United States v. Waterbury

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-3104
v. (D . Kan.)
K EN N ETH WA TER BU RY , (D.C. NO . 03-CR-20051-02-JW L)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before M cCO NNELL, B AL DOCK , and TYM KOVICH, Circuit Judges.

Kenneth W aterbury appeals his jury convictions arising from his

participation in a Kansas City, Kansas methamphetamine distribution ring.

W aterbury was convicted on three counts: (1) conspiracy to distribute more than

500 grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§

841(a)(1), (b)(1)(A)(viii) and 846; (2) possession with intent to distribute five or

more grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§

841(a)(1) and 842 (b)(1)(B)(viii); and (3) being a felon in possession of a firearm

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). On appeal he argues that (1) a

gun, drugs, and currency seized at his arrest should have been suppressed under

the Fourth Amendment, and (2) in any event, the evidence presented against him

at trial w as insufficient to support his three convictions.

W e disagree for the reasons discussed below and AFFIRM the district

court.

I. Background

On April 11, 2004, Kansas City police executed a search warrant on an

apartment located at 1124 Hilltop in west Kansas City, Kansas. The apartment

was rented to Carl Rieger, a friend of Carlos Portillo-Quezada, and police

suspected it as a “storefront” for methamphetamine distribution. Police believed

Portillo-Quezada to be the ring-leader of a large scale methamphetamine

distribution ring, and were also investigating him in connection with the recent

murder of Bruce A ndrew s, whose body had been discovered several days before

the search.

Police executed the warrant at 5:45 a.m. Even though authorized to

conduct a no-knock raid, police officers involved in the warrant’s execution

identified themselves before forcibly entering the apartment. Officer Christopher

M cAlister w as first into the apartment, he was followed by Officer Chris Johnson.

Almost immediately upon entry, M cAlister encountered three people in a front

living room, including W aterbury and two women. To secure the room,

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M cAlister ordered all three to lie face-down on the floor. Prior to ordering

W aterbury and his companions to lie down, M cAlister observed the floor to be

clear of objects. After the suspects were on the floor, M cAlister observed

W aterbury’s right hand next to his right leg, and noticed him engaging in furtive

movements. After repeatedly ordering W aterbury to bring his hand away from his

leg and place it on the floor above his head, M cAlister noticed a .380 caliber

handgun next to W aterbury’s right leg, where his hand had been. W hen the room

was secure, M cAlister placed W aterbury under arrest for illegally possessing a

concealed weapon.

W aterbury was searched incident to his arrest by Johnson. Johnson found

three packages of methamphetamine and $452 in currency on W aterbury. Of the

currency seized, $30 was in marked government bills which had been used in a

drug transaction between Portillo-Quezada and an undercover Kansas City police

officer six hours earlier.

After his arrest, W aterbury was placed in the back seat of Officer Gary

W ansley’s patrol car. W ansley testified that W aterbury was the only passenger he

transported that morning and that he placed W aterbury into the patrol car just

after completing an interior and exterior check of the vehicle. W ansley later

discovered seven rounds of .380 caliber ammunition in the crevice of the seat

where W aterbury had been seated. W ansley further testified that no one other

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than himself and Waterbury had access to the rear seat of his patrol car from the

time he inspected it until his discovery of the bullets.

Prior to trial, W aterbury moved to suppress the gun, methamphetamine and

currency. The district court denied the motion, finding that M cAlister had

probable cause to arrest W aterbury for carrying a concealed weapon, and that the

search was valid incident to the arrest.

W aterbury was tried alongside two co-defendants: Portillo-Quezada and

Noe Espino. At trial, the government presented testimony by several witnesses,

including Rieger, whom prosecutors contended was Portillo-Quezada’s right-

hand-man in the distribution ring. Rieger testified that he would often deliver

methamphetamine for Portillo-Quezada, and that W aterbury would sometimes

deliver the drugs when Rieger was unavailable. Rieger claimed that W aterbury

was present for many drug transactions at the 1124 Hilltop apartment and helped

customers of Portillo-Quezada “sample” methamphetamine by smoking it with

them and possibly by “loading up” pipes for them. Vol. IV at 51-54. Finally,

Rieger testified that he had seen Waterbury “showing off” a .380 caliber handgun

just before the police raid. Id. at 66. The gun, three packets of

methamphetamine, and the marked currency were all introduced against

W aterbury at trial.

