                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 FEB 27 1997
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.
                                                         Nos. 96-3097, 96-3098
                                                      (D.C. No. 94-10064-01 & 02)
 MICHAEL EDWARD HAYDEN and
                                                          (District of Kansas)
 BARRY B. BROWN,

        Defendants-Appellants.




                              ORDER AND JUDGMENT*


Before PORFILIO, LOGAN, and EBEL, Circuit Judges.




       We join these cases because the appellants were tried together and the

dispositional issues are virtually the same. The parties are well acquainted with the facts

and the issues; therefore, we will not dwell on them except to the extent necessary




  *
     This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
to explain our conclusions. Having decided appellants have demonstrated no reversible

error, we affirm the judgments of the district court.

       Appellants first contend there is insufficient evidence of a conspiratorial

agreement to sustain the charge of conspiracy to sell crack cocaine. Additionally, Barry

Brown postulates the government’s case was a fabric constructed of an “inference upon

an inference,” rather than proof. Viewing the evidence in a light most favorable to the

prosecution, we must disagree.

       Conspiracies can be established by both direct and circumstantial evidence.

United States v. Hardwell, 80 F.3d 1471, 1482 (10th Cir. 1996). Yet, inasmuch as

conspiracies are generally founded upon secret agreements shared only by the accused,

one should not realistically expect the availability of direct evidence to prove the charge.

Consequently, the government’s proof usually must depend upon the development of

circumstantial evidence that leads the jury to its determination. This much is conceded by

the defendants. However, they each pluck the fruits from the tree of circumstances

constituting the government’s case, disparage them as unworthy proof, and then criticize

the tree because it bears no fruit. That tactic will not produce a reversal of the judgment.

       The government’s burden here was to establish the defendants had reached an

agreement to vend crack cocaine, the essential aspects of which are that each was

knowledgeable of its essential objectives and each was a voluntary participant in the

endeavor. United States v. Richardson, 86 F.3d 1537, 1546 (10th Cir. 1996). After


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viewing the evidence, we believe there are sufficient facts and inferences which establish

concerted action between the defendants for accomplishment of a common purpose. See

Hardwell, 80 F.3d at 1482.

       Barry Brown complains the evidence did not show he personally conducted a drug

transaction, or that he ever agreed to do so with the other defendants. He asserts the

government did not prove any drug related conversation took place in his presence.

Therefore, he concludes, it is evident the whole case against him consists of inferences

based on inferences. Were that true, of course, his conviction could not stand; but that is

not the case here, as we shall discuss later.

       Michael Hayden argues the prosecution failed to prove he entered into an

agreement with the others to distribute crack, nor did it prove he had any knowledge of

the objectives of the conspiracy. He states the place where crack was seized was leased

by Barry Brown, and although he received some mail there, the record shows he told

police he lived at another location. Finally, he asserts, the evidence is devoid of proof he

ever conducted a drug transaction.

       Both of these arguments ignore the evidence upon which the government relies.

Naturally, if the prosecution depended upon direct evidence these two men sat down and

entered an agreement to deal in cocaine and then made direct sales observed by others,

their points would be telling. Yet, in light of the evidence, their arguments are specious.




                                                -3-
       The case against the defendants is a web of facts and circumstances that logically

could lead a reasonable jury to determine the defendants conspired to sell crack cocaine.

Although the evidence does not show each defendant made sales, had conversations about

sales, or even reaped profits from sales, the government proved the business of selling

crack cocaine was flagrantly carried on at 633 North Harding, a place where each had

more than a passing connection, and that both defendants were interconnected in business

and personal relationships. Moreover, circumstances such as the cocaine and cash in Mr.

Hayden’s pants, the freshly cooked crack in the refrigerator, the cash and crack found on

Mr. Brown’s person, the tools of the drug trade lying openly on the kitchen table together

with business cards from a business operated by both men, are strong evidence of their

knowledge and participation in the joint endeavor. The fact that Mr. Hayden appeared

wearing only his undershorts, his clothes having been left in a nearby bedroom, suggests

he was more than a mere transient and that he was affiliated with the illegal business that

was operated at the residence.

       The jury’s decision was obviously based on circumstantial evidence or inferences,

but that evidence logically flowed from the facts established by the prosecution. That the

jury chose to draw those inferences is within its province. United States v. Ramirez, 63

F.3d 937, 945 (10th Cir. 1995) (The jury may infer an agreement constituting a

conspiracy from the acts of the parties and other circumstantial evidence indicating




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concert of action for the accomplishment of a common purpose and presume knowing

participation when a defendant acts in furtherance of the objective of the conspiracy.).

       The defendants next argue the instruction on conspiracy was deficient. We

disagree. We are troubled by this argument only because it descends beyond the trivial to

the disingenuous.

