U.S. v. Underwood

• Decision Date: 20 September 1996
• Docket Number: 95-5442,No. 95-5441,95-5441
• Citation: 97 F.3d 1453,1996 WL 536796
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Oliver UNDERWOOD and Gerald K. Underwood, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1453

97 F.3d 1453

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Oliver UNDERWOOD and Gerald K. Underwood, Defendants-Appellants.

No. 95-5441, 95-5442.

United States Court of Appeals, Sixth Circuit.

Sept. 20, 1996.

Before: WELLFORD, NORRIS, and DAUGHTREY, Circuit Judges.

WELLFORD, Circuit Judge.

Defendants Gerald and Oliver Underwood appeal after being convicted of numerous crimes in connection with a scheme to transport cocaine through the United States mail. Defendants contend that a host of errors were committed in the court below. We disagree and thus AFFIRM.

I. FACTS

On July 14, 1993, United States Postal Inspector Vance Arnold suspected that controlled substances were being transported in two Express Mail packages received for delivery by the United States Post Office in Louisville, Kentucky from an address in Long Beach, California. On the strength of an affidavit from Arnold, warrants were issued and the packages were searched. Inside, officers found a total of 150.6 grams of crack cocaine.

Following the search, the packages were resealed and a controlled delivery was made to the respective addressees. The first package, addressed to F.L. Taylor on 2318 Hale Avenue in Louisville, was received at that address by Vivian Earsery. Earsery was arrested on state drug charges upon exiting the residence shortly thereafter with the unopened package in her possession. The second package was addressed to defendant Gerald Underwood at his mother's residence at 244 South Forty-First Street in Louisville. Upon taking delivery of the package and opening it, Gerald was also arrested on state charges.

During the search of the Forty-First Street residence, the police obtained consent from Earsery and Susan Suarez, Gerald's girlfriend, to search an apartment leased by Vivian Earsery at 5105 South First Street. Although Earsery's name was on the lease, Gerald and Suarez had been the primary occupants of the apartment for the previous ten or eleven months. A search of the apartment yielded several boxes similar in size and shape to the intercepted packages, $600 in cash, and a .32 caliber handgun in a shoulder holster. The gun was discovered in a chest of drawers located in the bedroom used by Gerald and Suarez. The chest was owned by Suarez and contained a number of Gerald's personal belongings.

Additional investigation uncovered several other Express Mail packaging labels indicating mailings from California to various persons in Louisville, including Earsery and Gerald, between May 14, 1992 and July 14, 1993 (the "other mailings"). Comparing the handwriting from these labels with that from the labels on the intercepted packages, the police determined that all of the labels had been prepared by defendant Oliver Underwood, Gerald's brother. The police also discovered sixteen Western Union money transfers by Gerald to Oliver, totalling $3,850.

II. PROCEDURAL HISTORY

As indicated above, Gerald was arrested on state drug charges on July 14, 1993. Roughly two weeks later, he appeared at a preliminary hearing on these charges. Because no lab report was available at that time, the hearing was continued until August 30 and Gerald was released on his own recognizance in the meantime. Gerald subsequently failed to appear for the August 30 hearing and a bench warrant was issued. In November, Gerald was apprehended by a United States Marshal in Greensboro, North Carolina on a federal probation violation warrant.

On May 18, 1994, Gerald and Oliver were indicted by a federal grand jury and charged with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846; possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); and using the United States mail to facilitate the commission of a felony drug crime in violation of 21 U.S.C. § 843(b). Gerald was further charged under 18 U.S.C. § 922(g) with being a felon in possession of a firearm.

On November 8, 1994, Gerald filed a motion to suppress the cocaine from the packages and the evidence found in his South First Street apartment. Gerald further moved to bifurcate the proof relating to the felon-in-possession count from the government's case-in-chief on the drug counts against him. Both motions were denied. On December 12, a jury found both defendants guilty on all the counts of the indictment.

On March 14, 1995, the district court sentenced Oliver to a term of 169 months in prison, to be followed by five years supervised release. Gerald was sentenced to a prison term of 360 months, set to run consecutively to the remainder of the sentence he was currently serving on an unrelated prior conviction. In calculating Gerald's base offense level, the district court assessed a two-point enhancement for obstruction of justice (U.S.S.G. § 3C1.1) based upon his failure to appear before the state court on August 30, 1993. Gerald's sentence also reflected enhancements based upon the district court's determination that Gerald qualified as a career offender (U.S.S.G. § 4B1.1) and an armed career criminal (U.S.S.G. § 4B1.4). This timely appeal followed.

