U.S. v. Tovar-Rico
| Decision Date | 28 August 1995 |
| Docket Number | L,TOVAR-RIC,91-5759 and 93-4163,Nos. 91-5212,D,s. 91-5212 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Clara Inezefendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Clara Inezuis Alberto Figueroa-Marmolejo, Isabel Romeo, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Isabel ROMEO, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William R. Miller, Sp. Asst. U.S. Atty., Linda Collins Hertz, Anne R. Schultz, Asst. U.S. Attys., Miami, FL, for appellant in No. 91-5212.
Scott T. Kalisch, Kalisch & Lyons, Coral Gables, FL, for appellee in No. 91-5212.
Dexter W. Lehtinen, U.S. Atty., Anne Ruth Schultz, Linda Collins Hertz, Miami, FL, Asst. U.S. Attys., Miami, FL, for appellant in No. 91-5759.
Scott T. Kalisch, Kalisch & Lyons, Coral Gables, FL, for Tovar-Rico, in No. 91-5759.
Roy J. Kahn, Miami, FL, for Figueroa-Marmolejo.
John W. Thornton, Thornton, Rothman & Emas, P.A., Miami, FL, for Romeo.
Roberto Martinez, U.S. Atty., Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for appellant in No. 93-4163.
John W. Thornton, Jr., Thornton, Rothman & Emas, P.A., Miami, FL, for appellee in No. 93-4163.
Appeals from the United States District Court for the Southern District of Florida.
Before EDMONDSON and BARKETT, Circuit Judges, and DYER, Senior Circuit Judge.
The United States appeals the judgments of acquittal of Tovar-Rico (Tovar) and Isabel Romeo (Romeo), and the sealed verdict of Luis Figueroa Marmolejo (Figueroa) who is a fugitive, all of whom were charged with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 (Count 1) and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (Count 2). Codefendant Johnny Lozano entered a plea of guilty as to both counts. We reverse the judgment of acquittal of Tovar, affirm the judgment of acquittal of Romeo, and dismiss the government's appeal of Figueroa.
After Tovar was indicted, she filed a motion to suppress evidence seized in a warrantless search of apartment unit 901. The district court granted Tovar's motion. The government filed a timely notice of appeal and a certificate that the evidence suppressed was material and that the government's appeal was not for the purpose of delay.
The government requested that Tovar's trial be severed from the trial of her codefendants' which was denied ore tenus. The government filed a motion for reconsideration which was likewise denied. The government moved to stay the trial as to all of the defendants pending resolution of the suppression appeal. The district court refused to stay the proceedings and the defendants proceeded to trial. At the end of the government's case in chief, the district court granted a judgment of acquittal as to Tovar. Romeo was found not guilty as to Count 2 and the jury was unable to reach a verdict as to Count 1. Figueroa's verdict was sealed because he had fled the jurisdiction prior to trial. The government filed a notice of appeal of the judgments of acquittal and verdicts.
The government moved to stay the retrial of Romeo on Count 1 pending the resolution of the pending government appeal. The district court denied the motion. Romeo proceeded to trial, and again the jury was unable
to reach a verdict. Romeo filed a post-trial motion for judgment of acquittal which the district court granted. The government appealed.
In Part 1, we consider whether the government's appeal of the district court's order granting Tovar's motion to suppress evidence divested the district court of jurisdiction to try Tovar while the appeal was pending.
In Part 2, we consider whether exigent circumstances existed which would authorize the agents' entry and search of apartment unit 901 and whether Tovar voluntarily consented to the search.
In Part 3, we consider whether the government's appeal of the district court's order granting Tovar's motion to suppress evidence divested the district court of jurisdiction (a) to try Romeo on Count 2 and its judgment of acquittal as to Count 1 and (b) to try Figueroa on both counts of the indictment.
In Part 4, we consider whether we have jurisdiction to entertain the government's appeal as to Figueroa.
Whether the district court had jurisdiction to try Tovar while the suppression order was pending on appeal is a question of law subject to plenary review. See Mars v. Mounts, 895 F.2d 1348, 1351 (11th Cir.1990).
