United States v. Moss ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5757
PAULA V. MOSS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
J. Calvitt Clarke Jr., Senior District Judge.
(CR-94-35)
Argued: May 5, 1995
Decided: July 12, 1996
Before NIEMEYER and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Niemeyer and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas W. Carpenter, OVERMAN, COWARDIN &
MARTIN, P.L.C., Newport News, Virginia, for Appellant. Robert
Edward Bradenham, II, Assistant United States Attorney, Norfolk,
Virginia, for Appellee. ON BRIEF: Leonard A. Bennett, OVER-
MAN, COWARDIN & MARTIN, P.L.C., Newport News, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Brian G. Mur-
phy, Third Year Law Student, REGENT UNIVERSITY, Norfolk,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Following a bench trial, appellant Paula Moss was convicted of
possessing cocaine base with the intent to distribute in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and with conspiracy to possess
cocaine base in violation of 21 U.S.C. § 846. Moss now appeals, rais-
ing several issues regarding her conviction and sentence. Finding no
error, we affirm.
I
Viewed in the light most favorable to the government, the evidence
at trial established the following facts. On January 31, 1994, a private
security officer at Woodsong Apartments in Newport News, Virginia
received an anonymous tip that a shipment of cocaine would be deliv-
ered to an apartment within the complex. According to the informant,
the United Parcel Service (UPS) would be delivering a shipment of
cocaine from Texas to 5571 Orcutt Avenue, Newport News, Virginia.
The security officer notified his supervisor, who instructed the officer
to direct the UPS delivery driver to the security office upon his
arrival. Within thirty minutes of this conversation, the UPS truck
arrived and the security officer directed him to the security office as
he had been instructed. The UPS driver confirmed that he was to
deliver a suitcase from Texas to the appellant, Paula Moss, at 5571B
Orcutt Avenue Apartment D. Paula Moss was the sole lessee of the
apartment. At the request of the chief security officer, the UPS driver
left the complex without delivering the parcel so that the police could
be notified. Later that same day, the chief security officer advised the
police of the situation.
2
Detective Richard Dawes of the Newport News vice and narcotics
squad contacted Vincent Monoit, Loss Prevention Manager at the
Newport News UPS Distribution Center regarding the suitcase.
Monoit and Dawes arranged to meet the next morning. According to
Detective Dawes, the police already had received a somewhat less
specific tip from a paid informant that Moss and Travis Nocentelli,
the father of two of Moss's children, would be receiving a "load" of
cocaine at Moss's apartment.
The next morning, Newport News police officers arrived at the
UPS Center with a dog trained to detect narcotics in closed packages.
Monoit immediately informed the police officers that under UPS reg-
ulations he had the right to "check" the suitcase which because of a
broken zipper had contents visibly protruding from its side. The
police requested that, instead, he place the suitcase on a conveyor belt
along with approximately ten other packages to be sniffed by the dog.
Although the dog hesitated by the target suitcase, it did not "alert" to
it or any of the others.
The police officers then informed Monoit that they were finished
with the suitcase. Monoit told Detective Dawes that he "was going to
repack the package because it couldn't go out for delivery in the con-
dition it was in." In response to Monoit's statement that he was going
to repack the suitcase, Dawes said that the police officers were leav-
ing and Monoit could do as he chose, but that he was not repacking
the suitcase in furtherance of police business. The police officers then
began to leave the area and Monoit began preparing the package for
delivery.
In the process of repacking the suitcase, Monoit opened it. When
he picked up a high-topped leather shoe that was in the suitcase, a
small glassine bag filled with a white powdery substance fell out.
Monoit yelled, "What's this?" to the departing police officers, who
were then approximately twenty feet away, and who immediately
returned to the scene of Monoit's activity. Ultimately, five more
glassine bags filled with a white powdery substance were recovered
from the shoe. An electronic digital scale was also found in the suit-
case.
