U.S. v. Warren

• Decision Date: 16 February 1995
• Docket Number: No. 93-3062,93-3062
• Citation: 310 U.S. App. D.C. 1,42 F.3d 647
• Parties: , 41 Fed. R. Evid. Serv. 713 UNITED STATES of America, Appellee, v. Wilbert B. WARREN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 647

42 F.3d 647

310 U.S.App.D.C. 1, 41 Fed. R. Evid. Serv. 713

UNITED STATES of America, Appellee, v. Wilbert B. WARREN, Appellant.

No. 93-3062.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 12, 1994.

Decided Dec. 13, 1994.

Rehearing Denied Feb. 16, 1995.

A.J. Kramer, Federal Public Defender, argued the cause and submitted the briefs, for appellant.

Richard L. Chamovitz, Asst. U.S. Atty., argued the cause, for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Thomas C. Black, and Corbin A. Weiss, Asst. U.S. Attys.

Before: EDWARDS, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

In 1989, United States Park Police officers executing a search warrant at an apartment in the District of Columbia found appellant Wilbert B. Warren in a room littered with drugs and drug paraphernalia. Their search uncovered a handgun in the same room, hidden beside a mattress on the floor. Warren was arrested, tried, and convicted of possession of crack cocaine with intent to distribute, use of a firearm during and in relation to a drug trafficking crime, and aiding and abetting of both offenses.

On appeal, Warren raises four challenges to the proceedings below. First, he contends that the District Court erred in denying his motion to suppress evidence seized during the search because the search warrant was not supported by probable cause. Second, Warren claims the District Court improperly denied his motion to discover the identity of a confidential informant who supplied the information upon which Park Police officers relied in seeking the warrant. Third, Warren challenges the District Court's decision during trial to exclude three written statements by Park Police officers. In these statements, the officers indicated that the apartment was leased to a person other than Warren, and identified other occupants of the apartment as known sellers of crack cocaine. Last, Warren argues that the District Court erred in calculating his base offense level under the federal Sentencing Guidelines. ¹

We reject Warren's contentions. We hold that a reliable informant's tip, combined with a controlled drug buy, established probable cause for the search in this case. We also hold that the District Court acted within its discretion in concluding that the Government's interest in preserving the confidentiality of a reliable informant outweighed Warren's claimed need for the informant's identity. As to the Park Police officers' statements, we agree with Warren that the District Court erred in failing to admit one of these statements under an exception to the rule barring hearsay evidence, and in finding the statement more prejudicial than probative. However, we conclude that the District Court's error was harmless. With regard to the other two statements, we hold that, even if the District Court erred in excluding them, its error was not so obvious as to satisfy the plain error standard that we apply in this case because Warren failed to raise his challenge before the District Court. Finally, we hold that Warren waived his challenge to the District Court's application of the Sentencing Guidelines by making an inconsistent argument to the sentencing judge. Accordingly, we affirm the judgment of conviction.

I. BACKGROUND

A. The Search

On September 12, 1989, United States Park Police officers, along with a S.W.A.T. team, arrived at 76 Galveston Place, S.W., in the District of Columbia, to execute a search warrant. A federal magistrate had issued the search warrant the previous day based upon an affidavit prepared by Park Police Officer Gerald T. Holman, Sr. In the affidavit, Officer Holman stated that a "confidential reliable source" had advised Park Police within the previous seven days that crack cocaine was being stored and sold at 76 Galveston Place, S.W., apartment number one. Appendix of Appellant ("App.") 6. Holman stated that his informant had "proven reliable in the past," having provided information that "resulted in the seizure of large quantities of cocaine, about 8 guns and about 52 defendants." Id. The informant had "never been proven unreliable," Holman said, noting that every search warrant issued pursuant to information provided by the informant yielded illegal drugs or firearms. Id.

In the affidavit, Officer Holman also described a controlled drug buy conducted within the previous 72 hours in which the informant entered the apartment building with Park Police funds and emerged a short time later with a rock of crack cocaine. According to the affidavit, "[t]he source stated he had purchased the substance from apt # 1." Id. The affidavit described the apartment as "located on the first floor, first apartment to the right upon entering the building and is marked with # 1." Id. at 5. The same description appeared on the search warrant itself. Id. at 7.

