrested Efron, Snell, and Parrish, who was hiding in a walk-in closet in the bedroom. The officers found a loaded .45 caliber pistol on the shelf above Parrish within his reach. His name was scratched on the magazine of the pistol. The officers found a small amount of cocaine in the closet. In searching Efron incident to the arrest, the officers found a key to Parrish's apartment. They obtained a telephonic search warrant to search that apartment, where they found approximately one-quarter pound of cocaine. Although three adults were in Parrish's apartment when the officers arrived, none of them was arrested.

A federal grand jury returned a multi-count indictment against Efron, Snell, and Parrish. All three were tried jointly before a jury. Parrish was convicted of attempting to possess one kilogram of cocaine with intent to distribute, using and carrying a firearm in connection with a drug trafficking offense, and possessing 113.4 grams of cocaine with intent to distribute.

I. Probable Cause for the Search Warrant

Probable cause to issue a warrant exists if there are "[s]ufficient facts ... for a reasonably prudent person to believe that a search of the described premises would uncover evidence of a crime." United States v. Burns, 624 F.2d 95, 99 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Our duty as a reviewing court is simply to ensure the magistrate had a substantial basis for concluding probable cause existed. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

Here, the affidavit of Bill McCarthy of the Metropolitan Narcotics Strike Force states Efron told Sayes on the telephone he would take the cocaine from their transaction to the apartment of his source. The affidavit also states Parrish gave the address of his apartment to the officers when he was arrested. One of the officers present at the arrest, Detective Houseley, testified she recognized Parrish's name and address as that of a known narcotics trafficker subject to an on-going investigation. She explained she had been on a narcotics surveillance at his apartment. Based on this evidence, we are convinced the magistrate had a substantial basis for concluding there was probable cause for issuing the warrant.

Parrish contends the affidavit is insufficient because it contains no specific information indicating evidence of a crime would be found at his apartment. In particular, he argues Houseley personally had not observed any drug trafficking. The mere fact an affidavit does not contain personal knowledge of illegal activity at the residence is not fatal to the determination of probable cause. See United States v. Rahn, 511 F.2d 290, 293 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). We conclude McCarthy's affidavit established probable cause to believe cocaine would be found in Parrish's apartment because allegations in it would lead a reasonable person to believe evidence of a crime would be found.

II. Sufficiency of the Evidence

Parrish also contends the evidence was insufficient to support the jury's finding that he possessed cocaine with intent to distribute and used or carried a firearm in connection with a drug trafficking offense. The evidence is sufficient if a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Levario, 877 F.2d 1483, 1485 (10th Cir.1989). We evaluate the evidence in a light most favorable to the government, United States v. Alonso, 790 F.2d 1489, 1492 (10th Cir.1986), and make all reasonable inferences and credibility choices in favor of the jury's conclusions, United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982).

A. Possession of Cocaine with Intent to Distribute

Parrish contends there was no evidence he actually possessed the cocaine found in his apartment. An individual has constructive possession of narcotics if he knowingly holds the power and ability to exercise dominion and control over the narcotics. United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987). Exercising dominion and control over a residence where contraband is concealed may constitute constructive possession of the narcotics. See United States v. Morales, 868 F.2d 1562, 1573 (11th Cir.1989). Further, constructive possession may be established by circumstantial evidence. Culpepper, 834 F.2d at 882. The government, however, must show a sufficient nexus between the defendant and the narcotics. Id.

Here, there is ample evidence to show Parrish exercised dominion and control over the apartment where the 113.4 grams of cocaine was concealed. This evidence also establishes a sufficient nexus between Parrish and the narcotics. When Parrish was arrested, he gave the address of this apartment as his own address. The government presented evidence that this apartment was rented to Parrish at the time of the arrest. Efron, the middleman, testified he had been to the apartment numerous times to purchase drugs from Parrish. The officers also found various documents with Parrish's name on them at the apartment. We are convinced there was sufficient evidence of constructive possession of the cocaine to find Parrish guilty of violating section 841(a)(1).

Parrish argues the fact that three adults were found at the apartment when the police arrived and that Efron had a key suggests there is insufficient evidence to conclude the cocaine did not belong to another person with access to the apartment. We disagree. Although it is possible to hypothesize from circumstantial evidence that another individual may have possessed the cocaine found at the apartment, the evidence required to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Alonso, 790 F.2d at 1493 (quoting United States v. Henry, 468 F.2d 892, 894 (10th Cir.1972)). The evidence only must reasonably support the jury's finding of guilt beyond a reasonable doubt. Culpepper, 834 F.2d at 881.

Here, the evidence is sufficient for a reasonable jury to conclude only Parrish exercised dominion and control over the apartment at the time of the arrest. The apartment had two bedrooms, but only one was occupied. The occupied bedroom had only one bed and the closet contained only male clothing, apparently of one size. Efron testified a woman had been living with Parrish at the apartment, but had recently moved out. It is clear from this evidence four people were not occupying that apartment. This conclusion is corroborated by the statements of the three other people present at the apartment when the police arrived. They stated they did not live at the apartment and only were there to clean the rug.

Parrish also contends the evidence was insufficient to support a conviction for intent to distribute cocaine. We disagree. A large quantity of cocaine can be sufficient to support a judgment that a defendant intended to distribute the drug. See United States v. Hooks, 780 F.2d 1526, 1532 ...

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