II. Analysis

A. Probable Cause to A rrest

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 W aterbury first argues that the district court erred when it refused to

suppress the gun, methamphetamine, and marked currency found when he was

searched incident to his arrest. Specifically, W aterbury maintains that M cAlister

did not have probable cause to arrest him for unlawful possession of a concealed

firearm for two unrelated reasons: (1) M cAlister could not be certain the .380

caliber handgun belonged to W aterbury, and (2) even if the gun was linked to

W aterbury, M cAlister could not know at the time of arrest whether he had a

lawful reason to possess a concealed weapon under K ansas law.

W e review de novo whether an arrest is in violation of the Fourth

Amendment. United States v. Hill, 199 F.3d 1143, 1147 (10th Cir. 1999). In

conducting this review, we accept the district court’s findings of fact unless

clearly erroneous. Id.

An officer has probable cause to arrest if, under the totality of the

circumstances, he “learned of facts and circumstances through reasonably

trustworthy information that would lead a reasonable person to believe that an

offense has been or is being committed by the person arrested.” United States v.

M orris, 247 F.3d 1080, 1088 (10th Cir. 2001) (internal quotations omitted). The

rules governing probable cause “‘are not technical; they are the factual and

practical considerations of everyday life on which reasonable and prudent men,

not legal technicians’” must act. Illinois v. Gates, 462 U.S. 213, 231 (1983)

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Probable cause is

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itself a “fluid concept” and the process of determining its existence does not deal

with hard certainties, but with “probabilities.” M aryland v. Pringle, 540 U.S.

366, 371 (2003); accord Gates, 462 U .S. at 231. That said, probable cause

requires something “more than mere suspicion.” M orris, 247 F.3d at 1088.

In denying W aterbury’s motion to suppress, the district court found that

M cAlister and Johnson had testified “extremely credibly” at the suppression

hearing regarding their encounter with W aterbury. App. Ap. at 82–83. The court

found that upon entering the apartment, the officers saw the living room floor

clear of weapons before ordering W aterbury and his two female companions to

the ground. Only after ordering W aterbury to move his hands away from his right

side did the police discover the gun. The district court concluded:

[A ]t that juncture [the officers] certainly had probable cause to arrest
M r . W aterbury for having a concealed w eapon, whether if that case
ever went to trial the government w ould sustain its burden of proof
beyond a reasonable doubt or not, who knows? But certainly [they]
had probable cause to believe that a weapon which had not been there
previously, had not been in M r. W aterbury’s hands or on the floor and
suddenly appeared on the floor next to him, had been concealed by M r.
W aterbury.

Id.

Based on the objective facts, the police had probable cause to arrest

W aterbury. W aterbury first claims that M cAlister could not have been certain the

gun had been concealed by W aterbury, pointing to alleged inconsistencies in

M cAlister’s testimony. In particular, W aterbury cites to M cAlister’s admission

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that he was not completely sure where the gun came from because he never saw

W aterbury remove the gun from his pocket. However, M cAlister’s testimony is

consistent with the district court’s factual finding that both M cAlister and

Johnson saw the empty floor near W aterbury prior to W aterbury’s furtive

movements and then saw a handgun at his right side. A reasonable police officer

could conclude that the gun was W aterbury’s and that he had removed it from his

clothing just prior to the officer discovering it. W e cannot say the district court’s

evaluation of this testimony was clearly erroneous.

W aterbury also claims on appeal that the district court erred in concluding

he violated Kansas’s concealed weapons statute. Kansas law prohibits carrying a

concealed weapon anywhere other than on one’s own property without a permit.