When the "raid" team arrived at 76 Galveston Place, S.W., then-Sergeant Ronald Schmidt announced the officers as police with a search warrant. In response, two persons who had been standing in front of the building ran inside. They were Jocelyn Gause, a Jamaican man matching the description of a person who police had identified as having engaged in a recent narcotics transaction, and Edward Smith. With Schmidt in pursuit, the two men ran into the first apartment on the right upon entering the building, and slammed the door. Schmidt again announced that the officers had a search warrant, kicked open the door, and ran into the apartment.

Lieutenant Berberich followed Schmidt into the apartment and ran into the first bedroom on the right, where he encountered Warren and a woman named Deborah Washington standing in the middle of the room. ² He also saw crack cocaine, money, crack pipes, and ziplock bags strewn on a mattress on the floor. He searched Warren and Washington, and asked Warren if there were any guns in the house. Warren responded, "Yes," and pointed to the head of the mattress where it abutted the wall. Trial Tr. (Oct. 13, 1992) at 28, reprinted in Record Material for Appellee ("Rec.Mat.") Sec. H. Looking quickly between the mattress and the wall, Berberich saw a revolver. He then left the evidence for Officer Ramos to collect.

Officer Ramos collected a total of 36.12 grams of crack, a portion of which was packaged in ziplock bags. Amidst this contraband, the officer found 2.47 grams of crack cocaine in a cigarette package on the mattress. Ramos also recovered a loaded .38-caliber revolver from between the mattress and the wall, along with nine rounds of ammunition. He collected $1,309 from the bedroom. Of this amount, Ramos found $1,107, along with Warren's driver's license, in the pockets of a pair of jeans lying on the mattress. Elsewhere in the bedroom, Ramos found a green notebook that appeared to be a ledger for drug sales. Ramos also found numerous papers bearing Warren's name, including an automobile sales contract and a credit union receipt. In a second bedroom, Ramos found suitcases holding numerous papers such as hospital forms, a birth certificate, and a tax return, almost all of which bore the name of Edward Smith.

The officers arrested Warren and took him to the Park Police station in Anacostia, where Warren told Officer David Fennimore that he had been living in the Galveston Place apartment with a man named Tony (a nickname for Edward Smith), but stated that the drugs and guns in the apartment belonged to unidentified Jamaicans. Warren said these Jamaicans were not present during the search, but had used guns and violence to force him and Tony to permit the Jamaicans to sell drugs from the apartment. As compensation, Warren said, the Jamaicans paid him three rocks of crack cocaine a day.

B. Indictment and Pretrial Proceedings

On October 12, 1989, a grand jury indicted Warren and Smith on charges of possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. Secs. 841(a) and 841(b)(1)(B)(iii) (1988); use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c) (1988); making available a place for storing and distributing drugs, in violation of 21 U.S.C. Sec. 856 (1988); and aiding and abetting of each offense, in violation of 18 U.S.C. Sec. 2 (1988). ³

Before trial, Warren moved to suppress all evidence seized in the search, and to discover the identity of Officer Holman's confidential informant. Warren argued that the evidence should be suppressed pursuant to the Fourth Amendment of the United States Constitution because the affidavit supporting the search warrant failed to demonstrate probable cause, and because the warrant failed to describe the apartment with particularity. At a motions hearing held on July 6, 1992, Warren presented evidence from an investigator that there was no apartment number one at 76 Galveston Place, S.W., at the time when the police raided the building. Instead, the first apartment on the right was apartment "B," while the other first floor apartment was "A." As to the identity of the confidential informant, Warren argued that only the informant could testify whether someone other than Warren sold drugs during the controlled buy.

The trial judge denied both motions in memorandum orders issued on August 20 and 21, 1992. As to the motion to suppress, the judge held that the controlled purchase of narcotics, in conjunction with the information provided by the reliable informant, established probable cause. United States v. Warren, Cr. No. 89-0386(TAF), slip op. at 5-6 (D.D.C. Aug. 20, 1992), reprinted in App. 12-13. The judge also held that the warrant's specific description of the place to be searched as the first apartment on the right satisfied the Fourth Amendment's particularity requirement, despite the warrant's incorrect statement that the apartment was marked "# 1." Id. at...