U.S. v. Townley, No. 90-1364

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY, Chief Judge, BRIGHT; BRIGHT
Citation929 F.2d 365
PartiesUNITED STATES of America, Appellee, v. Kevin TOWNLEY, Appellant.
Docket NumberNo. 90-1364
Decision Date27 March 1991

Page 365

929 F.2d 365
UNITED STATES of America, Appellee,
v.
Kevin TOWNLEY, Appellant.
No. 90-1364.
United States Court of Appeals,
Eighth Circuit.
Submitted Oct. 12, 1990.
Decided March 27, 1991.

Page 366

Irene Smith, St. Louis, Mo., for appellant.

Michael Reap, St. Louis, Mo., for appellee.

Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, and VAN SICKLE, * Senior District Judge.

BRIGHT, Senior Circuit Judge.

Kevin Townley appeals his conviction and sentence for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(C) (1988). Townley also appeals his conviction for use of a firearm in relation to drug trafficking in violation of 18 U.S.C. Sec. 924(c)(1) (1988). Specifically, Townley contests: (1) the validity of the search warrant for his apartment, (2) the sufficiency of the Government's proof on the firearm count, and (3) the inclusion of certain drug amounts to calculate his sentencing range under section 1B1.3 of the United States Sentencing Commission, Guidelines Manual (Nov. 1989) (amended 1990) (hereinafter U.S.S.G.). We affirm Townley's convictions, but reverse and remand for resentencing.

I. BACKGROUND

On June 9, 1989, police arrested Townley, a twenty-six-year-old insurance salesman, following a search of his studio apartment. Police acted pursuant to a warrant which authorized the seizure of drugs, guns, money and records from Townley's apartment. The police simultaneously searched an apartment down the hallway occupied by one Demetrius Blunt.

The police obtained search warrants for both apartments based on information provided by a confidential informant. The Affidavit In Support of a Search Warrant (hereinafter Affidavit) reported that the confidential informant had seen "two large aluminum containers" filled with cocaine

Page 367

powder in Blunt's apartment and "several large bundles of U.S. currency" in Townley's apartment earlier that day. According to the Affidavit, the informant advised police that Blunt's apartment was "being used as a safe house to store drugs" for Townley's half-brother, Frederick Townley, a reported drug kingpin. The informant also reportedly asserted that "Kevin Townley uses his apartment to store large sums of money which are proceeds from his brothers [sic] illicit drug sales."

The search of Townley's apartment produced no cash. However, the police did discover a baggie containing 26.92 grams of 82% pure cocaine in a kitchen cabinet and a loaded revolver in a bedside dresser. In a closet, the police also found a few grams of marijuana in a coat pocket and a metal lock box containing cocaine residue.

In Blunt's apartment, the police found a similar lock box underneath the bed. This box contained a 1,456.87 gram brick of 100% pure cocaine, fifteen baggies of cocaine, totalling 400.18 grams and ranging in purity from 70% to 93%, and $1,100 in cash. In addition, the search produced correspondence pertaining to a joint business venture between Townley and Blunt called Jaguar Productions.

The Government charged Townley in a two-count indictment with possession with intent to distribute 26.92 grams of cocaine and use of a firearm in drug trafficking. To prove intent to distribute, the Government presented expert testimony that the quantity and purity of the cocaine in Townley's apartment suggested that Townley possessed it for resale rather than personal use. 1 The Government further argued that Townley retained the firearm to protect his drug stash. The jury returned guilty verdicts on both counts.

At sentencing, the Government switched course and proceeded under a conspiracy theory. The Government's theory essentially posited the existence of a joint agreement between Townley, his half-brother and Blunt to engage in cocaine distribution. Under this theory, the Government sought to hold Townley accountable not only for the 27 grams proven at trial, but also for the 1,857 grams of cocaine discovered in Blunt's apartment.

