USA. v. Howell
| Decision Date | 02 October 2000 |
| Docket Number | No. 99-10573,99-10573 |
| Citation | 231 F.3d 615 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SEAN HOWELL, Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] John C. Lambrose, Assistant Federal Public Defender's Office, Las Vegas, Nevada, for the defendant-appellant.
Pamela A. Greiman, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada Johnnie B. Rawlinson, District Judge, Presiding. D.C. No. CR-98-00378-JBR/RLH
Before: Dorothy W. Nelson, David R. Thompson, and Stephen S. Trott, Circuit Judges.
Sean Howell was convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. S 841(a)(1) after a jury trial and was sentenced to 120 months in prison. He appeals his conviction and sentence, arguing that the district court erred by: (1) failing to hold an evidentiary hearing before admitting evidence of Howell's confession; (2) refusing to grant a mistrial after the government failed to inform the defense of material mistakes in the police reports; (3) dismissing a prospective juror after allowing the government, but not the defense, to question the juror on voir dire; (4) admitting evidence of Howell's prior convictions; (5) refusing to instruct the jury on Howell's "mere presence" defense; and (6) failing to adjudicate the constitutionality of his sentence enhancement under 28 U.S.C. S 851(e).
We have jurisdiction pursuant to 28 U.S.C. S 1291, and we AFFIRM.
On September 29, 1998, Sean Howell ("Howell") and his female travel companion, Quinticca Mosely ("Mosely"), were on-board a Greyhound bus that had stopped at the Las Vegas, Nevada, Greyhound bus depot on its way from Los Angelesto Chicago. Also at the bus depot was an integrated drug task force, comprised of local and federal law enforcement officers. The task force included Detectives Fred McGowan and Julie Butterfield, Sergeant Gino Briscoe, and Officer David Truax, from the Las Vegas Metropolitan Police Department, as well as Agent Chris Cadogan from the Drug Enforcement Administration.
Around 5:30 p.m., Detective McGowan and Sergeant Briscoe boarded the Greyhound bus and began asking the passengers questions. Detective McGowan and Sergeant Briscoe began at the rear of the bus and made their way forward, questioning each passenger. About half-way through the bus, Detective McGowan initiated contact with Sean Howell and Quinticca Mosely. After some preliminary questions, Detective McGowan noticed that Mosely would not look at him and appeared extremely nervous, and that both Howell and Mosely seemed to be breathing heavily. Detective McGowan asked Howell if he was traveling with any luggage, and Howell responded affirmatively, indicating that his bag was stored underneath the bus in the luggage compartment. Detective McGowan asked if he could search Howell's bag after they finished questioning the other passengers, and Howell consented.
At this point, Sergeant Briscoe observed a black duffel bag in the overhead compartment above where Howell and Mosely were seated. Sergeant Briscoe asked at least four times who owned the bag. Although Mosely owned the bag, neither she nor Howell claimed it. When none of the passengers claimed the bag, Sergeant Briscoe took it off the bus.2 Waiting outside was Officer Truax along with his drug sniffing dog, Jet. Jet "alerted on the bag," indicating that it contained drugs. The police opened the bag and discovered approximately two kilograms of cocaine. They also found Mosely's wallet and driver's license.
Armed with this information, Detective McGowan, and Sergeant Briscoe re-entered the bus. Detective McGowan began questioning Mosely, and Sergeant Briscoe made contact with Howell. Sergeant Briscoe informed Howell that they had discovered narcotics in the black duffel bag along with Mosely's license and asked Howell to step off the bus. Howell agreed and walked off the bus with Sergeant Briscoe.
According to Sergeant Briscoe, he advised Howell of his Miranda rights immediately after exiting the bus. Howell, however, through his attorney denies that he received Miranda warnings at that time. In any event, Howell told Sergeant Briscoe that he and Mosely received the cocaine in Bellflower, California, and were getting paid a total of $2,000 for transporting the drugs to Chicago.
