United States v. John Michael Chester and Robert Byron Watson , 537 F.2d 173 ( 1976 )

' MORGAN, Circuit Judge.

A federal court jury found appellants Chester and Watson, along with one other defendant, guilty of possession of cocaine with intent to distribute, distribution of cocaine, and conspiracy to do those illegal acts.¹ Appellant Chester also was convicted of possession of marihuana with intent to distribute.² Three other defendant co-conspirators entered guilty pleas on some or all of the charges. Only Watson and Chester have appealed.

Watson argues that there was insufficient evidence to support his conviction, that his attorney afforded him ineffective assistance of counsel, that it was error to deny his motion for severance, and that it was error to admit certain taped conversations. We find all of these contentions to be without merit and affirm his conviction.³ Chester contends that he was convicted on the basis of evidence illegally seized from his residence and that, even if the search was lawful, there was insufficient evidence to support his conviction. We reject Chester’s arguments and affirm his conviction as well.

I. Probable Cause to Search Chester’s Residence.

A probable cause issue can rarely, if ever, be resolved with the exact logic of a Euclidean theorem. Each case must turn on its facts. Some guideposts, however, are available to a reviewing court. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The issuing magistrate is not to be confined by niggardly limitations or by restrictions on the use of his common sense. Id. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). And the magistrate’s determination of probable cause should be paid great deference on appeal. Spinelli v. United States, supra, at 419, 89 S.Ct. 584; Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Judged by these standards, the magistrate’s finding of probable cause to search Chester’s residence should be sustained. The affidavit, reproduced in the margin,⁴ revealed the following: The drug enforcement agents knew that a red Volkswagen they were watching was the vehicle used to deliver cocaine in a “buy” a day earlier. At almost the same time that the drug peddlers informed the undercover agents that another delivery was imminent, the red Volkswagen left the apartments where it was parked and went to Chester’s residence. The magistrate surely could infer that the decision to deliver more cocaine triggered the Volkswagen’s journey.

Steadham, the driver of the Volkswagen, who had acted as delivery boy for the cocaine on the previous day, went into the residence. Other cars came and went, including a Pinto with Virginia plates. Then the red Volkswagen and its driver left.

The Pinto returned and later, so did the Volkswagen, but not quite. It parked a quarter mile from the residence and its driver made a telephone call. The Pinto then left the residence and picked up Stead-ham. The Pinto proceeded to the new cocaine delivery.

The drug peddlers had made it clear that this new delivery of eight ounces of cocaine would be followed by yet another delivery if things went smoothly.

Chester argues that the affidavit does not focus enough suspicion on his residence to justify its search as the probable site of the cocaine cache. It seems clear, however, that the magistrate could reasonably conclude that the cocaine was probably at that site. No more is necessary to justify a warrant. See, e. g., United States v. Melancon, 462 F.2d 82, 89 (5th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972).

No doubt the cocaine could have been somewhere else, but the possibility that the cache was at any of several other places does not negate the probability, as found by the magistrate, that the appellant’s residence was the true location. To list several alternative hypotheses regarding the source of the eight ounces and then conclude that it does not necessarily follow that the Stratford Arms residence contained the cache misconceives the nature of the probable cause inquiry.

The test we must apply is not whether the affidavit’s hypothesis necessarily follows, but whether the magistrate could reasonably conclude that it probably follows.

The magistrate could reason that neither Steadham’s apartment nor the red Volkswagen itself contained the cocaine on the basis that Steadham must not have been in possession of the drug when he left his apartment, else why did he not drive directly to the drop point? The delivery had already been promised at the time he left his apartment and Steadham realized that the buyers knew he was the source and that he drove a red Volkswagen. Another possibility, the Pinto, raises the question of why a transfer to Steadham was not made on the first occasion when both Steadham and the Pinto were together at the Stratford Arms Drive address. In fact, the departure of both vehicles from the house and their subsequent covert rendezvous could have been considered by the magistrate to be part of a ruse to divert attention away from the house. The affidavit’s mention of the departure of a gray Pontiac from the residence after the Pinto had left réally is too equivocal to make it a prospect.

The implication of Chester’s contention that not enough was known about the residence is that the officers should have provided the magistrate with some information about the occupants of the residence or about previous illegal activities there. Such information was not required. See United States v. Salas, 488 F.2d 939 (5th Cir. 1974).

II. Sufficiency of the Evidence.

Chester’s sufficiency argument is dependent upon the proposition that the government could show no more than “mere presence” at the residence during the time that the incriminating evidence was discovered there. The factual basis for the “mere presence” argument is that Chester shared the residence with one Ron Riley.

The marked money upon which the government relied heavily for some of the counts of the indictment was found in the bedroom that was allegedly Riley’s. In Chester’s bedroom agents found scales commonly used by narcotics traffickers to measure quantity. In common areas of the house, agents found implements for “cutting” cocaine and also a large amount of marihuana.

With respect to the marihuana found in the common areas of the house, the nexus with Chester is relatively easy to sustain. When agents asked him whether the substance was five pounds of marihuana, Chester replied that it was three pounds of marihuana. The scales found in Chester’s bedroom further bind him to the marihuana.

The finding of Chester’s possession of the cocaine “cutting” implements and, more crucially, of the marked money is more difficult to sustain. Here the alleged shared occupancy of the residence comes into play.

The evidence with respect to Riley’s occupancy is confused. Although Riley himself apparently was available to testify, neither side called him. Defense witnesses testified that Riley had recently occupied the residence, but no testimony placed Riley as a resident of the house during the crucial time frame which included the narcotics buys, the surveillance of the house, and the search. One defense witness, a neighbor, testified that, although he had seen Riley several times on previous occasions, he could not remember seeing Riley or his car at the house at all in 1975. The drug “buy” which generated the marked money occurred in January, 1975. Chester himself testified that Riley was out of town most of the time and was not at the house during the afternoon and night of January 9, the date of the eight ounce cocaine transaction.

