U.S. v. Stewart

• Decision Date: 04 September 1985
• Docket Number: No. 84-1111,84-1111
• Citation: 770 F.2d 825
• Parties: 19 Fed. R. Evid. Serv. 886 UNITED STATES of America, Plaintiff-Appellee, v. William Stanley STEWART, a/k/a Stanislaus W. White, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 825

770 F.2d 825

19 Fed. R. Evid. Serv. 886

UNITED STATES of America, Plaintiff-Appellee, v. William Stanley STEWART, a/k/a Stanislaus W. White,

Defendant-Appellant.

No. 84-1111.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1985.

Decided Sept. 4, 1985.

D. Michael Nerney, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Alan M. Caplan, Bushnell, Caplan, Fielding & Rudy, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, TANG, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Stewart appeals his conviction for distribution and conspiracy to distribute LSD, and possession with intent to distribute and conspiracy to distribute cocaine. We affirm the conviction, but remand for resentencing.

I. FACTS

In September and October 1982, DEA agent Robert Fanter purchased large quantities of LSD from Michael North on three separate occasions. During each transaction, North referred to obtaining drugs from a "friend" or to going home to give his "friend" the money Fanter paid for the drugs.

DEA agents kept North under surveillance before, during, and after each transaction. They saw Stewart arrive at North's home immediately prior to each of the three transactions, and, on two of those occasions, North called Fanter to say that his friend had arrived.

After the second transaction on October 15, Stewart was waiting at North's home when North returned. Stewart left the house a short time later, and, for the next nine hours he drove around the Santa Cruz area, stopping several times at public phones and private residences. The DEA agents conducting surveillance concluded that Stewart was making drug deliveries to customers.

The last transaction took place on October 26. North went to Fanter's hotel but he brought with him only half of the 60,000 doses of LSD he was to deliver. He said that he would deliver the remainder after he took the first half of the purchase price to his friend. Fanter and another DEA agent arrested North at the hotel.

Stewart had been seen arriving at North's house shortly before North left to meet Fanter. After North left, Stewart drove to a hardware store parking lot, used a pay phone, drove into a residential neighborhood, and then returned to the same parking lot. By this time, the surveilling officers had learned that North had delivered only one-half of the LSD. They arrested Stewart in the parking lot, and searched his pickup truck. Inside a briefcase in the cab of the truck, they found 25.37 grams of 83% pure cocaine and a quantity of glucose. The officers did not find any LSD in the search.

Stewart originally was indicted under a false name, Stanislaus William White, which he gave officers at the time of his arrest. After plea negotiations broke down, the government sought and received a superseding indictment against Stewart in his true name. In addition to the LSD counts, it charged Stewart with possession with intent to distribute cocaine and charged both Stewart and North with conspiracy to distribute cocaine.

Stewart and North were tried together. The jury convicted North but could not reach a verdict as to Stewart. Stewart was retried, convicted on all counts, and sentenced to twenty-five years imprisonment (North had been sentenced to three and one-half years). Stewart timely appealed.

II. DISCUSSION

A. Search of Stewart's Truck

Stewart contends the district court erred in denying his motion to suppress the cocaine found in the warrantless search of his truck. Applying de novo review to the district court's determination of probable cause, see United States v. Salvador, 740 F.2d 752, 757-58 n. 4 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985), we disagree.

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court held that if probable cause exists to search an entire vehicle, rather than merely a particular container in the vehicle, the search may extend to the entire vehicle and every container inside it that could conceal the object of the search. Id. at 823-24, 102 S.Ct. at 2172; see United States v. Johns, --- U.S. ----, 105 S.Ct. 881, 883, 83 L.Ed.2d 890 (1985); United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir.1983).

