U.S. v. Renfro, 79-5172

Citation620 F.2d 569
Decision Date13 June 1980
Docket NumberNo. 79-5172,79-5172
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andrew RENFRO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Andrew Renfro, pro se, and James R. Willis, Cleveland, Ohio, for defendant-appellant.

James K. Robinson, U. S. Atty., Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before WEICK, Circuit Judge and PHILLIPS and PECK, Senior Circuit Judges.

WEICK, Circuit Judge.

Andrew Renfro was convicted in the United States District Court for the Eastern Division of Michigan of conspiracy, possession of heroin with intent to distribute, and distribution of heroin, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. Prior to the federal proceedings, Renfro and three alleged co-conspirators, James Griffin, Andrea Payne and Tandee Leslie, were charged with the same offenses in the Recorder's Court for the City of Detroit. The charges against Renfro were dismissed after the Recorder's Court ordered the suppression of critical prosecution evidence. The other defendants were convicted in the state court.

In his appeal, Renfro contends that federal prosecution was barred by the Department of Justice's Petite policy, which limits dual state and federal prosecutions for the same offenses under certain specified circumstances, none of which existed in the present case. He further contends that the District Court erred in refusing to suppress evidence, in permitting co-conspirator statements to be admitted into evidence, and in determining that there was sufficient evidence to support the conviction for conspiracy. Finally, the appellant contends that the District Court erred in permitting an alleged unqualified woman juror to remain on the jury, although he and his counsel in open court had expressly agreed that she could remain. We find appellant's arguments to be without merit and affirm the convictions.

I

Renfro was implicated in the crime as a result of an undercover operation by the Wayne County Sheriff's Department, Metropolitan Narcotics Squad. The undercover officer, Mary Brown, and two of Renfro's co-conspirators, James Griffin and Andrea Payne, testified at the trial as to the events occurring on October 14, 1976, when the crime was committed. This testimony was supplemented by the testimony of surveillance officers, expert witnesses, and physical evidence seized at the appellant's residence. The defendant rested his case without offering any evidence.

The evidence shows that on October 14, 1976, undercover Officer Mary Brown, a deputy narcotics investigator for the Wayne County Sheriff's Department, called James Griffin and sought to purchase from him $5,500 worth of heroin. James Griffin indicated that he could arrange such a transaction. Brown met Griffin at his house and proceeded with him to a house located at 18272 Santa Rosa, in Northwest Detroit. Brown was introduced to Andrea Payne who lived at this address. Payne was informed by Griffin that Mary Brown desired to purchase $5,500 of heroin. Payne then placed a call and spoke with a person named "Cherry." Following this phone call, Andrea Payne took Griffin and Brown to a bungalow on Cruse Street where Brown met James Cherry and an unidentified black man and woman. A small sample of heroin was produced by Cherry. The sample was tested by Griffin, who found it to be of poor quality. Griffin recommended that Brown not purchase that particular batch of heroin.

At this point, Brown testified that Cherry and Andrea Payne went into the bedroom. Shortly thereafter, Brown was called into the room. Andrea Payne was holding a telephone receiver and she informed Brown that a friend of hers had just got in ten to twelve pounds of heroin and could sell five ounces of heroin for $5,500. Andrea Payne told Brown that they would be going to a 25-room mansion on West McNichols and LaSalle. Griffin, Payne and Brown proceeded to 2460 West McNichols. Griffin handed Payne $50 (previously given to Griffin by Brown) to purchase a sample of the heroin. Griffin and Brown waited in the car while Andrea Payne went into Renfro's house. Payne testified at the trial that, once in the house, she met Andrew Renfro who told her to wait a moment. Payne sat down and waited. A short time later, Renfro came back and told Payne that there was a piece of aluminum foil on the table that was hers. According to Payne, no money changed hands at this point and Payne kept the $50. Brown testified that when Payne returned to the car she told her that, while she was inside, she helped weigh and package part of the ten to twelve pounds of heroin. Inside the foil package which Payne had taken from Renfro's table was about $50 worth of heroin. Griffin tested this heroin and found that the quality was very good. Brown said that she was willing to buy heroin from this batch.

