U.S. v. Smith

• Citation: 914 F.2d 565
• Decision Date: 19 September 1990
• Docket Number: No. 89-5544,89-5544
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rudi Bernard SMITH, Defendant-Appellant.

Page 565

914 F.2d 565

UNITED STATES of America, Plaintiff-Appellee, v. Rudi Bernard SMITH, Defendant-Appellant.

No. 89-5544.

United States Court of Appeals,

Fourth Circuit.

Argued May 9, 1990.

Decided Sept. 19, 1990.

John G. Hackney, Jr., Charleston, W.Va., for defendant-appellant.

Dwane L. Tinsley, Asst. U.S. Atty., Charleston, W.Va., (Michael W. Carey, U.S. Atty., Charleston, W.Va., on brief), for plaintiff-appellee.

Before HALL and WILKINS, Circuit Judges, and BULLOCK, United States District Judge for the Middle District of North Carolina, sitting by designation.

WILKINS, Circuit Judge:

Rudi Bernard Smith appeals his convictions by a jury of distribution of crack, possession with the intent to distribute crack, and possession of a firearm during and in relation to a drug trafficking crime. 21 U.S.C.A. Sec. 841(a)(1) (West 1981); 18 U.S.C.A. Sec. 924(c)(1) (West Supp.1990). He contends that the evidence was insufficient to convict him of the firearm charge. He challenges on several grounds the admission of evidence seized during a search pursuant to a warrant. Finally, he contends that the district court erred in finding that he was an "organizer" of criminal activity as defined in the sentencing guidelines. We affirm.

I.

While the evidence produced at trial was conflicting, we are required to view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). On August 9, 1988, Lieutenant Larry Dotson of the Kanawha County, West Virginia Sheriff's Department received a call from an individual who identified himself as Willie Rhem. Rhem advised Dotson that he knew a man named Rudi Smith who was selling crack in Charleston, West Virginia. Dotson and Rhem then met at a local nightclub and Rhem informed Dotson that the preceding day he had picked up his brother Melvin at the Red Roof Inn in the Kanawha City section of Charleston. Rhem told Dotson that he entered Room 254 at the Inn and saw Rudi Smith and a girl later identified as Normonica Askew. In the room he observed cocaine, jewelry, razor blades, and a handgun.

Dotson escorted Rhem to his office where Rhem placed a recorded call to Smith in Room 254 of the Inn and arranged a cocaine buy. After the call was placed, officers searched Rhem and his car and placed a transmitter on him. Rhem and Dotson then drove to the parking lot of a nearby grocery store where Dotson gave him $400 in marked United States currency to use in purchasing the cocaine. Dotson and another agent then followed Rhem's car a quarter of a mile to the Inn parking lot.

Dotson observed Rhem enter and exit Room 254 at the Inn. While Rhem was inside the room the surveillance unit monitored and recorded the conversation. After Rhem purchased a quantity of crack from Smith, he drove back to the grocery store where he turned over the contraband to Dotson.

Later that day, Rhem gave a written statement to Dotson regarding the purchase from Smith. After receiving the statement, Dotson prepared an affidavit, presented it to the county magistrate, and obtained a warrant authorizing the search of Room 254. The affidavit stated that a "reliable confidential informant" was observed entering Room 254 where he purchased crack from Smith and that the informant later turned over the crack to Dotson.

After obtaining the search warrant Dotson and other officers returned to the Inn where the motel manager confirmed that Room 254 was registered to Rudi Smith. Pursuant to the officers' request, the manager telephoned Smith and requested that he come to the front desk to clear up a problem with his bill. On his way to the front desk, Smith was arrested. The officers then searched Room 254 and seized over 3 ounces of crack, a purse containing cocaine and over $3,000 in cash, and razor blades. A loaded .22 caliber derringer, found underneath the mattress of the bed and near the purse, was also seized. In addition, officers seized two bags of crack from Smith's person. Askew was arrested nearby.

