Appeals from the United States District Court for the Western District of Virginia, at Abingdon. Glen M. Williams, Senior District Judge. (CR-95-6)
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
No. 95-5560 affirmed in part, reversed in part and remanded, and No. 95-5563 affirmed by published opinion. Judge Russell wrote the opinion, in which Judge Michael and Judge Motz joined.
David Abner and David Wilson appeal their drug trafficking and firearm convictions on various grounds. We affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.
From January 29 through January 31, 1995, Clifton Laughlin, a confidential informant and personal friend of Wilson, made four controlled purchases of marijuana and firearms from Wilson and one purchase of firearms from Abner. He made the purchases at the direction of Detective Benton of the Bristol, Virginia, Police Department. During each controlled purchase, Laughlin wore a hidden wire transmitter, which enabled Detective Benton and his partner to monitor and record every conversation that Laughlin had with Abner and Wilson. After each transaction, Laughlin immediately turned over the contraband to Detective Benton.
The evidence of record shows that on January 29, Wilson sold Laughlin one ounce of marijuana on credit. Laughlin delivered the marijuana to Detective Benton, who had expressed interest in investigating Wilson's illegal drug activities because he believed Wilson to be a major marijuana distributor. On January 30, Detective Benton gave Laughlin bait money to purchase more marijuana. Later that day Wilson sold Laughlin another ounce of marijuana, and also offered to sell Laughlin two guns for $300. Each gun had had its serial number obliterated. Laughlin purchased only the marijuana.
Upon hearing that Wilson also dealt in illegal firearms, Detective Benton gave Laughlin additional money to purchase the guns. When Laughlin returned to Wilson's apartment to purchase the firearms, Wilson told Laughlin that Abner had the guns. Laughlin and Abner subsequently drove to Abner's place where Abner sold Laughlin only one of the guns. During the sale, Abner bragged about having personally removed the serial numbers from the guns with a file, and he also showed Laughlin an SKS rifle that he stored in his bedroom closet.
After Laughlin delivered the gun to Detective Benton, Detective Benton directed Laughlin to attempt to purchase the other gun. Laughlin complied. Because Wilson was not home, Laughlin sought out Abner on his own. Although Abner told Laughlin that the other gun had already been sold, he offered to sell Laughlin a forty-five caliber handgun for $175 that also had an obliterated serial number. Laughlin purchased the gun and turned it over to Detective Benton.
On the evening of January 30, Detective Benton informed Special Agent Samuel Evans of the Bureau of Alcohol, Tobacco and Firearms of Wilson's and Abner's illegal conduct. With the intent to gather evidence that Wilson and Abner were violating federal laws, Agent Evans agreed to accompany Detective Benton if and when he executed search warrants of the suspects' apartments.
On January 31, Detective Benton gave Laughlin $300 to purchase more marijuana from Wilson. During negotiations for the marijuana, Wilson told Laughlin that he could supply him with as much marijuana as Laughlin wanted and that he could also sell Laughlin a twenty-two caliber semiautomatic rifle. Instead of purchasing marijuana, Laughlin purchased the rifle and a clip for the $300. Laughlin delivered the rifle and clip to Detective Benton.
Detective Benton obtained search warrants. State agents executed searches of Wilson's and Abner's apartments on January 31. Detective Benton testified that prior to executing the search warrant, he had Laughlin confirm that marijuana was present in Wilson's apartment and that no children were in the residence. After receiving such confirmation, Detective Benton directed Laughlin to be present at Wilson's apartment when the agents executed the search warrant. Detective Benton also suggested to Laughlin ...