K.S.A. 21-4201(a)(4). W aterbury claims the officers who raided the apartment

could not be certain that W aterbury was not the owner or lessee of the apartment,

and therefore entitled to conceal a weapon. This argument was not raised before

the district court and we need not address it. United States v. M oore, 22 F.3d

241, 243 n.3 (10th Cir. 1994). It is, however, easily disposed.

The police knew the apartment was rented by Rieger and used by Portillo-

Quezada. The officers conducting the raid would have been able to identify

Portillo-Quezada and Rieger, and certainly to know them from W aterbury. Even

if M cAlister himself did not know W aterbury by sight at the time of the raid, the

officers conducting the search had sufficient facts to know that Rieger, and not

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W aterbury, rented the apartment. Collectively, the officers conducting the search

thus knew that W aterbury was not entitled to carry a concealed weapon on the

premises. Our cases attribute this collective knowledge to the arresting officer in

making a determination whether probable cause existed to support the arrest.

United States v. Goeltz, 513 F.2d 193, 197 (10th Cir. 1975); see also United

States v. M erritt, 695 F.2d 1263, 1268 (10th Cir. 1982) (applying Goeltz principle

to determination of reasonable suspicion in Terry-stop context); United States v.

M iramonted, 365 F.3d 902, 905 (10th Cir. 2004) (applying rule of M erritt to

warrantless arrest). 1

Accordingly, the district court properly denied W aterbury’s m otion to

suppress the evidence seized as a result of the search.

B. Sufficiency of the Evidence

W aterbury’s second argument is that even if the items from the search were

admissible, the evidence at trial was still insufficient to support the three

convictions. W e review the sufficiency of evidence de novo, United States v.

Wiseman, 172 F.3d 1196, 1212 (10th Cir. 1999), and will uphold a conviction if,

on the basis of the evidence presented together with reasonable inferences draw n

from it, a rational juror could have found the essential elements of the charged

1
W e also agree with the district court that, even if the police lacked
probable cause to arrest W aterbury upon discovery of the gun, they had sufficient
reason to conduct a pat down search of Waterbury and thereby would have
inevitably discovered the drugs and money. United States v. M ikulski, 317 F.3d
1228, 1234–35 (10th Cir. 2003).

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crime beyond a reasonable doubt. United States v. Nguyen, 413 F.3d 1170, 1176

(10th Cir. 2005). In conducting this review, we consider the evidence in the light

most favorable to the jury’s verdict. Id.

1. Conspiracy to Possess and Distribute M ethamphetamine

In order to gain a conviction under 21 U .S.C. § 846, the government must

prove four elements: (1) an agreement w ith another person to violate the law,

(2) knowledge of the essential objectives of the conspiracy, (3) knowing and

voluntary involvement in the conspiracy, and (4) interdependence among the

alleged participants in the conspiracy. United States v. Delgado-Uribe, 363 F.3d

1077, 1083 (10th Cir. 2004). “[K]nowledge [of illegal activity] and presence [at

the crime scene] coupled with knowing participation in the illegal drug activities

are sufficient to sustain a drug conspiracy [conviction].” United States v. Coyote,

963 F.2d 1328, 1331 (10th Cir. 1992); Nguyen, 413 F.3d at 1177.

W aterbury maintains that the government failed to present evidence

proving his know ing and voluntary involvement in the drug conspiracy. He

contends the government showed that although he was an acquaintance of

Portillo-Quezada, he would only occasionally fix Portillo-Quezada’s vehicles, or

“hang out” at the 1124 Hilltop apartment. App. Br. at 16-17. This evidence, he

claims, is legally insufficient to support an inference that he was an active

member of the conspiracy.

