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United States v. Salmon

argued: January 25, 1991.


On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Criminal Action No. 89-152.

Becker and Hutchinson, Circuit Judges, and Atkins, District Judge.*fn*

Author: Atkins


ATKINS, Senior District Judge

Richard Fitzpatrick, Amos Salmon, John Surratt and Raymond Washington appeal to this court from final judgments of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania following a jury trial in which they were found guilty of conspiracy and substantive crimes relating to possession and distribution of cocaine. We address the following questions raised by their appeals: (1) whether the evidence against Fitzpatrick, Salmon and Surratt was sufficient to prove their convictions; (2) whether a variance between the indictment and proof as to the number of conspiracies existed to the prejudice of any defendant; (3) whether the district court erred in refusing to suppress a weapon found in Washington's car trunk during a warrantless search following the vehicle's seizure under Pennsylvania forfeiture law; (4) whether the court's refusal to give the entrapment instructions requested by Washington was an abuse of discretion; (5) whether the court's refusal to permit Washington to examine Surratt as to whether the confidential informant used cocaine while arranging sales was an abuse of discretion; and (6) whether the sentences imposed on Washington, Salmon and Surratt are clearly erroneous or otherwise contrary to law. For the reasons that follow, we will REVERSE Fitzpatrick's convictions and vacate his sentences; AFFIRM the convictions and sentences of Salmon and Surrat; and REVERSE Washington's conviction and vacate his sentence for felony weapon possession, but AFFIRM his other convictions and sentences imposed under the career offender Guidelines.


Because the evidence is crucial to several issues, we review the record in significant detail. In the Spring of 1989, a woman named Sandra Mithani sought to avoid prosecution for writing bad checks by cooperating as a confidential informant with the City of Greensburg Police Department. After telling Detective James Williams of the Greensburg Police Department that she had purchased small amounts of cocaine from Washington, at William's behest Mithani contacted Washington and told him she had an out-of-town cousin who wanted to purchase cocaine. Mithani asked Washington if her cousin could buy an ounce of cocaine from Washington, who told her it would be no problem. Appellants' Appendix ("App.") at 151-61. Mithani arranged a meeting between Washington and Detective Terrence Kuhns of the Westmoreland County District Attorney's office, who posed as Mithani's cousin. On the day the meeting was to occur, however, Mithani did not appear. Later that day Washington visited Mithani and insisted she help him get rid of the cocaine he possessed. Mithani contacted Detective Williams, who instructed her to set up a deal for the next day. Id. at 163-66.

Washington arrived at Mithani's residence the following day, August 10, 1989, in the company of Surratt, known as "Yogi" to Mithani. Detective Kuhns arrived and got in the back seat of the car, identifying himself as Mithani's cousin. Kuhns examined the package containing cocaine and told Washington it looked "light." Washington told Kuhns to contact Mithani if the package contained less than one ounce of cocaine. Id. at 222-26. Kuhns then told Washington he was looking for a new source of cocaine. Surratt commented that the cocaine was of good quality and that Kuhns couldn't buy cocaine of comparable quality in the Greensburg area. Washington then handed the cocaine to Surratt, who handed it to Kuhns. Detective Kuhns next handed $1,500 to Surratt, who handed the money to Washington. After Washington told Kuhns he could obtain more cocaine on a day's notice, Washington and Kuhns discussed the purchase of four additional ounces. Washington stated that the price would vary depending on the source. Before leaving, Kuhns told Washington and Surratt they should treat him well because he would make future transactions with them. Surratt responded by stating, "we're like Allstate; you're in good hands with us." Id. at 227-30.

The following day, August 11, Kuhns telephoned Washington that he wanted to buy eight ounces of cocaine toward the end of the week. Government Tape Exhibit ("Tape") 22. Five days later, on August 16, 1989, Mithani telephoned Washington that her "cousin" wanted Washington to call. A few minutes later, an individual identifying himself as Ray's partner "Yogi" called Kuhns and told him Washington wanted to know what he wanted. Kuhns said he wanted eight ounces for $1,000 each. Yogi told Kuhns that Washington would call Kuhns back. A short time later, Washington called and told Kuhns the price was $1,200 per ounce. Kuhns asked whether he could buy sixteen ounces for $1,000 each. Washington answered that he and the other people were afraid of dealing that much cocaine and that he was afraid of being arrested. Kuhns indicated that the source could be present at the deal. Tape 23.