On the evening of the 26th, the agents knew that North had delivered only one-half of the drugs and had said that he would deliver the remainder after he gave the money to his friend. The officers also knew of Stewart's close connection with the earlier transactions, and that night they observed Stewart's somewhat erratic driving, and his two stops to make phone calls. From this information, the agents reasonably could have inferred that North and Stewart had arranged to get in touch and exchange the remainder of the drugs for the money. We conclude that the agents had probable cause to believe that Stewart was carrying the drugs in his truck. See United States v. Azhocar, 581 F.2d 735, 736-37 (9th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979); United States v. Abascal, 564 F.2d 821, 828-29 (9th Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978).

We further conclude that probable cause extended to the entire truck. The agents had no way of knowing where in Stewart's truck the drugs might be found. They had seen Stewart leave North's home earlier that evening carrying the briefcase in which the cocaine was found, but they did not have any specific information or reason to believe that the LSD would be in the briefcase. ¹ The LSD might have been hidden anywhere in the truck, so the search permissibly could extend to containers within the truck. See United States v. Johns, 105 S.Ct. at 884.

B. Vindictive Prosecution

Stewart contends the government's conduct in seeking the superseding indictment, which added the cocaine charges, constituted vindictive prosecution. He argues that the government sought the new indictment because he refused to accept a plea bargain. ²

Bringing additional charges because a defendant is not willing to plea bargain constitutes permissible prosecutorial discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir.1984); United States v. Allsup, 573 F.2d 1141, 1143 (9th Cir.), cert. denied, 436 U.S. 961, 98 S.Ct. 3081, 57 L.Ed.2d 1128 (1978). Stewart was "free to accept or reject the prosecution's offer." Bordenkircher v. Hayes, 434 U.S. at 363, 98 S.Ct. at 668. Even assuming the government did seek the superseding indictment in retaliation for Stewart's refusal to plead guilty, that alone is insufficient to establish vindictive prosecution. United States v. Heldt, 745 F.2d at 1280.

C. Exclusion of Paraphernalia Found In North's House

Stewart contends he should have been permitted to introduce in evidence several items seized from co-defendant North's house: a bag of marijuana; a marijuana plant; books on drug growth and production; psychedelic mushrooms; a bag containing funnels and a white powder residue; a cocaine spoon and mirror; and a scale. He offered these items to show that North was a supplier of narcotics, "which ... may have suggested to the jury that North himself was the sole operative in the alleged drug enterprise, rather than merely being an agent of [Stewart]."

The district court refused to admit this evidence on the basis that it was not probative, involved a collateral matter, and would tend to confuse the jury. We review this ruling for an abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1291 (9th Cir.1984); United States v. Booth, 669 F.2d 1231, 1239 (9th Cir.1981).

We recognize that "[a] defendant is entitled to prove his innocence by showing that someone else committed the crime," United States v. Brannon, 616 F.2d 413, 418 (9th Cir.), cert. denied, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980); accord Perry v. Rushen, 713 F.2d 1447, 1454 (9th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984), and we have reversed convictions for exclusion of such exculpatory evidence, see, e.g., United States v. Crenshaw, 698 F.2d 1060, 1064-66 (9th Cir.1983) (exclusion of photographs of person who defendant contended committed bank robbery); United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980) (exclusion of evidence that another person, matching description of bank robber, had used bait money taken in robbery).

The difficulty here is that the evidence Stewart sought to introduce was only slightly relevant, if at all, and was clearly collateral to the central issues of the trial. Fed.R.Evid. 403. The paraphernalia might have tended to show that North was a drug distributor, but it did not show that Stewart was not a distributor. Although it may have been preferable to admit the evidence, we cannot say that the district court abused its discretion by excluding it. ³

D. North's Hearsay Statements

Stewart contends North's statements about his "friend" or source should have been excluded under Fed.R.Evid. 801(d)(2)(E), because the government did not produce sufficient evidence to establish a conspiracy and Stewart's connection to it.

To introduce co-conspirator statements under Rule 801(d)(2)(E), the government must show substantial independent evidence of the existence of a conspiracy and slight evidence of the defendant's connection with the conspiracy. United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). The hearsay statements themselves cannot be considered in determining whether the requirements of the rule have been met. United States v. Perez, 658 F.2d 654, 658-59 (9th Cir.1981); United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980). We...