United States of America, Plaintiff-appellee, v. Pauline Douglas, Defendant-appellant.united States of America, Plaintiff-appellee, v. Patrick Sterling, Defendant-appellant.united States of America, Plaintiff-appellee, v. Junor Douglas, Defendant-appellant.united States of America, Plaintiff-appellee, v. Boyston L. Edwards, Defendant-appellant, 947 F.2d 951 (9th Cir. 1991)

MEMORANDUM^** 

Pauline Douglas, Patrick Sterling, Junor Douglas, and Boyston Edwards were convicted of a variety of drug offenses. All of them appeal. We affirm the convictions of Patrick Sterling, Junor Douglas, and Boyston Edwards. We affirm the conviction of Pauline Douglas for possession of a kilogram of cocaine, but reverse her conviction for distribution and remand for resentencing. We have carefully considered all of the arguments raised on appeal, but find that only a few issues merit discussion.

1. Motion to Suppress.

The district court denied Patrick Sterling's motion to suppress the evidence obtained when Shawn Anderson, the manager of Mail Boxes, Etc., opened a Federal Express package sent by Sterling. On May 2, 1989, the police notified Anderson that they were investigating a Jamaican drug ring and told her to inform them of any shipments by Jamaicans. Within the hour, Sterling, a black Jamaican who spoke with an accent, bought two shipping boxes. After Sterling left, Anderson called the police and described what had happened. Sterling later returned with a box he wanted shipped overnight to California. He paid the $45 charge with a $50 bill he pulled from a three-inch wad of folded-over bills. Officer Cooper arrived after Sterling had left and showed Anderson photos of Jamaican drug dealers. She identified Sterling. The package appeared normal; a police dog sniffed the package but did not alert to it. Cooper left. Anderson was still concerned the package might contain narcotics. She called Federal Express and DHL and determined that she had authority to open suspicious packages. Cooper also called her again and said that after checking with the DEA he thought she had authority to open the package. He did not, however, tell her to open the package. Anderson remained on the phone with Cooper while she opened the package and told him about its contents. Anderson found clothing and a large bundle of cash in the pocket of a pair of pants. She resealed the package and waited for Cooper. Cooper arrived without a warrant and Anderson reopened the package. It contained $19,444.00 in cash, $800 of which was marked money used in a covered drug buy.

The district court held that Anderson's search of the package was a private search and allowed her to testify about what she found. The court found that Cooper's subsequent search was illegal and did not allow him to testify as part of the government's case that some of the cash was marked buy money. Sterling testified at trial and stated in his defense that he had never sold drugs. To impeach his testimony, the government asked Sterling whether $800 of the money he had tried to ship was the proceeds of a drug sale from Kathy Stewart to an undercover police officer. Sterling denied this. Only then did the court allow Cooper to testify that $800 was marked buy money used in a drug transaction on April 17, 1989.

A wrongful search or seizure conducted by a private person does not contravene the Fourth Amendment. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). If a private person acts as an instrument or agent of the state in conducting the search, however, a Fourth Amendment violation may occur. Coolidge v. New Hampshire, 403 U.S. 443, 487-90 (1971). The critical factor in this case is whether Anderson performed the search solely to aid law enforcement efforts or to further her own independent ends. United States v. Black, 767 F.2d 1334, 1339 (9th Cir. 1985). There is no doubt that Anderson was motivated in part by her desire to help law enforcement efforts. It is also clear that the government induced Anderson's desire to cooperate. This is not enough to conclude Anderson acted as a government agent. Id. at 1339-40. As long as Anderson was furthering her own interests, the search is properly regarded as a private one. Anderson's employer has an interest in not shipping contraband and has rules that prohibit the shipping of currency. As the manager of Mail Boxes, Etc., Anderson had a legitimate interest in opening the package. The district court correctly denied Sterling's motion to suppress.

