536 F.3d 542 (6th Cir. 2008), 06-3580, United States v. Torres-Ramos

Docket Nº:Cirilo TORRES-RAMOS (06-3580); Jose Servin (06-3635); Rudolph E. Rhaburn (06-3640); Alaric F. Simon (06-3942), Defendants-Appellants.
Citation:536 F.3d 542
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:August 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 542

536 F.3d 542 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cirilo TORRES-RAMOS (06-3580); Jose Servin (06-3635); Rudolph E. Rhaburn (06-3640); Alaric F. Simon (06-3942), Defendants-Appellants.

Nos. 06-3580, 06-3635, 06-3640, 06-3942.

United States Court of Appeals, Sixth Circuit.

August 7, 2008

Argued: June 4, 2008.

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ARGUED:

Michael L. Monta, Monta & Monta, Dayton, Ohio, Andrew P. Avellano, Columbus, Ohio, Michael J. Brennan, Manhattan Beach, California, Mark Joseph Wettle, Law Office, Louisville, Kentucky, for Appellants. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

ON BRIEF:

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Michael L. Monta, Monta & Monta, Dayton, Ohio, Andrew P. Avellano, Columbus, Ohio, Michael J. Brennan, Manhattan Beach, California, Mark Joseph Wettle, Law Office, Louisville, Kentucky, for Appellants. J. Richard Chema, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: MERRITT, CLAY, and GILMAN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

I.

In this appeal, four defendants challenge their convictions for conspiracy with the intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Two of the defendants, Cirilo Torres-Ramos and Jose Servin, entered conditional guilty pleas and now argue that the district court erred by not granting their motions to suppress the government's search and seizure relating to the cocaine, which was found in a van in which both defendants were traveling. Defendants Rudolph Rhaburn and Alaric Simon proceeded to a jury trial, where both were convicted of the conspiracy charge. They contend that the court made a number of errors and challenge, inter alia, the district court's determination that probable cause existed to make the initial arrests and the court's denial of the defendants' Rule 29 motions challenging the sufficiency of the evidence. Defendant Simon also contends that the prosecution impermissibly struck a black juror in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

For the following reasons, we affirm both the district court's denial of Torres-Ramos' and Servin's motions to suppress the evidence and the conviction of Rhaburn. Because the district court's ruling on Simon's Batson challenge was based on incomplete information, we remand with instructions to reconsider its conclusion in light of the additional evidence discussed in this opinion.

II.

Part A. Facts related to defendants Servin and Torres-Ramos

On May 26, 2004, Ohio State Trooper Chris Coverstone stopped a blue GMC van with Washington state plates for speeding (72 mph in a 65 mph zone) on Interstate 75 in Shelby County, Ohio. After executing the traffic stop, which occurred at 11:13 a.m., Coverstone asked the driver, Janette Reynaga, to step out of the van, informed her that he had stopped her for speeding, and asked for her driver's license and registration for the van. Reynaga immediately gave Coverstone the van's registration, but did not have her driver's license on her person. During this initial encounter, which lasted until approximately 11:15 a.m., Coverstone asked Reynaga a series of questions related to the van's owner (who was not present), her travel companions, and her travel plans. Coverstone later testified that Reynaga acted nervously during this initial encounter (e.g. avoiding eye contact) and failed to fully answer basic questions, including the last name of the van's owner. Specifically, Reynaga stated that her “Aunt Paula" owned the van; however, she was unable to provide Aunt Paula's last name. (She explained to Coverstone that her aunt had recently married and changed her last name.)

While Reynaga returned to the van to retrieve her license, Coverstone learned that the van was registered to Paula Rojas Demechor of Vancouver, Washington. Upon returning from the van, Reynaga first produced an identification for Jose

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Servin, one of the passengers, and then handed Coverstone her valid California driver's license, which indicated that she was from the Compton area of Los Angeles. Coverstone then asked Reynaga to come with him to his patrol car, where he put her in the vehicle. On the way to the car, Coverstone contacted his dispatcher to request that Sergeant Jeff Gilman be sent to the scene along with his drug detection dog, Emir.

