874 F. 2d 817 - United States v. Castro

MEMORANDUM*

Castro appeals the conviction he received for violating 21 U.S.C. Sec. 841(a)(1), for possession of over 500 grams of a Schedule II controlled substance, cocaine, with the intent to distribute. We affirm the district court on all points.

Events. On July 2, 1987, a confidential informant named Scott Johnson contacted Steve Morkert, a narcotics detective of the Yakima City Police Department. Johnson told the detective that Aldo Castro and Anthony Flores (whose case is also decided today) were in possession of a large quantity of cocaine at a house on North Naches Avenue ("the house"). Detective Morkert drove Johnson to the house where Johnson made two controlled purchases of cocaine.

Morkert prepared an affidavit in support of a search warrant for the house. A state district court judge reviewed the application and issued the warrant. Five Yakima City police officers executed the search warrant on the afternoon of July 2nd. They found Flores; two women who were subsequently released uncharged; five loaded rifles; three loaded and one unloaded handgun; and a locked, uninstalled floor safe. During the search Castro arrived and was taken into custody. A search of his person revealed a receipt for the purchase of the floor safe.

The safe was removed to the city police department where it remained during the three-day Fourth of July holiday. Following the holiday a search warrant was obtained for the safe. Using the combination supplied by the safe's manufacturer, the police opened the safe for the first time and found 4.3 pounds of cocaine and $5,290 in cash.

Proceedings below. The Yakima office of the U.S. Attorney for the Eastern District of Washington adopted the case. The grand jury returned an indictment that charged one count: possession of over 500 grams of a Schedule II controlled substance with intent to distribute. Castro and Flores were co-defendants. Judge McDonald denied a pretrial motion to suppress the evidence, and denied a request to include a jury instruction on the lesser included offense of possession of a controlled substance. Judge McDonald granted a motion requiring the government to reveal the identity of the informant. At trial Flores testified; Castro did not. The jury returned a verdict of guilty for each man. Each appeals separately.

First. Castro contends that his prosecution by federal authorities violated principles of equal protection and comity. We review this question of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied 469 U.S. 824 (1984).

The laws of the state of Washington provide a more lenient sentencing regime than Congress does for the possession of cocaine with intent to distribute. Castro contends that a state that conducted an investigation without federal assistance cannot constitutionally hand over a defendant to the office of the U.S. Attorney in order to expose the defendant to harsher penalties available under federal law. According to Castro, the state prosecutor's decision to turn Castro over to a federal prosecutor is indistinguishable from the impermissible situation of allowing a prosecutor to enjoy the unfettered discretion to charge persons similarly situated in a dissimilar manner.

Castro's argument misunderstands the nature of concurrent jurisdiction. It is true that the federal penalties are greater, and that one of the reasons that the case was referred to the U.S. Attorney was to expose Castro to those penalties. It is also true that in some respects the state of Washington provides broader procedural protection than the federal government to criminal defendants. See Note, The Origin and Development of Washington's Independent Exclusionary Rule, 61 Wash.L.Rev. 459 (1986). It does not follow that equal protection requires the federal government to abdicate the vindication of its laws. Still less does it follow that principles of comity require the federal government to refuse the assistance offered by the state of Washington.

Under the doctrine known as dual sovereignty, it is well settled that separate prosecutions, under both federal and state law, are permitted for the same act. The doctrine has its foundation in the common law conception of crime as an offense against the sovereignty of the government. A person whose single act violates the peace and dignity of two sovereigns by breaking the laws of each commits two distinct offenses. In United States v. Lanza, 260 U.S. 377, 382 (1922), the Supreme Court held that two sovereigns deriving power from different sources could properly enact criminal legislation concerning the same subject matter within the same territory. Lanza 's dual sovereignty doctrine has been consistently applied by the Supreme Court. Recently in Heath v. Alabama, 474 U.S. 82, 88 (1985), where the law enforcement agencies of two states cooperated in a homicide investigation, the Court held that a single course of action can constitute two separate offenses if forbidden by two separate sovereigns. The crucial determination is whether the two entities that seek to prosecute a defendant for the same course of action are separate sovereigns deriving their prosecutorial powers from independent sources of authority. The Court uniformly has held that the states are separate sovereigns with respect to the federal government. Id. at 88-89. Consequently Castro's argument must be rejected. See also Westfall v. United States, 274 U.S. 256, 258 (1927) (Holmes, J.) (that state and federal governments may punish the same conduct "is too plain to need more than statement").

Second. Castro contends that the trial court erred in its instructions to the jury. The court refused to allow jury instructions concerning the lesser included offense of simple possession of a controlled substance.

