United States of America v. Larry Davis, Appellant, 561 F.2d 1014 (D.C. Cir. 1977)

Craig P. Murphy^*  with whom Michael E. Geltner, New York City (appointed by this court) was on the brief, for appellant.

Steven D. Gordon, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before TAMM and MacKINNON, Circuit Judges, and OLIVER GASCH^** , United States District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by GASCH, District Judge.

GASCH, District Judge.

This appeal raises three distinct challenges to appellant's conviction on a narcotics charge under 21 U.S.C. § 841(a) and his sentence to a special parole term pursuant to 21 U.S.C. § 841(b) (1) (B). For the reasons briefly set forth below, we affirm.

Appellant Larry Davis was arrested by two narcotics officers in the District of Columbia on May 20, 1976. On June 29, a grand jury returned a two-count indictment charging him with one count of possession of phenmetrazine (popularly known as "Preludin") with intent to distribute and one count of simple possession of the same substance. On August 12, appellant came before the trial judge below for a hearing on his motion to suppress thirteen phenmetrazine tablets taken from him at the time of his arrest. At the conclusion of the hearing the trial judge denied the motion based upon a finding of probable cause for the arrest and the concomitant search. One week later, the case was tried on a stipulation of facts which recapitulated the testimony presented at the earlier suppression hearing; no new evidence was introduced.¹  Appellant was found guilty of possession of phenmetrazine with intent to distribute, a violation of 21 U.S.C. § 841(a). On September 3, appellant was sentenced to five years pursuant to 18 U.S.C. § 4205(b) (2). On the next business day, September 7, the trial judge corrected the sentence by adding a mandatory special parole term of two years, as required by 21 U.S.C. § 841(b) (1) (B).

Appellant raises three issues on appeal: (1) whether there existed probable cause for his arrest and search; (2) whether the trial judge violated appellant's rights under the Double Jeopardy Clause of the Fifth Amendment when he amended the original sentence by adding the special parole term; and (3) whether 21 U.S.C. § 841(a) is constitutional as applied to phenmetrazine absent proof in each case that the particular phenmetrazine involved is related to interstate commerce.

Appellant argues that the arresting officers lacked probable cause for his arrest and search. The facts surrounding his arrest, as detailed at the suppression hearing and stipulated to at trial, are as follows:

During the late afternoon of May 20, 1976, Officers Carl A. Occhipinti and Vance L. Beard were "staked out" in an observation post on the third floor of a vacant house in the middle of the 1100 block of "O" Street, N.W. These officers were engaged in an ongoing investigation of narcotics activity in that area and were using binoculars to make observations of the 1000 block of "O" Street. According to Officer Occhipinti, who testified at the suppression hearing, the area under observation was well known to him and to other narcotics officers as having a high concentration of narcotics activity, including the street sale of phenmetrazine, heroin and other drugs. He himself had previously made nine arrests in that area, all involving phenmetrazine.²  It was his further testimony that the only type of phenmetrazine found on the street at that time took the form of a pink pill somewhat larger than an aspirin tablet, bearing the inscription "BI-62."

At approximately 5:00 P.M., the two officers first noticed appellant, who was standing on the north side of the 1000 block of "O" Street, approximately three-quarters of a block away. He was observed by the officers for approximately five minutes, in clear weather, from an unobstructed view. During this period, the officers observed three different men approach appellant and engage him in a brief discussion. In each instance, the conversation concluded with the stranger handing appellant what appeared to be an amount of money, which appellant would then count and place in his front pants pocket. The appellant would then remove a small manila envelope from his rear pants pocket and appear to count out a number of small objects to be given to the stranger before his departure.

Officer Occhipinti testified that the first two strangers walked away from the appellant without revealing anything further to the narcotics officers concerning the nature of the observed transactions. After the third man left the appellant, however, he passed directly underneath the observation post at a distance of approximately 20-25 feet. As he did so, Officer Occhipinti testified, he momentarily unclenched his fist such that the officers were able to observe several pink pills which appeared to them to be phenmetrazine tablets. The officers then left their observation post, observed appellant entering a liquor store on the southeast corner of 11th and O Streets, noticed that he held a large quantity of money in his hand, and placed him under arrest. Officer Beard then removed from appellant's right rear pants pocket a manila envelope containing thirteen pink phenmetrazine tablets, inscribed with the marking "BI-62."

On these facts, the trial judge denied appellant's motion to suppress the phenmetrazine tablets. He found that the experience and expertise of the arresting officers, coupled with the nature of the events observed, gave rise to a probable cause belief that a crime had been committed. See United States v. Davis, 147 U.S.App.D.C. 400, 403-4, 458 F.2d 819, 821-22 (1972).