Additionally, the Government sought to include nearly four kilograms of cocaine seized at the St. Louis bus station during a drug bust on Easter Sunday, some three months prior to Townley's arrest for the instant offense. In that incident, the police arrested four incoming passengers from Los Angeles after finding 3,916 grams of cocaine among their personal effects. A purse from one of the passengers contained a group photograph of Townley, his half-brother Frederick, Demetrius Blunt and an unidentified individual.

According to police, Townley approached the officers during the arrest and indicated that he had come to pick up the passengers. Townley was carrying a pager and wearing a South African medallion similar to that worn by two of the passengers. When the police questioned Townley about his connection to Frederick Townley, Townley initially denied any relationship, but later admitted to being brothers. Upon police request, Townley agreed to take the passengers' luggage home with him from the jail.

The Government neither arrested nor charged Townley for the bus station incident. At sentencing, however, the Government, through a police detective, introduced the following hearsay statements of bus passenger Dominica Ashford:

Q. What did Dominica Ashford say as to the source of the cocaine that was seized from both herself and [her co-passengers]?

A. She advised me in a written statement that the cocaine was intended to be brought to a subject by the name of Freddy Townley or Forego, what he was known on the street.

She further went on to tell us that Kevin Townley was in fact there or supposedly there at the bus station to pick them up.

Page 368

Tr. at 234. Through the detective, the Government further reiterated the hearsay statements of its confidential informant that Townley and Blunt used their apartments as safe houses for the drug operation of Townley's half-brother. 2

Townley hotly contested the cocaine quantities outside the count of conviction. He argued that sentencing should be limited to the 27 gram amount, which would have produced a base offense level of 14 and a sentencing range of fifteen to twenty-one months.

The district court nevertheless decided that "there was sufficient evidence to connect the defendant to the Easter Sunday action and also to the Blunt search." Tr. at 253. This finding placed Townley at an offense level of 32 on the drug count and dictated a sentencing range of 121 to 151 months. Additionally, the firearm count carried a mandatory consecutive sentence of sixty months. Thus, the district court sentenced Townley, a first-time offender, to the minimum possible term of imprisonment under the Guidelines--fifteen years and one month without the possibility of parole. This appeal followed.

II. DISCUSSION

A. Validity of Search Warrant

Townley objects to the admission into evidence of the drugs and firearm seized from his apartment. Townley asserts that the judge lacked probable cause to issue a search warrant for his apartment.

There exists a substantial question as to the search warrant's validity. 3 Nevertheless, even if the warrant lacked validity, the fruits of the search still could come into evidence under the good faith exception to the exclusionary rule. In United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), the Supreme Court determined that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." See also United States v. White, 890 F.2d 1413, 1419 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).

In this case, Townley has neither alleged nor argued that the police reliance on the warrant's apparent authority lacked objective reasonableness. Our review of the record likewise discloses no suggestion of unreasonable reliance or bad faith on the part of the officers. Accordingly, the fruits of the search properly entered into the evidence at trial.

B. Sufficiency of the Evidence

Townley next challenges his conviction for the firearm count, see 18 U.S.C. Sec. 924(c)(1). According to Townley, the Government failed to prove that he used the loaded revolver to further a drug trafficking offense. We nevertheless believe that the weapon's proximity to the drugs and its accessibility suffice to establish this element. See, e.g., United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990); United States v. Lyman, 892 F.2d 751, 753 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 45, 112 L.Ed.2d 21 (1990). As we noted in Young-Bey:

It has become common knowledge that drug traffickers typically keep firearms available to protect themselves and their drugs and drug money. The presence

Page 369

and availability of the firearms are often crucial to the "success" of the drug enterprise. It is therefore permissible for juries to infer that firearms found among a drug trafficker's paraphernalia are used to further the drug venture and are thus used during and in relation to drug trafficking within the meaning of section 924(c).

893 F.2d at 181.

Here, Townley proffers no contention that the evidence...

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