No. 96-1265, 96-1359, 96-1362United States Circuit Court of Appeals, Eighth Circuit.Submitted November 21, 1996
Filed April 7, 1997
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Sharon Jacksack, St. Louis, Missouri, argued for Bryson (Terry J. Flanigan, on the brief). John T. Yarbrough, St. Louis, Missouri, argued for Henrietta and Bonnie Furnish.
John James Ware, Assistant U.S. Attorney, St. Louis, Missouri, argued for appellee.
Appeals from the United States District Court for the Eastern District of Missouri.
Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,[1] District Judge.
[1] The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota, sitting by designation.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
[1] The three defendants were indicted, along with seven others, on one count of conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram each of methamphetamine and heroin. See 21 U.S.C. §(s) 841(a)(1), Section(s) 846. The conspiracy was alleged to have existed between December, 1992, and June, 1995. After a two-day trial, a jury convicted Linda Bryson. After a separate seven-day trial, a jury convicted Ronnie Furnish and Henrietta Furnish (who are husband and wife) and three co-defendants whose cases we do not address in this opinion. [2] Ms. Bryson and Mr. Furnish appeal both their convictions and their sentences. Ms. Furnish appeals only her conviction. We affirm the convictions of all three defendants but remand the cases of Ms. Bryson and Mr. Furnish for resentencing. I.
[3] As far as we can tell, Ms. Bryson was first arrested in late March, 1995. We note the date of Ms. Bryson’s initial arrest because of the wording of her pretrial motions to suppress, both of which requested the exclusion of “all statements . . . taken from [Ms. Bryson] . . . at any time following her initial arrest.” Despite the specificity of those requests, however, at hearings on pretrial motions, both Ms. Bryson and the government seemed to assume that Ms. Bryson was challenging the admissibility of statements that she gave in June, 1994, during a police interview at the St. Louis airport and in February, 1995, during a police interview at her residence, even though both of those dates are prior to her initial arrest. Both parties presented proof on those issues.
II.
[7] In June, 1994, acting on suspicion that Ms. Bryson might be “involved in drugs,” a police officer stopped Ms. Bryson and a friend at the St. Louis, Missouri, airport, identified herself to them as a police officer, and asked if Ms. Bryson was going to Los Angeles; Ms. Bryson said that she was. (We recount the facts as found by the magistrate judge based on the testimony of two police officers at a suppression hearing; Ms. Bryson did not testify.) The officer was not wearing a uniform, and her weapon was not visible. The officer then asked Ms. Bryson if they could talk; Ms. Bryson agreed.
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[8] The police officer asked if she could see Ms. Bryson’s ticket, and Ms. Bryson gave the officer the ticket. The officer then asked if Ms. Bryson was the person whose name was on the ticket. Ms. Bryson responded that the ticket was in her sister’s name but that her sister was unable to go. When asked for some identification, Ms. Bryson offered a driver’s license in the name of “Linda Campbell.” The officer then returned the ticket and the driver’s license and asked Ms. Bryson why she was going to California; Ms. Bryson’s response was that she was going to visit a friend but that the friend “doesn’t have anything to do with this.” [9] At that point, the police officer asked if she could search Ms. Bryson’s carry-on bag. Ms. Bryson agreed, and the officer searched the bag but found nothing of moment. Approximately three minutes had elapsed since the officer had first stopped the two women. The officer then asked about checked bags, and Ms. Bryson said that she had four and gave her ticket envelope (with claim checks attached) to the officer. When asked if the officer could search her checked bags, Ms. Bryson agreed. [10] In the meantime, a second police officer (who had been interviewing Ms. Bryson’s friend) had arrested the friend for possession of marijuana and methamphetamine, a development of which Ms. Bryson was aware. The officers told Ms. Bryson that they were detaining her friend, and the officer who had been questioning Ms. Bryson asked if she would return to the office with them. When asked to observe the search of her checked bags, Ms. Bryson agreed to do so. Approximately 20 to 30 minutes had elapsed since the search of Ms. Bryson’s carry-on bag. [11] During the search of Ms. Bryson’s checked bags, the police officers found approximately $12,000 and some hypodermic needles. A drug dog alerted “positive” to the money as having “a narcotic odor.” Although they did not arrest Ms. Bryson, the officers seized the money. In an interview with the second officer after the money was discovered, Ms. Bryson at first asserted that the money belonged to someone whose name it was not in her best interest to give. When asked to whom a