2. Admissibility of Kathy Stewart's Statements.

Though there was ample evidence that a conspiracy existed, the evidence was insufficient to connect Pauline Douglas to the conspiracy. The only evidence that Pauline Douglas was involved in the distribution of cocaine was a statement made by Kathy Stewart, a member of the conspiracy who later pled guilty to four counts of distribution, to an undercover police officer on April 13, 1989. On that day, Stewart and the police officer met to arrange a half ounce buy. The police officer gave Stewart $600. She left and returned 25 minutes later with the cocaine. Stewart told the officer that she went to the residence of Pauline and Junor Douglas to get the cocaine. The officer told Stewart he had received "some pretty good stuff from Junor before." Stewart responded "this was the same stuff only Junor was out of town and that Junor's wife [Pauline] had done this transaction for her."

Though the statement of Stewart is some evidence that Pauline Douglas participated in the conspiracy, we have held that such a statement cannot stand alone. United States v. Silverman, 861 F.2d 571, 577-78 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 & n. 2 (9th Cir. 1988). Rather, the government must offer additional proof that Pauline Douglas participated in the conspiracy with knowledge of its purpose. The government failed to make the necessary showing. Pauline was married to Junor Douglas, the leader of the drug ring. But the proof of a familial relationship with a conspirator is not sufficient to connect Pauline Douglas to the conspiracy. United States v. Loya, 807 F.2d 1483, 1488 (9th Cir. 1987). Besides Stewart's statement, there was no evidence that tied Pauline Douglas to the conspiracy or suggested her involvement in the distribution of cocaine.

The district court has discretion to vary the order of proof in admitting a co-conspirator's statement. It does not have discretion to allow the jury to consider such a statement in the absence of independent evidence that the defendant was a member of the conspiracy. The evidence offered by the government did not connect Pauline Douglas to the conspiracy. Stewart's statement that she got the cocaine from Pauline Douglas should have been excluded. There being no other evidence tying Pauline Douglas to the April 13 transaction, we reverse her distribution conviction.

The district court properly admitted statements made by Stewart about Junor's involvement in drug dealing. There was more than enough evidence linking Junor Douglas to the conspiracy.

3. Calculation of Edward's Base Offense Level.

On September 28, 1989, the police executed a search warrant at the Douglas residence. One kilogram of cocaine was found in an upstairs hall closet. Both Pauline and Junor Douglas were charged and convicted of possession of the kilogram. But possession of the kilogram of cocaine was not listed as an overt act of the conspiracy. The cocaine was attributed to the defendants convicted of conspiracy--Junor Douglas, Sterling, and Edwards--and used to calculate their base offense levels under the Sentencing Guidelines.

That possession of the kilogram of cocaine was not listed as an overt act is of little consequence. A defendant convicted of conspiracy may be sentenced not only on the basis of his own conduct, but also on the basis of the "conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable." U.S.S.G. 1B1.3, comment (n. 1); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990). Edwards had reason to know before he went to trial that he could be held accountable for the kilogram of cocaine found in the Douglas residence.

Edwards argues that the kilogram was not reasonably foreseeable to him. The Probation Office stated that Edwards had withdrawn from the conspiracy before September 28. The government objected to that portion of the presentence report. Edwards filed papers objecting to the use of any drugs in calculating his base offense level other than those distributed by him on three different dates. He expressly stated that the kilogram seized on September 28 should not be counted against him. The district court held a hearing and found the issue to be a close one. In the end, the court found that the kilogram was reasonably foreseeable to Edwards and sentenced him to a 5 year minimum term in prison. We review the district court's finding for clear error. United States v. Willis, 899 F.2d 873, 874 (9th Cir. 1990).

Edwards contends that he withdrew from the conspiracy on May 25, 1989. The government offered evidence, however, that showed he was involved in the conspiracy after that date. Junor Douglas told an informant on June 28, 1989 that Edwards obtained drugs from him. On August 21, Sterling and an informant discussed the quality of drugs Edwards was selling. Another witness testified that Edwards was at the Douglas residence shortly before the search. Edwards was convicted on three counts of distribution, ranging from one to four ounces. It is fair to conclude that Edwards knew that his source, Junor Douglas, had larger quantities of drugs in his possession. Faced with this evidence, the district court did not err in concluding that Edwards did not withdraw from the conspiracy before September 28 and by attributing the kilogram of cocaine to him for purposes of sentencing.

We note that Edwards challenges the adequacy of his counsel both at trial and sentencing. That question is better addressed in a habeas proceeding than on direct appeal.

REVERSED, in part, AFFIRMED, in part, and REMANDED for resentencing.