On August 15, 1988, a federal grand jury returned a four-count indictment against Smith and Askew. Askew was subsequently placed in a pre-trial diversion program. After a jury trial, Smith was convicted of all four counts. ¹

Smith's base offense level for the drug offenses was 32. See United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1 (Oct.1988). At the sentencing hearing following his conviction, the district court agreed with the recommendation of the presentence report and found that Smith was an "organizer" for sentencing purposes and increased his offense level by 2. See U.S.S.G. Sec. 3B1.1(c). Offense level 34 combined with criminal history category II resulted in a sentencing guidelines range for the drug offenses of 168 to 210 months. The district court imposed a sentence of 168 months and a consecutive 60-month sentence as required for the firearm violation, producing a total sentence of 228 months.

II.

Smith contends that the evidence was insufficient to convict him of violating section 924(c)(1). We have held that to sustain a conviction under this section "it is enough if the firearm is present for protection and to facilitate the likelihood of success, whether or not it is actually used." United States v. Brockington, 849 F.2d 872, 876 (4th Cir.1988). In Brockington, the defendant was arrested while a passenger in a taxi. A search of his person incident to arrest yielded cocaine and heroin. Officers also recovered a loaded firearm under the floormat beneath his seat in the cab. Affirming Brockington's section 924(c)(1) conviction, we held:

[T]here was sufficient evidence for the jury to conclude that Brockington possessed the drugs seized incident to his arrest with the intent to distribute them, and indeed, was in the process of conducting his illegal trade. This evidence, coupled with the common sense recognition that drug dealing is a dangerous and often violent enterprise, more than supports an inference that Brockington carried the weapon to facilitate his "business."

Id. (citation omitted).

Viewing the evidence in the light most favorable to the government, ample evidence existed for the jury to have concluded that the derringer was used by Smith "for protection and to facilitate the likelihood of success." First, the loaded gun was found in close proximity to a purse containing cocaine and a large sum of money. Second, both Rhem and Askew testified that they had earlier seen the gun on the dresser along with drugs, money, and jewelry. See United States v. Poole, 878 F.2d 1389, 1393 (11th Cir.1989) ("[T]he presence of weapons in a location defendant used to distribute a significant quantity of illegal drugs is sufficient to submit to the jury the issue of whether defendant used the firearms in connection with a drug trafficking crime.").

We find Brockington dispositive and Smith's attempt to distinguish it unavailing. We therefore affirm the section 924(c)(1) conviction.

III.

Smith challenges the search of his motel room by asserting that there was a lack of probable cause, that the officers violated state law by not promptly returning the warrant and the property seized pursuant to it to the issuing magistrate, and that the officers violated Rule 41 of the Federal Rules of Criminal Procedure by obtaining a state warrant from a state court not of record to execute a "federal search." We consider these contentions in turn.

A.

Smith attacks the conclusory nature of the affidavit, specifically asserting that the affidavit supporting the search warrant did not establish probable cause because the affiant (Lieutenant Dotson) failed to explain how the "reliable confidential informant" was indeed reliable or how he knew that the informant had observed cocaine in Room 254. This argument is manifestly without merit. The affidavit clearly states that the informant was observed entering a room with no cocaine in his possession, exiting the room, and then turning over cocaine to Dotson. Thus, it is clear that the magistrate had a " 'substantial basis for ... concluding' " that there was "a fair probability that contraband or evidence of a crime" would be found in Room 254. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citation omitted). ²

B.

Smith argues that the warrant and the property seized during the search were not returned to the magistrate within ten days as required by West Virginia Code section 62-1A-4 (1989). As the government correctly notes, however, this section requires only that the warrant, not the seized property, be returned to the magistrate along with an inventory of the property seized. Smith acknowledges this, but points to the statement on the warrant itself requiring the officer to "seize such property and bring the same before me to be dealt with according to law." He maintains further that the government has never shown that the warrant was returned.

The federal analog to West Virginia Code section 62-1A-4 is Rule 41(d) which mandates, inter alia, prompt return of federal warrants. We have held that "ministerial" violations of Rule 41(d) "require suppression only if the defendant can demonstrate that he was prejudiced by the violation." United States v. Wyder, 674 F.2d 224, 226 (4th Cir.) (collecting cases), cert. denied, 457 U.S. 1125, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982); see 2 W. LaFave, Search and Seizure Sec. 4.12(c) (1987) ("the 'overwhelming weight of authority' is to the effect that required warrant return procedures are ministerial and that failure to comply with them is not a ground for voiding an otherwise valid search") (quoting United States v. Kennedy, 457 F.2d 63, 67 (10th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972)). Because Smith has...