The Honorable Fernando J. Gaitan, Jr., United States District 1

Judge for the Western District of Missouri.

____________

No. 95-3606

____________

United States of America, *

*

Appellee, *

*

v. *

* Appeal from the United States

Anthony L. Johnigan, also * District Court for the

known as Ricky Andre Johnigan, * Western District of Missouri

also known as Randy McIntosh, *

also known as Anthony Lamont *

Johnigan, *

*

Appellant. *

____________

 Submitted: March 12, 1996

 Filed: July 24, 1996

____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Anthony L. Johnigan appeals from a final judgment entered in the

United States District Court for the Western District of Missouri upon a 1

plea of guilty entered on November 28, 1994, to one count of possession

with intent to distribute 50 grams or more of a substance containing

cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Johnigan

was sentenced to 360 months in prison, five years of supervised release,

and a special assessment of $50.00. United States v. Johnigan, No. 4:94-

00024-1 (W.D. Mo. Oct. 6, 1995) (judgment). For reversal, Johnigan argues

that the
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district court (1) erred in denying his motion to suppress evidence;

(2) clearly erred in finding that he had not accepted responsibility for

purposes of applying U.S.S.G. § 3E1.1; and (3) erred in denying his motion

for a downward departure based upon substantial assistance under U.S.S.G.

§ 5K1.1. For the reasons discussed below, we affirm.

Background

 

The underlying facts are summarized as follows. In January 1994, the

manager of the Courtyard Marriott Hotel in Kansas City, Missouri, reported

to the police what appeared to be suspicious activity involving one of the

hotel guests, registered under the name of Anthony Johnigan, with a home

address in Hercules, California. The manager reported, for example, that

Johnigan carried very large sums of cash on him, paid for his room in cash

on a daily basis, and made numerous telephone calls to various numbers in

California and the inner city area of Kansas City. The police checked

those telephone numbers and determined that several of them corresponded

with individuals who had been charged with narcotics violations. The

police checked the records for "Anthony Johnigan" and found that he had a

conviction for possession of crack, an outstanding warrant for his arrest

for violating his parole, and three outstanding arrest warrants for traffic

violations in Kansas City.

On January 24, 1994, upon learning that Johnigan had inquired about

transportation from the hotel to the Kansas City airport, the police

surveilled the hotel courtesy van and observed Johnigan leaving the hotel

with an unknown female. At the airport, Johnigan purchased a ticket with

cash, and then he and his female companion proceeded toward the gate area.

At that time, two law enforcement officers approached them. The female,

who identified herself as Jody Brewer, had identification in that name, and

the ticket was issued to the same name. She gave the officers permission

to
 A check of local records showed that a "Randy McIntosh" had 2

an arrest for a narcotics violation, disposition unknown. 

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search her two carry-on bags, in which no contraband was found. She then

walked away. Meanwhile, one of the officers had asked to speak with

Johnigan separately, and he complied. When asked for his name, Johnigan

initially identified himself as Randy McIntosh. However, after the

2

officer indicated that Brewer had identified him as Anthony, he admitted

his real name was Anthony Johnigan. Johnigan was placed under arrest

pursuant to the outstanding warrants against him, and he was given a

Miranda warning. The officers conducted a pat-down search of Johnigan and

found $3,666.00 in cash and Johnigan's hotel room key. When asked for

permission to search the hotel room, Johnigan told the officers to get a

search warrant. 

The police secured the hotel room while one of the law enforcement

officers applied for a search warrant from a state court judge. After the

officer had prepared his affidavit in support of the warrant application,

but before the state court judge ruled on the application, a women

representing herself as Johnigan's mother attempted to gain access to

Johnigan's hotel room, purportedly to recover Johnigan's personal items.

This information was orally conveyed to the state court judge. That same

day, the state court judge issued a warrant for the search of Johnigan's

hotel room. Law enforcement officers executed the search warrant and

found, among other things, three plastic baggies containing a tan, rocklike substance (later analyzed to contain cocaine base) in the hotel room.

The next day, January 25, 1994, a criminal complaint was filed

charging Johnigan with possession with the intent to distribute 50 grams

or more of a substance containing cocaine base. On February 24, 1994, a

federal grand jury in the Western District of
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Missouri indicted Johnigan on the same charge. Johnigan initially entered

a plea of not guilty.