The police officers used the digital scale to weigh all six baggies
and found that each weighed approximately one ounce. Detective
3
Wayne Litz coated one of the baggies with a petroleum jelly sub-
stance and then applied a fluorescent ultraviolet (UV) detection pow-
der to the baggie that is invisible in ordinary light but glows in black
light. Litz placed the baggie inside the shoe, which he then returned
to the suitcase. Litz washed his hands after this process, but did not
check them with a black light in order to exclude the possibility that
he would transfer UV powder to others. Another Government agent
placed a radio-transmitting tracking device into the suitcase that could
signal the exact moment when the suitcase was opened. The police
officers retained the remaining five baggies so that they could be
tested for the presence of cocaine.
Detective Larry Taylor then dressed in a UPS uniform and rode
with Monoit in a UPS delivery truck to Moss's apartment. Detective
Taylor knocked on Moss's door and announced a delivery for Paula
Moss. Moss answered and signed for the suitcase. About two minutes
later, the radio transmitter indicated that the suitcase had been opened.
Having previously obtained a search warrant for the apartment, the
police officers forced their way into the apartment.
They found Moss and three other adults in the apartment. Moss
was sitting on a couch in the living room with the suitcase open
beside her. Moss's twin brother, Paul Moss, was standing across the
living room holding the digital scales. Travis Nocentelli and Oliver
Copeland were in the dining area adjacent to the living room.
Although the shoe was on the living room floor, the police officers
could not locate the glassine baggie.1 A search of the apartment
revealed an electronic scale on top of the refrigerator and a set of
hand scales in a kitchen drawer. Nocentelli had a pager secured to his
waist.
The officers handcuffed the four adults. Detective Belinda Baker
read Moss her Miranda rights. Moss stated that she understood her
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1 The police officers first suspected that Nocentelli had swallowed the
baggie. Nocentelli remained quiet during the search of the apartment.
Using a black light at the police station, police officers determined that
Nocentelli had traces of UV powder on his lips and on the roof of his
mouth. Blood and urine tests, which were performed on Nocentelli at a
hospital, failed to reveal any cocaine.
4
rights, but decided to waive her right to remain silent. She stated to
Baker that she was in a hallway upstairs in the apartment complex
when the UPS delivery person knocked on her door. She stated that
she came downstairs only because she was being "nosy." Contrary to
the testimony of Detective Taylor, who had posed as the UPS delivery
person, Moss maintained that she signed for the package outside the
apartment. She told Baker that she merely placed the suitcase inside
her apartment door before returning to the upstairs portion of the
complex.
All four adults were led into the bedroom where the lights were
turned off to allow for the detection of the UV powder. Litz uncuffed
Nocentelli and checked him with the black light first. Nocentelli had
"layers" of powder on his body. Either Dawes or Litz uncuffed the
other three persons and Litz performed the testing process. Moss had
traces of detection powder on her fingers, palms, and on one of her
forearms. Both Moss's brother and Oliver Copeland had traces of
detection powder on various body parts. Litz did not conduct a sepa-
rate procedure while checking the four adults in order to determine
whether any powder had been transferred to him. He testified, how-
ever, that he never saw any powder on himself while checking the
four with the black light.
The five baggies seized at the UPS Center were tested and found
to contain 137.7 grams of cocaine base. Moss and Nocentelli were
charged with conspiracy to distribute in excess of 50 grams of cocaine
base in violation of 21 U.S.C. § 846 and possession of 28 grams of
cocaine base with intent to distribute in violation of 21 U.S.C. § 841and 18 U.S.C. § 2.
Moss moved pre-trial to suppress the evidence obtained in
Monoit's search of the suitcase at the UPS Center. Moss waived her
right to a jury trial and the district court decided to consider the
motion to suppress in the course of conducting the bench trial. Fol-
lowing this procedure, the court denied the motion to suppress, hold-
ing that the search by a UPS employee did not amount to state action
and at the conclusion of the bench trial found Moss guilty on both
counts of the indictment. In the course of the combined motion hear-
ing/bench trial, the Government introduced without objection evi-
dence of the two informant tips--one to the private security officers,
5
the other to police officers--that Moss (and Nocentelli) were expect-
ing the cocaine shipment.
