United States of America, Plaintiff-appellee, v. Thomas R. Clayton, Jr., Defendant-appellant.united States of America, Plaintiff-appellee, v. Frank N. Goodwin, Defendant-appellant, 924 F.2d 1053 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 924 F.2d 1053 (4th Cir. 1991) Argued July 16, 1990. Decided Feb. 4, 1991

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (CR-89-288-A)

Michael Morchower, Morchower, Luxton & Whaley, Richmond, Va. (Argued), for appellant Clayton; Lisa Bondareff Kemler, William B. Moffitt & Associates, Alexandria, Va. (Argued), for appellant Goodwin; Lauren A. Adler, Morchower, Luxton & Whaley, Richmond, Va.; William B. Moffitt, William B. Moffitt & Associates, Alexandria, Va., on brief.

Michael R. Smythers, Assistant United States Attorney, Alexandria, Va. (Argued), for appellee; Henry E. Hudson, United States Attorney, Alexandria, Va. on brief.

E.D. Va.

AFFIRMED.

Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.

PER CURIAM:


Thomas R. Clayton and Frank N. Goodwin were convicted in a trial by jury on October 20, 1989 of numerous counts of a drug-related felony indictment for their activities involving the importation, manufacturing, and distribution of cocaine. They now appeal those convictions. Goodwin challenges the district court's denial of his motion to suppress evidence seized from his home and the increase in the severity level of his sentence. Clayton argues that the evidence produced at trial was insufficient as a matter of law to sustain his conviction. We briefly discuss each contention in turn, and we affirm.

Goodwin first contends that the district court erred in refusing to suppress evidence seized in the search of his home, which search he claims was in violation of the fourth amendment. Specifically, Goodwin argues that the information contained in the affidavit was too stale to furnish probable cause to believe that the evidence of criminal activity stated in the warrant would still be present at his residence.

We discussed this same issue in United States v. McCall, 740 F.2d 1331 (4th Cir. 1984), where we recognized that "the warrant itself may be suspect because the information on which it rested was arguably too old to furnish 'present' probable cause." Id. at 1336. This issue of staleness is resolved by looking at "all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." McCall, 740 F.2d at 1336. We must accord great deference to the magistrate judge's assessment of the facts and ask only whether the magistrate judge had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Viewing the facts and circumstances of this case in this light it is apparent that the information contained in the affidavit was sufficient to rebut any issue of staleness.

The fact that the evidence is of a kind that is not ordinarily destroyed or moved about from one place to another, for example, may controvert potential staleness. McCall, 740 F.2d 1337; see, e.g., Andresen v. Maryland, 427 U.S. 463, 478-79 n. 9 (1976) (business records). The items of evidence sought to be seized here were records and receipts reflecting the distribution of cocaine, bank statements and records from the sale of narcotics, paraphernalia used in the manufacturing and distribution of cocaine, cocaine alleged to have been buried on the premises, and other indicia of an ongoing drug business. Due to the character of this evidence, we agree that it was a valid inference by the magistrate judge that these items would likely be stored and remain at the residence.

We add that the most recent indication of illegal narcotics activity, the use thereof, contained in the affidavit related to February of 1989, only three months prior to the issuance of the search warrant. In similar cases, courts have found probable cause to exist despite substantially greater lapses of time. See, e.g., McCall, 740 F.2d 1331 (eight months); United States v. Rahn, 511 F.2d 290 (10th Cir.), cert. denied, 423 U.S. 825 (1975) (two years). Accordingly, we find no error in the district court's denial of Goodwin's motion to suppress.

Goodwin also contends that the district court erred by departing upward four levels for the role he played in the commission of the offense. Under the Sentencing Guidelines a defendant's offense level may be increased by four levels where the defendant is "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(a) (1988). A determination by the district court of the defendant's role in the offense is a factual determination and is reviewable under the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).

The record is replete with evidence of Goodwin's leadership role in this conspiracy. The record shows that Goodwin developed a working relationship with technicians Cardenas and Rodriquez, who had the technical skill to get the cocaine base imported and converted into cocaine. It further shows that he recruited Al Littek and Dwight Sullivan to assist him in getting ether, a vital ingredient used in the manufacturing of cocaine, and that he used the home of Mark White for the storage of the ether. In November and December of 1987, Goodwin was involved in two importation and manufacturing operations at his home. In January 1988, Goodwin and Clayton set up another importation-manufacturing operation at a friend's house near Fredericksburg, Virginia. Finally, the record shows that Goodwin and Clayton were in the process of planning another manufacturing operation in February 1989 when their technicians, Cardenas and Rodriquez, were arrested.

Based upon this record, the district court found that Goodwin "took over a substantial role in leadership of the conspiracy" and increased his severity level accordingly. We hold that that finding was not clearly erroneous.

Clayton contends that the government failed to present sufficient evidence to convict him as a matter of law. He was convicted of two conspiracies to distribute, manufacture, and import cocaine in violation of 21 U.S.C. §§ 846, 963 and 18 U.S.C. § 2, and for managing and controlling an establishment used for manufacturing, storing, distributing, and using cocaine in violation of 21 U.S.C. § 856(a) (2) & (b) and 18 U.S.C. § 2.

When a defendant challenges the sufficiency of the evidence used to convict him, " [t]he verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942). The record shows that Thomas Clayton was an integral member of an ongoing drug conspiracy involving the importation, manufacturing, and distribution of cocaine. He purchased a house where the conspirators manufactured and used cocaine on several occasions. He personally managed at least one manufacturing operation, took part in buying equipment for the labs and in clean-up operations, and delivered cocaine to and for Goodwin. Viewed in the light most favorable to the government, the record contains sufficient evidence for the jury to have found his guilt beyond a reasonable doubt. His claim is therefore without merit.

The conviction and sentence in Goodwin's case, and the conviction in Clayton's case, are accordingly

AFFIRMED.* 

 *

The motion of the United States to dismiss the appeal in Clayton's case, No. 90-5604, is denied