Appellant challenges this finding by the trial judge, contending that the events observed by the two narcotics officers, even when considered in light of their broad experience and their knowledge of that particular neighborhood as a "high narcotics area," are insufficient to constitute probable cause for arrest. He insists that the exchanges observed by the two officers "are also susceptible to many innocent interpretations, even in the eyes of an experienced officer."³ 

We do not agree. It is true that an arrest based solely upon an officer's experience and expertise, without more, lacks probable cause. Similarly, the observation of a generally suspicious currency transaction, even in a high narcotics area, may not necessarily give rise to probable cause. But where, as here, all of the above elements are present in sturdy form and particularly where a suspect is closely observed engaging in the identical suspicious activity three times within a five-minute span a finding of probable cause is sound. As this Court recently stated in a similar case involving a single narcotics transaction:

Because all innocent explanations for this exchange of a tinfoil packet for currency seem so implausible, we affirm the trial court's finding of probable cause.

United States v. Thomas, 179 U.S.App.D.C. 161, 162, 551 F.2d 347, 348 (1976).⁴ 

Appellant next challenges the trial judge's alteration of his original sentence. At first, he was sentenced to five years' imprisonment with parole eligibility to be determined in accordance with 18 U.S.C. § 4205(b) (2).⁵  That sentence, however, inadvertently omitted a special parole term, which is required by 21 U.S.C. § 841(b) (1) (B).⁶  Four days after the imposition of the original sentence,⁷  the trial judge corrected the sentence originally imposed by adding a special parole term of two years.

It is appellant's contention that the trial judge's action violated his constitutional guarantee against double jeopardy in that it runs afoul of the general rule against increasing a defendant's sentence after he has begun to serve it. Exception should be made to this rule, he contends, only where an illegal sentence cannot be corrected through means other than by increasing it. Cf. Bozza v. United States, 330 U.S. 160, 166, 67 S. Ct. 645, 91 L. Ed. 818 (1947). In this case, appellant's argument continues, the trial judge need not necessarily have increased his sentence to accommodate the mandatory special parole term because he could have altered the sentence to only three years' imprisonment with a special parole term of two additional years.

This argument was considered and rejected by this Court three years ago in United States v. Brock, 165 U.S.App.D.C. 291, 507 F.2d 1114 (1974). In that case, the trial judge had sentenced a person convicted under 21 U.S.C. § 841(a) to five years' imprisonment pursuant to 18 U.S.C. § 4208(a) (2), without any mention of a special parole term. Five months later, the defendant moved to have his sentence vacated, advancing the argument that the trial judge was by virtue of the Double Jeopardy Clause relegated to imposing a new sentence of a three-year special parole term (pursuant to 21 U.S.C. § 841(b) (1) (A)) and a term of imprisonment not in excess of two years (i. e., not to exceed in total the five years originally imposed). On appeal after the trial judge refused to modify the sentence,⁸  this Court noted that the defendant's unique argument had at that time been considered and rejected by three circuit courts of appeals. See Garcia v. United States, 492 F.2d 395, 397-98 (10th Cir.), cert. denied, 419 U.S. 897, 95 S. Ct. 178, 42 L. Ed. 2d 142 (1974); Caille v. United States, 487 F.2d 614, 616 (5th Cir. 1973); United States v. Thomas, 474 F.2d 1336 (2d Cir. 1973), aff'g, 356 F. Supp. 173, 174 (E.D.N.Y. 1972).⁹  This Court at that time found those decisions and their result to be sound; nothing presented here persuades us to the contrary, nor that this case should not be controlled by Brock.

III. THE CONSTITUTIONALITY OF 21 U.S.C. § 841(a)

Lastly, appellant challenges the constitutionality of 21 U.S.C. § 841(a) insofar as it prohibits the possession of phenmetrazine which is not shown to have itself moved in interstate commerce. His argument is grounded on the notion that Congress derives power under the Commerce Clause to regulate the intrastate possession of only those controlled substances which it finds to affect interstate commerce. He contends, in short, that because Congress made no such legislative finding specific to phenmetrazine when it enacted this statute, it lacked the power to proscribe the purely intrastate possession¹⁰  of that particular drug.

We find this argument to be without merit. It has been raised and uniformly rejected in several other circuit courts,¹¹  and we see no reason why a different result should apply here. Without repeating the sound reasoning of those decisions,¹²  we merely note that the Commerce Clause empowers Congress to regulate broad classes of activities which are found to have a substantial impact on interstate commerce. See Perez v. United States, 402 U.S. 146, 152-54, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971); United States v. Collier, 478 F.2d 268, 273 (5th Cir. 1973); United States v. Scales, 464 F.2d 371, 375 (6th Cir. 1972). In the instant case, when Congress enacted Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (known as the Controlled Substances Act), it made the express finding that the local use of certain classes of drugs one of which includes phenmetrazine¹³  "contribute(s) to swelling the interstate traffic in such substances."¹⁴  We hold, as other courts have unanimously held before us, that such a Congressional declaration is sufficient to justify the exercise of Commerce Clause power here challenged and, furthermore, that Congress had before it ample justification upon which to include phenmetrazine and other related drugs within the controlled substances regulated by the Act.¹⁵ 

The judgment of the District Court is affirmed.