U.S. v. Pierce

• Decision Date: 04 January 1990
• Docket Number: No. 88-2985,88-2985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee PIERCE, James Evans, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 669

893 F.2d 669

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee PIERCE, James Evans, Defendants-Appellants.

No. 88-2985.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1990.

Rehearing and Rehearing En Banc Denied Feb. 14, 1990.

Ardon E. Moore, Jr., Tyler, Tex., (Court-appointed), for Pierce.

Roy Merrell, Dallas, Tex., for Evans.

Joseph Douglas Wilson, U.S. Dept. of Justice, Washington, D.C., Bob Wortham, U.S. Atty., Ronald J. Sievert, Asst. U.S. Atty., Tyler, Tex., Mervyn Hamburg, U.S. Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

AMENDED OPINION

Before GOLDBERG, POLITZ and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants Roy Lee Pierce and James Evans were convicted in the district court on drug trafficking charges arising from a conspiracy to ship cocaine from Los Angeles, California for distribution in Tyler, Texas. A jury found Pierce guilty of conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846 and possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Evans pled guilty to a conspiracy charge during trial. Both Pierce and Evans raise numerous challenges to their convictions and sentences. Finding no merit in his contentions, we affirm Pierce's conviction and sentence. Having determined that Evans's guilty plea was accepted in violation of Rule 11, we reverse his conviction.

I. BACKGROUND

On December 12, 1987, Angela Evans, James Evans's wife and Pierce's sister-in-law, attempted to ship a Christmas-wrapped package from Los Angeles to Tyler via American Airlines. Mrs. Evans first arrived at the American Airlines terminal to pick up a package that had been sent to her from Tyler. After obtaining this package, she left briefly and returned with the package she intended to send. She presented the package to American employee James McAdam, who inquired about its contents. Mrs. Evans replied that the package contained an iron. After Mrs. Evans left, McAdam became suspicious because he believed the package was not heavy enough to be an iron. In an effort to identify the contents, McAdam x-rayed the package. The x-ray revealed not an iron, but an opaque mass. McAdam alerted his supervisor, Eloise Ferguson, and pursuant to airline policy they opened the package. Inside was a large quantity of rock cocaine.

DEA agents arrived shortly after the package was opened. They conducted a field test which identified the substance as cocaine. A small portion was removed and sent for further testing at the Los Angeles County Sheriff's Department, then a controlled delivery was made by forwarding the package to its intended destination.

After setting up surveillance at the Tyler airport, agents observed Pierce drive up in a vehicle with Hazel Crumpton, to whom the package was addressed. While Pierce waited in the car, Crumpton went into the terminal and picked up the package. She was arrested as she attempted to leave. Pierce made a futile attempt to escape in his car, but his path was blocked by a DEA vehicle. Meanwhile, James and Angela Evans were arrested by officers executing a warrant to search their Los Angeles apartment.

Pierce and James Evans were indicted with their two co-defendants in January, 1988. Crumpton and Angela Evans pled guilty and testified on behalf of the government. After one aborted attempt to plead guilty, James Evans eventually changed his plea to guilty during trial. The jury subsequently found Pierce guilty on both the conspiracy and possession counts. The district court, applying the sentencing guidelines, sentenced Pierce to 262 months in prison and a three year term of supervised release. Evans was sentenced to 360 months in prison and an eight year term of supervised release. Pierce and Evans now bring this appeal, challenging the validity of their convictions and sentences. We address each in turn.

II. ANALYSIS

A. PIERCE

1. Motion to Suppress

Before trial Pierce moved to suppress the evidence obtained when the package was searched at the American Airlines terminal in Los Angeles, on the grounds that the warrantless search violated his Fourth Amendment rights. After an evidentiary hearing the court denied the motion, ruling that there was no Fourth Amendment violation because the initial search was conducted by a private party. In reviewing a district court's ruling on a motion to suppress based on live testimony at a suppression hearing, we must accept the district court's factual findings as true unless they are clearly erroneous. United States v. Fernandez, 887 F.2d 564, 567 (5th Cir.1989).