On April 28, 1994, Johnigan changed his plea from not guilty to

guilty. He entered his guilty plea in the district court based upon a

written plea agreement with the government. The plea agreement stated,

among other things:

"Substantial assistance" within the meaning of

Sentencing Guidelines § 5K1.1 has been provided by the

defendant. The government shall file a motion prior to

sentencing in this case requesting the Court to reduce

the sentence defendant would otherwise receive under

Sentencing Guidelines § 5K1.1. The government reserves

the right to request a reduction generally or a specific

sentence or sentence reduction.

Brief for Appellant, Addendum at 12 (Plea Agreement ¶ 9). Another

paragraph of the plea agreement stated:

The parties agree under § 3E1.1(b) of the

Sentencing Guidelines that a three-point reduction for

acceptance of responsibility is appropriate based on

[Johnigan's] timely notice of [his] intent to plead

guilty and timely providing information to the

government concerning his involvement in this matter.

Id. at 10-11 (Plea Agreement ¶ 7). The plea agreement also provided "[i]f

defendant fails to keep any promise in this agreement, the government, at

its option, may: . . . void the entire agreement and reinstate the original

charges." Id. at 13 (Plea Agreement ¶ 11). 

Approximately one month after Johnigan's April 28, 1994, plea

hearing, his appointed attorney from the Federal Public Defender's Office

was relieved at Johnigan's request, and new counsel was appointed.

Johnigan subsequently asked for permission to withdraw his guilty plea, and

permission was granted. The district court judge who had presided at

Johnigan's change of plea hearing then
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recused himself from the case, and the cause was reassigned to another

judge. 

On November 28, 1994, the date on which Johnigan's jury trial was

scheduled to begin, Johnigan, through his newly appointed attorney, filed

a motion to suppress evidence and informed the district court of his desire

to again change his plea from not guilty to guilty. At that point, no new

plea agreement had been entered into between Johnigan and the government.

A second change of plea hearing was held, at which Johnigan himself

specifically acknowledged to the district court that the prior plea

agreement, including the provisions related to acceptance of responsibility

and substantial assistance, was no longer enforceable against the

government. Tr. of Change of Plea Hearing (Nov. 28, 1994) at 12-15. The

district court accepted Johnigan's guilty plea, conditioned upon the

court's consideration of Johnigan's motion to suppress. 

Initially, a magistrate judge considered Johnigan's motion to

suppress. Following an evidentiary hearing, the magistrate judge

recommended that the motion be denied. United States v. Johnigan, slip op.

at 12 (May 24, 1995) (magistrate judge's report and recommendation)

(hereinafter "Report and Recommendation"). The district court fully

adopted the magistrate judge's findings of fact and conclusions of law and

denied Johnigan's motion. Id. (June 8, 1995).

Upon receiving the probation officer's preliminary presentence

investigation report (PSR), Johnigan objected to its failure to include a

downward adjustment for acceptance of responsibility under U.S.S.G.

§ 3E1.1. The government opposed Johnigan's objection. At sentencing, the

district court declined to find that Johnigan had accepted responsibility

within the meaning of § 3E1.1. Johnigan also moved pursuant to U.S.S.G.

§ 5K1.1 for a downward departure based upon substantial assistance.

Johnigan argued that
 By contrast, in connection with the plea agreement, the

3

government had been prepared to recommend a sentence of ten years

based upon Johnigan's substantial assistance. See Tr. of Change of

Plea Hearing (Apr. 28, 1994) at 24. 

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the government had acted irrationally in withholding a § 5K1.1 motion. The

district court declined to depart and, consistent with the recommendation

in the PSR, concluded that Johnigan had a total offense level of 37,

criminal history category of VI (including a career offender enhancement),

and a guidelines range of 360 months to life. The district court sentenced

Johnigan to the minimum sentence under the guidelines, 360 months, plus

3

five years of supervised release and a special assessment of $50.00.

Johnigan appealed. 

