U.S. v. Reed, s. 486
| Citation | 572 F.2d 412 |
| Decision Date | 11 April 1978 |
| Docket Number | D,487,Nos. 486,s. 486 |
| Parties | 3 Fed. R. Evid. Serv. 155 UNITED STATES of America, Appellee, v. Nancy REED and Morris Goldsmith, a/k/a "Marlowe," Defendants-Appellants. ockets 77-1319, 77-1320. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Richard A. Greenberg, New York City (Robert S. Markfield, New York City, of counsel), for appellant Reed.
Helena Pichel Solleder, New York City, for appellant Goldsmith.
Minna Schrag, Asst. U. S. Atty., S. D. N. Y. (Robert B. Fiske, Jr., U. S. Atty., Robert B. Mazur, Audrey Strauss, Asst. U. S. Attys., S. D. N. Y., New York City, of counsel), for the United States.
Before FEINBERG and MESKILL, Circuit Judges, and BARTELS, * District Judge.
This case involves the important and oft-reserved question whether and under what circumstances federal law enforcement officers may enter the home of a suspect in order to effect a felony arrest for which they have statutory authority and probable cause but no warrant. After a six-day jury trial in the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge, Nancy Reed and Morris Goldsmith were convicted of one count of conspiracy to distribute heroin and another count of distributing heroin. 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) & (B), 846. Reed was sentenced to two concurrent six-year terms of imprisonment. Her sentence was suspended, however, and she was placed on probation for five years. Goldsmith was sentenced to two concurrent four-year terms of imprisonment and three years of special parole. For the reasons that follow, we reverse Reed's conviction and remand for a new trial but affirm Goldsmith's conviction.
The government proved that on three separate occasions Reed and Goldsmith were involved in the sale of heroin to Garfield Hammonds, Jr., an undercover agent employed by the United States Drug Enforcement Because McCray disappeared shortly before trial, 1 the government's case was based largely on testimony by Hammonds and fellow DEA Agents Richard Bell, Dwight Rabb, and Harvey Tuerack. According to their testimony, Hammonds, with the assistance of McCray, purchased one-eighth kilogram quantities of heroin from Reed and Goldsmith on the 9th, 23rd, and 29th of September, 1976, for $6,500, $6,300, and $6,500 respectively. When at one point Hammonds complained about the quality of the heroin, Reed told him that she had a "connection" in New Jersey named Paul Levy who was a reliable source of good heroin, that she had introduced her cousin "P.T." to Levy for purposes of making a two-kilogram purchase, and that she could arrange a similar transaction for Hammonds. During the two months that followed the third sale, Hammonds negotiated with Reed regarding the purchase of a kilogram of heroin for $100,000. When Hammonds vacillated, Reed told him that she had a source named James Crowley who could arrange the purchase of a pound of lesser-quality heroin for $36,000. On December 6, she produced a sample of the heroin that she said would come from Crowley. The transaction was never completed.
Administration ("DEA"), and that they negotiated with Hammonds for an additional purchase. Hammonds had been introduced to Reed and Goldsmith as "G.G." by a paid confidential informant named Adelious McCray.
More than two and one-half months later, on the morning of February 23, 1977, Reed and Goldsmith were arrested in Reed's apartment in the Bronx by DEA Agents Bell, Tuerack and Ronald Jordison. The agents had neither arrest warrants nor a search warrant. While in the apartment, Agent Bell seized two personal telephone or address books belonging to Reed, copies of which were introduced by the government at trial. Because the arrest and the resulting seizure of the books are critical to deciding Reed's appeal, we will examine them in detail.
At approximately 7:30 a. m., Agents Bell, Tuerack, Jordison and Aponte met near Reed's apartment house. At about 7:45 a. m., Agents Bell, Tuerack and Jordison entered the apartment building and proceeded to Reed's apartment on the fourteenth floor; Agent Aponte waited below. Agent Bell testified as follows:
We went up to the 14th floor, and we knocked on the door of the apartment, and identified ourselves as agents of the United States Government.
When I identified ourselves as agents of the Federal Government Drug Enforcement Administration, we were admitted to the apartment. Ms. Reed opened the door, I believe, and we told her that we had we were arresting her and Mr. Goldsmith. Mr. Goldsmith was in the bedroom. He was in bed I didn't see this, I did not arrest Mr. Goldsmith.
