U.S. v. Thomas

• Decision Date: 19 August 1997
• Docket Number: No. 96-20096,96-20096
• Citation: 120 F.3d 564
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derrick Anthony THOMAS; Ronald Harmon; Elluard J. Jackson; Thaddius Christopher Goins, also known as Cricket, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 564

120 F.3d 564

UNITED STATES of America, Plaintiff-Appellee, v. Derrick Anthony THOMAS; Ronald Harmon; Elluard J. Jackson;

Thaddius Christopher Goins, also known as

Cricket, Defendants-Appellants.

No. 96-20096.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1997.

Rehearings Denied Sept. 18 and Oct. 10, 1997.

James L. Powers, Assistant U.S. Attorney, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, H. Michael Sokolow, Houston, TX, for Derrick Anthony Thomas, Defendant-Appellant.

Walter Eugene Herman, Humble, TX, for Ronald Harmon, Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves four appellants who were convicted of conspiracy to possess with intent to distribute cocaine base and a substantive count of possession with intent to distribute cocaine base. The appellants make various challenges to their convictions, including: alleged violations of the Fourth Amendment, insufficient evidence to sustain their convictions, and evidentiary error. Goins and Jackson also challenge their sentences. We affirm.

I. PROCEDURAL HISTORY AND BACKGROUND

A grand jury charged Thaddius Christopher Goins (Goins), Derrick Anthony Thomas (Thomas), Ronald Harmon (Harmon), and Elluard Jackson (Jackson) with one count of conspiracy to possess with intent to distribute cocaine base and one count of possession with the intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2. Prior to trial, all four defendants moved to suppress all the evidence seized during a search of apartment # 426 at 230 Uvalde in Houston. Specifically, the police discovered crack cocaine, drug paraphernalia, and a firearm in the apartment.

The district court held a hearing on the defendants' motions, and the following evidence was adduced. Based on a tip from a confidential informant that Goins would be manufacturing crack cocaine from powder cocaine, Houston police officers set up surveillance of the apartment at about 10 p.m. on May 4, 1995. Approximately an hour and a half later Harmon exited the apartment and began driving away in a white Cadillac. The officers stopped him because he was driving without his headlights and failed to signal. In response to police inquiries, Harmon denied having just left the apartment. Harmon was arrested, and a search of his person revealed a loaded firearm in his boot.

At approximately 12:50 a.m., Thomas left the apartment and was stopped by the police because the vehicle he was driving had outstanding warrants. The police arrested Thomas based on those warrants. Upon questioning, Thomas admitted there was "dope" in the apartment but would not say how much. Thomas also gave the officers conflicting responses regarding whether he lived in the apartment. He told one officer that he had no involvement with the apartment, and he implied to another officer that it was his girlfriend's apartment. Further investigation after the search revealed that Thomas's name was on the apartment lease.

After Harmon's and Thomas's departures, Goins walked out of the apartment several times, glanced at his watch, and looked around the apartment complex, apparently awaiting the return of Harmon and Thomas, both of whom, unbeknownst to Goins, had been arrested. About 1:30 a.m., Goins walked across the street to use a pay phone outside a convenience store and was arrested on outstanding warrants. The police found $4,800 in cash on Goins's person. Additionally, when an officer asked Goins a question regarding the amount of "dope" in the apartment, Goins replied "Man, you already know what's up. Why you asking me? Why do you think I would know how much it is?"

The officers then decided to approach the apartment and try to obtain consent to search. Officers DeBlanc and Ong proceeded through an open gate of a privacy fence surrounding the apartment and knocked on the front door. Someone inside responded "come in," and DeBlanc knocked again and identified himself as a police officer. Ultimately, the individual who had bid the officers "come in" opened the door and walked away from the officers. ¹ From their vantage point at the front door, the officers could see into the kitchen. Officer DeBlanc observed cocaine on the counter, a beaker, microwave ovens, and boxes of baking soda. At that point, Officer DeBlanc knew he had witnessed a drug offense. Upon entering the apartment Officer Ong conducted a protective sweep to ascertain whether there were armed individuals present. The officers saw Jackson seated in a chair in the living room, apparently feigning sleep.

