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United States v. Monigan

October 29, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

ALON MONIGAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois.

No. 96 CR 30038 Paul E. Riley, Judge.

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

ARGUED SEPTEMBER 19, 1997

DECIDED OCTOBER 29, 1997

On March 25, 1996, Alon Monigan was arrested for possession of 897 grams of cocaine base, or crack cocaine. Monigan was convicted on July 17, 1996, following a three day jury trial, on one count of possession with intent to distribute approximately 800 grams of crack cocaine in violation of 21 U.S.C. sec. 841(a)(1). Monigan appeals his conviction, arguing that:

(1) the evidence was insufficient as a matter of law to establish beyond a reasonable doubt that he possessed 800 grams of crack cocaine; (2) defense counsel's ineffective assistance deprived him of his constitutional right to counsel; and (3) the district court erred in failing to give the "testifying police officer bias" question during voir dire. For the reasons stated below, we affirm.

Background

On March 25, 1996, a call was broadcast over the East St. Louis police radio requesting officers to be on the lookout for a suspicious individual carrying what was believed to be a microwave oven or a television set. Already in the area, Officer Ken Berry headed off to respond to the call. Shortly thereafter, Officer Berry observed the defendant Alon Monigan walking down the street, carrying a black bag with white handles. Officer Berry continued down the street past the defendant, until a few minutes later when he received a second broadcast stating that the suspect may have been spotted by other officers. Officer Berry made a U-turn and returned to the approximate area where he had previously spotted the defendant.

When Officer Berry returned to the area, he found two fellow police officers, Officers Cherry and Murphy, looking through a fence. Officers Cherry and Murphy were also in the area at the time of the first radio dispatch, and were traveling down the same street Officer Berry had traveled only minutes before. Unlike Officer Berry who continued past the defendant, Officers Cherry and Murphy turned the corner in their squad car and drove around the block. From there they observed the defendant hiding near the side of a house. Officers Cherry and Murphy then returned to the street, got out of their car, and walked towards the defendant. They observed the defendant hiding a black bag with white handles behind the fence under stacks of wooden planks. At that moment, Officer Berry arrived on the scene. The officers ordered the defendant to halt, but the defendant attempted to flee, with the three officers following in hot pursuit. Officer Murphy apprehended the defendant as he was about to climb a fence; Officer Berry handcuffed the defendant and placed him in his squad car.

Meanwhile, Officers Cherry and Murphy returned to the area behind the fence where they saw the defendant attempting to bury the black bag. The officers called Officer Berry over to show him what was later determined to be 897 grams of cocaine base, or crack cocaine, inside the bag. Officer Berry then returned to his squad car, took out a camera, went back to the area behind the fence to photograph the black bag, and upon his return, found that the defendant had escaped. An all points bulletin ensued and the defendant was apprehended a short time later, hiding in the basement of a nearby house, still handcuffed.

On April 19, 1996, Alon Monigan was indicted on a single count of possession with intent to distribute 800 grams of cocaine base in violation of 21 U.S.C. sec. 841(a)(1). On July 17, 1996, a jury found Monigan guilty after a three day trial. He was sentenced to 210 months' imprisonment, followed by five years of supervised release, and ordered to pay a $10,000 fine. His sentence was based on an offense level of 36 and a criminal history category of II, resulting in a sentencing range of 210 to 262 months.

On appeal, Monigan argues that:

(1) the evidence was insufficient as a matter of law to establish beyond a reasonable doubt that he possessed 800 grams of crack cocaine; (2) his defense counsel's ineffective assistance deprived him of his constitutional right to counsel; and (3) the district court erred in failing ...


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