Ms. Reed was in the living room or the dining area and with a tall female child (subsequently) identified as Ms. Reed's daughter. We explained to her who we were again. I placed Ms. Reed under arrest, and at that time I gave her her rights . . . .
Reed, on the other hand, gave the following account:
My daughter went to the door first, and they announced themselves as being police, so I came to the door and I opened the door. They rushed in, two ran immediately to the bedroom. Bell ran into my kitchen, came out of my kitchen with the phone books which he had taken out of my drawer and then he told me he started reading the rights or whatever, and he told me I was under arrest, but that was all after he came into the apartment.
When Reed pulled open the door she was dressed in a negligee and Goldsmith was asleep in the bedroom. Agent Bell testified that his gun was not drawn but that he was "not absolutely sure" whether the other agents had drawn their guns. Agent Tuerack said, "I had my hand on my weapon as I went through the door" and that his gun "may have been" visible to Reed as she stood at the door. Tuerack could not say whether Bell or Jordison had their guns drawn. The district court's version of Reed's arrest was: and "she was arrested in full view when she opened the door."
Agent Tuerack testified as follows regarding the Goldsmith arrest:
We rang the bell and Nancy Reed came to the door. Agent Bell arrested her. Agent Jordison and myself went into the bedroom where we found Morris Goldsmith asleep.
I woke him up and I told him he was under arrest for violation of federal narcotics laws.
I stopped at the door (of the apartment) for about five or six seconds (and then) went right into the bedroom.
At the pre-trial hearing, Goldsmith testified that, after coming home at 5:00 a. m. in a "really intoxicated" condition, he went to sleep.
The next thing I know two well, when I woke up there was two guns on both sides of my head with the federal officer explaining to me that he was an agent and that I was under arrest.
Agent Jordison then advised Goldsmith of his constitutional rights.
There is also disagreement regarding Agent Bell's seizure of Reed's telephone and address books. Bell testified that, while in the living room-dining room section of the apartment, the following took place:
I observed I turned around and on a telephone table was an open address book. I looked down at the book and recognized one of the names in the book, one of the nicknames, one of the aliases in the book, and I asked Ms. Reed was this her telephone book. She said yes.
I said, "Well, I am going to take it," and she said, "Take it." And I removed the two telephone books from the telephone stand and brought them down to the New York regional office . . ..
I expected that the phone books when I looked at them were evidence.
Although the precise sequence is unclear, Bell's testimony during the trial indicates that he first saw the books without noticing any names, then read Reed her rights, and then looked more carefully at the books and discovered the names of alleged narcotics traffickers. Bell testified further that the books were next to the telephone on a small telephone table along the wall in the living room-dining room area, and that the name that caught his attention was that of one "Soda Pop," apparently the alias of a well-known narcotics trafficker in New York.
Reed's version is different. She claimed that Bell went into the kitchen and took one of the books from the kitchen drawer and another from her pocketbook, both prior to the time that he advised her of her rights.
The story of the seizure is complicated by the testimony of Thelma Routh, Goldsmith's mother. She testified that on the day of the arrest there was no telephone or telephone table in the living room-dining room area of the apartment; rather, she said, there was a wall phone in the kitchen under which there was no table. The sequence is further complicated by the fact that, although at one point Agent Bell said he had not gone into any part of the apartment other than the living room-dining room area, at another point he said he went into the kitchen during the initial efforts to secure the apartment.
After the arrests, Agent Bell took Reed to the DEA office in New York and Agents Tuerack and Jordison took Goldsmith. Bell again advised Reed of her constitutional rights. She denied any involvement whatsoever
in narcotics until Agent Hammonds, "G.G.," entered the room in which she was being questioned. At that point she admitted she had participated in the sales. She was then taken to the United States Attorney's office, where she was interviewed and again advised of her rights, after which she signed a written statement. The same pattern of events took place with Goldsmith. He denied being involved in narcotics until he was confronted by Hammonds, at which point he too admitted participating in the sales. He was brought to the United States Attorney's office, advised of his rights and interviewed; he then signed a written statement. Agents Hammonds and Tuerack testified at trial regarding Reed's and Goldsmith's oral statements; the signed...
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