U.S. v. Wake

• Decision Date: 10 December 1991
• Docket Number: No. 90-8388,90-8388
• Citation: U.S. v. Wake, 948 F.2d 1422 (5th Cir. 1991)
• Parties: , 71 Ed. Law Rep. 381, 34 Fed. R. Evid. Serv. 1394 UNITED STATES of America, Plaintiff-Appellee, v. Warren Eugene WAKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1422

948 F.2d 1422

60 USLW 2450, 71 Ed. Law Rep. 381, 34

Fed. R. Evid. Serv. 1394

UNITED STATES of America, Plaintiff-Appellee, v. Warren Eugene WAKE, Defendant-Appellant.

No. 90-8388.

United States Court of Appeals Fifth Circuit.

Dec. 10, 1991.

Russell Ramirez, (court-appointed), Ray N. Donley, Scott, Douglas & Luton, Austin, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before REYNALDO G. GARZA, WIENER, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge.

Warren Eugene Wake appeals his conviction, including for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The principal issue is the application of the "schoolyard statute", 21 U.S.C. § 845a, which enhances the penalty, found in § 841(b), for, inter alia, possession with intent to distribute within 1,000 feet of a school. ¹ Wake contests the jury being allowed to find it applicable, without being required to concomitantly find that he distributed within that 1,000-foot zone. At issue is whether the statute is applicable if, within the zone, Wake possessed with intent to distribute somewhere, including outside the zone. We AFFIRM.

I.

On August 14, 1989, police for Austin, Texas, arrested Mitch Hall and Johnetta Norris for possession of, and seized, marijuana. After his arrest, Hall indicated a willingness to cooperate with the police. When questioned by them, Hall admitted that he owned all the marijuana seized and signed a confession. He named Wake as a marijuana supplier.

Hall discussed with the police whether Norris, his girlfriend, would be prosecuted. According to Hall's testimony at trial, the police told him on the evening of his arrest that they would not press charges against Norris if he made a statement and cooperated. However, Officer Staha, at the earlier suppression hearing, denied threatening Hall with prosecution of Norris. Staha testified he told Hall that, because Hall owned all the marijuana and Norris owned none, Norris would not be prosecuted. Norris was released and never indicted.

Having identified Wake as a marijuana supplier, Hall agreed with Staha and DEA Agent Hildreth to make a recorded telephone call to him. Hall called Wake's pager number, and Wake responded by telephone. Hall asked to purchase cocaine from Wake, and Wake directed him to contact Michael Segura. Segura answered Hall's pager call, and the two men arranged for Hall to purchase an ounce of cocaine that evening at a specified time and place. Agents recorded the telephone conversations.

The agents arrested Segura when he arrived at the agreed location for the transaction and seized cocaine, a pager, and tally sheets from him. And, Segura admitted that the cocaine he was carrying belonged to Wake. He explained at trial that he distributed cocaine regularly for Wake between June and August in 1989. Normally, Wake would weigh out cocaine during the day and leave it for Segura to distribute at night. At the end of the evening Segura routinely left money, tally sheets, and leftover cocaine at Wake's office.

Law enforcement officers obtained search warrants for Wake's residences and safe deposit box. They arrested him at his home on August 24, 1989, and seized cash, tally sheets, digital pagers and a key ring containing two safety deposit box keys.

The next day, Sheri Austin, the manager of the building where Wake rented an office, telephoned police officer Mark Thompson. Austin had seen a television report on Wake the night before and informed Thompson that Wake rented an office in her building. She had not given Thompson information on any previous occasion. Based on the information Austin furnished, Hildreth obtained, from a United States Magistrate Judge, a search warrant for Wake's office. However, when officers arrived at the building, they discovered that the suite whose number Austin had given them was subdivided into three smaller suites. Hildreth returned the original warrant unexecuted and obtained a more specific warrant. The search of the office uncovered various drug paraphernalia, drug records, marijuana, and approximately two kilograms of cocaine. Moreover, Wake's office was located within 400 feet of Travis High School, a public secondary school in Austin.

