597 F.2d 535 (5th Cir. 1979), 78-5030, United States v. Dohm

Docket Nº:78-5030.
Citation:597 F.2d 535
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John DOHM and Robert Rowen, Defendants-Appellants.
Case Date:June 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 535

597 F.2d 535 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

John DOHM and Robert Rowen, Defendants-Appellants.

No. 78-5030.

United States Court of Appeals, Fifth Circuit

June 21, 1979

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Jerome B. Ullman, Miami, Fla. (Court-appointed), for Rowen.

Donald L. Ferguson, Miami, Fla., for Dohm.

Jack V. Eskenazi, U. S. Atty., Hugh F. Culverhouse, Jr., Linda C. Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GEWIN, COLEMAN, and GOLDBERG, Circuit Judges.

COLEMAN, Circuit Judge.

Appellants Robert Rowen and John Dohm, along with Brian Martin and Harold Kramer, were charged with conspiracy to sell one kilogram of cocaine and with possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1). 1

The Court granted a directed verdict of acquittal for Harold Kramer on both counts. The jury was unable to reach a verdict on either count against Brian Martin. 2

The jury found Rowen guilty of the conspiracy charge under Count I, but could not reach a verdict on the Count II possession charge. He was sentenced to eighteen months in prison to be followed by three years of special parole.

Dohm was found guilty on all counts. For the conspiracy he was sentenced to three years imprisonment and three years special parole. He was given the same sentence on the possession conviction, the sentences to be served concurrently.

For reversal, Rowen suggests six errors. Dohm points to four. Three errors are asserted in common. Dohm asserts a fourth error which involves evidence concerning himself only. Rowen's other three points are without merit, necessitating no discussion.

The main events which led to the arrests and convictions of these appellants took place on August 2 and 4, 1977. On August 2 Drug Enforcement Administration (DEA) undercover agents Jerry Castillo and Michael O'Connor met with appellant Robert

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Rowen and Brian Martin at a restaurant/lounge in Miami. The purpose of the meeting was to discuss arrangements for the purchase of cocaine by Castillo, who, of course, was acting in his undercover capacity.

On August 4 Castillo received a phone call from Martin at a special unlisted phone at the DEA Regional Offices in Miami. Martin said that everything had been arranged for the drug purchase. In a subsequent conversation, Martin instructed Castillo to drive to his (Martin's) apartment where they would then drive to the house of his "source of supply". Castillo and O'Connor then drove to Martin's apartment. From there they followed Martin and Rowen to Dohm's home.

While O'Connor waited in the car across the street, Castillo went into Dohm's house with Martin and Rowen. In the kitchen he met Dohm, and he noticed a quantity of white powder on the top of the kitchen counter. Following a conversation pertaining to the weight and price of a kilogram of cocaine, Castillo and Dohm agreed to a purchase price of $41,200, and Castillo said he would have to get the money out of the car. There was some discussion about Castillo not leaving the house at that moment because suspicious vehicles had been seen outside the house. Castillo, however, told Dohm that he wanted to conclude the deal because he had to catch a plane. He was allowed to leave the house, escorted by Martin.

Once outside the house, Castillo gave the pre-arranged arrest signal to O'Connor and other surveilling agents, and Martin and Kramer were arrested. Castillo and other agents then re-entered the house, where they placed Dohm and Rowen under arrest and seized approximately one kilogram of cocaine.

I. Failure to Suppress Evidence

Appellants Dohm and Rowen contend that the Court erred in denying the motion to suppress the evidence of the cocaine which was found in Dohm's kitchen after the warrantless entry into the home because it was seized in violation of the "knock and announce" requirements of 18 U.S.C. § 3109:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

Although the statute refers to the execution of search warrants, it has been expressly held that its requirements also apply to entries made without warrants. Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332 (1958). The Supreme Court has applied the statute to any forced opening, including the opening of a locked door with a passkey or even the opening of a closed but unlocked door. Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). In Sabbath the Court did, however, expressly point out that entries obtained by ruse have been viewed as involving no "breaking". 391 U.S. at 590 n. 7, 88 S.Ct. 1755, Citing, e. g., Smith v. United States, 5 Cir. 1966, 357 F.2d 486, 488 n. 1; See also, United States v. DeFeis, 5 Cir. 1976, 530 F.2d 14, Cert. den. 429 U.S. 830, 97 S.Ct. 92, 50 L.Ed.2d 95.