Upon returning to Payne's house, Payne made a phone call. Brown testified that the name Andrew was mentioned, but Payne testified that she had called Cherry. Payne told the other party to the phone call that Brown and Griffin were pleased with the sample and that the deal for the rest of the heroin could be consummated. Brown was informed that delivery of the heroin would be made to Payne's house and that it would take about an hour before the delivery could be made. Payne left the room and went downstairs. Griffin used the rest of the heroin and then fell asleep. Brown was able to use the phone to inform her fellow officers that the heroin would be delivered to Payne's address in about an hour. After a long wait, Brown mentioned to Payne that the delivery was taking a long time. Payne then placed another phone call. After the phone call, Payne informed Brown that the heroin would be delivered by her source's girlfriend and that she would be driving a new Cadillac. Then Payne and Brown counted out the money which was to be paid for the heroin and wrapped it with a rubber band. Payne went back downstairs again and Brown was able to use the phone to update the other officers involved in the case.

A surveillance team had followed Brown, Griffin and Payne when they went to Renfro's house to obtain the sample. From that point until the arrests were made, the house was constantly under surveillance. Officers observed Tandee Leslie leave Renfro's house driving a new Cadillac and proceed to Payne's house. When Leslie arrived at Payne's house, Brown came downstairs and Brown, Payne and Leslie went into a back room on the first floor. Leslie produced a clear packet of brown powder, later identified by the experts as heroin, and exchanged the packet for $5,500 of marked money. As Leslie was leaving, Brown went back upstairs and made another phone call to relay to the surveillance crew that the transaction had taken place and giving a description of Leslie. Leslie was followed by surveillance officers back to Renfro's address.

Brown awakened Griffin and left the house. Payne had to move her car from the driveway so that Brown and Griffin could get out. Brown started at that time to give the prearranged signal (combing her hair) that would indicate for the other police officers to move in to make the arrest, however, because it was so dark outside, the signal went unobserved. Brown and Griffin left in Griffin's car. Payne pulled her car back into the driveway, went back into the house, and came back outside while in the process of putting on her coat. She drove along the same route that Griffin and Brown had taken just shortly before. After the surveillance on Payne's car had begun, the other officers realized that, by mistake, no one had followed Griffin's car. Sergeant Turner, the officer in charge of the undercover activities, and several other officers, immediately left the area of Payne's house to try to catch up with Griffin's car. These officers were in unmarked vehicles and using their portable, blue flashing lights when they passed Payne's car. Shortly after the unmarked cars passed Payne's car, she turned off and proceeded directly, but without any increase in speed, to Renfro's house.

The officers caught up with Griffin's car after Payne had made the turn-off. (By this time they had turned off their flashing lights.) They observed Brown combing her hair in the passenger seat of the car and proceeded to stop the car and arrest both Griffin and Brown. (Brown was arrested just to preserve her identity.) Fearing that Andrea Payne had observed their pursuit of Griffin's car and that she had gone to warn Renfro, the officers had a brief meeting at a University of Detroit parking lot. The officers donned bullet-proof vests with their badges pinned to the front. Then they proceeded directly to Renfro's house. Sergeant Turner pulled his car into Renfro's driveway. A regular Detroit police car pulled in behind him. Other officers moved to surround the house. Although there is conflicting testimony about what happened next, the District Court found:

When they arrived at the West McNichols address, the officers immediately approached the front door. Through a window they observed Payne, Leslie, a black male subsequently identified as Andrew Renfro, and an unidentified black female seated in the living room. The officers, unobserved to that point, knocked at the front, identified themselves and stated that they had come to make an arrest. At that point, Leslie and Renfro hurriedly exited the living room. The officers then saw Renfro through a second story window, moving back and forth; they also heard a toilet flushing. None of the occupants would open the front door.

The officers tried futilely to force the front door and subsequently gained entry through a side door. . . .

Other officers were able to gain entry through a back door.

Once inside, several officers proceeded upstairs where they found Renfro in a bedroom near the only...

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