Three days later, on August 19, Kuhns called Washington, who called him right back. Washington told Kuhns that "they" wanted to do only five the first time but would do the rest after they saw Kuhns was "allright." Kuhns called Washington back and told him that they would do the transaction in two phases, the first phase involving the transfer of the five ounces of cocaine, to be followed by the remainder. Washington said he would contact Kuhns after speaking with his source. Tape 24. On August 22, 1989, Kuhns called Washington, who called Kuhns back, telling him that only one of three potential sources was willing to do the deal. Kuhns told Washington to have his source call Kuhns; shortly thereafter, an individual identifying himself as "Jerome" called Kuhns. He told Kuhns that there was a problem acquiring the cocaine, that he didn't want to deal with Kuhns directly, and that he didn't want to do anything right then because he was having trouble with the police. He also told Kuhns that he would call him as soon as "it" arrived, sometime that week. Three days later, Washington returned Kuhns' call and told him he hadn't spoken with his source in a while; Kuhns told Washington to have his source call him back. Tape 25.

On September 5, Washington returned another of Kuhns' calls and indicated that the source was ready to do business that night, but Kuhns told Washington he couldn't do it until the next day, September 6, 1989. Tape 26. The next day Washington returned yet another call from Kuhns and told him the transaction would take place at 8:00 p.m. in the parking lot of a McDonald's restaurant next to a shopping center on Route 30. Washington said everyone would be driving to the location separately. Id. Later that evening, Kuhns went to the designated parking lot. Washington pulled up in a white Cadillac, exited his vehicle, and walked over to Kuhns. Washington told Kuhns that he was going to look for the source, who may have gone to the wrong place, and that the source would be driving a red Cadillac with multiple antennae. App. at 245-46. As Washington left the parking lot, he passed a blue Oldsmobile pulling into the parking lot. As the vehicles passed, both vehicles' horns sounded. The blue Oldsmobile then exited the parking lot and followed Washington down Route 30. Both vehicles eventually returned to the parking lot. Id. at 357-58.

Upon returning, Washington exited his vehicle and met with a man subsequently identified as Salmon. As the two spoke, a man who turned out to be Fitzpatrick exited the blue Oldsmobile and opened its trunk. Id. at 360. Salmon eventually parted Washington's company and returned to the back of the Oldsmobile, where Fitzpatrick stood beside the open trunk. The surveillance officers were unable to see what, if anything, occurred there. Id. at 360. Meanwhile, Washington approached Kuhns' car, told Kuhns "that's him" and asked Kuhns if he had the money. Id. at 248-49. When Kuhns said he did, Washington walked across the parking lot and met with Salmon again. Id. at 251, 361. As Washington conversed with Salmon at a distance of approximately forty yards from Fitzpatrick, Fitzpatrick, who had already closed the trunk, stood by the hood of the Oldsmobile he had opened. Salmon again left Washington's company and returned to where Fitzpatrick stood near the Oldsmobile, its hood now closed. After the two conversed, Fitzpatrick returned to the Oldsmobile, entered the driver's side of the vehicle, and drove past Salmon to a gas station on Route 30. Salmon walked through a gravel lot, crossed Route 30, and walked along the highway. Id. at 362-64. Meanwhile, as Washington approached Kuhns' vehicle, Kuhns noticed a bulge in the area of Washington's waist. Washington entered Kuhns' vehicle, took the cocaine from his waist area, and gave it to Kuhns.

After Kuhns signaled the backup units, Washington was placed under arrest. Id. at 251-55. As two detectives approached Salmon along Route 30, he crossed back over the highway and began running toward the blue Oldsmobile parked at the gas station, where Fitzpatrick was pumping gas into the vehicle. Salmon entered and started the car, but complied with the detectives' ordering him out of the car and placing him under arrest. A pair of binoculars and a walkie-talkie were observed on the front seat of the Oldsmobile at this time. Id. at 365-68. Meanwhile, another detective approached Fitzpatrick and identified himself as a police officer. As the detective approached, Fitzpatrick apparently edged backwards, id. at 368, but eventually was stopped and placed under arrest. A second walkie-talkie was found on Fitzpatrick. Id. at 456-57. Fitzpatrick made a post-arrest statement to the effect that earlier in the day Salmon had come by to ask whether he could use Fitzpatrick's vehicle. Id. at 372. Fitzpatrick stated that Salmon, in possession of the binoculars and walkie-talkies, asked Fitzpatrick to ride with him to the shopping center where Salmon was supposed to meet with someone, "to watch Salmon's back." Id. at 372-73.

