61 F.3d 510 (7th Cir. 1995), 93-2681, United States v. Saadeh

Docket Nº:93-2681, 93-2682 and 93-2705.
Citation:61 F.3d 510
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Imad Naim SAADEH, Barbara Sudzus, and Albert Sudzus, Defendants-Appellants.
Case Date:July 20, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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61 F.3d 510 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Imad Naim SAADEH, Barbara Sudzus, and Albert Sudzus,

Defendants-Appellants.

Nos. 93-2681, 93-2682 and 93-2705.

United States Court of Appeals, Seventh Circuit

July 20, 1995

Argued April 14, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied Sept. 7, 1995.

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Mark A. Flessner, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, IL, Barry Rand Elden, Asst. U.S. Atty. Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, Sean Connelly (argued), U.S. Dept. of Justice, Crim. Div., Appellate Section, Washington, DC, for U.S.

Marc W. Martin, Terence P. Gillespie (argued), Genson, Steinback, Gillespie & Martin, Chicago, IL, for Imad Naim Saadeh.

Richard D. Trainor (argued), Reed, Scoby & Trainor, Ltd., Chicago, IL, for Barbara Sudzus.

Anthony Pinelli (argued), Chicago, IL, Anita Rivkin-Carothers, Chicago, IL, for Albert Sudzus.

Before ALDISERT, [*] BAUER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendants Imad Saadeh, Barbara Sudzus, and Albert Sudzus used a Chicago automobile repair shop as the center for their cocaine distribution business. After a successful drug bust by the Drug Enforcement Administration ("DEA"), a jury convicted all three defendants of violating 21 U.S.C. Secs. 841(a)(1) and 846, conspiracy to possess cocaine with the intent to distribute. The defendants now raise a number of challenges to their convictions. For the reasons below, we affirm.

I.

Albert ("Al, Jr.") and his mother, Barbara Sudzus ("Barbara") ran a Chicago car repair shop called Euro-Tech. Al, Jr. and Barbara contracted out the use of work space in the Euro-Tech building to mechanics who worked as independent contractors. Imad Saadeh, who did not receive a salary from Euro-Tech, used the Euro-Tech facilities to work on his own cars and motorcycles. Like the other workers, he used a large cabinet-sized toolbox to store his tools and other personal items.

In 1987, Al, Jr. and his father purchased 3.4 kilograms of cocaine for $10,000 per kilogram at Euro-Tech from Robert Grinnell. Three years later, Grinnell met Saadeh at Euro-Tech. Saadeh informed Grinnell that "Al" (although Grinnell was unsure whether he was referring to Al, Jr. or his father) had introduced him to the cocaine business by loaning him $100 to make his first drug buy. Over time, Grinnell learned that Dickie Lynn and a man named Bishop assisted Saadeh in the cocaine business and that they used the Euro-Tech garage to count and store their drug proceeds. On two separate occasions in 1991, Grinnell purchased cocaine from Saadeh for personal use.

Following a 1992 arrest for burglary of an automobile, Grinnell agreed to assist the police with a narcotics investigation of the defendants by selling five kilograms for $10,000 each. The "reverse" sting took place over the next two days as follows: Grinnell made six recorded calls from a Schaumberg hotel and restaurant to Al, Jr. at Euro-Tech, claiming that he and a fellow thief, who in reality was undercover Agent Perille disguised as "Mike Mason," had again found cocaine in a car. Al, Jr. initially expressed concern at Mason's presence but later agreed that Dickie would pick up the cocaine.

After two more calls on February 11, Al, Jr. and Grinnell agreed to complete the deal later that day at Euro-Tech. At 12:30 p.m., Barbara left Euro-Tech, climbed into a red Firebird registered to the company and drove slowly twice around the block. She then returned to the garage. Grinnell and Mason arrived at 1:00 p.m. While Mason waited inside the car, Grinnell entered Euro-Tech where Barbara "buzzed" him through the locked front security door. Grinnell told her that he had the five kilograms and Barbara replied, "That's good for you." Several minutes later, when Al, Jr. asked him whether he had brought "the dope," Grinnell responded that he would need at least $15,000 up front. Al, Jr. then made a call and informed Grinnell that Dickie was on his way. Barbara, after announcing that she was "gonna