Discussion

Denial of motion to suppress evidence 

Johnigan argues that the district court erred in denying his motion

to suppress evidence. Specifically, he maintains that the items seized

upon execution of the search warrant, the statements he made at the

airport, and the cash found on his person after his arrest at the airport

should all be suppressed as fruits of an illegal investigatory stop which

was not based upon a reasonable and articulable suspicion of criminal

activity, as required by Terry v. Ohio, 392 U.S. 1 (1968) (Terry).

Johnigan argues that, although the airport stop initially may have been

consensual, it became nonconsensual once the officers displayed their

badges, identified themselves as police officers, separated him from

Brewer, and then -- by their actions and words -- effectively restrained

him without informing him of his right to leave or immediately giving him

a Miranda warning. He further argues that
 The government responds by arguing that "pretext" is

4

ordinarily an argument used in traffic stop cases. In any event,

the government correctly points out, the airport stop in the

present case could not have been unlawfully pretextual because the

officers were legally authorized to stop Johnigan based on their

belief that he had outstanding arrest warrants. Brief for Appellee

at 27 (quoting United States v. Hamby, 59 F.3d 99, 100 (8th Cir.

1995) ("'If the officer is legally authorized to stop the driver,

any additional "underlying intent or motivation" does not

invalidate the stop.'" (quoting United States v. Bloomfield, 40

F.3d 910, 915 (8th Cir. 1994) (en banc), cert. denied, 115 S. Ct.

1970 (1995)))); accord Whren v. United States, 116 S. Ct. 1769,

1774 (1996) (constitutional reasonableness of traffic stops does

not depend on the actual motivations of the individual officers

involved). 

-7-

the airport stop was pretextual. He contends that the officers stopped

4

him because they were really looking for an opportunity to find drugs on

his person, not because he had outstanding arrest warrants; if the real

reason for the stop was his outstanding arrest warrants, he argues, the

officers could have arrested him at the hotel instead of waiting until he

was in the airport, appearing ready to leave the Kansas City area. 

The Supreme Court has recently clarified that "as a general matter

determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal." Ornelas v. United States, 116 S. Ct. 1657,

1663 (1996). However, the Court further stated that "a reviewing court

should take care both to review findings of historical fact only for clear

error and to give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers." Id. 

A trial judge views the facts of a particular case

in light of the distinctive features and events of the

community; likewise a police officer views the facts

through the lens of his [or her] police experience and

expertise. The background facts provide a context for

the historical facts, and when seen together yield

inferences that deserve deference.
-8-

Id. 

In the present case, we review the magistrate judge's findings of

fact and conclusions of law regarding Johnigan's motion to suppress, as

they were adopted in their entirety by the district court. Following an

evidentiary hearing, the magistrate judge first found that the encounter

between the officers and Johnigan at the airport was "a purely consensual

encounter based upon the Defendant Johnigan's expressed agreement to speak

with [one of the officers]." Report and Recommendation, slip op. at 9-10.

In any event, the magistrate judge concluded, even if an investigatory stop

did take place, the officers had a reasonable suspicion that the individual

they stopped at the airport was wanted in connection with a felony because

they were aware that a person by the name of Anthony Johnigan (the name he

had used at the hotel) had outstanding arrest warrants in California and

Kansas City. Id. at 10 (citing United States v. Hensley, 469 U.S. 221, 229

(1985) ("if police have a reasonable suspicion, founded in specific and

articulable facts, that a person they encounter was involved in or is

wanted in connection with a completed felony, then a Terry stop may be made

to investigate that suspicion")). The magistrate judge also found that the

scope of the detention was not unconstitutionally broad because the

officers used the least intrusive means reasonably available to achieve

their goal of ascertaining Johnigan's true identity, after which they

immediately arrested him pursuant to his outstanding warrants. Id. at 10-

11 (citing Florida v. Royer, 460 U.S. 491, 500 (1983) ("the investigatory

methods employed should be the least intrusive means reasonably available

to verify or dispel the officer's suspicion in a short period of time")).

As to Johnigan's statements made prior to his arrest, the magistrate judge

found that the officers did not compel him to answer their questions. Id.

at 11. The magistrate judge further determined that the search of his

person, which produced a large sum of cash, was a lawful search incident

to Johnigan's arrest. Id. (citing United States v. Horne, 4 F.3d 579,
 Because we hold that there was probable cause for the search, 5

we need not address the applicability of the good faith exception

to the exclusionary rule, see United States v. Leon, 468 U.S. 897

(1984), raised by both Johnigan and the government on appeal.