A grand jury indicted Fitzpatrick, Salmon, Surratt and Washington in a five-count indictment. Count One charged all four defendants with conspiring from August 9, 1989, to on or about September 6, 1989, to possess with intent to distribute less than 500 grams of cocaine in violation of 21 U.S.C. § 846. Count Two charged that Washington and Surratt possessed with intent to distribute less than 500 grams of cocaine on August 10, 1989, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count Three charged Washington, Salmon and Fitzpatrick with possessing with intent to distribute less than 500 grams on or about September 6, 1989, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count Four charged that Washington intentionally and unlawfully carried and used a firearm during and in relation to the drug trafficking crime alleged in Count One, in violation of 18 U.S.C. § 924(c)(1). Count Five charged Washington with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 924(c)(1).

Having pleaded not guilty, all four defendants were tried before a jury, which on March 21, 1990 returned the following verdicts: all four defendants guilty as to Count One, the conspiracy charge; Washington guilty as to Count Two, the August 10, 1989 possession charge; Washington, Salmon and Fitzpatrick guilty as to Count Three, the September 6, 1989 possession charge; and Washington guilty as to Count Five, the felony-weapon-possession charge. Count Four, the use-of-a-firearm charge against Washington, was dismissed by the court before trial; Count Two, the August 10, 1989 possession charge, was dismissed as to Surratt on the government's motion after the jury failed to reach a verdict. The defendants received the following sentences. Washington was sentenced as a career offender to terms of 210 months on Counts One, Two and Three, and a term of 120 months on Count Five, with all terms running concurrently; at least six years probation; and a $200 total special assessment. Salmon was sentenced to sentences of fifty-one (51) months on both Counts One and Three, with such terms running concurrently; at least three years probation; and a $100 total special assessment. Fitzpatrick was sentenced to a term of twenty-one (21) months on Counts One and Three, to be served concurrently; at least three years probation; and a $100 total special assessment. John Surratt was sentenced to thirty-three (33) months in prison on Count One; three years probation; and a $50 special assessment. All defendants filed timely notices of appeal and presently serve their sentences.


1. Sufficiency of the Evidence

"View[ing] the evidence and the inferences logically deducible therefrom in the light most favorable to the government," United States v. McNeill, 887 F.2d 448, 449-50 (3d Cir. 1989), cert. denied, 110. S. Ct. 1152 (1990), we first consider whether substantial evidence, direct or circumstantial, United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, 475 U.S. 1024, 89 L. Ed. 2d 330, 106 S. Ct. 1220 (1986), supports the convictions of Fitzpatrick, Salmon and Surratt. Stated differently, we must determine whether a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses. United States v. Samuels, 741 F.2d 570, 573 (3d Cir. 1984). A conspiracy conviction requires that one agreed to commit an unlawful act and intended to commit the underlying offense, United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1100 (3d Cir.), cert. denied, 493 U.S. 955, 110 S. Ct. 368, 107 L. Ed. 2d 354 (1989); intent to commit the underlying offense requires that one had "knowledge of the illegal objective contemplated by the conspiracy," United States v. Wexler, 838 F.2d 88, 91 (3d Cir. 1988) (emphasis added). A conviction for possession with intent to distribute a controlled substance requires that one knowingly and intentionally possessed the substance with the intent to distribute it. United States v. Martorano, 709 F.2d 863, 866 (3d Cir.), cert. denied, 464 U.S. 993, 78 L. Ed. 2d 682, 104 S. Ct. 486 (1983). An aiding-and-abetting conviction requires that another committed the substantive offense and that the one charged with aiding and abetting knew of the substantive-offense commission and acted with the intent to facilitate it, United States v. Dixon, 658 F.2d 181, 189 n. 17 (3d Cir. 1981); acting with the intent to facilitate the substantive offense requires that one acted with the "intent to help those involved with a certain crime," Wexler, 838 F.2d at 92 (emphasis added).

(a) Fitzpatrick

Fitzpatrick challenges his convictions for conspiring to possess with the intent to distribute cocaine and for aiding and abetting another's possession with the intent to distribute marijuana; he argues that the record contains no evidence he had either knowledge of the conspiracy's objective or intent to help his coconspirators with a certain crime, in both instances the possession with intent to distribute cocaine. He offers the case of United States v. Wexler, supra, to support his contentions. There, Wexler challenged his conspiracy and aiding-and-abetting convictions on the ground that no evidence supported a finding that, in his role as a lookout, he ever knew that hashish or any other controlled substance was involved in the activities giving rise to his convictions. The evidence showed that on the night of a controlled delivery of 750 pounds of hashish stored in crates of engine parts, Wexler had done the following: driven by the surveillance area at five miles per hour; reversed his course upon making eye contact with the agents; signaled to the driver of the truck containing the hashish; and talked to one of the drivers of the truck on two separate occasions. The evidence also showed that upon his arrest, Wexler possessed a portable CB radio he had purchased under a false name the previous day. Id. at 89-90.