We review the alleged failure to submit a proper jury instruction under a de novo standard. United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986), cert. denied, 481 U.S. 1005 (1987). A trial court should give an instruction on a lesser included offense if the jury could rationally convict the defendant on the lesser charge and acquit him of the greater. Keeble v. United States, 412 U.S. 205, 208 (1973); United States v. Espinosa, 827 F.2d 604, 615 (9th Cir.1987), cert. denied, 108 S.Ct. 1243 (1988). We must ask whether the jury could have rationally convicted Castro of simple possession of 4.3 pounds of cocaine and acquitted him of possession with intent to deliver. To ask the question is to answer it. 4.3 pounds equals 1950.48 grams. Several circuits have determined that the quantity of cocaine alone is sufficient to establish the intent to distribute it. See United States v. Gaviria, 740 F.2d 174 (2d Cir.1984) (681 grams); United States v. Fleming, 677 F.2d 602 (7th Cir.1982) (227 grams); United States v. Mather, 465 F.2d 1035 (5th Cir.1972), cert. denied 409 U.S. 1085 (197.75 grams). We need not address that question here. We merely hold that 4.3 pounds of cocaine so exceeds the quantity necessary for personal use that no jury could have rationally convicted Castro of simple possession and acquitted him of possession with intent to deliver. The district court did not err in refusing to allow a simple possession instruction.

Third. Castro contends that the affidavit did not provide adequate support for a finding of probable cause on which basis a valid search warrant could be issued. Castro argues that Detective Morkert failed to disclose critical information to the issuing magistrate and provided false information in the affidavit in support of the search warrant.

The totality of the circumstances establishes probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983). "[A]ll data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." United States v. Anderson, 453 F.2d 174, 175 (9th Cir.1971); see United States v. Stanert, 762 F.2d 775, 778 (9th Cir.1985). The affidavit must establish "a reasonable nexus between the item to be seized and the criminal behavior alleged." United States v. Holzman, No. 86-1000, slip op. 3543, 3571 (9th Cir. April 7, 1989) (quoting Shaffer v. Wilson, 523 F.2d 175, 179 (10th Cir.1975), cert. denied, 427 U.S. 912 (1976). Direct evidence linking criminal objects to a particular site is not required for the issuance of a search warrant; the reviewing magistrate or judge need only determine that a fair probability exists of finding evidence, considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide stolen property. United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985).

In reviewing the issuance of a search warrant, we determine whether the issuing magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986). This standard of review is less probing than de novo review and shows deference to the issuing magistrate's determination. Id. However, when the appellant challenges an affidavit in support of a search warrant, we review the materiality of the alleged misstatements and omissions in the affidavit de novo. United States v. Condo, 782 F.2d 1502, 1506 (9th Cir.1986).

Castro contends that the affidavit distorted and obfuscated the truth because Detective Morkert (1) did not reveal that the informant wanted revenge against Castro; (2) exaggerated the number of buys made by the informant; (3) failed to reveal his knowledge of the safe; (4) failed to disclose that he had lost sight of the informant during the buy so that he did not know exactly where the informant purchased the cocaine; and (5) failed to disclose that the informant lived next door to the house. We are required to set the affidavit's false assertions to one side, consider the declaration with the omitted truths included, and then determine whether the affidavit's remaining content is sufficient to establish probable cause. Id.

Accepting arguendo Castro's contentions, a Condo -redacted affidavit would include (1) the detective's assertion that he had probable cause to believe that drugs were sold at the house; (2) a particular description of the house; (3) the detective's assertion that Flores and Castro sold cocaine; (4) a particular physical description of each defendant; (5) the detective's assertion that within the last 24 hours he has been contacted by an informant who personally observed cocaine at the house within the past 24 hours; (6) the detective's assertion that he believes the informant is reliable, along with reasons for that assertion; (7) the detective's assertion that the informant is familiar with the accoutrements of cocaine sales; (8) the detective's assertion that the informant purchased cocaine from residents of the house using currency supplied by the detective; (9) the detective's identification of the specific Federal reserve notes used to make the purchase; (10) the detective's assertion that a safe was in the house (11) the detective's assertion that he had lost sight of Johnson during the buy so that he did not know exactly where Johnson purchased the cocaine; (12) the detective's assertion that the informant lived next door to the house; and (13) the assertion that Johnson wanted revenge against Castro.

The redacted declaration sets out with sufficient specificity facts that establish probable cause for entry into the residence. None of the alleged omissions materially undermine a showing of probable cause. Indeed, in some respects their belated inclusion strengthens the specific basis on which rests the conclusion that probable cause exists. Castro's argument is therefore rejected.

