U.S. v. Pettit

• Decision Date: 25 May 1990
• Docket Number: No. 89-3127,89-3127
• Citation: 30 Fed.R.Evid.Serv. 511,903 F.2d 1336
• Parties: 30 Fed. R. Evid. Serv. 511 UNITED STATES of America, Plaintiff-Appellee, v. Robert L. PETTIT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1336

903 F.2d 1336

30 Fed. R. Evid. Serv. 511

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. PETTIT, Defendant-Appellant.

No. 89-3127.

United States Court of Appeals Tenth Circuit.

May 25, 1990.

Benjamin L. Burgess, Jr., U.S. Atty., Julie A. Robinson, Asst. U.S. Atty., Kansas City, Kan., for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, Susan L. Foreman, Asst. Public Defender, Denver, Colo., for defendant-appellant.

Before MOORE and BALDOCK, Circuit Judges, and BABCOCK, District Judge. ^*

BABCOCK, District Judge.

Defendant-appellant, Robert L. Pettit (Mr. Pettit), was convicted by a jury for possession with intent to distribute approximately 10 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1). The sentencing judge increased Mr. Pettit's offense level under the United States Sentencing Commission Guidelines (Guidelines), finding that Mr. Pettit was an organizer, leader, manager, or supervisor of the criminal activity. Mr. Pettit appeals the trial court's denial of his motion in limine to exclude certain testimony, the trial court's denial of his motion to suppress evidence, and the trial court's upward adjustment under Guidelines Sec. 3B1.1(c). We affirm the conviction, but reverse the sentence and remand to the district court for resentencing.

I.

For one half hour on three occasions in October and November 1988, Bureau of Alcohol, Tobacco and Firearms agents watched a house at 1904 North Hallock Street, Kansas City, Kansas. The house was rented to Mr. Pettit. On each occasion, the agents saw five to seven people drive up to the house, park their cars, and make an "exchange" with persons at the house. The agents' observations confirmed information they had received regarding apparent drug activity at the house. Based upon this information and surveillance, the agents opened a formal investigation in December 1988.

The agents again watched the house on December 15, 16, 19, and 20, 1988. On those days, they saw Mr. Pettit, twice wearing a grayish-blue jacket, arrive at the house between 8:50 and 9:30 a.m. and stay for a brief time. On two occasions, a man arrived with Mr. Pettit and remained at the house. On December 20, 1988, the agents noticed that after the two men arrived at the house the porch light went off. Moreover, after the men arrived, several people would stop at the house.

On December 21, 1988, in front of 1904 Hallock Street, the agents executed a federal search warrant authorizing them to search Mr. Pettit's person and vehicle. Mr. Pettit was first seen sitting in his car parked in front of the house. After identifying themselves to Mr. Pettit as agents, they took him out of the car and patted him down for weapons. They told him that they had a search warrant for his person and car. However, the agents did not show Mr. Pettit the search warrant until after the search and they did not give him a copy of the warrant. The agents found twenty-one baggies containing crack cocaine in two film canisters seized from the front pocket of the grayish-blue jacket Mr. Pettit was wearing.

When searched and arrested, Mr. Pettit said that the canisters contained film. He further stated: "Now, you didn't get those from me. You had those. Those belong to you." During the booking process, Mr. Pettit told another agent that the film canisters were in the jacket when he borrowed the jacket from his girlfriend, Roberta Hearron (Hearron).

Drug Enforcement Agent LaMere, although not offered as an expert witness, opined that while the amount of drugs seized was consistent with personal consumption, the drugs were packaged for sale.

Mr. Pettit was charged in a one count Superseding Indictment with violation of 21 U.S.C. Sec. 841(a)(1). Following a hearing on his motion to suppress, the court made a bench ruling denying the motion. After trial to a jury the jury found Mr. Pettit guilty as charged.

Mr. Pettit filed a Motion for New Trial which was argued and denied at sentencing. On May 8, 1989, the court sentenced Mr. Pettit to 120 months to be followed by 4 years of supervised release. He was fined $5,000 and assessed $50.00.

II.

Mr. Pettit appeals the denial of his motion in limine to exclude Kansas City Police Officer Michael Simmons' (Simmons) testimony that he had made three narcotic purchases from Hearron in March and April 1988. One sale occurred inside the house at 1904 North Hallock and two occurred in cars parked outside that address. Each time, Mr. Pettit was in the vicinity of the house and directed Simmons to Hearron when Simmons asked what was going on and if they were selling anything. However, Mr. Pettit was not present in the house or the cars when the sales occurred and Simmons never purchased narcotics directly from Mr. Pettit.