receipt should be made out, however, she said that the money belonged to her. [12] Ms. Bryson moved to suppress the money and hypodermic needles found in her checked bags and her statements to the police officers. She asserted that when the officers asked her to accompany them to their office and retrieved her checked bags, a consensual encounter became a seizure that lacked probable cause, and thus that the money and hypodermic needles should be suppressed. She argued, as well, that because she was not given the warnings required under Miranda v. Arizona, 384 U.S. 436, 467-73, 478-79 (1966), for custodial interrogations, her statements should be suppressed. [13] The magistrate judge concluded that Ms. Bryson’s encounter with the police officers never turned into a seizure. The trial court agreed. Ms. Bryson does not challenge any of the magistrate judge’s factual findings as clearly erroneous. See, e.g., United States v. McKines, 933 F.2d 1412, 1426 (8th Cir. 1991) (en banc), cert. denied, 502 U.S. 985(1991). Rather, the essence of her argument on appeal is that the trial court erred in concluding that no seizure occurred. We review de novo the conclusion that no seizure occurred. See, e.g., id. at 1424, 1426. [14] Generally, a seizure within the meaning of the fourth amendment occurs only if, considering all of the circumstances of the incident, a reasonable person would believe that he or she is not free to leave. See, e.g., id. at 1415, 1416 n. 3. The courts have recognized the “fact-intensive” yet “imprecise nature of [the] inquiry.” Id. at 1419. “The test is necessarily imprecise, because it is designed to assess the coercive nature of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” Michigan v. Chesternut, 486 U.S. 567, 573 (1988). We consider, therefore, whether all of the circumstances involved in Ms. Bryson’s initial encounter with the police officers were “so intimidating, threatening or coercive that a reasonable person would not have believed himself [or herself] free to
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leave.” United States v. McKines, 933 F.2d at 1419.
[15] Ms. Bryson directs our attention to Buffkins v. City of Omaha, 922 F.2d 465, 469 (8th Cir. 1990), cert. denied, 502 U.S. 898 (1991), in which our court held that a seizure occurred when two police officers “requested [the defendant] to accompany them to the office . . . [and] at that time seized her luggage . . . [by] picking [it] up.” In that case, however, the officers told the defendant’s friend that she was “free to go” but made no such statement to the defendant. Indeed, our court specifically concluded that the “officers’ conflicting statements” to the defendant and her friend would have led to a reasonable belief on the defendant’s part that she was not free to go. Id. In Ms. Bryson’s case, it was Ms. Bryson’s friend who was arrested, and thus “had no choice but to go with the officers,” id., and Ms. Bryson who could have “reasonably infer[red],” id., that she, in contrast to her friend, was free to go. We note as well that it was Ms. Bryson who gave the claim checks to the officer after being asked about checked bags, rather than the officer’s physically commandeering those bags, see id., from Ms. Bryson’s possession. [16] Ms. Bryson also relies on Florida v. Royer, 460 U.S. 491, 501, 503 (1983) (plurality opinion), in which the Supreme Court held that a seizure occurred when two police officers retained the defendant’s ticket and identification, asked the defendant to accompany them to an office, and used the defendant’s claim checks to retrieve his checked bags without his “consent or agreement,” id. at 494 (plurality opinion). In our case, however, the officer had returned Ms. Bryson’s ticket and driver’s license before asking about checked bags and did not take physical control of those bags until after Ms. Bryson responded that she had four checked bags and handed her ticket envelope, with claim checks attached, to the officer. [17] We believe that Ms. Bryson’s case is more analogous to United States v. Dennis, 933 F.2d 671, 673 (8th Cir. 1991) (per curiam); United States v. McKines, 933 F.2d at 1422-23, 1426; and United States v. Poitier, 818 F.2d 679, 683 (8th Cir. 1987), cert. denied, 484 U.S. 1006(1988), where our court found that no seizure had occurred when the police officers were not uniformed, did not openly display their weapons, and did not physically touch the defendant; see also United States v. Delaney, 52 F.3d 182, 186 (8th Cir. 1995), cert. denied, 116 S. Ct. 209 (1995), and United States v. Todd, 963 F.2d 207, 210 (8th Cir. 1992). We therefore hold that no seizure of Ms. Bryson occurred when the officers asked about her checked bags and asked her to accompany them to their office, where Ms. Bryson’s checked bags were brought. Since there was no seizure, the officers were not required to give Miranda warnings to Ms. Bryson before she made any statements in the office. See Miranda, 384 U.S. at 467-73, 478-79. The trial court’s refusal to suppress the money, the hypodermic needles, and Ms. Bryson’s statements was thus not error.