-9-

586 (8th Cir. 1993) ("[p]olice may conduct a warrantless search incident

to a lawful arrest, even absent probable cause or reasonable articulable

suspicion"), cert. denied, 114 S. Ct. 1121 (1994)). Finally, the

magistrate judge concluded that, because the officers acted lawfully in

stopping and questioning Johnigan, arresting him, and seizing his cash,

there was probable cause for the state court judge to issue the warrant to

search Johnigan's hotel room. Id. at 11-12.

Upon de novo review, giving due weight to the magistrate judge's

historical findings and inferences, we agree with the ultimate conclusions

that: at the time of the airport stop, the officers reasonably suspected

Johnigan of having engaged in felonious conduct; the officers did not

exceed their authority in questioning, arresting, and searching Johnigan;

and the issuance of the search warrant for the hotel room was supported by

probable cause. Moreover, contrary to Johnigan's other arguments, the

5

officers were not required to give Johnigan a Miranda warning at the time

they were questioning him prior to his arrest. United States v. McGauley,

786 F.2d 888, 890 (8th Cir. 1986) ("[n]o Miranda warning is necessary for

persons detained for a Terry stop"). Nor were the officers required, upon

learning of Johnigan's outstanding arrest warrants, to arrest him

immediately while he was still at the hotel, rather than at the airport.

Hoffa v. United States, 385 U.S. 293, 310 (1966) (there is no

constitutional right to be arrested and there is no requirement that law

enforcement officers must effectuate an arrest immediately upon

establishing probable cause). Thus, we hold that the district court did

not err in denying Johnigan's motion to suppress.
 U.S.S.G. § 3E1.1 provides in pertinent part: 6

(a) If the defendant clearly demonstrates acceptance

of responsibility for his [or her] offense,

decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under

subsection (a), the offense level determined prior

to the operation of subsection (a) is level 16 or

greater, and the defendant has assisted

authorities in the investigation or prosecution of

his [or her] own misconduct by taking one of the

following steps:

(1) timely providing complete information to the

government concerning his [or her] own

involvement in the offense;

. . . .

decrease the offense level by 1 additional level.

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Denial of downward adjustment for acceptance of responsibility

Johnigan also argues that the district court committed clear error

in failing to find that he "clearly demonstrat[ed] acceptance of

responsibility for his offense" and in failing to additionally find that

he "timely provid[ed] complete information to the government concerning his

own involvement in the offense." U.S.S.G. § 3E1.1. Thus, he argues that 6

he should have received a two-level downward adjustment for acceptance of

responsibility, under § 3E1.1(a), and an additional one-level downward

adjustment for providing complete information, under § 3E1.1(b)(1).

Johnigan concedes that the paragraph in the plea agreement, referring to

his acceptance of responsibility, was advisory and, in any case -- as he

acknowledged at his change of plea hearing on November 28, 1994 -- he could

no longer enforce the plea agreement once he withdrew his first guilty

plea. He also concedes that the district court's finding regarding his

acceptance of responsibility is
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entitled to great deference on review. Nevertheless, he argues, a finding