The Supreme Court has also stated that although a home is given broad protection under the Fourth Amendment, 3 "when . . . the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street." Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966). Additionally,

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the court noted that the government is entitled to employ agents in deceptive roles in the detection of many types of crime, such as illegal drug transactions. 385 U.S. at 209, 87 S.Ct. 424.

Appellants argue that Agent Castillo's ruse ended when he left the house after Dohm told him not to leave, and therefore, his re-entry without knocking and announcing was a "breaking into" prohibited by § 3109. Castillo testified, however, that he explained to Dohm that it was necessary to complete the transaction as soon as possible, and that he must go to his car to get the money. He even took Martin with him. His deception had not ended.

In denying the motion to suppress the evidence the District Court ruled that "(t)his was all part of a single integral transaction that was still in the process of being completed," and therefore, it was not improper for the agent to depend on his ruse as a narcotics purchaser to re-enter the building without the formality of knocking and announcing his official position. We agree.

It must also be noted, however, that even if Dohm and Rowen had begun to suspect Castillo and even if they saw the arrests of Martin and Kramer by the agents out in front of Dohm's house (there is no evidence on this point), thus ending the effectiveness of the ruse, there is still justification for Agent Castillo and the others to enter the house unannounced. In this situation one of the "exigent circumstances" exceptions to § 3109, I. e., the reasonable belief of the officers that there will be an attempted escape or that the evidence will be destroyed, would apply. Miller v. United States, supra, 357 U.S. at 309, 78 S.Ct. 1190; Sabbath v. United States, supra, 391 U.S. at 591, 88 S.Ct. 1755; Ker v. California, 374 U.S. 23, 39-40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

We hold, as in United States v. Gardner, 5 Cir. 1977, 553 F.2d 946, that when Agent Castillo gave the pre-arranged signal after he came out of the house, there was probable cause for arrest, and because he knew that Dohm and Rowen remained in the house with the cocaine which he had seen, immediate re-entry with minimum disturbance was "necessary to prevent disposal of the cocaine, a powder which can easily be flushed down a toilet," 553 F.2d at 948, and, also, to prevent the escape of Dohm and Rowen. Therefore, the agents' failure to "knock and announce" did not make their actions an illegal search and seizure which would require suppression of the cocaine as evidence.

II. Denial of Severance

Martin claimed at trial that he had set up the cocaine transaction because he believed he was working as a government confidential informant. Dohm and Rowen argue that this entrapment defense was inconsistent with and prejudicial to their defense, mandating a severance or mistrial. They made motions for severance or mistrial after all the evidence was in and while jury instructions were being discussed. The judge denied the motions but offered to use a bifurcated procedure by which the jury would hear Dohm and Rowen's arguments and reach a verdict before hearing Martin's closing argument. Although appellants maintained their desire for a severance or mistrial, they agreed to the use of the procedure suggested by the Court.

Appellants now assert that the Court erred in refusing to grant their motion and that the bifurcated procedure did not cure the prejudicial effect of Martin's entrapment defense. We disagree.

Rule 14 of the Federal Rules of Criminal Procedure says that a trial court may grant a motion for severance when "a defendant or the government is prejudiced by a joinder of offenses or of defendants . . . for trial." 4 We have frequently emphasized

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that the disposition of a Rule 14 motion for severance rests within the sound discretion of the trial judge. 5

Absent an abuse of discretion, the ruling of the trial judge will not be disturbed. United States v. Crawford, 5 Cir. 1978, 581 F.2d 489, 491; United States v. Morrow, 5 Cir. 1976, 537 F.2d 120, 134; Tillman v. United States, 5 Cir. 1969, 406 F.2d 930, 935. "The failure to grant a severance merely because one codefendant is relying on a defense of entrapment while another is not does not of itself constitute an abuse of discretion." United States v. Eastwood, 5...

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