U.S. v. Belle

Citation593 F.2d 487
Decision Date28 February 1979
Docket NumberNo. 77-1903,77-1903
PartiesUNITED STATES of America v. Donald E. BELLE. Appeal of Donald BELLE.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Victor Sherman, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for appellant Belle.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Douglas B. Richardson, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Submitted Jan. 3, 1978.

Before ADAMS, * GIBBONS, and GARTH, Circuit Judges.

Argued Nov. 6, 1978 En Banc.

Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

This is an appeal from a jury verdict finding appellant Donald E. Belle guilty of conspiracy to possess, and possession with intent to distribute, 60 ounces of uncut heroin, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Primarily, Belle contends that the district court in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), at trial admitted into evidence a statement made by Munford, Belle's codefendant. Belle also charges that the district court, among other errors, improperly denied his motion to suppress certain physical evidence and his post-arrest statements. We hold that the statement of Belle's codefendant, which did not mention or refer to Belle, was properly admitted into evidence and did not transgress the Bruton rule. We also conclude that there is no merit in Belle's remaining contentions. We therefore affirm.

I.

On Friday, April 30, 1976, at approximately 3:00 p. m. two agents (Wasyluk and Albright) of the Bureau of Alcohol, Tobacco and Firearms (ATF) were at the Hilton Inn Hotel, Old Lincoln Highway, Trevose, Pennsylvania, to meet with their supervisor on a matter unrelated to the instant case. Trevose is virtually a suburb of Philadelphia and is also within a short distance from Bristol, Pennsylvania.

While awaiting the arrival of their supervisor, Agent Wasyluk observed two individuals, later identified as Belle and Munford, sitting in a late model, white Lincoln Continental Mark IV with California license plate 727-MPH, which was in the parking lot of the hotel. Shortly thereafter, while in the hotel lobby Munford was overheard inquiring about a suite and then was observed registering for a double room. Wasyluk became suspicious of the two men because of the colorful manner in which Munford and Belle were dressed, the California plates on the Lincoln Continental, and the fact that Munford and Belle were registering on a Friday evening at a hotel located in an area with little activity as opposed to the city attractions of downtown Philadelphia.

Their suspicions aroused, the agents checked on the Lincoln's registration and learned that it was registered to Edward Keefe O'Neil, 1811 South Carmona Avenue, Los Angeles, California. With this information, they then called the Drug Enforcement Agency (DEA) in Philadelphia to inquire whether the DEA had any information concerning O'Neil.

DEA Agent Kean with whom the ATF agents spoke was familiar with the name of Edward O'Neil. Kean learned from the DEA files that two reports had been given eighteen and twenty-one months before by an informant familiar with heroin traffic whom Kean considered very reliable. The reports indicated that an Edward O'Neil, of 1811 South Carolina Avenue, Los Angeles, was a major drug trafficker who dealt in brown Mexican heroin which he transported cross-country by car, stopping in various cities before reaching Bristol, Pennsylvania, his final stop and home town. According to the report, O'Neil owned a late model Cadillac, bearing California plates with a false undercarriage in which he stored the heroin. The report also contained a description of O'Neil which fit either of the occupants of the Lincoln. 1 Because the Lincoln was registered to Edward Keefe O'Neil at an address substantially similar to that in the report and the Lincoln had stopped in Trevose, Agent Kean assigned a team of DEA agents to conduct a surveillance of the Lincoln and its occupants. The ATF agents maintained surveillance until the arrival of the DEA team.

At 7:30 p. m. as Munford and Belle left their room, DEA Agents Kean and Hobson drove their vehicle to the intersection of Old Lincoln Highway and Route 1, parking in the lot of the Krispy Kreme Donut Shop, from which vantage point they could observe the Hilton Inn Hotel and the movement of vehicles in all directions.

With Munford driving and Belle as a passenger, the Lincoln exited onto Old Lincoln Highway heading east toward Route 1, drove into the parking lot of the donut shop and parked in close proximity to the DEA agents. Hobson observed Belle get out of the Lincoln and make a hand signal in the direction of a 1973 silver colored Cadillac which was parked across the street, point back in the direction of the Lincoln, and then reenter the Lincoln. The Lincoln then left the parking lot of the donut shop, and proceeded west on Old Lincoln Highway followed by the Cadillac which had license plates indicating that the vehicle was owned or driven by a handicapped person.

