U.S. v. Wood

• Decision Date: 21 July 1989
• Docket Number: 88-3033,Nos. 88-3032,s. 88-3032
• Citation: 879 F.2d 927,279 U.S.App.D.C. 81
• Parties: , 28 Fed. R. Evid. Serv. 1356 UNITED STATES of America, Appellee, v. Shirlene WOOD, Appellant. UNITED STATES of America, Appellee, v. Ronald McKinley LEE, Sr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 927

879 F.2d 927

279 U.S.App.D.C. 81, 28 Fed. R. Evid. Serv. 1356

UNITED STATES of America, Appellee, v. Shirlene WOOD, Appellant.

UNITED STATES of America, Appellee, v. Ronald McKinley LEE, Sr., Appellant.

Nos. 88-3032, 88-3033.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 2, 1989.

Decided July 21, 1989.

Appeal from the United States District Court for the District of Columbia (Criminal Nos. 87-00409-01 and 87-00409-02).

Richard K. Gilbert (Appointed by this Court), for appellant, Wood in No. 88-3032.

Mary E. Davis, Washington, D.C. (Appointed by this Court), for appellant, Lee in No. 88-3033.

Thomas E. Booth, Atty., Department of Justice, with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell and Judith E. Retchin, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, MIKVA, Circuit Judge, and OBERDORFER, District Judge. ^*

Opinion for the Court filed by Judge OBERDORFER.

OBERDORFER, District Judge:

Defendants-appellants Shirlene Wood and Ronald Lee, tried along with a third defendant, Paula Wood, were convicted in January 1988 in a two-week drug conspiracy jury trial before U.S. District Judge June Green. Shirlene Wood was indicted on 13 counts of conspiracy to traffic in cocaine, heroin and phencyclidine ("PCP"), distribution of a controlled substance, possession of a controlled substance, possession with intent to distribute a controlled substance, and possession of an unregistered firearm. She pled guilty to all counts for which she was indicted except Count 1, the conspiracy count, on which she was subsequently convicted after trial. Ronald Lee was indicted on 11 counts of conspiracy to traffic in cocaine, heroin and PCP, distribution of a controlled substance, possession with intent to distribute a controlled substance, felon in possession of a firearm, and possession of an unregistered firearm. He was convicted on all counts for which he was indicted. Shirlene Wood received a combination of concurrent and consecutive sentences to a total of fourteen years' imprisonment and five years' supervised release: on the conspiracy count, ten years; on the distribution of a controlled substance and the possession with intent to distribute a controlled substance counts, ten years to run concurrently, plus five years of supervised release; on the violation of 18 U.S.C. Sec. 3147 (penalty for an offense committed while on release), two years to run consecutively; and on the possession of an unregistered firearm counts, two years to run consecutively. Ronald Lee received a combination of concurrent and consecutive sentences to a total of seventeen years' imprisonment and five years' supervised release: on the conspiracy count, a distribution of a controlled substance count, and the felon in possession of a firearm count, fifteen years; on the remaining distribution of a controlled substance counts and the possession with intent to distribute a controlled substance counts, fifteen years to run concurrently, plus five years of supervised release; and on the possession of an unregistered firearm counts, two years to run consecutively. Paula Wood was acquitted on all counts.

At trial, the government's evidence against appellants consisted of Detective Norris' testimony, appellants' recorded conversations with Norris, and drugs, weapons and drug paraphernalia that were seized from the houses that appellants occupied. The evidence, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), showed that during the summer and fall of 1987 appellant Shirlene Wood repeatedly sold drugs to District of Columbia undercover detective Harvey Norris. Wood was usually accompanied by appellant Lee who drove her to the various locations where she engaged in drug transactions with Norris. Lee usually remained in the car while Wood transacted the sale. The evidence featured the testimony of police officers who arrested appellants at the Best Western Motel and a video tape of appellants during a drug sale shortly before their arrest.