At her sentencing hearing, Moss argued that the district court could
not consider the amount of cocaine base that the unrecovered baggie
may have contained. The district court disagreed and found that the
unrecovered baggie contained the same amount of cocaine base as the
average of the five recovered baggies. After rejecting Moss's argu-
ment that her base offense level should be reduced because she played
a minor role in the conspiracy, the court assigned Moss an offense
level of 34. The court sentenced Moss to concurrent sentences of 170
months on each of her two counts.
This appeal followed.
II
Moss first contends that the district court erred by denying her
motion to suppress the evidence discovered in the course of Monoit's
inspection of the suitcase, claiming that in conducting the inspection,
Monoit was acting as an agent of the Government. 2
Axiomatically, the Fourth Amendment does not apply to the
actions of private citizens acting privately. Burdeau v. McDowell, 256
U.S. 465 (1921). But, as axiomatically, "[t]he government may not
do, through a private individual, that which it is otherwise forbidden
to do"--such as conduct warrantless searches in the absence of exi-
gent circumstances that make them reasonable. United States v.
Feffer, 831 F.2d 734, 737 (7th Cir. 1987). The question here, there-
fore, is whether in opening the suitcase and discovering its illegal
contents Monoit was acting as a private citizen or as an "`instrument'
or agent of the state." Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971). That question is essentially one of fact, based on the particular
circumstances, but the factual inquiry is one guided by common law
agency principles. United States v. Koenig, 856 F.2d 843, 847 n.1 (7th
_________________________________________________________________
2 Moss's contention is confined to Monoit's conduct in discovering
those items of contraband that his private search disclosed. She does not
raise any question about items that may have been independently discov-
ered by the police after they rejoined Monoit.
6
Cir. 1988). Of critical importance, for an agency relationship between
a private citizen and the government to exist, both parties must have
manifested their consent to that relationship, either expressly or by
necessary implication from their conduct. Id. Highly relevant to that
issue is "whether the government knew of and acquiesced in the intru-
sive conduct and whether the private party's purpose for conducting
the search was to assist law enforcement agents or to further his own
ends." Feffer, 831 F.2d at 739; see also United States v. Walther, 652
F.2d 788, 792 (9th Cir. 1981). While, within these principles, Govern-
ment knowledge of the private person's conduct obviously is critical,
it is not enough, standing alone, to establish the requisite agency. See
United States v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992). And,
relatedly, the failure of government actors to prevent a private person
from conducting a search that they could not themselves conduct law-
fully, does not, standing alone, make the private person's conduct that
of the Government. See W.R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment, § 1.8(b), at 181 (2d ed. 1987).
Applying these principles, the district court determined that Monoit
did not act as an agent of the Government in conducting the search
at issue. We cannot find any clear error in the factual predicates for
that ruling, or any error of law in applying controlling law to the facts
found. Specifically, the court found that, though the Government
actors on the scene obviously knew both that Monoit intended to open
the suitcase, and later, that in doing so he was discovering illegal sub-
stances, they "were not in any way supervising or suggesting to Mr.
Monoit . . . that he . . . take any further action about the bag." On the
evidence of record, that critical finding is not clearly erroneous. Fur-
thermore, the evidence suffices to support a finding that in opening
the suitcase for repackaging its protruding contents, Monoit was act-
ing in accordance with his company's policies and to"further [its]
own ends." Feffer, 831 F.2d at 739.
We therefore conclude that the district court did not err in refusing
to suppress the fruits of Monoit's private search of the suitcase con-
tents.