       Defendants contend the instruction contains markings which might be interpreted

as a striking of a portion of the instruction critical to the defense. Having set up this straw

man, defendants proceed to batter it to a frazzle. They assert prejudice because, when

responding to a question by the jury, the court referred to the marked-up conspiracy

instruction, and defendants claim it is possible that the jury was confused.

       We believe the district court intended to strike the language through which the

markings pass. We reach this conclusion because the marked language is identical to the

immediately preceding language of the instruction. The eliminated language was

redundant and unnecessary. We cannot conceive the jury would believe it should not

consider the amended instruction as a whole, including the unaltered language key to the

defense. No prejudice resulted from the striking.

       Mr. Hayden alone contends the district court erroneously enhanced his sentence

for the possession of a firearm. At sentencing, the court stated:

       I’ve heard the evidence in the case and the evidence showed that the house
       in which -- the crack house in which these activities occurred which
       resulted in Mr. Hayden’s conviction as well as those of Barry Brown were
       under the joint or constructed [sic] portion of both he [sic] and Brown. . . .

                                             -5-
       [T]he evidence clearly showed that and so they were in control of the house,
       the couch [in which the firearm was found] was part of the furniture in the
       house, and, of course, that’s where the constructive possession comes in, so
       I don’t think that’s a good objection. And because he was in possession and
       under the guidelines the possession can be considered and that’s where the
       2 point enhancement comes in.

       Mr. Hayden contends this statement fails to provide a factual basis warranting the

enhancement, especially in light of the government’s not responding to his objection at

the sentencing hearing. He argues under 18 U.S.C. § 3553(c) the court must set forth its

reasons for the decision and while the statement need not be highly detailed, this

statement does not suffice. Citing United States v. Robertson, 45 F.3d 1423, 1449 (10th

Cir. 1995), defendant argues because the court did not reference specific facts produced

at trial to establish the residence was a crack house or that Mr. Hayden was in control of

the house, the government failed to meet its burden of showing the temporal and spatial

relationship between the weapon, the drug activity, and himself.

       Although the government has the initial burden of establishing the temporal and

spatial proximity of the firearm to the defendant, United States v. Roederer, 11 F.3d 973,

982 (10th Cir. 1993), once established, the burden shifts to defendant to show it was

“clearly improbable” that the firearm was related to the drug transaction. United States v.

Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995) (citation omitted). Although the district

court might have been more comprehensive, nonetheless, it tied the gun to the residence

in which large quantities of crack were found. In Contreras, 283 pounds of marijuana

were found in an attached garage. Approximately 25 feet from the garage, agents found a

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loaded .22 caliber rifle under the couch in the living room. Defendant argued the rifle

was present for “personal home protection.” The trial court there gave the two-level

enhancement stating it was highly probable the firearm was connected to the drug

offense, citing the close spatial proximity between the gun and the marijuana, the unusual

and potentially dangerous location of the gun, “and the fact that the weapon was

immediately accessible and was loaded with a round in the chamber.” Id. at 1040. We

stated:

                  The enhancement for weapons possession reflects the increased
          danger of violence when drug traffickers possess weapons. The adjustment
          should be applied if the weapon was present unless it is clearly improbable
          that the weapon was connected with the offense. The government has the
          burden to prove by a preponderance of the evidence that a weapon was
          possessed in physical proximity to the offense. Once that burden is met, the
          burden is on the defendant to show that the increase should not apply
          because it is “clearly improbable” that the gun was connected to the
          offense.

Id. (citations omitted).

          We review the factual findings made from the bench under a clearly erroneous

standard. United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992) (citation omitted).

We see no such error. Consistent with Contreras, it would seem equally improbable here

that the loaded firearm tucked into the couch was not connected to Mr. Hayden’s drug

activity.

          Defendants contend they were entitled to a new trial because they were denied due

process when Mr. Hayden’s trial counsel was “intimidated” by the prosecuting attorney


                                              -7-
and did not call a key defense witness.1 This issue was raised initially in a post-trial

motion filed pro se by Mr. Hayden. He claimed his attorney, Cyd Gilman, was persuaded

by the prosecution to violate his Sixth Amendment confrontational right. As developed,

the issue devolved into whether Ms. Gilman chose not to call the witness, Lloyd Boyd,

because of the prosecutor’s threat to call rebuttal witnesses.

        A hearing was held and testimony was taken by the court, after which the motion

was denied. We review the trial court’s ruling for an abuse of discretion. United States

v. Haar, 931 F.2d 1368, 1374 (10th Cir. 1991) (citation omitted).

