U.S. v. Rey
| Decision Date | 22 January 1991 |
| Docket Number | No. 90-5582,90-5582 |
| Citation | 923 F.2d 1217 |
| Parties | 32 Fed. R. Evid. Serv. 114 UNITED STATES of America, Plaintiff-Appellee, v. Leroy REY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joe B. Brown, U.S. Atty. (argued), Robert Anderson, Asst. U.S. Atty., Office of U.S. Atty., Nashville, Tenn., for plaintiff-appellee.
Dale Quillen, Nashville, Tenn., Richardson R. Lynn (argued), Malibu, Cal., for defendant-appellant.
Before KEITH and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendant-appellant, Leroy Rey, appeals the judgment and conviction for conspiracy to distribute and possession with intent to distribute cocaine.
On October 13, 1989, a senior customs inspector at the main post office in St. Thomas, Virgin Islands inspected and found cocaine in an express mail box. The express mail label on the box read as follows:
Estate Nadir, 15-B
In order that the box be subject to a controlled delivery, the inspector forwarded the box to postal officials in Nashville, Tennessee, who turned it over to agents of the Drug Enforcement Administration (DEA). DEA agents obtained search warrants for the package and for the apartment to which it was addressed. When the search warrant was executed on the package, the agents found six bricks of cocaine amounting to approximately six kilos. The bricks of cocaine were replaced with bags of sugar and a sample of approximately two grams of cocaine.
A controlled delivery of the package was made on October 17, 1989, using a postal inspector, Inspector Wilson, disguised as a mailman. At least ten officers were involved in surveilling Apartment C-28. Delivery of the package was not restricted so that it could be signed for by any adult at the address.
At trial, Inspector Wilson testified that the defendant opened the door and identified himself as Leroy Rey. Inspector Wilson asked for "Mrs. Richardson" to whom the package was addressed. Defendant responded, saying "Yes." Inspector Wilson specified that he was looking for "Grace Richardson" and that defendant "didn't look like Grace." Nevertheless, defendant stated that he would "take it" and signed his name to the express mail label. After the inspector left, defendant used a portable cellular phone to dial a number in the Virgin Islands--809-775-3601. Shortly thereafter, defendant left by the rear door of the apartment building and was arrested as he began to drive away. Upon his apprehension, the defendant identified himself as Leroy Rey, acknowledged that he was living in Apartment C-28, and, upon being advised of a search warrant for his apartment, permitted peaceful entry.
The package was found, unopened, within a foot or two of the door. The officers executed the search warrant for the apartment, which led to the discovery of a variety of electronic equipment, including the following:
1. mobile/cellular telephone (and warranty card for the mobile telephone made out to Leroy Rey, 816 Murfreesboro Road, Apt. C-28, Nashville, Tennessee);
2. beeper;
3. GE answering machine (this was found in the bedroom of Judith Arndell, the defendant's sister);
4. electronic police scanner;
5. wireless remote microphone and receiver;
6. portable CB radio;
7. Panasonic cassette recorder.
The officers also found an axe/wrecking bar, a box of 9 mm. ammunition, $10,000 worth of men's jewelry, a printed funeral service for Grace Richardson, and numerous books, including the following:
1. DEA Domestic Operations Guidelines;
2. How to Launder Money;
3. Tax Havens in the Caribbean;
4. Police Call Radio Guide (with two handwritten pages of notes contained therein);
5. Surveillance Communications Counter-measures;
6. Undercover Operations;
7. Methods of Disguise;
8. Creating and Maintaining Alternative Identities;
9. Crime Scene Search and Physical Evidence Handbook;
10. High Times Magazine (September, October, and November of 1989).
In addition, various papers and notes were found containing names and dollar amounts which were indicative of "owe sheets" used in drug trafficking.
On November 15, 1989, defendant Rey was indicted by a federal grand jury and charged with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846.
Defendant filed a Motion for a Bill of Particulars on December 11, 1989, requesting the district court to direct the U.S. Attorney to furnish the names of co-conspirators. The motion was denied.
On December 13, 1989, defendant filed a Motion for a Special Verdict Request to Jury, requesting the court to order the jury to state the amount of cocaine possessed or sold and the percentage of purity. This motion was denied.
On December 21, 1989, defendant filed a motion to suppress evidence. The motion was denied after a hearing was held on January 12, 1990. At the end of the suppression hearing, the court also denied the three motions in limine, which defendant had filed, seeking exclusion from the trial of any evidence referring to a specific quantity of cocaine, certain electronic equipment or certain publications.
During trial, Special Agent Keller of the DEA testified how the electronic equipment, publications, and written materials were indicative of illegal drug trafficking. Testimony revealed that defendant had accepted delivery of the box addressed to "Grace Richardson" even though he knew that Grace Richardson, his aunt, was dead. The defendant had attended her funeral in the Virgin Islands in September 1989 and had remained in the Virgin Islands for several weeks thereafter.
Defendant's sister, Ms. Arndell, who also lived at apartment C-28, testified that their brother-in-law was Alton Alexander Phillip, who lived in the Virgin Islands. It was determined that it was his phone number (809-775-3601) to which defendant placed a call three minutes after delivery of the box.
Other evidence established a connection between the telephone number "809-775-3601" and the return address on the box containing the cocaine. An expert document analyst determined defendant did not write the address on the express mail label on the box, indicating that a second person was involved.
Defendant was found guilty on both counts and sentenced to a term of imprisonment for 170 months and a fine of $4,000,000.
Defendant timely filed a notice of appeal on April 6, 1990.
Appellant Rey alleges that the district court erred by denying his motion to suppress the search of his residence because the search warrant was not supported by probable cause. Appellant argues that probable cause for an anticipatory search warrant existed only for the seizure of the controlled delivery package and for nothing else. Appellant alleges that Agent Keller's actual affidavit for the search of the apartment refers only to the controlled delivery and that he had no knowledge of Rey or any illicit activity in the apartment prior to the delivery. Appellant relies on United States v. Garcia, 882 F.2d 699 (2d Cir.1989), in which the court found that additional facts besides the controlled delivery had given rise to probable cause to believe that the apartment searched was being used as a storage and distribution center for drugs. In Garcia, drug couriers, who had become government informants, had been given the telephone number of the codefendant's apartment and there was evidence that one of the couriers had previously delivered drugs to the apartment. Also federal agents had seen at least one other defendant suspected of drug activity enter and leave the apartment. Id. at 704. The second circuit stated, "Had the only evidence been that duffel bags were being delivered to the apartment, the scope of the search, described in the warrant [for 'cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia'] might have been overbroad." Id.
In the present case, at the suppression hearing, the affiant testified that the apartment had been under surveillance and defendant Rey had been seen at the apartment on the day before the delivery. The affiant also testified that the mail carrier for the apartment claimed a number of "these types of packages" had been delivered to the same location in the past. Thus, contrary to appellant's assertions, there were indications of prior illicit activity.
Moreover, other circuits have rejected the claim that a warrant authorizing a search for drug paraphernalia as well as contraband is overbroad, even though based only on the knowledge of a controlled delivery. United States v. Washington, 852 F.2d 803, 804-05 (4th Cir.), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988) (); 1 United States v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982) (); 2 United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978) ().
Based on these three cases, we believe that in the circumstances of the present case there was probable cause to issue a...
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