Appeal from the United States District Court for the Eastern District of Wisconsin. No. 95-CR-47 Thomas J. Curran, Judge.
Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges.
Dean William Cotnam pled guilty to conspiracy to possess with intent to distribute LSD. His plea was conditioned on the allowance of this appeal to challenge the district court's partial denial of his motion to suppress and the determination of his sentence. Phillip Zadurski was convicted by a jury of 1) conspiracy to possess with intent to distribute LSD, 2) possession with intent to distribute LSD, and 3) possession with intent to distribute cocaine. He appeals the LSD convictions, claiming that prosecutorial misconduct, particularly remarks that implicitly commented upon his failure to take the stand, resulted in a constitutionally deficient trial. We affirm Cotnam's conviction and sentence and reverse Zadurski's conviction.
The indictment in this case charged three men: Dean William Cotnam, David Martin, and Phillip Zadurski. All three men were charged with 1) knowingly and intentionally conspiring to possess, with the intent to distribute, LSD, in violation of 21 U.S.C. secs. 841(a)(1), 846, and 2) knowingly and intentionally possessing, with the intent to distribute, LSD, in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2. In addition, Zadurski was charged with knowingly and intentionally possessing, with the intent to distribute, cocaine, in violation of 21 U.S.C. sec. 841(a)(1). Cotnam and Martin pled guilty to the conspiracy with intent to distribute LSD charge. Zadurski went to trial.
During the afternoon on March 1, 1995, the Milwaukee County Sheriff's Department received a call from a manager of the Motel 6 located at 5037 South Howell Avenue in Milwaukee, Wisconsin. The manager reported that motel cleaning personnel had observed what appeared to be marijuana in a clear plastic baggie on a nightstand in Room 224. Around 6:00 p.m. that evening, Milwaukee Sheriff's Deputies Lent, Pagan, and Rutter went to the Motel 6 to investigate. The motel registry revealed that Room 224 was registered to a "Michael J. Williams," later determined to be Dean William Cotnam.
The deputies proceeded to Room 224 and knocked on the door. When the person inside asked who was at the door, they responded "police." Cotnam then opened the door, stepped outside, and pulled the door shut behind him, which locked automatically. Cotnam testified that he knew the door would lock when he pulled it shut. He was wearing a tee shirt, jeans, and no shoes. Deputy Lent informed Cotnam that they were officers from the Milwaukee County Sheriff's Department and that they had received a complaint regarding his room. Lent asked whether they could go inside to discuss the matter, but Cotnam responded that he had just locked himself out. When the officers asked him about his identity, Cotnam likewise responded that his identification was locked inside the room. Deputy Rutter then went to the motel office to get an extra key, while Deputies Pagan and Lent remained outside Room 224 with Cotnam.
Deputy Lent told Cotnam that they had received a complaint regarding marijuana use in his room and that marijuana had been seen on his nightstand. At this point Cotnam admitted to having marijuana in the room, though he stated that it was only one half ounce for personal use. Deputy Rutter then returned with the key and extended it to Cotnam. Instead of accepting the key, however, Cotnam gestured toward the door, indicating to the deputies that they were welcome to open it themselves. *fn1 No verbal consent was requested or given. After Deputy Rutter opened the door, Cotnam walked inside, followed by the deputies. The deputies immediately observed a clear plastic baggie on the bed, which contained a green leafy substance that they recognized as marijuana. A backpack, a jacket, and a phone book were also on the bed. On the nightstand there was a pager and various papers, including partially completed United Parcel Service shipping documents, a Western Union receipt, and a white envelope. The officers observed two partially smoked marijuana cigarettes in an ashtray on a shelf across from the bed.
The motel room was small, approximately 10 feet by 11 feet. Deputy Rutter testified that he believed that Cotnam was under arrest when they saw the marijuana on the bed, though they did not immediately tell him he was under arrest or handcuff him, since he was being cooperative. *fn2 Deputies Lent and Rutter also testified that they were concerned about safety and the possible presence of weapons when they first entered the room. Deputy Rutter conducted a pat down search of the jacket on the bed, which disclosed what felt like two large bundles of money. Deputy Rutter asked Cotnam how much money was there, and Cotnam responded "maybe $5000 or $6000." When Deputy Rutter again asked Cotnam how much was there, he responded "$6700." After the money was retrieved, Deputy Lent counted it and found that it totaled $6700. The officers neither requested nor received verbal consent to search the room.
The deputies seized the marijuana, the money, the backpack, the pager, the phone book, and the papers from the nightstand, believing the documents could be evidence of the shipping of marijuana proceeds. The officers then allowed Cotnam to gather his personal belongings, handcuffed and searched him, and took him into custody. According to the written policy of the Milwaukee County Sheriff's Department, the officers were required to look at each seized item, document what it was, place it in an evidence bag, tag the evidence bag, and put it in the secure evidence lockup. While Deputy Rutter was doing this inventory, he opened the white envelope and inside discovered a folded newspaper wrapped around 3000 units of LSD on blotter paper. At a later point, Deputy Lent re-inspected the backpack -- apparently looking for some form of identification, since they were having trouble determining Cotnam's identity -- and this time discovered an additional 14,000 units of LSD on blotter paper.
Cotnam moved to suppress the money, the marijuana, and all of the LSD. Two separate evidentiary hearings were held. The first two-day hearing was before Magistrate Judge Patricia J. Gorence, who recommended that the motion be granted regarding the 14,000 units of LSD, but denied as to the rest of the evidence. Judge Thomas J. Curran held a further evidentiary hearing and then adopted the magistrate's recommendation to suppress the 14,000 units and allow the rest of the evidence. *fn3 Cotnam entered a conditional plea of guilty to the conspiracy charge. He reserved the right to challenge the district court's suppression ruling and the calculation of his sentence under 21 U.S.C. sec. 841(b)(1)(A)(v), the statutory mandatory minimum, rather than under the Sentencing Guidelines. Cotnam was sentenced to 120 months imprisonment, five years of supervised release, a $1500 fine, and a $50 special assessment.
On March 3, 1995, two days after the arrest of Dean Cotnam, City of Oak Creek police arrested David Martin at the Ramada Inn at 6041 South 13th Street in Milwaukee. Detective John Edwards had received information from a confidential informant that individuals staying in Room 107 at the Ramada Inn had large quantities of LSD and marijuana and were selling out of their room. Detective Edwards learned from motel personnel that the room had been receiving numerous telephone calls and visitors and was registered to a Tracy Dutkiewicz. A criminal ...