U.S. v. Whitley
| Decision Date | 02 May 1984 |
| Docket Number | Nos. 83-5428,83-5439,83-5438,83-5440 and 83-5456,s. 83-5428 |
| Citation | 734 F.2d 1129 |
| Parties | 15 Fed. R. Evid. Serv. 531 UNITED STATES of America, Plaintiff-Appellee, v. James A. WHITLEY (83-5428), James P. Wagers (83-5438), Matthew Foley (83-5439), William Shelton a/k/a Douglas Harrison (83-5440), Joseph L. Hucks (83-5456), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard Hay, Somerset, Ky. (court-appointed), for Whitley.
David O. Smith, Corbin, Ky. (court-appointed), for Wagers.
Gary Crabtree, London, Ky., for Foley.
Warren N. Scoville (argued), Lewis, Scoville, Scoville & Stansbury, London, Ky., for Shelton.
Brian C. House, London, Ky. (court-appointed), for Hucks.
Louis DeFalaise, U.S. Atty., James Zerhusen, Asst. U.S. Atty. (argued), Lexington, Ky., for plaintiff-appellee.
Before KEITH, MERRITT and WELLFORD, Circuit Judges.
The appellants, James A. Whitley, Joseph L. Hucks, James P. Wagers, Matthew Foley and Douglas Harrison, were indicted by a grand jury on December 14, 1982 on two counts. Count I charged that the appellants knowingly and wilfully agreed, confederated and conspired with one another, and others unknown to the Grand Jury, to commit offenses against the United States in violation of 21 U.S.C. Sec. 841(a)(1), 1 and knowingly and intentionally distributed, and possessed with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 2. Count II charged that appellants, aided and abetted by one another, knowingly and intentionally did unlawfully distribute and possess with intent to distribute cocaine, a Schedule II Controlled Substance, in violation of 18 U.S.C. Sec. 2, 3 and 21 U.S.C. Sec. 841(a)(1).
A jury trial was held, and on April 28, 1983, the jury found the appellants guilty on both counts. The appellants were sentenced as follows: Whitley--six years imprisonment on Count I, and six years on Count II, to be served concurrently; Hucks--six years imprisonment on Count I, and six years imprisonment and a fine of $2,000 on Count II, with the sentences to be served concurrently; Wagers--five years imprisonment on Count I and five years on Count II, to be followed by a special parole term of three years, with sentences served concurrently; and Harrison--eight years imprisonment on Count II, with the sentence to be served concurrently. For the reasons stated below, we affirm.
On December 2, 1982, an informant named "Bob" introduced Clifford Best, a Drug Enforcement Administration (DEA) agent, to appellant James Whitley and to Bradley Barkas 4 at a restaurant in Lexington, Kentucky. Best was introduced as a "man who had money and was interested in buying a high quality brand of cocaine." During this meeting, Best made arrangements with Whitley to purchase a pound of cocaine. At the conclusion of the negotiations, Best gave Whitley $150 as good faith money.
On December 6, 1982, Whitley called Best and suggested that Best come to Lexington, Kentucky to meet with him and several other people. Best went to Lexington, accompanied by Tommy Whitehead, an undercover officer of the Louisville police department. He also took $20,000 with which to purchase the cocaine. He met Whitley at his apartment, along with appellants Foley and Wagers. Wagers told Agent Best that the drug transaction would occur at the Holiday Inn in Corbin, Kentucky, on the following night at 8 p.m. He also stated that the cocaine would cost $2,500 per ounce.
Also, during this meeting, Whitley and Wagers had a short discussion to determine who would check the "buy" money. They decided that Wagers would accompany Best to the parking lot where Detective Whitehead had the money. At the car, Whitehead gave Best a white satchel which contained four packets. Each packet consisted of $5000 in $100 bills. Wagers looked through the satchel and counted out one packet. On their return to the apartment, Whitley instructed Best to pick him up the next night to go to Corbin, Kentucky.
On December 7, 1982, at approximately 8 p.m., Agent Best and Detective Whitehead picked up Whitley at his apartment and drove to Corbin, Kentucky. During the trip, Whitley told Best that he wanted $2,000 and a quarter ounce of cocaine for his help in the transaction. He also stated that he had to split his part with his "man from Corbin." After Best and Whitehead left Whitley's apartment, other police officers, who were conducting surveillance, saw approximately four or five people exit from the apartment and enter a green Cadillac.