Chester’s theory about the presence of the money, the marihuana, and the cocaine “cutting” implements pretty clearly did not include the proposition that Riley was the culprit. Chester denied that the marihuana or the implements belonged to Riley. As for the money, Chester’s theory seemed to be that the traffickers, who visited him on January 9, inexplicably left the bills under the rug in Riley’s bedroom. The trial court found this a curious explanation.⁵

Taking all the testimony together, a reasonably-minded jury could conclude beyond a reasonable doubt that Chester had dominion over the money and the cocaine “cutting” implements during the relevant time period. Thus, the evidence was sufficient. See United States v. Prout, 526 F.2d 380, 384 (5th Cir. 1976).

AFFIRMED.

1 . 21 U.S.C. §§ 841, 846.

2 . 21 U.S.C. § 841.

3 . The evidence shows that Watson was the middle man for the whole drug transaction. He was the one who initially contacted the undercover agent and asked him if he wanted to purchase the cocaine. He introduced the agent to the other defendants and requested a fee when the first sale was consummated. He was present during the negotiations leading up to both of the sales. The evidence of his guilt is simply overwhelming, and there is nothing in the record to support any of the enumerated grounds of appeal.

4 . “(1) On January 8, 1975, S/A Gerald D. Chapman, acting in an undercover capacity, met with William Scott Boyd, Robert Byron Watson, and Thomas Fred Rauschenberg at Aunt Charley’s in the Buckhead district of Atlanta, Georgia, where S/A Chapman discussed the purchase of two (2) pounds of cocaine. Robert Byron Watson described the cocaine to be sold to S/A Chapman and explained how the distribution would take place.

“(2) After an agreement was reached, S/A Chapman and the others proceeded to South Fulton County where Rauschenberg called his “man” who said that on that day he would do (sell) one ounce of cocaine and that if the transaction went smoothly, he would distribute the remainder.

“(3) Shortly thereafter, S/A Chapman, Rauschenberg, and William Scott Boyd proceeded to the Grant City parking lot on Old National Highway where they rendezvoused with a red Volkswagen occupied by a white male later identified as Phillip Steadham. Steadham advised there were police in the area and that Rauschenberg and the others should follow him.

“(4) They drove a short distance away and S/A Chapman observed Rauschenberg exit their vehicle and enter the red Volkswagen occupied by Steadham and return shortly with one ounce of cocaine, which Rauschenberg delivered to S/A Chapman. S/A Chapman paid $1,800.00 in official government funds, the serial numbers of which had been recorded, to Rauschenberg.

“(5) On January 9, 1975, S/A Wayne Smith, having traced the registration of the red Volkswagen and having ascertained the present residence of the registered owner, observed the same red Volkswagen at 6:00 p. m. at the Embarcadero Apartments in Atlanta, Georgia.

“(6) At approximately 8:15 p. m., Rauschenberg advised S/A Chapman that “his man” had 20 ounces of cocaine, that they would deliver 8 ounces and that if that went smoothly they would deliver another 8 ounces.

“(7) At about the same time, S/A Smith observed the red Volkswagen leave the Embarcadero area and proceed to 3238 Stratford Arms Drive, DeKalb County, Georgia.

“(8) Steadham entered 3238 Stratford Arms Drive, DeKalb County, Georgia, address and thereafter other vehicles including a Pinto with Virginia plates arrived and departed. Later so did Steadham in the red Volkswagen. Shortly thereafter, agents observed the Pinto return to 3238 Stratford Arms Drive, DeKalb County, Georgia, and thereafter saw Steadham return in the red Volkswagen and park about one fourth of a mile away, where they observed Steadham make a telephone call. Immediately thereafter, the Pinto left the residence, picked up Steadham, and proceeded to Broadview Shopping Center parking lot where Rauschenberg delivered 8 ounces more or less of cocaine to S/A Chapman.

“(9) After the cocaine was delivered to S/A Chapman, DEA Agents arrested Phillip Mahlon Steadham and Joseph Earl Brown, who was driving the Pinto.

“(10) Agents field tested the substances delivered on both occasions, and the tests showed a positive reaction for cocaine.

“(11) At the time of the departure of the Pinto from the 3238 Stratford Arms Drive address, DEA agents observed a 1974 gray Pontiac leave the same address.”

5 . At one point in the trial the following exchange occurred between the court and Chester:

THE COURT: Do you know whether Mr. Rauschenberg or Mr. Steadham or either one of them, do you know any reason why if they had been engaged in a cocaine transaction on the night of the 8th and had received payment to the tune of twelve hundred dollars in payment therefor, they would choose a rug in one of your bedrooms under which to hide it?

THE WITNESS: No, sir. I don’t have any, any knowledge of any—

THE COURT: Well, if your version of this thing is correct, one of the three must have hidden it there.

THE WITNESS: Yes, sir.

THE COURT: Either Rauschenberg, who admits delivering the cocaine and taking the money, or through Rauschenberg to Stead-ham, and he hid it there, or to Brown and he hid it there.

Do you know any reason why any one of the three of them would pick your bedroom rug to hide his money under?

THE WITNESS: No, sir.

THE COURT: All right.

MR. DEVILLE: Your Honor, I would like for the record to correct, Your Honor, if I might humbly do so.

This was not his bedroom. This was the other bedroom.

THE COURT: All right. Say a bedroom in your house.

Tr., vol. Ill at 200-01.