III.
[18] In February, 1995, two police officers and a DEA agent went to Ms. Bryson’s residence in St. Louis, Missouri, to try to find her. (We recount the facts as found by the magistrate judge based on the testimony of one of the police officers and the DEA agent at two different suppression hearings; Ms. Bryson did not testify at either hearing.) At that time, the indictment against her had been issued but was still under seal. Ms. Bryson’s son directed the officers and the DEA agent to a second house, where one of the officers and the DEA agent found Ms. Bryson (the second officer stayed at the residence).
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[20] Ms. Bryson, both police officers, and the DEA agent went inside, where the law enforcement officers asked for her cooperation in their investigation, which, they stated, would be taken into consideration. Specifically, they asked for information about her role in distributing methamphetamine. Ms. Bryson stated that she ordered methamphetamine from Henrietta Furnish (a co-defendant), gave the money to Robert Avila (a co-defendant who pleaded guilty and testified for the government), and then received the methamphetamine from Ms. Furnish. Ms. Bryson admitted that she had recently received a pound of methamphetamine from Ms. Furnish and told the two officers and the DEA agent that it was hidden in the house where they originally found her. The questioning took about 45 minutes. At some point Ms. Bryson signed forms consenting to a search of both houses. [21] Ms. Bryson, the two police officers, and the DEA agent then returned to the house where they originally found her, and she gave them the pound of methamphetamine that she had told them about. The law enforcement officers also found two one-ounce packages of methamphetamine, which Ms. Bryson said she had obtained from Mr. Avila the previous week. [22] Ms. Bryson subsequently went with the law enforcement officers to the DEA office, where the DEA agent typed a summary of the information that Ms. Bryson had given. She initialed a form indicating that she had been advised of her Miranda rights and that no “threats, force, or promises of rewards” had been used in obtaining the statement. In response to the DEA agent’s inquiry, Ms. Bryson said that the typed summary of her statements was accurate; she then signed it “Linda Campbell” and initialed each page. [23] Ms. Bryson moved to suppress her statements and the drugs that the law enforcement officers found. Ms. Bryson argued, first, that because the DEA agent did not recall hearing her receive her Miranda rights, they were not given; that she was effectively in custody at the time she gave her statements; and that the statements should therefore be suppressed as having been induced without prior Miranda warnings. She also argued that because she was under indictment even though unaware of it, her sixth amendment right to counsel had attached, and therefore that the law enforcement officers were actively interfering with that right by telling her only that she was a target of a drug investigation rather than that she had already been indicted. Ms. Bryson further argued that her alleged waivers of her Miranda rights and her sixth amendment rights were not fully informed because of her lack of awareness of the indictment. Finally, she contended that her consents to answer questions and to allow the house searches were obtained by deceit so egregious as to amount to coercion under the law, and therefore were not voluntary under the law. [24] The magistrate judge found that one of the police officers advised Ms. Bryson of her Miranda rights. The magistrate judge also found that Ms. Bryson’s consents to answer questions and to allow the searches were voluntary and not coerced. The trial court adopted all of those findings. [25] It is true that at one of the suppression hearings the DEA agent testified that Ms. Bryson was never given Miranda warnings “because she was never placed under arrest.” At the other suppression hearing, however, one of the police officers testified that he advised Ms. Bryson of those rights “when we approached her.” From all of that testimony, the magistrate judge concluded that the DEA agent “apparently was out of earshot when [the police officer] advised Ms. Bryson of her rights.” In reviewing the magistrate judge’s findings, the trial court concluded that the police officer “advised [Ms. Bryson] of her Miranda rights verbally, out of the hearing of the DEA agent.” [26] We have read the transcripts of both suppression hearings. The finding that Ms. Bryson was indeed advised of her Miranda rights is not clearly erroneous. See, e.g., United States v. Chaidez, 906 F.2d 377, 385 (8th Cir. 1990), and United States v. Capers, 685 F.2d 249, 252 (8th Cir. 1982) (per curiam); see also United States v. Dickson, 58 F.3d 1258, 1265 (8th Cir. 1995), modified on other grounds, 64 F.3d 409 (8th Cir. 1995), cert. denied, 116 S. Ct. 747Page 582
(1996), and Atwell v. State of Arkansas, 426 F.2d 912, 913-14
(8th Cir. 1970).