Kean, having previously conducted a surveillance which involved the Cadillac, recognized the license plate and car, connecting them to O'Neill Roberts. Kean was familiar with informants' reports which indicated that Roberts was involved in the drug traffic in the Philadelphia area, that he bought narcotics from persons who came from Los Angeles, and that he had been shot in the back and crippled during one narcotics transaction. Reports from other government agencies also indicated Roberts' involvement with narcotics.

Kean and Hobson followed the Lincoln and the Cadillac as they headed west on Old Lincoln Highway. The three cars turned onto Somerton Avenue, and the Lincoln followed by the Cadillac then turned onto Buffalo Avenue, a small residential street not far from the Hilton Inn. As Kean and Hobson continued past Buffalo Avenue, they observed the Lincoln stopped in the driveway of 2606 Buffalo Avenue and the Cadillac stopped at the mouth of the driveway. Hobson left the DEA vehicle and walked back toward Buffalo Avenue to a point where he could observe the Lincoln and the Cadillac. It was there he saw Belle talking to the occupant of the Cadillac. Belle then entered the Cadillac which turned around and retraced its path back to Old Lincoln Highway, followed by two DEA agents.

Kean and Hobson then drove slowly past the Lincoln. Kean observed Munford at the right front wheel of the Lincoln doing something under the Lincoln's hood. In total, Kean and Hobson drove past the Lincoln three times. The second and third times Kean observed Munford retrieving from somewhere under the hood of the Lincoln a number of small packets, each of which approximated in size a shotgun shell. The packets were tied together by strings. Based on his experience with narcotics, including his familiarity with the practice of packaging uncut heroin in either one-ounce packages or one-kilogram blocks, Kean believed the packages, which were roughly the size to contain one ounce of narcotics, contained heroin.

It was at that time that Kean directed the DEA agents who were following the Cadillac to stop it and identify the occupants. When the Cadillac was stopped on Old Lincoln Highway near Route 1, DEA Agent Malloy ordered the passenger to get out and identify himself. The passenger complied, giving his name as Donald Belle. Malloy after frisking Belle for weapons asked the driver, a handicapped individual, to identify himself. On learning that the driver was O'Neill Roberts, Malloy handcuffed Belle. After a report by Malloy's partner, Kean ordered the return of the Cadillac and its occupants to the Buffalo Avenue address.

Having learned that the driver of the Cadillac was indeed O'Neill Roberts, all of the individuals who were by now at the Buffalo Avenue address were detained. Agent Wasyluk, one of the agents who had brought Belle back to Buffalo Avenue, in walking up the driveway and past the Lincoln noticed that the front door was open. Looking through the open door and into the car he saw, and thereupon directed Kean's attention to, an open brown paper "Acme" grocery bag on the floor of the Lincoln at the right front side. The top of the bag had been folded down so that it would remain open, exposing to view a number of little "silver" packets tied together with string, similar to the objects Kean had observed Munford pulling from under the hood of the Lincoln. An immediate field test was conducted on the contents of one package which indicated the presence of heroin. It was discovered that the Lincoln's air conditioning system, access to which was obtained from under the hood of the vehicle, contained a secret compartment in which packets of heroin were concealed. A further search of the vehicle produced a slip of paper dated April 27, 1976, signed by the owner, one Edward O'Neil, giving Munford and Belle permission to use his vehicle.

Belle who had remained in the ATF vehicle was advised of his constitutional rights as that vehicle proceeded to a local police station. Before arriving at the stationhouse Belle explained to Agent Wasyluk his involvement with Roberts. Wasyluk testified "(Belle) stated that he didn't know (Roberts), that this man was a stranger to him and that he had been riding along with Mr. Munford when the stranger stopped him and asked him whether or not he would be good enough to get in his vehicle because he was a cripple and whether or not he could go to the store for him; that he wanted to drive to the store and Mr. Belle could run in and bring something out to him." N.T. 85, Second Day. After Agent Wasyluk questioned Belle's recital, Belle then stated "Well, that's my story." 2 N.T. 90, Second Day.

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