Pursuant to 18 U.S.C. Sec. 3731, the government filed a timely notice of appeal of the district court's order suppressing the evidence found by the warrantless search of unit 901. In the usual case, with limited exceptions not present here, the filing of a notice of appeal divests the district court of jurisdiction over the aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam). See also United States v. Vicaria, 963 F.2d 1412, 1415 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 596, 121 L.Ed.2d 534 (1992); United States v. Mavrokordatos, 933 F.2d 843, 846 (10th Cir.1991); United States v. Prows, 888 F.2d 100, 101 (11th Cir.1989); Shewchun v. United States, 797 F.2d 941, 942 (11th Cir.1986); United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986). This serves to avoid the confusion and waste of time that would result from dual jurisdiction. Shewchun, 797 F.2d at 943.
The district court was divested of jurisdiction over the proceeding once the government filed a timely notice of appeal of the court's order granting Tovar's motion to suppress evidence.
Tovar argues that this court lacks jurisdiction to hear the present appeal because Title 18 Sec. 3731 provides that no appeal shall lie when the double jeopardy clause of the United States Constitution prohibits further prosecution. This is a misreading of the statute and is without merit. The government's appeal from the order of the district court suppressing the evidence was made before Tovar was put in jeopardy. Moreover, the question of double jeopardy is not before us. It may or may not ever be raised. As the government acknowledges in its brief, since the government was unable to introduce evidence previously suppressed as to Tovar, it is not surprising that the district court granted a judgment of acquittal at the end of the government's case in chief. We have now decided (Part 2) that the evidence was properly suppressed. In these circumstances, the government may decide not to proceed with another trial of Tovar without this crucial evidence. If this is the case, there will be no double jeopardy question. If the government decides to proceed with another trial of Tovar, she may raise the double jeopardy issue which would then be ripe for decision. We cannot speculate what further proceedings, if any, will take place.
On this appeal, there is no case or controversy with respect to double jeopardy and we, therefore, have no jurisdiction to consider such an issue.
We reverse the district court's directed judgment of acquittal of Tovar.
The district court approved the magistrate judge's conclusion that the agents' entry and search of unit 901 was not authorized by exigent circumstances and that Tovar's consent to search was involuntary.
The evidence adduced at the suppression hearing was, for the most part, undisputed. On July 30, 1990, agents of the DEA office and the Coral Gables Police Department, and agents from two other agencies conducted surveillance of two persons later identified as Johnny Lozano (Lozano) and Figueroa who had just obtained one hundred kilograms of cocaine from undercover DEA agents. In all, approximately twelve to sixteen agents from four agencies were involved. The agents followed Lozano from the turnpike between Okeechobee Road and State Route 836 to the Plaza condominium off 49th Street and 18th Court in Miami where Lozano met with Figueroa. Lozano and Figueroa went to the main entrance and one of the men used the security telephone to obtain entry into the building. Neither Lozano nor Figueroa was carrying anything when the two of them entered the building. Agent Curtis watched Lozano and Figueroa through the glass doors. Lozano and Figueroa split up. Figueroa went to the north side of the building on the inside and Lozano went around to the south side on the inside.
Shortly thereafter, agent Curtis and another detective entered the building by using the security telephone. Curtis spoke with a building employee immediately upon entering the building. Curtis told the woman that he was looking for a man and described the distinctive colored shirt that Lozano was wearing. The woman said that "they" had inquired about the residence of Tovar, unit 901.
Curtis immediately took the elevator to the 9th floor, which was empty. Curtis located unit 901 at the east end of the hallway. He went to the other end of the hallway, established a position at the end of the building and waited. There were units on both sides of the hallway with an elevator in the center. Curtis was peeping around the corner from the exit where the stairwells were located and was hiding behind a wall.
Curtis was approximately 250 feet from apartment 901 and had an unobstructed view. Curtis saw Figueroa and Lozano leave unit 901, get on the elevator and go down together. Neither Figueroa nor Lozano was carrying anything.
Curtis maintained his position. Approximately ten minutes...
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