After hearing this confession, Sergeant Briscoe searched Howell. He found $487 in Howell's clothes and $1,500 hidden under the sole of Howell's left shoe. Around the same time, Detective Julie Butterfield searched Mosely and recovered approximately $30. Mosely and Howell were arrested and charged with possession with intent to distribute in violation of 21 U.S.C. S 841(a)(1).
Mosely subsequently struck a deal with the government and agreed to testify against Howell at trial. The jury returned a guilty verdict, and the judge imposed a sentence of 120 months.
Howell appeals his conviction and sentence. His claims are as follows:
1) The district court violated his Fifth Amendment right against self-incrimination by allowing the prosecution to introduce the confession made to Sergeant Briscoe without holding an evidentiary hearing on the matter.
2) The government violated the disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963), by fail ing to inform the defense that two previously disclosed police reports falsely indicated that (1) $487 was taken from Mosely's person, and (2) $1,500 was recovered from Mosely's shoe, when, in fact, $487 was recovered from How ell's person and $1,500 was found in Howell's shoe.
3) The district court violated his Sixth Amendment right to an impartial jury and Federal Rule of Criminal Procedure 24(a) by dismissing a pro spective juror after allowing the government but not the defense, to question the juror.
4) The district court violated Federal Rule of Evidence 404 by allowing the prosecution to intro duce evidence of Howell's prior convictions.
5) The district court committed reversible error by refusing to instruct the jury on a "mere pres ence" defense.
6) The district court committed reversible error by failing to adjudicate the constitutionality of his sentence enhancement under 28 U.S.C. S 851(e).
We address and reject each of Howell's arguments in turn.
Before trial, Howell moved to suppress his confession to Sergeant Briscoe and sought an evidentiary hearing. Howell's motion was comprised of boilerplate language. Instead of alleging specific deficiencies in Sergeant Briscoe's Miranda admonition, the motion repeatedly stated that "the defense holds the government to its burden of proof to establish adequacy of Miranda warning." The government opposed Howell's motion and challenged the need for such a hearing.
The magistrate judge to whom the motion had been referred declined to hold an evidentiary hearing and recommended that the district court deny Howell's motion to sup-press because "[Howell] has failed to make any allegations, which if taken as true, would persuade a court to suppress the confession."
Howell timely objected to the magistrate judge's report and recommendation. See 28 U.S.C. S 636(b)(1)(C). In his objection, Howell's attorney for the first time offered specific factual allegations regarding the inadequacy of the Miranda warnings. He claimed that his client (1) was never properly advised of his Miranda rights, (2) did not waive those rights, and (3) that his confession was coerced. Again, the government opposed Howell's motion for an evidentiary hearing, arguing that Howell "needs to be held accountable for his prior motions."
The district court, pursuant to 28 U.S.C. S 636(b)(1)(C), conducted a de novo determination on the issue of the admissibility of Howell's confession. In its review, however, the district court refused to consider Howell's supplemental factual allegations and rejected his request for an evidentiary hearing. Accordingly, based on Howell's initial boilerplate motion, the district court adopted the recommendation of the magistrate judge and denied Howell's motion to suppress his alleged confession.
At trial, Sergeant Briscoe related the substance of Howell's confession to the jury, i.e., that Howell and Mosely had picked up the cocaine in Bellflower, California, and that each was being paid $1,000 to transport the drugs to Chicago, Illinois. Immediately following Sergeant Briscoe's testimony, defense counsel renewed his objection to the district court's decision to allow the government to introduce Howell's confession without holding an evidentiary hearing. The district court overruled the objection.
We review for an abuse of discretion a court's decision whether to conduct an evidentiary hearing on a motion to suppress. See United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986). An evidentiary hearing on a motion to suppress need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist. See id.; United States v. Harris, 914 F.2d 927, 933 (7th Cir. 1990); United States v. Irwin, 612 F.2d 1182, 1187 n.14 (9th Cir. 1980); United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972). Howell's initial motion seeking an evidentiary hearing plainly did not meet this standard.
In his motion before the magistrate judge, Howell identified no facts which, if proved, would allow the court to suppress the confession. To justify his request for an evidentiary hearing, Howell submitted a boilerplate motion that relied wholly on the fact that the government has the burden of proof to establish...
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