III
Moss challenges the sufficiency of the evidence to convict her on
the charge of possession with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
7
To convict under § 841(a)(1) the Government must prove that the
defendant "(1) knowingly (2) possessed a controlled substance
(3) with the intent to distribute it." United States v. Samad, 754 F.2d
1091, 1096 (4th Cir. 1984). Moss's specific challenge is to the suffi-
ciency of the evidence to support the district court's required findings
of possession and knowledge.3 Our sufficiency review is to determine
whether as to each of these elements "there is substantial evidence,
taking the view most favorable to the Government, to support [those
findings]." Glasser v. United States, 315 U.S. 60, 80 (1942). To meet
this test, the evidence need not exclude every reasonable hypothesis
of innocence. Holland v. United States, 348 U.S. 121, 139-40 (1954).
Reviewing under that standard, we find the evidence sufficient to
prove both possession and knowledge.
As to whether she ever "possessed" the baggie containing cocaine,
Moss points out that the only evidence of her actual physical posses-
sion was the presence of the detection powder on her fingertips, palms
and forearm. This, she says, might have resulted from contacts with
others present, including the police officers themselves, rather than
from her direct handling. Those are indeed reasonable hypotheses of
innocent conduct that are not excluded by the evidence, but, as indi-
cated, they need not be in order to support a finding of actual posses-
sion, which on this evidence was at least an equally reasonable
hypothesis.
Even if it were assumed that the detection powder's trace on her
was not sufficient to support a finding of actual possession, there was
undisputed evidence of at least constructive possession, which suf-
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3 Moss does not, in making her insufficiency claim as to the § 841 con-
viction, specifically challenge the court's finding of "intent to distribute,"
a finding that was based on the amount found by the court to have been
contained in the missing "controlled-delivery" baggie. Though Moss
does specifically challenge the court's finding of that amount for sen-
tencing purposes, see post Part V, we assume that her failure to raise it
in her insufficiency challenge is a proper concession that the amount
found--approximately 28 grams--was enough, if properly found, to sup-
port an inference of intent to distribute. See , e.g. Samad, 754 F.2d at
1096.
8
fices. See United States v. Laughman, 618 F.2d 1067, 1074 & n.7 (4th
Cir. 1980). Specifically, it is undisputed that Moss accepted delivery
of the suitcase and took it into possession at a time when the baggie
containing cocaine was in it. That, without more, sufficed to support
the requisite finding of bare possession of the cocaine base.
There was also sufficient evidence to support a finding that her
possession, whether actual or only constructive, was with the requisite
knowledge that what she possessed was crack cocaine. Moss contends
that where there is no more evidence than that one took delivery of
a package which turned out to contain an illegal drug, it does not suf-
fice to establish the requisite knowledge. That may be an accurate
statement of legal principle, see, e.g. , Samad, 754 F.2d at 1096 (evi-
dence insufficient under such circumstances), but it is not an accurate
statement of the evidence in this case. Here, the evidence indisputably
showed that the package was addressed to Moss; that she accepted
delivery as the intended addressee; that within a period of a few min-
utes she either directly participated in its opening or was present
while it was being opened; and that she either participated in the dis-
position of its illegal contents to avoid their detection by police or was
present during their hurried disposition. Finally, there was the evi-
dence introduced without objection at the combined suppression-
motion hearing/bench trial that Moss was expecting exactly the ship-
ment of cocaine that she received and accepted. All this considered,
the evidence was sufficient to support the requisite finding that her
possession was "knowing."
IV
Moss next challenges the sufficiency of the evidence to convict her
of conspiracy to possess cocaine base with intent to distribute it in
violation of 21 U.S.C. § 846.
To convict of this offense, the evidence must be sufficient to sup-
port findings (1) that the conspiracy as charged did exist; (2) that the
defendant knew of its existence; and (3) that the defendant voluntarily
became a part of it. United States v. Bell, 954 F.2d 232, 236 (4th Cir.
1992). The evidence clearly sufficed for that purpose here.
