Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Daryl Van HAWKINS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Andre Pierre BROWN, Defendant-Appellant.

Nos. 88-5338, 89-50037.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1989.Decided March 27, 1990.

Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, Senior District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before TANG, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Andre Brown and Daryl Hawkins appeal their jury convictions of a number of cocaine related offenses. We affirm.1 

DISCUSSION

Brown contends that insufficient evidence supports his possession conviction. We disagree.

The evidence indicates more than Brown's mere presence at the apartment. Mail was sent to him at the apartment. Moreover, Brown's attache case contained: (1) a rent receipt for the apartment and (2) an insurance policy and statement sent Brown at the apartment's address.

The evidence also indicates that Brown participated in a joint venture to possess the cocaine. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.) (constructive possession can be proved by evidence of a joint venture), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989). The traffic ticket connected Brown to Hawkins, who was caught selling drugs. The evidence that ties Brown to the apartment also ties Brown to Hawkins because Hawkins used the apartment on several occasions. In addition, money and weapons were left in plain view, an unlikely occurrence unless whoever left the money trusted Brown as a member in their joint venture to possess cocaine.

Brown contends that insufficient evidence supports his conspiracy conviction. We disagree.

More than sufficient evidence supports Brown's conspiracy conviction. Evidence of the existence of the conspiracy includes: (1) Hawkins' statement that the person he works for would not let out a large quantity of cocaine; (2) the ledger sheet which included the entry "DH $400" indicates that someone other than Hawkins recorded his transaction with the informant; and (3) Wahl's observation that Hawkins had at least one partner, Julias Vaughn, in drug dealings.

Brown's connection to the conspiracy is supported by all the evidence outlined above with respect to the possession conviction. The connection is also supported by Brown's possession of (1) a bail receipt for a person who lived at the site of the November drug purchase; and (2) a truck rental receipt made out to someone living at the November drug purchase location.

Brown contends that the prosecution failed to provide him with exculpatory Brady material. We disagree.

Brown's suggestion that the prosecution had exculpatory material is simply not true. Hawkins' counsel told the prosecution on two occasions that Brown was pressuring Hawkins into testifying on Brown's behalf; this information is not exculpatory.

4. Quashing of the Search Warrant & Franks Hearing

Brown contends that the district court should have quashed the search warrant because the magistrate lacked a substantial basis for concluding that probable cause existed. Brown also asserts that the district court should have convened a Franks hearing. We disagree.

(i) Quashing of the warrant

The magistrate had a substantial basis to conclude that evidence of drug trafficking would be found at the apartment for two reasons. First, the magistrate could reasonably rely on Wahl's conclusion that evidence of a drug deal would be found at the apartment. See United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). Second, the rest of the affidavit supports the conclusion that evidence of drug dealing would be found at the apartment: (1) Hawkins dealt drugs and (2) Hawkins went to the apartment after drug sales. Though the affidavit did not provide direct evidence of drugs at the apartment, such evidence is not needed. See United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).

(ii) Franks Hearing

The district court did not err in denying Brown a Franks hearing. We conclude that the affidavit contained no intentional or reckless falsities or omissions. Consequently, no Franks hearing was necessary.

Brown contends that he received ineffective assistance of counsel. We disagree.

Brown cannot meet the Strickland test. See Strickland v. Washington, 466 U.S. 668 (1984). Brown's counsel did not act ineffectively because: (1) Hawkins had no truly exculpatory statements to give, so severance would not have helped Brown; (2) the hearsay statement of Hawkins is not crucial to Brown's conviction; (3) the failure to renew Brown's motion to quash the search warrant and request a Franks hearing is immaterial because Brown's claims on both of these matters will not entitle him to relief; and (4) the failure to renew the Rule 29 motion does not affect the outcome of this matter because more than sufficient evidence supported Brown's conviction on both of these charges.

Brown and Hawkins contend that the district court erred when it denied their motion to strike the term "cocaine base" as surplusage. We disagree.

Brown and Hawkins have not shown how the term "cocaine base" could have prejudiced them. Nor have they shown that the term "cocaine base" is more inflammatory than the term "cocaine." Moreover, charging that the defendants dealt in "cocaine base" was a relevant and material element to the drug offenses charged because the government needed to show that the defendants possessed and sold a controlled substance within the statute (Brown and Hawkins concede that cocaine base is within the statute).

Brown contends that the district court abused its discretion when it denied his motion for a new trial because of newly discovered evidence. We disagree. As noted earlier, Hawkins' testimony would not have produced an acquittal.CONCLUSION

For the reasons outlined in this disposition and the accompanying opinion, we affirm the convictions of both Brown and Hawkins.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Brown and Hawkins also contend that 21 U.S.C. §§ 841(b) (1) (A) (iii) and (b) (1) (B) (iii) are unconstitutionally vague because neither these sections nor Schedule II defines "cocaine base." We have covered that issue in an opinion we have also filed today