of clear error is justified in the present case because he twice admitted

his guilt and, prior to his first guilty plea, he provided timely

information about his involvement in the underlying offense and even helped

to arrange a drug transaction in California. In support of his position,

Johnigan also cites the commentary to the guidelines, which indicates that,

in rare situations, a defendant may be deemed to have accepted

responsibility if, for example, the defendant admits the factual

allegations underlying the charge but pursues a trial in order to challenge

the constitutionality of a statute or the application of a statute to the

admitted conduct. U.S.S.G. § 3E1.1, comment. (n.2). Johnigan argues that

his circumstances are analogous to the example cited in the commentary

because he withdrew his first guilty plea only to preserve his Fourth

Amendment challenge to the airport stop and the subsequent hotel room

search -- a challenge which Johnigan claims his first appointed attorney

failed to consider despite his repeated requests. Brief for Appellant at

17 (citing Tr. of Change of Plea Hearing (Nov. 28, 1994) at 33-35; Tr. of

Sentencing (Oct. 6, 1995) at 26-28). Johnigan also relies on the

dissenting opinion in United States v. Passmore, 984 F.2d 933, 940 (8th

Cir. 1993) (McMillian, J., dissenting), expressing the view that, where the

defendant initially started to withdraw his guilty plea but then changed

his mind and, consequently, the presentence investigation report

recommended both an upward adjustment for obstruction of justice and a

downward adjustment for acceptance of responsibility, it was appropriate

to remand for resentencing with directions that the district court state

its reasons for denying the defendant a downward adjustment for acceptance

of responsibility. 

On appeal, we review for clear error the district court's finding

that Johnigan had not accepted responsibility within the meaning of

U.S.S.G. § 3E1.1. United States v. Furlow, 980 F.2d 476, 478 (8th Cir.

1992) (en banc), cert. denied, 508 U.S. 914
 After Johnigan made this statement, the district court

7

directed defense counsel to inquire further, at which point

Johnigan then admitted the factual basis of the charge to which he

was pleading guilty. Tr. of Change of Plea Hearing (Nov. 28, 1994)

at 25-28. 

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(1993). In the present case, the district court observed at Johnigan's

sentencing hearing that there was scant support for Johnigan's acceptance

of responsibility argument "other than the fact that he pled guilty and

obviated the need for trial, though not entirely because we have gone . .

. at least once through the pro[cess] of impaneling a jury to try the

case." Tr. of Sentencing (Oct. 6, 1995) at 25. Thus, the district court

declined to give Johnigan a downward adjustment for acceptance of

responsibility. 

"[W]hether a defendant has accepted responsibility is a factual

question which depends largely on credibility assessments by the sentencing

court." United States v. Flores, 959 F.2d 83, 87 (8th Cir.), cert. denied,

506 U.S. 976 (1992). "A sentencing judge is in a unique position to assess

the appropriateness of an adjustment for acceptance of responsibility.

This determination is entitled to great deference . . . and should not be

disturbed unless it is without foundation." Id. at 88 (citations omitted).

We hold, in the present case, that there was ample support for the district

court's finding. See, e.g., Tr. of Change of Plea Hearing (Nov. 28, 1994)

at 24 (where Johnigan, at his second change of plea hearing, stated on the

record: "The reason why I got arrested, I was a black male in a hotel doing

nothing illegal with my girlfriend, and I don't see what's wrong with that.

. . . They didn't catch me. If it was mine, I tell you I would never have

left it in the hotel. My fingerprints would have been all over the

place."). Moreover, information contained in the PSR regarding statements 7

made by Johnigan to the probation officer supports the district court's

conclusion that Johnigan did not genuinely accept
 In its brief on appeal, the government relies on a letter

8

Johnigan allegedly wrote to the district court judge who had

accepted his first guilty plea. In that letter, Johnigan allegedly

claimed he was innocent. No such letter appears in the record on

appeal, however, and we therefore do not consider it. 

 U.S.S.G. § 5K1.1 provides in pertinent part: 9

Upon motion of the government stating that the

defendant has provided substantial assistance in

the investigation or prosecution of another person

who has committed an offense, the court may depart

from the guidelines.

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responsibility for his acts. We therefore hold that the district court's

finding was not clearly erroneous. 

8

Denial of downward departure based upon substantial assistance

Lastly, Johnigan argues that the district court erred in denying his

motion for a downward departure pursuant to U.S.S.G. § 5K1.1. Ordinarily, 9

the district court lacks authority to depart downward pursuant to § 5K1.1

absent a government motion. United States v. Kelly, 18 F.3d 612, 617 (8th

Cir. 1994). However, there are exceptions to this general rule. See Wade

v. United States, 504 U.S. 181, 185-86 (1992) (federal district courts have

authority to review a prosecutor's refusal to file a substantial-assistance

motion and to grant a remedy if the government's refusal was based on an

unconstitutional motive or was not rationally related to any legitimate

government end); Kelly, 18 F.3d at 617-18 (exceptions to the general rule

are permitted where the defendant shows that the government's refusal to

bring a motion was based on an unconstitutional motive or was irrational,

or that the motion was withheld in bad faith).

