U.S. v. Thigpen
| Decision Date | 25 February 1994 |
| Docket Number | 93-50058 and 93-50067,Nos. 93-50043,s. 93-50043 |
| Citation | 19 F.3d 31 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Darcy Ira THIGPEN; Robert Ross, Dwayne Allen Falconer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: FLETCHER, PREGERSON and HALL, Circuit Judges
Appellants Thigpen, Ross, and Falconer separately appeal their convictions for possession of cocaine and cocaine base with intent to distribute, 21 U.S.C. Sec. 841(a)(1); conspiracy, 21 U.S.C. Sec. 846; possession of a firearm during a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1); and being felons in possession of firearms, 18 U.S.C. Sec. 922(g). Thigpen and Falconer also appeal their sentences.
These appeals raise two suppression of evidence issues, two sufficiency of evidence issues, and two sentencing issues. First, Ross and Falconer argue that there was no probable cause to search Ross's house, while Thigpen raises a claim of unnecessary prearraignment detention. Second, Ross argues the evidence was insufficient to show that he used a short-barreled shotgun in relation to the cocaine sales, while Falconer argues the evidence was insufficient to convict him of possessing the cocaine. Third, Thigpen claims he was entitled to a downward departure because his career offender status overstated his real criminal history, while Falconer claims he was entitled to a two-point sentencing reduction for being a minor participant in the conspiracy.
We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.
The Bureau of Alcohol, Tobacco and Firearms ("ATF") first began to suspect that drug sales were occurring in an apartment at 209 East 62nd Street around June 15, 1992. On June 24, 1992, ATF Agent Veal directed a confidential informant (CI) to purchase cocaine from a man on the street near the apartment. After the CI made contact, the man went around the corner, into the apartment, and then came back and exchanged something with the CI. The CI later verified that the man had brought her $50 worth of cocaine.
On July 20, Agent Veal received two confidential tips that the East Coast Crips were selling cocaine at 209 East 62nd Street, and that they were always heavily armed. On July 29, Agent Veal directed a second CI, Martin, to purchase cocaine at the apartment. She testified that appellant Dwayne Falconer met her outside the building and escorted her to apartment three, outside of which appellant Robert Ross was standing. She bought $100 worth from Falconer. She later told Agent Veal that inside the apartment she had seen a revolver on the sofa. Martin was wearing a radio transmitter and her version of these events is corroborated by what the agents listening to the transmission heard.
ATF Agents observed a large amount of traffic into and out of the apartment on August 1 and 2. This traffic included appellant Darcy Thigpen on August 2.
On August 4, Agent Merenyi observed defendant Ross engage in various activities relating to the apartment and his house, which was across the street at 204 East 62nd Street (his activities are described in detail below). Ross was suspected of belonging to the East Coast Crips.
On the same day, Agent Veal again directed Martin to purchase cocaine at the apartment. She knocked on the door and was met by Thigpen. She gave him $100, and selected a package of cocaine from the same bowl she had been offered on her last visit. From her description, the Agents realized that Thigpen was the man who had just exchanged some keys with Ross. 1 Martin said she observed a large amount of cash on the table in the apartment.
Also on August 4, ATF Agent Veal submitted an affidavit and secured a search warrant for the apartment and for Ross's house.
At 4:00 a.m. on August 5, Martin was directed to purchase $50 worth of cocaine from the apartment. She went to the door and was met by Ross, who sold her the cocaine. Later that same day, Thigpen was observed entering the apartment, and Ross was observed walking back and forth between the apartment and his house.
At 9:00 a.m. on August 5, a SWAT team simultaneously executed search warrants for the apartment and the house. Thigpen was arrested outside of the apartment; Ross and Falconer were arrested in the house.
At the apartment, agents found several small quantities of cocaine, some packaged for sale (total weight, 34 grams). They found two handguns and ammunition on top of the refrigerator in the kitchen. They also found more than $10,000 in cash in the living room and bedroom.
At the house, agents found almost two kilograms of cocaine in a locked closet off one of the bedrooms. They also found numerous guns: a revolver in the bedroom, a rifle in the closet, a pistol under a mattress, and ammunition above the refrigerator. In the kitchen ceiling there was an attic opening. The attic was not easily accessible; one agent had to get on another's shoulders to reach inside it. He retrieved two shotguns (one sawed-off), an AK-47, a rifle, and a pistol.
After their arrests, defendants were taken to a local police station for holding while the ATF agents completed their searches. At the end of the day defendants were returned to ATF custody. All three waived their Miranda rights and made various incriminating statements. The next day they were taken to the courthouse for arraignment, but the United States Attorney did not complete a complaint against them until after 3:30, the time for the last calendar call for first appearances. The ATF therefore had a Magistrate sign a finding that probable cause existed to arrest them. They were formally arraigned the next morning.
On August 21, 1992, an eight-count indictment was returned against them, charging each with conspiracy, possession of cocaine and cocaine base with intent to distribute, use of a firearm during a drug trafficking crime, and being a felon in possession of a firearm. All three pled not guilty, and went to trial on October 13, 1992. On October 15, a jury convicted each of them on all counts of the indictment.
Thigpen was sentenced as a career offender to 420 months in prison. At his sentencing hearing, Thigpen argued that the district court should depart downward because his career offender status significantly over-represented his real criminal history. 2 The district court refused to depart downward.
Falconer was sentenced as a career offender to 480 months in prison. He argued at the sentencing hearing that he was entitled to a two-point downward adjustment because he had sold cocaine only once at 209 East 62nd Street, and was thus only a "minor participant" in the cocaine selling conspiracy. The district court did not depart downward on this basis.
Ross was sentenced to 308 months in prison.
Ross and Falconer contend that the district court should have suppressed the evidence gathered at 204 East 62nd Street because the search warrant was not based on probable cause. "Probable cause exists when, considering the totality of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " United States v. Ocampo, 937 F.2d 485, 490 (9th Cir.1991) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). We review a magistrate's issuance of a search warrant for clear error. United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991).
Ross and Falconer argue that "there were no allegations in [Agent Veal's] affidavit to indicate that it would be reasonable to seek evidence in the house located at 204 East 62nd Street." Falconer's Opening Brief at 20. We disagree. The affidavit strongly indicated that drug sales were occurring in the apartment. The affidavit connected the house to the apartment via Ross. It stated that Ross came out of the apartment, moved his car from in front of the house to in front of the apartment, entered the house, came back out and gave some keys to a person who entered the apartment, and drove away. The person who entered the apartment (later identified as Thigpen) then sold CI Martin cocaine. Ross returned, reentered the house, came out, and went over to talk through the window to somebody in the apartment. The affidavit also states that the cocaine sales at the apartment were conducted by the East Coast Crips, and that Ross was a member of the East Coast Crips. Finally, Agent Veal stated that, based on his eight years of police experience, drug dealers typically keep drugs at a "stash house" different from the distribution location, and that he believed the house to be a stash house.
The fact that the affidavit very clearly establishes probable cause for the apartment bears on the probable cause determination for the house. Ross and Falconer rely primarily on United States v. Ramos, 923 F.2d 1346 (9th Cir.1991), in which this court held there was no probable cause to search a house that a person performing "counter-surveillance driving" stopped at for twenty minutes. But in that case there was no concrete evidence of drug transactions at that house or anywhere else at the time the warrant was issued. Id. at 1349-50 (). This was also the case in United States v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir.1992) (). In this case, on the other hand, there was abundant direct evidence of drug transactions at the apartment.
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