U.S. v. Tekle

• Citation: 329 F.3d 1108
• Decision Date: 27 May 2003
• Docket Number: No. 01-50111.,01-50111.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Solomon TEKLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

329 F.3d 1108

UNITED STATES of America, Plaintiff-Appellee, v. Solomon TEKLE, Defendant-Appellant.

No. 01-50111.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2003.

Filed May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Gerson Simon, Los Angeles, CA, for the defendant-appellant.

Andrea Russi, Assistant United States Attorney, Los Angeles, CA, argued for plaintiff-appellee. Debra W. Yang, United States Attorney, John S. Gordon and Monica Bachner, Assistant United States Attorneys, Los Angeles, CA, joined her on the brief.

Appeal from the United States District Court For the Central District of California; Robert M. Takasugi, District Judge, Presiding. D.C. No. CR-98-00339-RMT-1.

Before FRIEDMAN,^* KOZINSKI, and RAWLINSON, Circuit Judges.

FRIEDMAN, Circuit Judge.

The appellant challenges his conviction on narcotics and related offenses on six grounds, including the district court's refusal to suppress evidence, ineffective assistance of counsel and the government's failure to prove an essential element of his money-laundering convictions. We conclude that none of his arguments is persuasive and affirm.

I

A jury in the United States District Court for the Central District of California convicted the appellant Solomon Tekle on fourteen counts of a fifteen-count indictment for conspiracy to import heroin, in violation of 21 U.S.C. §§ 963, 952; attempt to import heroin, in violation of 21 U.S.C. §§ 963, 952; participating in, and aiding and abetting, the structuring of financial transactions to avoid currency reporting requirements, in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2(a); attempted tax evasion, in violation of 26 U.S.C. § 7201; subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1); and money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). He was sentenced to 360 months' imprisonment. His wife, the co-defendant Lily Tekle, was convicted of the money-laundering and attempted tax evasion counts.

Tekle filed various post-trial motions, which we discuss in Parts II-IV below. The district court denied all of them.

The record reveals a sophisticated, well-organized and well-operated scheme to import substantial amounts of heroin from Thailand to the United States. Tekle had couriers who carried a locked suitcase from Los Angeles to Bangkok, where they checked in at a pre-arranged hotel and were visited by a man named "Morrison," to whom they turned over the suitcase and who procured for them airline transportation from Bangkok to Europe. Another person then visited the courier and delivered a hard suitcase containing slightly more than four kilograms of heroin concealed in a hidden compartment. The hard suitcase itself was contained in a larger suitcase, both of which the courier received. The courier put his or her clothes into the hard suitcase. The courier flew to Europe, from which he returned to Los Angeles on a different airline and delivered the heroin to Tekle.

Tekle arranged the couriers' trips, obtained airline tickets and made hotel reservations for them, and paid all of their expenses. He paid each courier $5,000 or $10,000 for each trip.

Couriers then transported the heroin from Los Angeles to Chicago, where they delivered it to Tekle's customers. They were paid $500 to $1,500 for the Chicago trips.

Between November 1992 and September 1994, there were seven such importations into the United States and one into Ethiopia. In addition, couriers twice were arrested, once in Bangkok and once in Athens, Greece, on their return to the United States with suitcases containing heroin.

Tekle does not challenge the sufficiency of the evidence to support his narcotics convictions.

II

A. Acting under arrest and search warrants, the police arrested Tekle at the doorway to his residence and placed him in a police car. The arresting agent showed Tekle the first page of one of the warrants but did not give him a copy of either warrant. The agent testified that he did not give Tekle a copy because it would have been taken from him at the time of booking and Tekle did not request it. Further, it was police policy not to give a copy of the search warrant where the occupant of the place to be searched was to be arrested. The agent left a copy of the search warrant, affidavit and inventory at the Tekle residence.

During the search, the officers seized approximately sixty boxes of materials from Tekle's residence and business. The government introduced a significant amount of the seized material at trial.

The first sentence of FED. R. CRIM. P. 41(d) (amended 2002), as it read at the time of the search, stated:

The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken.

FED. R. CRIM. P. 12 (amended 2002), as it read at the time of trial, provided in pertinent part:

(b) PRETRIAL MOTIONS. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.... The following must be raised prior to trial:

(3) Motions to suppress evidence; ... (f) EFFECT OF FAILURE TO RAISE DEFENSES OR OBJECTIONS. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

Under these provisions, a motion to suppress must be made before trial, and failure to do so constitutes a waiver of the objection unless, for good cause shown the district court vitiates the waiver.

Tekle did not move before or at trial to suppress the evidence seized from his house, based on the police's failure to give him a copy of the warrant. He first raised the issue in motions for a new trial. The district court rejected the claim. It ruled that although the police had deliberately violated Rule 41(d), Tekle had waived the contention by not raising it before trial and had not shown good cause for relief from the waiver under Rule 12(f).

In his appeal Tekle offers no justification or excuse for his failure to move to suppress the seized evidence before trial, as Rule 12(f) required him to do. Instead, he contends that, at the hearing on his post-trial motion to suppress, the district court considered the merits of his motion and that, "[i]n hearing the motion on its merits, the district court `implicitly concludes that there is adequate cause to grant relief from waiver of the right to seek suppression.'" He relies on United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988), where we held that "[w]hen a court rules on the merits on an untimely suppression motion, it implicitly concludes that there is adequate cause to grant relief from a waiver of the right to seek suppression." (citation omitted).

The premise of Tekle's contention is incorrect. Contrary to his contention, the district court did not rule on the merits of his suppression motion, i.e., it did not hold that the seized evidence should have been suppressed. Instead, the court held that because Tekle had not shown good cause for relief from his waiver, he was precluded from raising the issue. The court therefore denied his motion to suppress — not on the merits, as he contends, but because he had waived the issue.

To be sure, the district court stated in its post-trial order that "the agent's failure to serve the search warrant on Solomon Tekle was violative of the Fourth Amendment under McGrew and, therefore, a fundamental violation of Rule 41(d)." That statement was made, however, in rejecting Tekle's contention before the district court, which he does not repeat here, that "a new trial is warranted because of a change in the law based on the Ninth Circuit's decision in United States v. Gantt, 194 F.3d 987 (9th Cir.1999)." The district court held, however, that "Gantt did not change the law. In fact, the Gantt court acknowledged as much." In light of that ruling, the district court concluded that "no good cause exists for considering the merits of Defendants' motion."

The decision whether to grant an exception to a Rule 12 waiver lies in the discretion of the district court. See United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir.1984); cf. United States v. Wilson, 895 F.2d 168, 172-73 (4th Cir.1990) (per curiam). The district court did not abuse its discretion in upholding Tekle's waiver.

B. Tekle contends that his lawyer's failure to move to suppress before trial violated his Sixth Amendment right to effective assistance of counsel. To establish this claim, Tekle must show both that (1) "counsel's representation fell below an objective standard of reasonableness" and that (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Tekle has made neither showing.

The record does not show why counsel failed to move to suppress before trial. It could have reflected counsel's strategies or tactics in conducting the defense. It also could have reflected counsel's assumption that the motion was unlikely to succeed because of the language of Rule 41(d) that the officer seizing property must give the person whose property was seized a copy of the warrant "or shall leave the copy ... at the place from which the property was taken." Since the police officer left a copy of the warrant at the Tekle residence, counsel may have concluded that Rule 41(d) had not been violated.

To be sure, Gantt subsequently rejected "the government['s] suggest[ion that] the rule was satisfied because the agents left the complete...