Lee claims, among other things, that the trial court erred in denying his motion to suppress the evidence seized as a result of the search of his home. Wood claims that she was denied effective assistance of counsel by her trial counsel's failure to join or file a motion to suppress the seizure of evidence from Lee's home. In addition, Wood claims that the trial court erred in permitting the government to impeach her with her prior inconsistent statements made during plea-bargaining sessions with the government, and Lee claims that the trial court erred in denying his motion to sever once it permitted the government to impeach Wood with her prior inconsistent statements that directly implicated him. Lee further claims that there was insufficient evidence to sustain his conviction for conspiracy to traffic in drugs, and that the trial court improperly imposed cumulative punishment on him for the offenses of being a felon in possession of a firearm and possession of an unregistered firearm.

(1) We affirm the district court's denial of Lee's motion to suppress, and find therefore that Wood's claim of ineffective assistance of counsel must fail because she could not be prejudiced by any failure on the part of her trial counsel to challenge a legal search and seizure.

(2) Under the doctrine announced in United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), and in view of the concurrency of the sentences imposed upon Wood and the difficulty of the issue, we vacate her conspiracy conviction without determining the merits of her objection that the trial court erred in permitting the government to introduce for impeachment purposes prior inconsistent statements that she made during plea-bargaining sessions with prosecutors. We further vacate the conspiracy conviction of Lee, and find that it was not error to deny severance from Wood despite the admission for impeachment of prior inconsistent statements that directly implicated Lee.

(3) We further hold that the district court did not err in imposing cumulative punishment on Lee for the offenses of being a felon in possession of a firearm and possession of an unregistered firearm.

I.

Prior to trial, Lee moved to suppress the evidence seized from his home at 1235 Morse Street, N.E., on the grounds that the affidavit in support of the search warrant did not demonstrate probable cause to believe that evidence would be located on the premises and that the officers who executed the affidavit violated the "knock and announce" provisions of 18 U.S.C. Sec. 3109. Hearings were held on October 30 and November 19, 1987 before District Judge Thomas Flannery, and for reasons stated on the record from the bench on November 19, 1987 and by Order of November 20, 1987 Judge Flannery denied defendant's motion to suppress the evidence seized as a result of the search of his home. Lee raises the question on appeal of whether the district court erred in denying his motion to suppress.

A.

The relevant facts were as follows: On August 25, 1987, Agent Grubbs applied for a search warrant for 1235 Morse Street, N.E. The affidavit in support of the application indicated, among other things, that Detective Norris had made repeated purchases of drugs from Wood, who had been accompanied on most occasions by Lee, that Lee resided at 1235 Morse Street and that Wood stayed with him there "from time to time," that on August 20, Wood and Lee instructed Norris to call them at the phone number listed for 1235 Morse Street in order to negotiate a sale of cocaine, and that agents observed Lee and Wood leave the house, deliver cocaine to Norris, and return to the house. On these facts the magistrate issued a warrant.

The first question is whether the magistrate had a substantial basis for concluding that probable cause existed. In making a probable cause determination, a magistrate must consider, given the totality of the circumstances set forth in the affidavit, whether there is a fair probability that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). Agent Grubbs' affidavit demonstrates that evidence was indeed presented to the magistrate that would create probable cause for him to issue a warrant. It is significant that Wood and Lee negotiated a drug sale with Norris by telephone from the 1235 Morse Street house, left the house together, sold cocaine to Norris, and then returned to the house together. Although appellant Lee contends that this information is insufficient to establish that there was a fair probability that contraband would be found at that address, courts have found otherwise in similar situations. For example, in United States v. Valenzuela, 596 F.2d 824, 828 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979), the Court found probable cause to search an alleged drug dealer's house where agents had previously observed him leave his house to sell drugs. We reach the same conclusion here.

B.

Appellant Lee also contends that the evidence seized during the search of his home should be suppressed because the officer conducting the search violated the "knock and announce" requirements of 18 U.S.C. Sec. 3109. That statute provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....

Lee argues that Agent Grubbs did not comply with Sec. 3109 and does not qualify for the only accepted exceptions to that rule: a knock and announcement would not be a useless gesture and there were no exigent circumstances.

However, according to the uncontradicted testimony of Agent Grubbs of the Drug Enforcement Agency who executed the foregoing...