Fourth. Castro contends that the seizure of the safe found on the premises exceeded the scope of the original search warrant and so violated the Fourth Amendment's protection against seizures without a warrant that particularly describes the things to be seized. The purpose of the Fourth Amendment's particularity requirement for warrants is to make general searches impossible. Holzman, slip op. at 3599. The evil to be prohibited is the exploratory rummaging through a person's belongings. Andresen v. Maryland, 427 U.S. 463, 480 (1976); Holzman, slip op. at 3566. Although police are not to be allowed to exercise discretion as to the items to be seized, the warrant's description of items need only be reasonably specific, rather than elaborately detailed. United States v. Storage Spaces Designated Nos. 8 & 49, 777 F.2d 1363, 1368 (9th Cir.1985), cert. denied, 479 U.S. 1086 (1987). The degree of specificity required is flexible and may vary depending on the circumstances and type of items involved. Holzman, slip op. at 3566-67. When faced with a question of whether a search warrant is sufficiently particular, we review de novo. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986).

The language of the warrant commanded the police to

seize the controlled substance known as cocaine [found in the house] together with the conveyances, vehicles or vessels in which they are contained, and all implements, furniture, and fixtures used or kept for the illegal manufacture, sale, barter, exchange, giving away, furnishing, or otherwise disposing of such drugs, together with any personal property items, papers and records showing dominion and control and necessary to show intent to deliver, manufacture, or otherwise violate the Uniform Controlled Substances Act....

The language of the warrant provided the searching officers with a clear command to seize vessels used for the storage of cocaine. In addition, according to a leading authority, "[i]n order to search containers in the described premises which might contain the items described in the warrant, it is not necessary that the warrant also describe those containers." W. LaFave & J. Israel, 1 Criminal Procedure Sec. 3.4 at 235 (1984) (citing United States v. Ross, 456 U.S. 798 (1982)). Under the circumstance of this search, it is apparent that the uninstalled safe was likely to contain the cocaine described in the warrant. The police were authorized to seize the safe during the search of the house. The Fourth Amendment was not violated.

Castro additionally argues that Detective Morkert's failure to mention the existence of the safe to the issuing magistrate renders the search based on that affidavit unconstitutional. According to the excerpt of record provided in the companion case of Anthony Flores, the trial court ruled that the reason for the omission was that the "safe's presence in the closet and its use to store drugs and money was known only to a few people, and that a disclosure of that fact in the affidavit might very well subject [the] informant to retribution." Flores ER 101. Rather than a reckless misrepresentation, the court found that the omission

was a matter of some fairly careful balancing of concerns. There was the request that he be permitted to search for property, real and personal; the request that he be able to seize vessels and that he be able to search all parts of the house, including closets. It seems to the Court that this indicates that he was attempting to inform the district court as well as he could of the wide scope of the search necessary; that he certainly hoped to encompass the safe, and that he accomplished this without disclosing those facts which might reflect upon the safety of the person from whom his information was being received.

ER 102. We agree. Had Detective Morkert mentioned the safe, a reasonable magistrate would have explicitly permitted its seizure. A second warrant that explicitly authorized a search of the safe eventually was issued. Neither general rummaging nor searching beyond the scope of the warrant occurred. Any omission by Detective Morkert was harmless. Castro's argument is therefore rejected.

Fifth. Castro contends that the trial court erred by admitting into evidence the firearms found on the premises. Relevant evidence may be excluded at the discretion of the trial judge if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Fed.R.Evid. 403. A district court's decision regarding the exclusion of evidence on account of unfair prejudice will not be disturbed in the absence of an abuse of discretion. United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir.1987). Under the abuse of discretion standard, we cannot reverse unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached. Unired States v. Van Cauwenberghe, 827 F.2d 424, 431 (9th Cir.1987), cert. denied, 108 S.Ct. 733 (1988).

In Crespo de Llano, 838 F.2d at 1018, as well as in United States v. Martin, 599 F.2d 880, 889 (9th Cir.1979), cert. denied, 441 U.S. 962 (1979), guns seized in the defendant's house were properly admitted to show involvement in the narcotics trade. The admission of seized firearms has been upheld to support a charge of drug distribution because firearms are a drug dealer's tools of the trade. E.g., United States v. McDaniel, 773 F.2d 242, 247 n. 4 (8th Cir.1985). Courts have recognized that the presence of firearms is "of great probative value" and is relevant in the proof of a narcotics charge. Id. We see no reason to overturn the district court's determination.

Sixth. Castro contends that the incriminating evidence was seized in violation of Washington state law and is therefore inadmissible in federal court. We need not decide whether state law was violated. Evidence seized in violation of state law may nevertheless be admitted. See United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir.1987).

AFFIRMED.