This court determined that although this evidence showed that Wexler had agreed to commit an unlawful act and that a substantive offense had occurred, the evidence was insufficient to allow a reasonable jury to conclude that Wexler knew a controlled substance was hidden among the engine parts in the truck. Regarding the conspiracy conviction, the court reasoned that the circumstances supported an inference that Wexler knew "that some form of contraband was involved in the elaborate secretive arrangements for transport in which he participated." Id. at 92. However, the court concluded that "these permissible inferences do not support a holding that the government met its burden to prove beyond a reasonable doubt that Wexler knew this was a conspiracy to transport hashish . . . . The evidence is just as consistent, for example, with a conspiracy to transport stolen goods, an entirely different crime." Id. In addition, the court concluded that "a reasonable jury also could not have had sufficient evidence from which to find that Wexler purposefully aided and abetted the possession and/or distribution of hashish." Id. This conclusion was based on the court's determination that the evidence was insufficient to "prove that Wexler had knowledge of the hashish, had knowledge that [the other defendant] intended to distribute or possess hashish, or purposefully intended to aid others in committing the crime alleged." Id.

The circumstances implicating Wexler bear a strong resemblance to some of the circumstances implicating Fitzpatrick: both performed surveillance, spoke to coconspirators, and possessed surveillance equipment upon their arrests. However, the government distinguishes Wexler on the basis of evidence of Fitzpatrick's movements in the parking lot which, the government contends, supports an inference that Fitzpatrick, unlike Wexler, was aware of the nature of the transaction: when Salmon initially left the Oldsmobile to meet with Washington, Fitzpatrick exited the Oldsmobile and opened the trunk; thereafter, Salmon returned to the trunk area before walking back to meet with Washington again; after meeting with Salmon, Washington returned to Kuhns' car with the cocaine. While we recognize that a crime's elements may be proven entirely by circumstantial evidence, see Kapp, 781 F.2d at 1010, we disagree with the government's contention that these movements, combined with the consistency and wrapping of the cocaine in a brown paper bag, could allow a reasonable jury to find beyond a reasonable doubt that Fitzpatrick knew that cocaine or another controlled substance was the object of the transaction. Although "inferences from established facts are accepted methods of proof when no direct evidence is available," McNeill, 887 F.2d at 450, there must be "a logical and convincing connection between the facts established and the conclusion inferred," id. (emphasis added); United States v. Bycer, 593 F.2d 549, 550 (3d Cir. 1979). The government's sequence-of-events argument is premised on the notion that the cocaine was located in the trunk of Fitzpatrick's Oldsmobile. This notion, however, is unsupported by any established fact. Even assuming, arguendo, that the cocaine was in the trunk, the record contains no evidence that Fitzpatrick knew that the bag contained a controlled substance such as cocaine as opposed to anything else.

We thus conclude that the record contains no evidence, direct or circumstantial, from which a reasonable jury could find beyond a reasonable doubt that Fitzpatrick had either the specific knowledge required for his conspiracy conviction or the specific intent required for his aiding and abetting conviction. Cf. United States v. Leon, 739 F.2d 885, 892-93 (3d Cir. 1984) (finding sufficient to uphold determination that defendant knew objective of conspiracy evidence that defendant was found lying face down just yards away from spot where tons of marijuana had been recently unloaded and found by agents); United States v. Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977) (finding evidence of defendant's traveling cross-country with coconspirator in truck with rear compartment containing marijuana and sharing motel room with coconspirator insufficient to uphold conclusion that defendant knew of marijuana).*fn1 Accordingly, Fitzpatrick's convictions will be reversed and his sentences vacated.*fn2