When they arrived at the hotel Whitley made another call to "his man from Corbin" to tell him of their arrival and the room number (Room 130). At approximately 10 p.m., Wagers and Foley came to Whitley and Best's room. Agent Best showed them the "buy money" and Wagers produced a small sample of cocaine. Best performed a Chlorox bleach test and a water test on the cocaine, and then rejected it. 5 Wagers and Foley then left with the sample. Approximately fifteen minutes later, Wagers and Foley then returned with another sample which Best tested, and found acceptable. Best and Wagers then discussed how the transaction was going to take place. Best then gave Wagers $500 in "good faith money".
After the negotiations with Best, Wagers again left to talk with "his man". When he returned, he gave the $500 back to Best and said "his man" was not satisfied with the plans made to complete the deal. Wagers then telephoned and talked to "the man". Best also talked to "the man" on the phone, and arranged to have that person deliver the cocaine to him at another room at the hotel. Agent Best and Wagers then left Best's room and went to Room 242. Whitley and Foley also left, while Whitehead remained in the room with the money.
At Room 242 they met Douglas Harrison, a.k.a. William Shelton. In Harrison's room, Best and Harrison agreed on a price, then Harrison went to the window and gave a signal for the cocaine to be brought to him. A few minutes later, someone came to the door (allegedly appellant Hucks) and handed Harrison a purple "Royal Crown" bag which contained cocaine. A police officer, who had been conducting surveillance with other officers, identified appellant Hucks as the person seen around Harrison's room at the time the cocaine was handed to Harrison.
Best again tested the cocaine, which he found to be of acceptable quality. Agent Best then called Detective Whitehead to bring the money, which was the signal to make the arrests. Detective Whitehead arrived at Room 242 with the money and, once inside, both he and Agent Best placed appellants Wagers and Harrison under arrest. Harrison attempted to escape by jumping through a sliding glass door. However he did not make it completely through the door, and the glass shattered, making a loud noise. Immediately afterwards, evidently having heard the noise, appellant Hucks sped from the parking lot in a blue Cadillac. He was pursued by police, shots were fired, and he eventually ran off the road. Hucks was later apprehended in a culvert near the blue Cadillac.
Another vehicle, a green Cadillac, occupied by Whitley, Foley and James Davis, also started out of the Holiday Inn parking lot. This vehicle was also pursued, and was stopped about three-tenths of a mile from the entrance to the Holiday Inn. When FBI agents got to the vehicle, Whitley and Davis were sitting in the back seat of the car. The person in the front seat, Foley, escaped, but later turned himself in.
A. Post-Miranda Silence
The appellants assert that it was reversible error for evidence to be presented at trial concerning Wagers' post-arrest, post-Miranda silence. We find this assertion to be unpersuasive.
During direct examination of Agent Best by Prosecutor Zerhusen, the following transpired:
Q. At the time that you arrested Mr. Harrison on the late hours of December 7, 1983, did you advise him of his so-called Miranda rights?
A. Yes, I did.
Q. Would you tell the jury exactly what you advised Mr. Harrison?
A. He knew that I was a Federal agent, and I told him that I had to explain his rights against self-incrimination to him. The first thing I told him, and Wagers together, was that they had the right to remain silent. And I explained to them that they didn't have to say anything to us if they didn't want to. And I asked them if they understood that, and they said that they did, each one of them. And I told them that anything they said could be used against them in court. I explained to them that if they told me A, B, C, that I could go to court and repeat A, B, C, to a judge or jury. I asked them if they understood that, and they said they did.
I told them they had the right to an attorney, which meant a lawyer, and if they couldn't afford an attorney, that one would be appointed for them at no expense. And I asked them if they understood that, and both of them said that they did.
And I asked--I told them that as part of their rights that if we wanted to question them about anything, they had the right to stop questioning or stop answering the questions and request an attorney be present, and once again, each of them said that they understood that.
Q. And again, who were you present with?
A. It was with Wagers and Harrison and FBI Agent Keller.
Q. And did you speak with Mr. Harrison during this time?
A. Well, we had--he asked--I asked him a couple of questions about his personal history, such as his name and where he was from, and he asked me a couple of questions.
Q. What did he tell you about his name and where he was from?
At this point, objections and motions by various defense counsels were made, including those by counsel for defendant Wagers as follows:
Mr. Smith: If we could just have one more minute of the Court's time.
The Court: Okay.
Mr. Smith: Your honor, since Mr. Zirhusen has had the witness testify that Mr. Wagers was read his rights, it is my recollection from what I...
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