In its pretrial motion in limine, the government tendered Simmons' testimony to establish Mr. Pettit's knowledge that he possessed the crack cocaine with intent to distribute it. Defendant had denied such knowledge, possession, and intent.

Mr. Pettit contends that Simmons' testimony was irrelevant because it was 1) remote in time and dealt with Hearron's bad acts, and 2) any probative value was outweighed by its prejudicial effect under Fed.R.Evid. 403. He further asserts that the trial court's limiting instruction was insufficient to protect him from unfair prejudice. We disagree.

The trial court determined before trial both that the evidence was proper 404(b) material and that its probative value "far outweighs any possible prejudicial effect for the limited purpose of having relevancy as to intent and guilty knowledge...." Our standard of review is for abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989).

In United States v. Hogue, 827 F.2d 660, 662-663 (10th Cir.1987), we held that to be admissible under Fed.R.Evid. 404(b), the evidence:

1) must tend to establish intent, knowledge, motive, identity or absence of mistake or accident; 2) must also be so related to the charge that it serves to establish intent, knowledge, motive, identity or absence of mistake or accident; 3) must have real probative value, not just possible worth; and 4) must be close in time to the crime charged.

Moreover, we have previously stated that under Rule 404(b):

[S]imilar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor. We understand this to mean that before similar 'bad acts' may be admitted against an individual, there must be reasonable indication in the record that the defendant was in fact a party to the bad acts sought to be brought in against him. We do not believe that the relevance requirement under Rules 404(b), 402 and 104(b) can be met with respect to one defendant by introducing evidence of the bad acts of the defendant's other associates.

United States v. Cardall, 885 F.2d 656, 671 (10th Cir.1989). (Citations omitted). (Emphasis in original).

Here, although the sales occurred 9 months before Mr. Pettit's arrest, and although Mr. Pettit was not convicted of any crime in relation to Hearron's sales, the record shows that the sales occurred with Mr. Pettit's direction and assistance and in Mr. Pettit's car in front of his rental house. Accordingly, while Mr. Pettit was not the principal actor, the evidence establishes that Mr. Pettit was a party to the criminal activity. Simmons' testimony that Mr. Pettit directed him to Hearron for the cocaine transactions, therefore, was probative of Mr. Pettit's knowledge that crack cocaine was being sold, that he knew cocaine was in the pocket of the jacket he allegedly borrowed from Hearron, and that he intended to distribute the crack cocaine. We therefore conclude that the trial court did not abuse its discretion in denying defendant's motion in limine to exclude Simmons' testimony. Any evidence regarding Mr. Pettit's association with Hearron was developed by the defense during cross-examination only. Further, despite Mr. Pettit's assertion to the contrary, the trial court's limiting instruction when the Rule 404(b) evidence was admitted, reiterated in Instruction No. 16 of the general charge, was sufficient to protect him from unfair prejudice. See United States v. Rivera, 837 F.2d 906 (10th Cir.1988), rev'd on other grounds, 874 F.2d 754 (10th Cir.), en banc. See also United States v. Doran, 882 F.2d 1511, 1524-1525 (10th Cir.1989).

III.

Mr. Pettit contends that the trial court erred in denying his motion to suppress evidence because the warrant was issued without probable cause. He also asserts that the search was conducted in violation of the Fourth Amendment to the United States Constitution and Fed.R.Crim.P. 41. Again, we disagree.

The Fourth Amendment provides that search warrants shall be issued only upon probable cause. Where, as here, probable cause for the issuance of a search warrant is based upon an informant's information, the proper standard for determining probable cause is the totality of the circumstances. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In this case, the informant's reliability and credibility was assessed for over three months. The informant's information was corroborated by independent law enforcement surveillance in October and November 1988, and on four days in December 1988. Furthermore, other information provided by the informant was corroborated through other law enforcement surveillance and techniques.

Mr. Pettit also contends that Rule 41(c)(1) was violated because the face of the warrant states that the search should be executed on or before December 20, 1988, but the search was not executed until December 21, 1988. Mr. Pettit further argues that failure to show him the search warrant before the search violated Rule 41(d).

These arguments were not raised in the trial court. Mr. Pettit...