IV.
[32] During trial, the court admitted evidence of Ms. Bryson’s 1987 federal conviction for distributing methamphetamine. Ms. Bryson argues that five years is too remote in time from the onset of the alleged conspiracy and that the government offered no proof, other than the bare title of the offense, to show that the prior conviction was for acts similar to those charged in the present case. Ms. Bryson further argues that any probative value of the prior conviction was far outweighed by its unfair prejudicial effect. See Fed.R. Ev. 403.
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(four of them apparently already used), and two ballpoint pen tubes that contained “an unknown residue.” After the arrest, Ms. Bryson stated that the items found in the truck were hers. Finally, the trial court admitted evidence that when the residence of the truck’s owner (where Ms. Bryson had evidently been living) was searched subsequent to Ms. Bryson’s arrest, the police officers who arrested her found “a spoon with white powder residue, two crack pipes, [a] marijuana pipe, and a small amount of marijuana.”
[34] With respect to the apparent drug paraphernalia, Ms. Bryson notes that the only drugs potentially evident at the time of her arrest were the residues in the four hypodermic syringes and the ballpoint pen tubes, the white powder residue in a spoon, and the marijuana, a drug that was not included in the charges (since the alleged conspiracy was to distribute methamphetamine and heroin). As to the residues, Ms. Bryson argues that they represented evidence of nothing more than personal use, that they were therefore only barely relevant to the charge of conspiracy to distribute, and thus that their unfair prejudicial effect exceeded by far any probative value that they might have had. See Fed.R. Ev. 403. [35] At the time that all of that evidence was admitted, the trial court instructed the jurors that they could not use the evidence “to decide whether [Ms. Bryson] carried out the acts involved in the crime charged” but that if they were convinced, beyond a reasonable doubt, by other evidence that Ms. Bryson had indeed carried out the acts involved in the crime charged, they could “use this evidence concerning previous [and, presumably, subsequent] acts to decide intent, knowledge, or common scheme or plan.” See Fed.R. Ev. 404(b). [36] Evidence of “other crimes, wrongs, or acts” by a defendant, see Fed.R. Ev. 404(b), is inadmissible only if its relevance is solely to the question of a defendant’s “character or . . . propensity to commit the crime charged.” United States v. Jones, 990 F.2d 1047, 1050 (8th Cir. 1993), cert. denied, 510 U.S. 1048 (1994). Such evidence is admissible if it is “(1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the crime charged.” United States v. Campbell, 937 F.2d 404, 406 (8th Cir. 1991). We review a trial court’s decision to admit such evidence for abuse of discretion. See, e.g., United States v. Wiley, 29 F.3d 345, 350-51 (8th Cir. 1994), cert. denied, 115 S. Ct. 522 (1994). [37] We apply “a reasonableness standard, examining the facts and circumstances of each case,” in deciding whether a previous conviction is too remote in time to be admitted. United States v. Burk, 912 F.2d 225, 228 (8th Cir. 1990). We observe, however, that in other cases, our court has allowed the admission of prior convictions at least seven and thirteen years old. See, respectively, id. at 227-28 and United States v. Burkett, 821 F.2d 1306, 1308-10 (8th Cir. 1987) (both seven years), and United States v. Engleman, 648 F.2d 473, 478-80 (8th Cir. 1981) (thirteen years). We therefore do not think that Ms. Bryson’s previous conviction was so remote in time as to render it automatically inadmissible. [38] Ms. Bryson was charged in this case with conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram