Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81 CR 129 -- John W. Reynolds, Judge.
Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge, and ASPEN, District Judge.*fn*
ASPEN, District Judge. Appellant Dorothy Jefferson was convicted by a jury of: (1) participation in a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 (Count 1), (2) twenty-one counts of distribution of various controlled substances in violation of 21 U.S.C. § 841(a)(1) (Counts 2 through 11, 13 through 15 and 17 through 24), (3) two counts of the use of a communications facility to facilitate the distribution of controlled substances in violation of 21 U.S.C. § 843(b) (Counts 12 and 16), and (4) participation in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 25). Her appeal alleges numerous errors at trial and sentencing.
The evidence at trial revealed an elaborate drug sales operation in Milwaukee, Wisconsin, based initially at 335 West Vine Street. During the time period encompassed by the conspiracy and continuing criminal enterprise allegations, the operation moved to 1822 North 22nd Street. The initial location was a first floor apartment where customers exchanged cash for drugs through a window. The second location was an entire residence with a fortified door through which customers were admitted once they had identified themselves to the drug house employee serving as the door man. This drug house was operated around the clock with at least two or three employees on duty at all times. The final location was a carefully guarded residence with numerous employees working around the clock. Drugs were locked in a fortified room at the back of the residence. An employee situated inside the fortified room sold drugs through a slot in the door to customers admitted to the house by the door man.
Five witnesses at trial testified that they had worked at one or more of the drug houses, and that they had been hired and supervised by appellant and her husband, Frank Jefferson.*fn1 The evidence showed that appellant had played an active role in the organization and supervision of each of the drug houses. Appellant had made hiring, firing, and wage decisions and had been known to her employees as the "Queen Bee." She would call the operating drug house with regularity to check on the level of supplies, and if more drugs were needed she would have them sent over or would deliver them herself. Drugs had been stored at the Jefferson residence (2004-05 West Cherry Street) and, on occasion, at 2010 West Cherry Street, the home of a neighbor who was also charged in the indictment.
Searches pursuant to warrant were conducted of the drug house at 1801 North 22nd Street, appellant's residence, and the neighbor's residence. These searches resulted in seizures of large quantities of cash in small denominations and large collections of jewelry and fur coats. Prior to trial, the defendant moved to quash the warrants and suppress the evidence seized. After a hearing before a magistrate, the motions were denied and much of the seized evidence was eventually admitted at trial. The jury returned a verdict of guilty as to all counts after a two-week trial.
At the sentencing hearing, the trial judge initially sentenced appellant to 10 years on the continuing criminal enterprise count (21 U.S.C. § 848), 15 years on the conspiracy count (21 U.S.C. § 846) to run consecutive to the sentence imposed on the § 848 count, 5 years on one of the substantive drug offense counts (21 U.S.C. § 841(a)(1) to run consecutive to the sentences imposed on the §§ 846 and 848 counts, and 5 years on each of the remaining counts (21 U.S.C. §§ 841(a)(1) and 843(b)) to run concurrent to each other and to the other sentences imposed. Expressly indicating that he wished to sentence appellant to a total of thirty years, he explained that he had chosen to spread the sentence over three counts rather than to impose thirty years on the § 848 count because § 848 contains a no-parole provision that might work a hardship on appellant if her health problems worsened in prison.
Immediately after the sentencing, one of the attorneys for the government informed the trial judge of her belief that consecutive sentences on the §§ 846 and 848 counts were improper. The sentencing hearing was reconvened three hours later, and the trial judge resentenced appellant to 10 years on the § 848 count, 5 years on the § 846 count to run concurrent to the sentence imposed on the § 848 count, 5 years on each of four of the substantive counts to run consecutive to each other and to the sentence imposed on the § 848 count, and 3 years on each of the remaining 19 counts to run concurrent to each other and to the other sentences.
Appellant challenges the admission of certain evidence seized in the searches, the sufficiency of the evidence with respect to her conviction of specific counts, certain jury instructions and the manner and substance of sentencing.
Appellant first argues that the trial court erred in admitting items seized in searches conducted on December 31, 1980, and March 24, 1981. She contends that because officers entered the houses without knocking, the searches violated 18 U.S.C. § 3109 and the Fourth Amendment.*fn2 We note at the outset that this objection was not raised before or during the trial.*fn3 Unless the objection speaks to serious and harmful error of constitutional magnitude, appellant's failure to object at trial precludes the assignment of error on appeal. United States v. Cook, 432 F.2d 1093, 1103, (7th Cir. 1970).
On December 31, 1980, a search of the drug house at 1801 North 22nd Street was conducted by state officers executing a state search warrant. A state search is governed by state law as long as the law applied does not violate the Fourth Amendment. Ker v. State of California, 374 U.S. 23, 34, 83 S. Ct. 1623, 1630, 10 L. Ed. 2d 726 (1963). Wisconsin state law authorizes the use of "all necessary force" in the execution of search warrants. Wis. Stat. Ann. 968.14. This provision has been construed to permit no-knock entry where justified on the facts of the case. See, e.g., State v. Suits, 73 Wis.2d 352, 243 N.W.2d 206 (1976).