(b) Salmon

Viewing the record in the light most favorable to the government, we have little difficulty finding sufficient evidence to support Salmon's conspiracy and substantive convictions. The relevant trial testimony showed that Salmon recruited Fitzpatrick to perform surveillance at the parking lot; that Washington told Kuhns the "source" would arrive in a red Cadillac with multiple antennae; that although Salmon and Fitzpatrick arrived in Fitzpatrick's blue Oldsmobile, Salmon owned a maroon Cadillac with multiple antennae, which he had left near Fitzpatrick's house; that when both cars returned to the lot, Washington left his vehicle and talked with Salmon; that when Washington rejoined Kuhns' company, Washington said, "that's him" and asked the officer whether he had the money; and that after the officer gave Washington the money, Washington again met with Salmon and returned with a "bulge in his pants," from which he retrieved the cocaine that he gave to Kuhns. A reasonable jury believing this circumstantial evidence "and the inferences logically deducible therefrom," McNeill, 887 F.2d at 449-50, could find beyond a reasonable doubt that Salmon agreed to commit an unlawful act and knowingly and intentionally possessed cocaine with the intent to distribute it. Thus, Salmon's sufficiency challenges fail.

(c) Surratt

Finally, Surratt challenges the sufficiency of evidence supporting his sole conviction, of conspiring from August 9, 1989 to September 6, 1989 to possess cocaine with the intent to distribute it. Regarding the August 10, 1989 transaction, Kuhns testified that Surratt accompanied Washington to meet him and that Surratt handed the cocaine from Washington to Kuhns and the money from Kuhns to Washington. Kuhns also testified that Surratt told him the cocaine was as good as any he could get in the area and, in response to Kuhns' statement that they should treat him well because he would be back, Surrat added, "we're like Allstate; you're in good hands with us." The only additional evidence was Kuhns' testimony about and a tape recording of a phone call he received from someone identifying himself as "Yogi," who said he was Washington's partner and that they would be ready to do the transaction by the weekend. Surratt argues that his presence at the August 10 transaction was merely consistent with his duties as a handyman for Washington; indeed, Count Two, charging Surratt with possession with intent to distribute cocaine on August 10, was dismissed as to him after the jury was unable to reach a verdict. Surratt further argues that the above-described phone call was barely audible on tape because of line static and was tied to him only by Kuhns' speculation that the voice on the phone sounded like Surratt's. A reasonable jury believing this circumstantial evidence and the "inferences logically deducible therefrom in the light most favorable to the government," id., could find beyond a reasonable doubt that Surratt agreed to commit an unlawful act and intended to possess with the intent to distribute cocaine, as charged in Count One. See United States v. Donsky, 825 F.2d 746, 754 (3d Cir. 1987) (noting that a conspirator need not know identities of all coconspirators or all details of the conspiracy). Thus, Surratt's sufficiency challenge fails.

2. Conspiracy Variance

We next consider the variance claims advanced by Salmon, Surratt and Washington. Under the doctrine announced in Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946), a conviction must be vacated where a variance between the indictment and proof at trial exists to the prejudice of a defendant's substantial rights. United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). Where a single conspiracy has been alleged, a variance of proof occurs if the evidence shows merely multiple conspiracies. Id. The variance doctrine is designed to protect a defendant's right "'not to be tried en masse for the conglomeration of distinct and separate offenses committed by others.'" Id. (quoting Kotteakos, 328 U.S. at 775). The doctrine recognizes that in some situations a "jury might have been unable to separate offenders and offenses and easily could have transferred the guilt from one alleged co-schemer to another." United States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982). We must review the record evidence in the light most favorable to the government to determine whether a reasonable jury could find the existence of a single conspiracy. United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989), cert. denied, 110 S. Ct. 3243, 11 L. Ed. 2d 754 (1990); United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 832, 107 S. Ct. 877 (1987). This court previously set out a three-step inquiry to aid such a determination:

First, we examine whether there was a common goal among the conspirators. Second, we look at the nature of the scheme to determine whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators. Third, we examine the extent to which the participants overlap in the various dealings.

Kelly, 892 F.2d at 259 (quotations and citations omitted).

In Kelly, Kelly appealed his conviction for conspiracy to possess and manufacture methamphetamine. The single conspiracy count in the indictment charged that over a four-year period, three groups comprised of twenty-eight people conspired to import, manufacture and distribute methamphetamine into the United States. The evidence showed that for approximately the initial one to two years, the first group imported the necessary chemicals while the second group manufactured and distributed the methanmpetamine; that during the second year, the third organization began exacting a "street tax" on imported chemicals from the first group; and that by the beginning of the third year, the entire operation had come under the control of the third organization, which retained control for the temporal balance of the conspiracy charged. Id. at 256-58. At trial the government theorized that a classic chain conspiracy--where a product is transported, then refined, and ultimately distributed to the ultimate consumer--was created. Kelly argued ...

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