The officers spoke with the man who had opened the door and discerned that he was mentally impaired and thus, could not give consent to search. Sometime after the search, it was learned that this man was Thomas's uncle. The officers then spoke to Jackson to try to obtain consent to search. Jackson told the officers he was left there to take care of the mentally impaired man. To avoid the appearance of coercion from the influx of police officers, the officers requested that Jackson continue the conversation in the bedroom. Jackson did not sign the consent to search form but did give oral consent to search. Jackson admitted that he said "Yeah, you already in, you might as well search." At the time, Jackson was unaware that the police taped part of the conversation. During this conversation, Officer DeBlanc observed an open duffel bag on the bed that contained crack cookies.

After Jackson orally consented, the officers searched the apartment. Aside from the cocaine and paraphernalia previously observed, the following items were seized: a semi-automatic pistol; cocaine from a closet; crack cookies inside a jacket; and a plate in a bedroom with a razor blade. It was later determined that the bag in the bedroom contained nearly 3 kilograms of crack cocaine cookies.

After hearing the evidence, the district court made the following findings: there was an adequate basis to arrest Harmon based on the officer's testimony; neither Harmon nor Goins had standing to challenge the search of the apartment but Jackson and Thomas did have standing; the officers reasonably believed that Jackson, as a caretaker, had the limited authority to consent to a search of the common areas of the apartment but not to a search of the closets or underneath mattresses; the officers reasonably believed that the front door of the apartment was accessible to the public and that the uncle had consented for them to enter the apartment; and the officers could see the contraband on the counter top from the door. Based on these findings, the district court suppressed the evidence, including the semi-automatic pistol, discovered outside the common areas of the apartment and allowed the remaining evidence.

At trial, the Government introduced evidence that earlier on the day of the search, several officers set up surveillance of an auto detailing shop and observed an exchange between Goins, who had a white Cadillac, and another individual, who was driving a maroon Oldsmobile. Upon leaving in his Oldsmobile, the individual was stopped, and a little over $20,000 in cash and a semi-automatic pistol were recovered from hidden compartments in the vehicle.

The Government also introduced the evidence from the suppression hearing regarding the events that occurred during the officers' surveillance and subsequent search of the apartment on the night of May 4, 1995. The evidence seized from the apartment was introduced before the jury. Among other things, a scale, a metal pot, sixteen beakers, and the microwave ovens all contained small or trace amounts of crack cocaine. One beaker contained a cookie consisting of 24.6 grams of crack cocaine. The cookies found in the bag in the bedroom contained 2.9 kilograms of crack cocaine.

Officer DeBlanc testified that crack cocaine is made by mixing baking soda and water with the powder cocaine and heating the mixture on the stove or in the microwave. The cocaine then settles to the bottom of the container and the adulterants or diluents rise to the top. While still wet, the cookies are taken out of the beaker to dry. After an hour or so, they become extremely hard. It takes from 35 minutes to 1 hour to convert 1 kilogram of powder cocaine into crack. Officer DeBlanc also testified that a kilogram of cocaine costs between $17,000 and $21,000 wholesale. Street value of a kilogram of cocaine would be in excess of $100,000. He further testified that 2.9 kilograms of crack cocaine was an "incredibl[y] large amount of crack cocaine" and that it would take several individuals to cook that much cocaine because "[i]t's like an assembly type operation." In his opinion, the cookies found in the duffel bag had been freshly cooked.

A jury found all defendants guilty as charged, and the district court imposed the following sentences: Goins, 380 months; Thomas, 292 months; Harmon, 292 months; and Jackson, 235 months.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Goins, Harmon, and Jackson contend that the evidence was insufficient to sustain their convictions. When reviewing the sufficiency of the evidence, we view all evidence, whether circumstantial or direct, in the light most favorable to the Government with all reasonable inferences to be made in support of the jury's verdict. United States v. Salazar, 958 F.2d 1285, 1290-91 (5th Cir.), cert. denied, 506 U.S. 863, 113 S.Ct. 185, 121 L.Ed.2d 129 (1992). The evidence is sufficient to support a conviction if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion...