U.S. v. White

• Decision Date: 14 November 1979
• Docket Number: No. 78-1731,78-1731
• Citation: 607 F.2d 203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard Dennis WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 203

607 F.2d 203

UNITED STATES of America, Plaintiff-Appellee, v. Howard Dennis WHITE, Defendant-Appellant.

No. 78-1731.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1979.

Decided Oct. 17, 1979.

Rehearing Denied Nov. 14, 1979.

Roger D. Rudich, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Daniel W. Gillogly, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT and TONE, Circuit Judges, and JAMESON, Senior District Judge. ^*

JAMESON, Senior District Judge.

Appellant Howard Dennis White was convicted following a jury trial on three counts: (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) importation of cocaine into the United States, in violation of 21 U.S.C. § 952(a); and (3) unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c)(2). ¹ We affirm.

Factual Background

On July 5, 1977, White, who was then in Lima, Peru, arranged through James Plunkett, an exporter living in Lima, to ship a mirror to the United States. White had the mirror shipped to Steven Marinis, a friend in Houston, Texas, who was involved in the importing business. White had asked Marinis to check the crated mirror through Customs and then ship it to him in Chicago, Illinois. When the crate arrived in Houston, Marinis took it to Customs where, upon inspection, the Customs officials found approximately one kilogram of cocaine in packages hidden in the backing of the mirror.

Marinis agreed to participate in a "controlled delivery" of the mirror. The Customs agents removed all but 16.35 grams of the cocaine. Marinis then called White in Chicago and informed him the mirror had arrived safely, passed Customs, and would arrive on a Braniff flight at O'Hare Airport at 8:00 P.M. on July 21, 1977. When the crate arrived at O'Hare Airport it was put under constant surveillance by Drug Enforcement Administration (DEA) agents. White called Braniff air freight three times that night to see if the crate had arrived and if they would deliver it to him. Braniff agents told White they could not deliver the crate that evening, nor could they send it to him by taxicab unless they had his written signature authorizing the delivery.

About 7:30 the next morning Kenneth Chrusciel picked up the crate and loaded it into his truck. DEA agents followed Chrusciel as he left the airport. They observed White's automobile following Chrusciel. One group of agents followed Chrusciel when he turned to return to Chicago. Chrusciel was subsequently stopped on his way into Chicago and arrested, and the crate was confiscated.

Another group of agents followed White, who headed back toward the terminal area. White drove through the arrival area once going very slowly and started to make a second run through when the DEA agents stopped him. They ordered him out of the car and placed him under arrest. While giving him a pat-down search, they discovered he was wearing an empty gun holster. Upon searching his car, the agents found a gun in a briefcase on the driver's seat.

When the case was called for trial, White moved to suppress evidence of the gun seized when he was arrested. Following a hearing the district court first granted the motion to suppress, but upon reconsideration denied the motion.

Contentions on Appeal

In a brief filed by appellant's counsel it is contended that (1) White was indicted in violation of the Speedy Trial Act; (2) the Government failed to prove beyond a reasonable doubt that White had knowledge that the crate shipped from Lima, Peru contained cocaine; (3) the pretrial motion to suppress was erroneously denied; and (4) the admission of evidence regarding the firearm, which appellant argues should have been suppressed, was so prejudicial as to require reversal of the counts involving possession and importation of cocaine.

In a pro se supplemental brief appellant contends further that (1) inaccuracies in the affidavit of the agent used to support issuance of an arrest warrant after White's actual arrest required suppression of the evidence seized at the time of arrest; (2) White was denied effective assistance of counsel; (3) the court erred in admitting evidence of (a) the cocaine seized in Houston, (b) the cocaine seized in Chicago, and (c) White's post-arrest statements.

Speedy Trial Act

Appellant first contends that the indictment should have been dismissed because he was not indicted within 35 days of his arrest, as required by the applicable time limit in the Speedy Trial Act, 18 U.S.C. §§ 3161(b) and (f) and 3162(a)(1). Appellant was indicted five months after his arrest.

This issue was first raised on appeal. This court has many times recognized the general rule that in the absence of plain error the court will not consider an issue not raised in the district court. See, e. g., Faulisi v. Daggett, 527 F.2d 305, 310 (7th Cir. 1975); Rule 52(b), F.R.Crim.P. Here there is no showing of plain error; nor does the case come within any recognized exception to the general rule.

In any event, the Speedy Trial Act provided that the sanction set out in § 3162 would not become effective until July 1, 1979. 18 U.S.C. § 3163(c). The transition rules were directory only and did not require dismissal. United States v. Carpenter, 542 F.2d 1132, 1134 (9th Cir. 1976). Moreover, appellant has not shown how he was prejudiced by the delay.

Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that he knew the mirror contained cocaine. He argues that there were times when the mirror was left unguarded at Plunkett's office and consequently, "Any one of innumerable individuals could have tampered with the mirror." The jury obviously rejected this suggestion.

Viewing the evidence as a whole in the light most favorable to the Government, it is clear that there was substantial evidence to support a jury determination that White knew the mirror contained cocaine. He made extensive preliminary efforts to determine procedures for importing merchandise from Peru. The mirror cost $24.00. Instead of bringing it back to the United States with him, which he knew he could do since its value was less than $250.00, White chose to have it shipped by a professional exporter at considerable added expense. White took the mirror wrapped in brown paper to Plunkett's export shop. Although it was unattended overnight, Plunkett testified that the paper and mirror were in the same condition and intact when it was crated the next morning. White was present for the crating. There was no suggestion at that time that the mirror was not in the same condition as when he delivered it the day before.

When Marinis called White from Houston to tell him the mirror had arrived, White asked if Marinis had taken a good look at the shipment. When the crate was flown to Chicago, White called Braniff Airlines three times on the night it was due to see if it had arrived. He also attempted, unsuccessfully, to have it delivered to him that night by taxicab. The next morning Chrusciel picked up the mirror for White, but White was also at the airport in his own car, and followed Chrusciel for a short time. These actions are not normal for one who is expecting delivery of a $24 mirror. Additionally, when White was arrested he had a cocaine snorter in his possession. The jury could reasonably infer that White knew the mirror contained hidden cocaine.

Motion to Suppress Gun

At the pretrial suppression hearing DEA Agent Maffett testified that while following White's automobile through the airport area, he observed White lean toward the right seat and make a gesture toward the flap of his coat. Shortly thereafter the DEA agents decided to arrest White. They stopped his automobile, removed him from the vehicle, and while conducting a pat-down search found an empty shoulder holster strapped across White's chest. Maffett asked White, "Where is the gun?" White replied, "I don't have a gun. I am just carrying an empty shoulder holster." DEA Agent Morley began to search White's car for the weapon while Maffett handcuffed White. Morley found a briefcase on the front seat of the car but could not open it. He then searched the glove box, the front seat, the area under the front seat, and the rear seat. In the meantime Maffett took White back to Maffett's car and put him into the back seat. Morley left White's car not having found the weapon, talked with Maffett briefly, and then returned to White's car. He manipulated the combination lock of the briefcase with his thumb and the case opened. Inside was a revolver.

Relying upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and United States v. Berry, 560 F.2d 861 (7th Cir. 1977) (Berry I), the district court initially suppressed the evidence. After being advised that the Seventh Circuit had vacated Berry I, United States v. Berry, 571 F.2d 2 (7th Cir. 1978) (Berry II), Cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1979), the district court reversed itself and denied White's suppression motion. ²

In Chadwick federal narcotics agents arrested the defendants outside a train station as the defendants were loading a large footlocker into an automobile. The defendants were searched, and both they and the footlocker were taken to the federal building. There the agents opened the footlocker without a search warrant and found marijuana. The Supreme Court held the warrantless search of the footlocker was impermissible. The Court stated:

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

433 U.S. at 15, 97...