III. ISSUES PRESENTED

We must decide the following issues: (a) whether the district court erred in refusing to suppress the cocaine found in the Express Mail packages delivered to Earsery and Gerald; (b) whether the district court erred in refusing to suppress the evidence found in Gerald's South First Street apartment; (c) whether the district court erred in admitting evidence of the other mailings from Oliver to various persons in Louisville; (d) whether the district court erred in denying Gerald's bifurcation motion; (e) whether the district court erred in admitting at sentencing certain hearsay statements of Earsery; (f) whether the district court erred in classifying Gerald as a career offender and an armed career criminal under the Sentencing Guidelines; (g) whether the evidence is sufficient to sustain Gerald's felon-in-possession conviction; (h) whether the trial court erred in admitting evidence of Gerald's alleged flight from state authorities; (i) whether the district court erred in increasing Gerald's base offense level for obstruction of justice; and (j) whether the district court erred in denying Oliver's motion to sever from Gerald.

IV. ANALYSIS

A. Suppression of the Cocaine Found in the Express Mail Packages

1. Was There Justification to Detain the Packages Initially?

Defendants first argue that the cocaine found in the Express Mail packages delivered to Earsery and Gerald should have been suppressed because the original detention of those packages by the Postal Service constituted an illegal search and seizure under the Fourth Amendment. The Supreme Court has held, however, that mail may be detained so long as there is a reasonable suspicion of criminal activity. United States v. Van Leeuwen, 397 U.S. 249, 252 (1970). Reasonable suspicion results from specific and articulable facts, and rational inferences therefrom, that reasonably justify an intrusion. Terry v. Ohio, 392 U.S. 1, 21 (1968). Defendants argue that reasonable suspicion did not exist in this case. We disagree.

In combating the transportation of narcotics through the mails, the Postal Service has developed a "drug package profile," which targets packages based on certain traits encountered in the vast majority of mailings discovered to contain drugs. These characteristics include: (1) the size and shape of the mailing; (2) whether the package is taped to seal all openings; (3) whether the mailing labels are handwritten; (4) whether the return address is suspicious (e.g., the return addressee and the return address do not match, or the return address is fictitious); (5) unusual odors coming from the package; (6) whether the city of origin and/or city of destination of the package are common "drug source" locales; and (7) whether there have been repeated mailings involving the same sender and addressee. United States v. Daniel, 982 F.2d 146, 150 n. 5 (5th Cir.1993); United States v. Lux, 905 F.2d 1379, 1380 n. 1 (10th Cir.1990).

This court has not yet decided whether reasonable suspicion can be aroused by a mailing's conformity to the drug package profile. Other courts, however, have held that the presence of an aggregate of profile factors satisfies the Terry doctrine. See, e.g., United States v. Allen, 990 F.2d 667, 671 (1st Cir.1993) (three factors present); Daniel, 982 F.2d at 150 (six factors present); Lux, 905 F.2d at 1381 (three factors present); United States v. Cantrall, 762 F.Supp. 875, 879 (D.Kan.1991) (three factors present); United States v. Sklar, 721 F.Supp. 7, 10 (D.Mass.1989) (three factors present).

In the present case, Postal Inspector Arnold initially suspected that the packages in question contained narcotics because they were from Long Beach, California, a known drug source city; the destination of the parcels--to individuals--was unusual in that most Express Mail packages are sent to businesses; the labels on the packages were handwritten; and the packages had some "volume to them." A cursory investigation of the packages enhanced Arnold's suspicions by revealing that: (1) the recipient phone number listed on the 2318 Hale Avenue package was nonexistent; (2) the person known to be living at 2318 Hale was Frankie Lee Baker, not Frankie Lee Taylor, as the package indicated; (3) Gerald Underwood, the recipient of the other package, had a criminal record; (4) the return addresses on the packages were fictitious; (5) three other suspicious Express Mail packages had been sent to Louisville from Long Beach in the previous eight months: the first two, addressed to Gerald Underwood, bore fictitious return addresses and recipient...