        At the hearing, Ms. Gilman testified that when the government concluded its case

in chief, she informed the prosecutor, Mr. Deer, she intended to call Mr. Boyd as a

defense witness. She believed Mr. Boyd would testify Mr. Hayden had a “legitimate job”

and was working until 5:30 to 6:00 PM on the day he was arrested. According to her, Mr

Deer:

        informed me that I might be opening up an area that they could raise in
        rebuttal if we called Mr. Boyd. He informed me that it could allow them
        to open the door regarding money laundering of drug proceeds that was
        occurring related to the business B&H, which was owned by Mr.
        Hayden and Mr. Brown.

During the course of the conversation, Detective Fettke “enumerated . . . a number of

names of people who could be called to raise this issue.”




   We assume Mr. Brown has joined this argument, although the burden has been carried
   1

by Mr. Hayden.

                                             -8-
       Ms. Gilman added she then weighed the value of Mr. Boyd’s testimony against the

“risk” of the government’s calling rebuttal witnesses and recommended to Mr. Hayden

Mr. Boyd should not be called. She advised him Mr. Boyd was not a “crucial witness,

and she could produce the same evidence through the third defendant who was planning

to testify. She therefore decided Mr. Boyd’s testimony was not worth the risk. Mr.

Hayden agreed. After this decision was made, the third defendant did testify and did state

Mr. Hayden was at work on the day of his arrest.

       In light of all these circumstances, we believe Mr. Hayden was not deprived of any

right. The decision to call Mr. Boyd was obviously a valid tactical choice made by

counsel, see United States v. Glick, 710 F.2d 639, 644 (10th Cir. 1983), and it was made

with the consent of her client. Moreover, the evidence Mr. Boyd would have added was

presented to the jury by another source. Most importantly, however, because Mr. Hayden

was arrested at approximately 8:00 PM, the fact he was at work earlier in the day lacked

significant probative value. This is not a circumstance that provokes a new trial for either

defendant, and defendants’ argument to the contrary is fatuous.

       Mr. Hayden makes a rather quixotic argument that the names of the witnesses who

would have provided the government’s rebuttal evidence have never been disclosed.

Therefore, he is entitled to a reversal of his conviction because he was denied due

process. It is noteworthy, however, the government was not called upon at trial to




                                            -9-
produce those names, and because they were strictly rebuttal witnesses, the government

had no duty to disclose them. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

       Finally, Mr. Brown, joined by Mr. Hayden, contends while all of the initial items

predicating his arrest were in plain view, he had not given his consent for Officer Fettke

to enter the residence or the bedroom. The fruits of that initial illegal entry formed the

basis of the subsequently issued search warrant, invalidating that as well. Therefore, all

the evidence should have been suppressed.

       Although the court listened to all the stories, but found that of Officer Fettke more

credible, Mr. Brown ignores the finding. He now urges: “following Mr. Haywood to

Barry Brown’s house for I.D. was nothing more than a ruse in order to search and get

inside Barry Brown’s home without legal and proper authorization.”

       The district court credited Officer Fettke’s testimony about his need to verify the

suspect’s identification to determine whether there might be outstanding warrants or other

violations of which they should know while investigating these specific traffic violations.

Most importantly, it was undisputed Mr. Haywood suggested the officers follow him to

North Harding Street! Once inside, Officer Fettke testified it was necessary to follow Mr.

Haywood out of concern for the officer’s safety.

       The government asserts as proponents of the motion to suppress defendants failed

to meet their burden of proof, citing United States v. Moore, 22 F.3d 241, 243 (10th Cir.




                                            - 10 -
1994). Further, no defendant contested the fact crack and cash were in plain view at the

time the officers set foot in the house.

         We judge the validity of a search warrant based on whether the totality of the

circumstances in the affidavit would provide a neutral magistrate “a substantial basis for

finding a fair probability that contraband or other evidence of a crime would be found.”

United States v. McCarty, 82 F.3d 943, 946 (10th Cir.1996) (citations omitted). While

we review the court’s factual findings to determine if they are clearly erroneous, the

ultimate determination of reasonableness under the Fourth Amendment is produced only

after de novo review. United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en

banc).

         After such a review, we conclude defendants failed to meet their burden of proof

here. Rakas v. Illinois, 439 U.S. 128, 130-31, n.1 (1978). Defendants have not framed

the reasonableness issue within the context of the misdemeanor traffic stop as the basis

for the pursuit and entry. While pursuit of an individual who has committed a

misdemeanor will not support a warrantless entry and search of a residence under all

circumstances, we have not been asked by defendants to consider that issue.

         The plain fact is defendants lived and associated with Mr. Haywood who

mindlessly invited the police to follow him to their crack cocaine supermarket. They now

want us to exonerate them by holding clearly erroneous the district court’s finding that

Haywood consented to the entry. We decline the invitation.


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AFFIRMED.



            ENTERED FOR THE COURT


            John C. Porfilio
            Circuit Judge




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