A second superseding indictment charged Wake with: (1), within 1,000 feet of a school, conspiring to possess with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 845a(a) (count 1); (2), within 1,000 feet of a school, possessing with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (count 2); (3) possessing with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count 3); and (4) money laundering, in contravention of 18 U.S.C. § 1956(a)(1)(A)(i) (count 4). Wake's pre-trial motions to suppress the Hall telephone conversations and evidence seized from his office were denied. He was found guilty by a jury on all counts. And, his post-trial motions, including for a new trial based on newly discovered evidence, were denied. The district court sentenced Wake to 327 months' imprisonment, eight years of supervised release, a $160,000 fine, and a $200 special assessment. ²

II.

Wake contends that the district court committed reversible error by (1) admitting into evidence (a) the telephone conversations allegedly obtained in violation of statute, (b) evidence seized pursuant to a warrant supported by an affidavit containing incorrect statements, and (c) documents he contends were unauthenticated and hearsay; (2) its application of the schoolyard statute (penalty enhancement); and (3) refusing to grant a new trial based on newly discovered evidence. He also contends that an answer by a government witness, asserted to be in violation of an agreed motion in limine, mandates reversal.

A.

Wake asserts that the telephone conversations recorded through Mitch Hall's cooperation should have been suppressed, asserting that Hall's consent was coerced. Wake maintains that the district court committed reversible error in denying his motion to suppress, including because it did so without hearing Hall's testimony on this issue. ³ "We review a district court's findings of fact on a motion to suppress under the clearly erroneous standard". United States v. Colin, 928 F.2d 676, 677 (5th Cir.1991).

Wake relies on 18 U.S.C. § 2515, which prohibits illegally intercepted communications being used as evidence. The government relies on an exception for instances where: "one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c). The government bears the burden of proving voluntariness. United States v. Jones, 839 F.2d 1041, 1050 (5th Cir.), cert. denied, 486 U.S. 1024, 108 S.Ct. 1999, 100 L.Ed.2d 230 (1988). However, "[c]onsent to interception of a telephone call may be inferred from knowledge that the call is being monitored." United States v. Gomez, 900 F.2d 43, 44 (5th Cir.1990); see Jones, 839 F.2d at 1050; United States v. Kolodziej, 706 F.2d 590, 593 (5th Cir.1983). This notwithstanding, Wake maintains that special circumstances warrant a finding of involuntariness, even though Hall was aware the telephone conversations were being monitored. In support, Wake asserts that his cooperation in exchange for not prosecuting Norris was improperly obtained, because there was no realistic basis for prosecuting Norris, in that Hall owned all the marijuana that was seized. This point was argued to the district court at the suppression hearing.

And, at that hearing, the district court heard testimony on whether agents induced Hall's cooperation by promising not to prosecute Norris. Officer Staha testified that he did not threaten to prosecute Norris if Hall failed to cooperate; that Hall completed a written confession and then raised the issue of Norris' not being prosecuted; and that Staha agreed she would not be. Agent Hildreth testified that he was present when agents interviewed Hall and that he knew nothing of any such promises. He suggested that Hall acted out of self-interest: "It was obvious to me by my interview with Mr. Hall that he intended to help himself, that he [was] resigned to the fact that he was guilty of the crime and was trying to help himself."

After hearing testimony at the suppression hearing, the district court, in denying the motion, ruled orally that Hall's testimony was not necessary, because even if the alleged threats about prosecuting Norris had been made, this would not be sufficient to grant the motion. In its subsequent comprehensive written order, the district court held:

The Court finds that the government has met its burden of showing that the informant consented voluntarily to the recorded telephone conversations at issue in this case. The Court is persuaded by the testimony offered at the hearing that Mitch Hall consented to the telephone conversation in order to help himself by cooperating. There is no evidence that this consent was obtained by threats or promises of improper action of a physical nature or of prosecutorial actions with no realistic foundation. Kolodziej, 706 F.2d at 595.

Even if consideration of Hall's testimony before ruling on the motion to suppress would have furthered the fact-finding process, see note 3, supra, the district court's failure to do so is not reversible error. In reviewing a district court's ruling on a motion to suppress, our "task on appeal is limited to determining whether there is sufficient evidence to support the district court's conclusion...." Kolodziej, 706 F.2d at 593. There is ample evidence of voluntariness to which the district court could give credence.

Staha's testimony supported the conclusion that no coercion...