Coverstone then returned to the van and began questioning the passenger in the van whose identification Reynaga had produced earlier, Jose Servin. Servin responded differently to a number of the questions that Coverstone had earlier posed to Reynaga, including the nature of their travel plans and their relationship to the van's owner. Reynaga had earlier explained that she and her four companions had flown from Los Angeles to Vancouver, Washington, where they had picked up the van from Aunt Paula in order to drive to visit a friend in Dayton, Ohio. She was unable to specify a flight number, but indicated that it was an American Airlines flight. Servin told Coverstone that Aunt Paula had driven the van from Vancouver to Los Angeles in order to give him the van so that he could drive cross-country to visit his Aunt Ernestino, also in Dayton, Ohio. Additionally, Coverstone testified that he detected a strong odor of an air freshener coming from the van while he questioned Servin. According to Coverstone, his experience as an officer led him to believe that strong air fresheners were often used by drug dealers to mask the odor of narcotics.

Upon returning to his cruiser, Coverstone contacted his dispatcher to ask for information related to Reynaga, Servin, and the vehicle in which they were traveling. He learned that Servin had previous criminal activity. He also contacted the Drug Enforcement Agency (DEA) center in El Paso, Texas, to inquire about the occupants of the van and Demechor, the owner of the vehicle. The DEA indicated that Demechor and her residence were the subject of a “Title III" investigation (i.e. a wiretap).

Approximately 35 minutes after the initial traffic stop,1 Gilman arrived with his dog, Emir. As Gilman walked around the van, the dog alerted. At that point, the officers removed the other passengers from the van, including defendant Torres-Ramos, and placed them in police vehicles. A subsequent search of the rear door panel revealed nine kilograms of cocaine in plastic wrapping. Coverstone then issued the Miranda warning and asked Servin if he would be willing to help arrange a “controlled delivery" of the cocaine. Servin responded that he was willing to assist in the delivery. Coverstone then proceeded to contact local DEA authorities to assist in the controlled buy with Servin's assistance.

Part B. Facts related to defendants Rhaburn and Simon

Servin told investigators that he was in contact with a man he knew as “Cricket" and that he had twice previously delivered cocaine to this individual at the same location. Servin described Cricket as a black male with “high hair" and further stated that the delivery would take place at a Country Inn Suites motel, located one exit south of the junction with Interstate 70. The officers also learned from Servin that Cricket drove an early 1990s blue or gray

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Oldsmobile. Based on this information, local police, together with the DEA agents and state officers, set up surveillance at the Country Inn and its surroundings.

In order to execute the controlled buy, law enforcement officials drove the blue van to the motel and left a DEA officer in the van to conduct surveillance. Approximately 15 other law enforcement officials were located in the area, including three in a neighboring Arby's restaurant. In addition, DEA agent Jack Delrio rented a room at the Country Inn, which he occupied with Servin. (While in the room, Delrio learned that Servin had been in phone contact with Cricket during the earlier traffic stop, but that he had merely indicated that they were being pulled over.) Servin then received another phone call from Cricket, who indicated that he would meet at the same location as earlier deliveries, i.e. a Country Inn room. Shortly after this phone call ended, at approximately 6 p.m., defendants Simon and Rhaburn arrived in an Oldsmobile that matched Servin's description of the vehicle driven by Cricket at the previous deliveries.2 The two pulled into the motel parking lot and then walked into an Arby's restaurant that adjoined the lot.

Subsequently, a man later identified as Paredes-Lima 3 left a room at the Country Inn, walked over to Arby's, and proceeded to converse with Simon and Rhaburn. He then left the Arby's, walked over to the van, and inspected it by trying to look into the windows (which were tinted) and by attempting to make contact with anyone who might be inside by whispering “psst!" and “hey." Paredes-Lima then returned to the Arby's, where he briefly joined Simon and Rhaburn before going back to the motel. Thereafter, Simon and Rhaburn left Arby's, got back into the Oldsmobile, and drove over to the van, where they stopped twice to examine it. As they were driving away from the van, Coverstone stopped the car and arrested the two defendants based on his supervisor's determination that probable caused existed for their arrests.

Following the arrest, the police seized evidence from the car that identified Simon as having been with Rhaburn during Servin's previous deliveries of cocaine in Dayton. The police also learned after the arrest that Simon had rented a room at the Country Inn for the dates corresponding to the delivery, May 24-26, 2007, and also...

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