each of methamphetamine and heroin. We greet with some surprise, therefore, her contention that the introduction of a certified copy of her conviction for distributing methamphetamine had to be amplified by evidence of the exact acts involved in order to show that that conviction was “similar in kind,” see Fed.R. Ev. 404(b), to the charge in this case. At the very least, the prior conviction was clearly relevant on the issues of knowledge and intent. See, e.g., United States v. Gadison, 8 F.3d 186, 191-92 (5th Cir. 1993) (prior conviction for possession of cocaine; current charge of conspiracy to distribute cocaine base), and United States v. Rubio-Estrada, 857 F.2d 845, 847-49(1st Cir. 1988) (prior conviction for possession with intent to distribute cocaine; current charge the same). We also believe that the
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trial court did not abuse its discretion in deciding that the probative value of the prior conviction outweighed its unfair prejudicial effect. We therefore hold that the trial court properly admitted the evidence of Ms. Bryson’s 1987 conviction.
[39] We see no evidence in the trial transcript that the drug residues found at the time of Ms. Bryson’s second arrest were analyzed and thus identified. We therefore have reservations about the admission of the evidence of the apparent drug paraphernalia, those residues, and the marijuana also found at that time. Nonetheless, we believe that even if the trial court erred in allowing that evidence to be admitted, the error was harmless. That is because, in our view, its prejudicial effect was negligible compared to the overwhelming other evidence against Ms. Bryson. We therefore decline to reverse her conviction because of the admission of the evidence that she challenges. See, e.g., United States v. Betts, 16 F.3d 748, 760-61 (7th Cir. 1994), and United States v. Echeverri, 854 F.2d 638, 645-48 (3d Cir. 1988).V.
[40] At sentencing, the trial court increased by three levels Ms. Bryson’s base offense level under the federal guidelines to reflect that Ms. Bryson was a manager or supervisor in a criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. Section(s) 3B1.1(b). The trial court stated only, however, that the evidence “that was adduced indicates that Ms. Bryson was in fact the main person in St. Louis and had several people working under her, received large quantities of drugs, and I believe all of that is ample to support a three level enhancement.” Ms. Bryson argues that the trial court’s finding that she was a manager or supervisor is clearly erroneous (she does not challenge the size or scope of the conspiracy). See, e.g., United States v. Skorniak, 59 F.3d 750, 757 (8th Cir. 1995), cert. denied, 116 S. Ct. 487 (1995).
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deal.” United States v. Vargas, 16 F.3d 155, 160 (7th Cir. 1994). Ms. Bryson’s status as a mid-level distributor is already reflected in her base offense level, a figure based on the amount of drugs she was responsible for distributing. See, e.g., United States v. Brown, 944 F.2d at 1385. In these circumstances, we agree with the Seventh Circuit that without “additional evidence that demonstrated [that she] exercised a leadership role in the offense,” an enhancement under Section(s) 3B1.1 is inappropriate. Id. (emphasis in original).
[44] There were six defendants in these cases, and during the two trials, testimony was offered about many drug deals and many individuals. We believe that in remembering the evidence, the trial court may have inadvertently conflated some of it. With respect to Ms. Bryson, we cannot find sufficient evidence to affirm the three-level enhancement under Section(s) 3B1.1. We therefore remand her case for resentencing in light of this opinion. VI.