The indictment charged that Moss conspired with Travis Nocentelli
and "other persons known and unknown" to possess cocaine base with
9
intent to distribute it. There was evidence before the court that infor-
mation had been received by both the security officers at Moss's
apartment and by city police officers that a shipment of cocaine base
would be sent from Texas for delivery by UPS to Moss and her live-
in companion Nocentelli at Moss's apartment; that just such a ship-
ment by suitcase was attempted by UPS and, after interception, was
completed in a controlled-delivery to Moss's apartment, where Moss
signed for and received it as addressee; that the suitcase then con-
tained approximately an ounce of bagged cocaine base out of the six
originally included; that at the time of its delivery, Moss, Nocentelli,
Moss's brother and another person were present in Moss's apartment;
that the suitcase was almost immediately opened by some one or
more of them and the cocaine base almost immediately disposed of
by one or more of them in order to avoid detection by law enforce-
ment officers then forcing entry into the apartment.
This evidence, though largely circumstantial, see United States v.
Guinta, 925 F.2d 758, 764 (4th Cir. 1991) (ordinary means of proof),
easily suffices to support findings that a conspiracy existed under
which approximately six ounces of cocaine base would be sent by
persons in Texas to Moss and Nocentelli in Virginia for distribution
by the latter two and perhaps others. In sufficing for that purpose, it
also necessarily sufficed to support findings that Moss knew of that
conspiracy, was indeed one of its principals, and voluntarily partici-
pated in efforts to carry out its purpose.
V
Moss challenges the district court's calculation of the amount of
cocaine base attributable to her in connection with her conspiracy
conviction. Specifically, she contends that the evidence before the
court was insufficient to support its attribution of an amount that
included the missing cocaine base contained in the baggie left in the
suitcase for the controlled delivery. That particular cocaine base, she
contends, was never weighed or qualitatively analyzed before its
delivery, nor recovered thereafter. We disagree.
Drug quantities for sentencing purposes need only be proven by a
preponderance of the evidence, and we review the determination
made under the clearly erroneous standard, see United States v. Goff,
10
907 F.2d 1441, 1444 (4th Cir. 1990). In making the determination,
total weight may properly be inferred by extrapolation from represen-
tative samples. United States v. Uwaeme, 975 F.2d 1016, (4th Cir.
1992). Here the district court proceeded on that basis in reaching its
finding of the total amount properly attributable to Moss. The evi-
dence established that 138.7 grams of suspected cocaine in five bag-
gies were retained and analyzed following their discovery in the UPS
private search, and was revealed to be cocaine base. From these cir-
cumstances, the district court, adopting the presentence report's rec-
ommendation, inferred that the unrecovered baggie contained a
comparable amount of cocaine base to those amounts contained in
each of the retained baggies, and on this basis determined the total
amount properly attributable to Moss. This factual finding cannot be
declared clearly erroneous.
VI
Moss claims that the district court erred in refusing to assign her
a minimal or minor role in the offense in setting her sentence on the
conspiracy count.
The burden was on Moss to demonstrate entitlement to such a role
adjustment under U.S.S.G. § 3B.1.2, United States v. Campbell, 935
F.2d 39, 46 (4th Cir. 1991), and the district court did not err in declin-
ing to find that she had carried that burden here. The evidence upon
which she was found guilty plainly identified her as a principal rather
than a minor participant in the conspiracy for which she was con-
victed. It was she to whom the shipment of cocaine base was
addressed; it was to her leased premises that it was delivered; it was
she who accepted delivery; and it was she who was found in closest
proximity to the opened suitcase from which the cocaine base had
been removed within a few minutes after her receipt.
VII
Moss's final claim is that the district court erred in refusing to
apply 18 U.S.C. § 3553(f) under which a court may, under certain
conditions, impose a sentence less than that provided by any statutory
mandatory minimum. See also U.S.S.G. § 5C1.2. This provision,
however, does not apply when the guidelines themselves require a
11
sentence greater than the relevant statutory minimum. Moss concedes
that, but claims that she would qualify if the district court had not
erroneously computed the amount of cocaine base attributable to her
in fixing her sentence on the conspiracy count. Because we have
found no error in that computation, this claim fails.
AFFIRMED
12