In granting the application for a warrant, the state court judge stated:
The nature of the premises with that barricaded door off the kitchen and people with guns on the premises indicate that there is only one practicable way to have this search warrant effectuated, and that is a "no-knock" way. There's alos apparently people on the street watching for the police. There's lookouts.*fn4
As a result of this finding, the warrant expressly provided that "'entry may be made without knocking on prior identification."*fn5 Thus, we conclude that the warrant did not violate Wisconsin state law.
We next turn to the question of whether the warrant abridged constitutional rights. As the Supreme Court has stated "[i]t is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed." Dalia v. United States, 441 U.S. 238, 247, 99 S. Ct. 1682, 1688, 60 L. Ed. 2d 177 (1979) (citations omitted). Evidence adduced at the suppression hearing and at trial supports the conclusion of the state judge who issued the warrant that the entry and search could not have been effected without a no-knock entry. The building searched on December 31, 1980, was not a typical residence. It was a heavily barricaded, closely guarded business enterprise where large amounts of drugs, money and jewelry were stored and exchanged. A danger of destruction of evidence existed. The prior drughouse, i.e., 1822 North 22nd Street, had been searched pursuant to warrant on August 14, 1980. The employees at 1801 North 22nd Street were thus alert to the possibility of police searches. Indeed, by the time the officers gained access to the building, the employees were apparently disposing of drugs. We conclude that appellant's constitutional rights were not violated during the search of December 31, 1980.*fn6
Appellant's contention that the search of March 24, 1981, was effected by a no-knock entry in violation of 18 U.S.C. § 3109 is not supported by the record. The March 24, 1981, search of appellant's residence was executed pursuant to warrant by both federal and state officials. Michael Ebert, one of the federal officials taking part in the search, testified at the evidentiary hearing that the officers knocked at the door, identified themselves and their purpose and requested entry. A man who could be seen behind the door refused to answer. Only after a second request for entry was ignored was entry effected by break-in.*fn7 The March 24, 1981, entry complied with the clear language of § 3109.
With respect to the search of March 24, 1981, appellant reiterates an objection that was raised and rejected prior to trial. See note 4, supra. She contends that the search exceeded the scope of the warrant in that items not named in the warrant were seized.
The federally-issued warrant authorized the search of premises located at 2004-06 West Cherry Street for certain controlled substances "and records of drug dealing activity and currency."*fn8 In the course of the search, the specified controlled substances were found and seized along with approximately $23,000 cash in small bills, five fur coats, 142 articles of jewelry, nine firearms and assorted documents and photographs. Much of this evidence was introduced at trial.
When a police officer conducting a valid search inadvertently comes across an article not specified in the warrant, but one nevertheless having an incriminating character, it is well established that the may seize that article as well as any others that are specified in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037, 29 L. Ed. 2d 564 (1971); United States v. Graham, 638 F.2d 1111, 1115 (7th Cir.), cert. denied, 450 U.S. 1034, 68 L. Ed. 2d 231, 101 S. Ct. 1748 (1981); United States v. Schire, 586 F.2d 15, 17 97th Cir. 1978). The question here, then, is whether the seized items not specified in the warrant (I.e., the fur coats, jewelry and firearms) were of an apparently incriminating nature.
It is, of course, conceivable that the furs and jewelry were legitimately held for personal use, and that the firearms were held for sporting purposes. In the context of executing a search warrant that contemplated an extensive drug distribution operation, however, the officers logically concluded that the furs and jewelry were fruits of the illegal operation tantamount to cash receipts. Where a logical nexus exists between seized but unnamed items and those items listed in the warrant, the unnamed articles are admissible. United States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981). Even if the items were not received as currency in the drug operation, the circumstances reasonably alerted the officers to the possibility that the items were fruits of another illegal activity. See United States v. Golay, 502 F.2d 182, 185 (8th Cir. 1974). Given the criminal nature of the drug operation contemplated by the warrant, the seized firearms were likewise apparently incriminating and thus admissible.
Appellant raises the same argument with respect to items seized in the search of December 31, 1980. The warrant for that search authorized seizure of the controlled substance Ritalin and "related paraphernalia."*fn9 Officers executing the warrant seized Ritalin as well as numerous other controlled substances and $223 in small bills. Again, given the warrant's contemplation of a drug distribution operation, it can hardly be said that unnamed controlled substances and cash receipts were not apparently incriminating.
Appellant next contends that items seized on March 6, 1980, and January 13, 1981, were improperly admitted into evidence because a complete chain of custody as to each exhibit was not established at trial. Here again, no objection was made to the admission of these items at trial. Failure to object to the admissibility of evidence at trial ordinarily precludes the assignment of error on appeal unless harmful error of constitutional magnitude was committed. Fed.R.Evid. 103(d); United States v. Cook, 432 F.2d at 1103; United States v. Millpax, Inc., 313 F.2d 152, 156 (7th Cir. 1963). On review of the record, we conclude that no error was committed.
Before a physical exhibit is admitted into evidence at trial, there must be a showing that it is in substantially the same condition as when the crime was committed. This determination is to be made by the trial judge and may not be overturned except for a clear abuse of discretion. United States v. Aviles, 623 F.2d 1192, 1197 (7th Cir. 1980); United States v. Bridges, 499 ...