[45] Ronnie and Henrietta Furnish, who are husband and wife, challenge the sufficiency of the evidence for their convictions. Mr. Furnish contends specifically that there is no evidence directly linking him to the alleged conspiracy as a participant and that mere knowledge of the alleged conspiracy is not enough to sustain his conviction. Ms. Furnish contends that there is no evidence that she ever belonged to a conspiracy to distribute both methamphetamine and heroin, as opposed to methamphetamine only (which she concedes). We review the evidence in the light most favorable to the government. See, e.g., United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996). We turn first to Mr. Furnish.
(1991), and United States v. Perlaza, 818 F.2d 1354, 1359 (7th Cir. 1987), cert. denied, 484 U.S. 861 (1987). The repeated use of an alias is probative of consciousness of guilt. See, e.g., United States v. Valencia-Lucena, 925 F.2d 506, 513 (1st Cir. 1991), and United States v. Eggleton, 799 F.2d 378, 381 (8th Cir. 1986). Finally, evidence of money transfers between a defendant and co-defendants is probative of involvement in a drug-related conspiracy. See, e.g., United States v. Singer, 970 F.2d 1414, 1419 (5th Cir. 1992), and United States v. Delgado, 914 F.2d 1062, 1066 (8th Cir. 1990). We therefore believe that although the evidence against Mr. Furnish is not extensive, it is nonetheless, in combination, legally sufficient. [48] It is clear from the trial transcript that Robert Avila (a co-defendant who pleaded guilty and testified for the government) and Rodrigo Rodriguez (a co-defendant whose case we do not address here) were the primary actors in the heroin distribution that occurred in this case. The evidence also showed, however, that Ms. Furnish knew that Mr. Avila had a source for heroin and that she asked him on at least one occasion, and possibly more (the testimony was unclear), to send some heroin to a third person.
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[49] Ms. Furnish and Mr. Avila worked closely together to supply methamphetamine to others. It would not have been unreasonable for the jurors to conclude that Ms. Furnish and Mr. Avila had the common goal of sending illegal drugs from California to Missouri, with Ms. Furnish’s primary responsibility being the methamphetamine and Mr. Avila’s primary responsibility being the heroin. Indeed, there was some evidence to suggest that they may have had at least one customer in common for both drugs — Steven Glaus (a co-defendant whose case we do not address here) — who may have served as a mid-level distributor for both drugs. Although the issue is a close one, we hold that the totality of the evidence supports a conclusion that the conspiracy was a single one to distribute both methamphetamine and heroin and that Ms. Furnish was a knowing participant in that conspiracy with respect to both drugs. We therefore affirm her conviction. [50] We caution the government, however, that it may be “unnecessarily exposing itself to reversal,” United States v. Sperling, 506 F.2d 1323, 1340 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975), 421 U.S. 949 (1975), by combining the charges against ten defendants into one case under the claim of a single conspiracy “when the criminal acts could be more reasonably regarded as two or more conspiracies, perhaps with a link at the top,” id. at 1341. In our view, the link between Ms. Furnish and the conspiracy to distribute heroin is just about as thin as it can be and still be legally sufficient.VII.
[51] Finally, Mr. Furnish challenges the trial court’s application to him of a four-level increase of his base offense level under the federal sentencing guidelines to reflect that Mr. Furnish was an organizer or leader in a criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. Section(s) 3B1.1(a). At sentencing, the trial court made no specific findings but merely “overruled” Mr. Furnish’s objection to the four-level increase. Mr. Furnish argues that the trial court’s finding that he was an organizer or leader is clearly erroneous (he does not challenge the size or scope of the conspiracy). See, e.g., United States v. Maxwell, 25 F.3d 1389, 1399 (8th Cir. 1994), cert. denied, 115 S. Ct. 610 (1994).
(7th Cir. 1994); see also United States v. Maxwell, 34 F.3d 1006, 1012
(11th Cir. 1994), and United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993) (per curiam). We therefore remand Mr. Furnish’s case for resentencing in light of this opinion.
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VIII.
[54] For the reasons stated, we affirm the convictions of Linda Bryson, Ronnie Furnish, and Henrietta Furnish. We remand for resentencing the cases of Ms. Bryson and Mr. Furnish.
[2] The Honorable Mary Ann L. Medler, United States Magistrate Judge, United States District Court for the Eastern District of Missouri.