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 This argument is at odds with the record. At trial, the government

presented extensive evidence that W aterbury knowingly and voluntarily

participated in the conspiracy. Patrick Loffredo, a frequent purchaser of drugs

from the ring, testified that he saw W aterbury at the apartment while buying drugs

and had seen Waterbury help customers sample methamphetamine for sale by

packing their pipes and smoking with them. Rieger was an active participant in

the conspiracy. He testified that W aterbury would deliver methamphetamine

when Rieger was unavailable. In addition, according to Rieger, members of the

drug conspiracy used W aterbury’s residence for methamphetamine sales with

W aterbury’s consent. Finally, a jailhouse letter written by W aterbury and sent to

a friend disclosed that he lost over $9000 the night of the raid, and supported an

inference he was active in what he described as “the game,” namely the drug

conspiracy. Supp. Vol. IV at 58.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence

was more than sufficient to allow a rational juror to convict W aterbury of

conspiracy.

2. Possession w ith Intent to Distribute M ethamphetamine

Possession with the intent to distribute is demonstrated by evidence that the

defendant knowingly possessed a controlled substance and intended to sell it.

United States v. Jenkins, 175 F.3d 1208, 1215–16 (10th Cir. 1999). Intent to

distribute can be inferred from a number of factors accompanying possession,

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including (1) the quantity, purity, and value of the drugs possessed; (2) the

manner in which the drugs are packaged; (3) the presence of firearms (as comm on

tools of the trade); and (4) the presence of large sums of money. United States v.

Allen, 235 F.3d 482, 492 (10th Cir. 2000); United States v. Wilson, 107 F.3d 774,

779 (10th Cir. 1997); United States v. Wood, 57 F.3d 913, 918–19 (10th Cir.

1995).

On appeal, Waterbury asserts:

The evidence in the instant matter establishes only that M r. W aterbury,
when searched[,] had three small quantities of methamphetamine on his
person. He did not possess large amount of cash and no weapons were
found on him. There was also no packaging material found on M r.
W aterbury.

App. Br. at 18. This claim is contradicted by the record. The methamphetamine

discovered on W aterbury totaled 37.27 grams, an amount consistent with

distribution quantities. The methamphetamine was high quality and individually

packaged in small plastic bags, also consistent with intent to distribute.

W aterbury had $452 in cash, including $30 of the pre-marked government funds

used in the controlled buy from Portillo-Quezada six hours prior to W aterbury’s

arrest. W aterbury carried a concealed weapon when confronted by the police at

the raid. His jailhouse letter indicated he had lost $9000 as a result of the raid,

further bolstering the prosecution’s argument that he distributed drugs.

View ed in the light most favorable to the verdict, a rational jury could

conclude that W aterbury intended to sell the drugs found at the raid.

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 3. Felon In Possession

Finally, ample evidence supports the felon in possession conviction. To

prove that a felon illegally possessed a firearm in violation of 18 U.S.C.

§ 922(g)(1), the government must show either (1) actual, knowing possession of a

firearm, or (2) constructive possession of a firearm. United States v. Lauder, 409

F.3d 1254, 1259 (10th Cir. 2005). W aterbury argues the evidence does not

establish he actually possessed the handgun found near him at the raid, and any

evidence showing constructive possession is speculative and inconsistent. W e

disagree.

The government presented evidence of actual possession through Rieger’s

testimony that the seized .380 caliber handgun closely resembled a firearm

W aterbury was “showing off” at the apartment before the police raid. (Supp. Vol.

IV at 64–66.) Further, M cAlister’s testimony that the gun was found near

W aterbury’s side after he moved his right hand supports the inference that

W aterbury discarded the weapon when he believed he would be searched and

could no longer conceal it. These facts, when combined with the seven .380

caliber bullets found in the back seat of the patrol car transporting W aterbury,

amply support the inference that W aterbury possessed and directly controlled a

.380 caliber handgun at the 1124 Hilltop apartment.

Viewed in the light most favorable to the jury’s verdict, the evidence

presented supports W aterbury’s conviction on a theory of actual possession.

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 III. Conclusion

For the foregoing reasons, we conclude the district court properly admitted

evidence found incident to W aterbury’s arrest. W e also find that a rational jury

could conclude that the evidence submitted at trial was sufficient to support his

three convictions. Accordingly, we AFFIRM .

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

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