In the present case, Johnigan maintains that, by directing the

district court's attention to Paragraph 9 of the plea agreement at the

sentencing hearing, he sufficiently demonstrated to the district court the

irrationality of the government's refusal to
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bring a § 5K1.1 motion. See Tr. of Sentencing (Oct. 6, 1995) at 17

(defense counsel's reference to statement in the plea agreement that

cooperation had been provided). Johnigan suggests that, notwithstanding

the unenforceability of the plea agreement, that document proved to the

district court that "'[s]ubstantial assistance' within the meaning of

Sentencing Guidelines § 5K1.1 ha[d] been provided by the defendant." Brief

for Appellant, Addendum at 12 (Plea Agreement ¶ 9). Moreover, he asserts

in this appeal, at the first change of plea hearing, the prosecutor stated

"I told Mr. Johnigan that based on his endeavor to provide us assistance,

and assistance thereafter provided, that I would recommend a sentence of

ten years in this case" and later stated "with the assistance that he has

provided to the Government, with respect to others engaged in narcotic

trafficking, it is my intent to file a 5K1 motion to allow the Court to

depart below the Sentencing Guideline range." Tr. of Change of Plea

Hearing (Apr. 28, 1994), at 23-24, 26. Johnigan now maintains that these

statements made by the prosecutor belie her later claims at the sentencing

hearing that the assistance he had provided was unreliable and of negative

value. See Tr. of Sentencing (Oct. 6, 1995) at 22-23. Thus, Johnigan

argues, because he did provide substantial assistance to the government,

from which the government benefited, it was irrational for the prosecutor

not to move for a downward departure.

 

In Wade, the Supreme Court held that 

a claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or

even to discovery or an evidentiary hearing. Nor would

additional but generalized allegations of improper

motive. . . . [A] defendant has no right to discovery

or an evidentiary hearing unless he [or she] makes a

"substantial threshold showing."

504 U.S. at 186 (citations omitted). Following Wade, this court explained

"a prosecutor's discretionary decision may be challenged
 Notably, the district court judge who presided at the

1

sentencing hearing was not the judge who had presided at the

April 28, 1994, change of plea hearing.

-15-

only if the defendant makes a 'substantial threshold showing' of

prosecutorial discrimination or irrational conduct." United States v.

Romsey, 975 F.2d 556, 557-58 (8th Cir. 1992); accord United States v.

Lewis, 3 F.3d 252, 255 (8th Cir. 1993) (per curiam) ("[a] prosecutor's

refusal to file a substantial-assistance motion is reviewable only when the

defendant makes a substantial threshold showing that the refusal was based

on an unconstitutional motive or that the refusal was irrational"), cert.

denied, 114 S. Ct. 2111 (1994). 

Johnigan raised the issue of a downward departure based upon

substantial assistance at the sentencing hearing. Brief for Appellant at

9, 27 (citing Tr. of Sentencing (Oct. 6, 1995) at 15-18). At that time,

the written statement in the plea agreement acknowledging Johnigan's

cooperation was brought to the district court's attention, but the oral

statements made by the prosecutor at the first change of plea hearing were

not. Upon consideration of this issue, the district court judge noted

1

that, although he understood why Johnigan felt entitled to a departure

based upon the plea agreement, that agreement had been nullified as a

result of Johnigan's withdrawal of his first guilty plea. Tr. of

Sentencing (Oct. 6, 1995) at 24. We hold that, under the facts of the

present case, the district court acted appropriately in disregarding the

plea agreement. The district court also noted that the government had

expressed the view that the assistance provided by Johnigan turned out to

be unreliable. Id. Indeed, contrary to Johnigan's claim that his

assistance had been beneficial to the government, the government

specifically described his assistance as having negative value. Therefore,

upon review, we conclude that Johnigan did not make a substantial threshold

showing to the district court that the government's ground for withholding

a § 5K1.1 motion was
-16-

not rationally related to any legitimate government end. Accordingly, we

hold that the district court properly denied Johnigan's motion for a

downward departure. 

Conclusion

For the foregoing reasons, the judgment of the district court is

affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.