Pierce first argues that the court's finding that the package was initially searched by airline employees is clearly erroneous. He contends that the package was actually opened by the DEA. This contention is meritless. The sole basis for Pierce's argument is the so-called "tell-tale affidavit" of Agent Paul Black, which indicates that the DEA did open the package first. However, Agent Black testified at the suppression hearing that he subsequently learned that his affidavit was based on second-hand reports which were either incorrect or misinterpreted. On the other hand, the court's finding is amply supported by the evidence. Airline employees and DEA agents unanimously testified that the package was opened by Ferguson and McAdam. The court's finding is not clearly erroneous.

Pierce next alleges that the airline employees were acting as instruments or agents of the government when they opened the package. Pierce is correct in asserting that the Fourth Amendment can be violated by a search conducted by a private party acting as an agent or instrument of the government. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). However, the airline employees were not acting in such a capacity in this case. Pierce largely bases his argument on a Ninth Circuit test for determining whether a private party has acted as an agent of the government. That circuit has held that the two critical factors in an "instrument or agent" analysis are: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982); United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981). We previously applied this test in United States v. Bazan, 807 F.2d 1200 (5th Cir.1986). For purposes of reviewing Pierce's argument we will once again assume the adequacy of this formulation. See id. at 1203.

Pierce is unable to satisfy the second prong of the Walther test. Following the suppression hearing the district court dictated its findings and conclusions into the record. The court first found that American Airlines, like other airlines, has a "valid reasonable policy" of exercising caution with and opening suspicious packages. The court further found that McAdam and Ferguson had opened the package pursuant to that policy. Both of these findings are supported by the evidence. There is no evidence that the package was opened at the direction, or even the suggestion, of the DEA. We conclude that the airline employees opened the package to further the airline's own ends, not solely to assist law enforcement officers. See United States v. Koenig, 856 F.2d 843, 849 (7th Cir.1988) (holding that Federal Express employees were acting in furtherance of the company's own ends when they opened a package pursuant to company policy). Thus, Pierce's argument fails the Walther test. Accordingly, we hold that the airline employees were not acting as instruments or agents of the government when they opened the package.

Once it is established that airline employees, acting privately, opened the package, this case is governed by United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, the employees of a private freight carrier opened a damaged package and discovered a plastic bag containing white powder inside. The DEA was called. Upon arrival, agents reopened the package, examined the contents, and conducted a chemical field test which identified the substance as cocaine. Reversing the holding of the court of appeals that the Fourth Amendment had been violated, the Supreme Court first reiterated the rule that the Fourth Amendment proscribes only governmental action. Jacobsen, 466 U.S. at 113, 104 S.Ct. at 1656. The Court then held that where a package containing narcotics is originally opened by a private carrier, the Fourth Amendment is not violated by a subsequent search by government agents that does not exceed the scope of the private search. Jacobsen, 466 U.S. at 115-121, 104 S.Ct. at 1657-1660. The court additionally held that the chemical field test, which could disclose only whether or not the substance was cocaine, did not compromise any legitimate interest in privacy. ¹ Jacobsen, 466 U.S. at 122-126, 104 S.Ct. at 1661-1663.

Applying Jacobsen to the present case, we conclude that neither the initial search by airline employees, nor the subsequent search by DEA, nor the chemical field test violated Pierce's Fourth Amendment rights. Accordingly, the district court did not err in denying Pierce's motion to suppress. ²

2. Jencks Act

Angela Evans was interviewed before trial by Assistant U.S. Attorney Ronald Sievert, who took notes during their conversation. At trial, after Evans testified on behalf of the government, Pierce moved for production of these notes under the Jencks Act. He now alleges that the failure of the government to turn over Evans's pretrial "statement" violates the Jencks Act. We disagree. The Jencks Act provides that upon a defendant's motion the court shall order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the...