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go check things out," again drove the Firebird several times around the block, carefully looking at Mason's car and a nearby surveillance van. Upon returning, Barbara asked who was in the car and Grinnell told her that it was Mason. Around 1:45 p.m., Saadeh, carrying a brown paper bag, exited a car and entered Euro-Tech with Dickie Lynn. After a brief conversation with Al, Jr. in his office, Saadeh and Dickie went to a toolbox on the work floor. Saadeh, Grinnell and Al, Jr. then went inside Al Jr.'s office where Saadeh pulled three stacks of cash from his pocket, claiming they equalled $15,000, and placed them inside Al, Jr.'s desk drawer. Although Grinnell suggested that he would get the cocaine and they could complete the drug deal then and there, both Al, Jr. and Saadeh objected, insisting that the deal should instead occur at a nearby yard.

DEA Agent William Maloney led a team of officers into Euro-Tech around 2:00 p.m. Upon entering the building, Maloney twice announced he was a federal agent. Barbara, still in the glass-enclosed office that controlled entry into the shop, refused to allow the police to enter and instead yelled: "Cops! The police are here." Maloney saw Saadeh running and instructed the police to break the glass door with their battering ram. Within ten minutes, the police had secured the building and directed everyone (except Barbara) into the garage area, where the police patted them down for safety purposes and ordered them to empty their pockets.

Informing Barbara that there may be drugs, guns or money in the building, Agent Maloney asked if she would consent to a search. Barbara told the agent that she had nothing to hide and signed a written consent form. The officers then searched the premises, finding three packages of currency totalling $15,000 in Al, Jr.'s desk drawer. Officer Michael Egan searched the garage work floor, where he found a toolbox with several locked drawers. Egan asked Saadeh if the toolbox was his and Saadeh responded affirmatively. Using keys that Saadeh had earlier removed from his pockets, Egan opened the toolbox and found bundles of currency totalling $35,000.

All three defendants were charged with conspiracy to possess cocaine with intent to distribute. Before trial, the defendants moved to suppress the currency under the Fourth Amendment. Saadeh also moved to suppress his statement about the toolbox, claiming that it had been elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After an evidentiary hearing, the district court denied both motions. The court found that Barbara had at least apparent authority to consent to the search and that the officers did not exceed her consent in searching the toolbox. With regard to Saadeh's statement, the court held that assuming arguendo that Saadeh was in custody, the questioning was not an "interrogation" and therefore not in contravention of the Fifth Amendment.

A jury convicted all three defendants of the charged offense. The court sentenced Al, Jr. to 180 months imprisonment, Barbara to 121 months, and Saadeh to 160 months. This appeal followed.

II.

The defendants raise a number of issues on appeal. Barbara, Al, Jr. and Saadeh first contend that the district court erred in denying their motion to suppress evidence. Second, Saadeh argues that the district court erred in denying his motion to suppress his statement to the police officers. Third, the defendants maintain that they were denied a fair trial by prosecutorial argument and evidence of other crimes. Fourth, Saadeh contends that he was denied his due process, fair trial and confrontation rights when he was precluded from establishing that the government's primary witness had committed perjury. Fifth, the defendants claim that they were denied a fair trial by the presence of a hearing-impaired juror during the trial and jury deliberations. Finally, Barbara challenges the sufficiency of the evidence supporting her conviction.

A.

The defendants challenge their convictions arising from the forced entry into the Euro-Tech premises, the warrantless

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search of the garage, and the seizure of evidence, as violative of the Fourth Amendment. Specifically, they maintain that the entry was unlawful, that Barbara did not voluntarily consent to the search, and that the scope of Barbara's consent did not include the desk drawer or the toolbox. They assert that the district court therefore should have suppressed the $15,000 recovered from Al, Jr.'s desk drawer and the $35,000 from the toolbox. We review a district court's decision on a motion to suppress for clear error. United States v. Gilbert, 45 F.3d 1163, 1165 (7th Cir.1995). Because of the highly fact-specific nature of a motion to suppress evidence, we give particular deference to the district court that had the opportunity to observe witnesses and hear testimony on the issue. United States v. James, 40 F.3d 850, 874 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995). We will only reverse if we are left with the definite and firm conviction that a mistake has been made, Gilbert, 45 F.3d at 1165; United States v. Robinson, 30 F.3d 774, 781 (7th Cir.1994).

The Fourth Amendment protects a person's right to be free from warrantless intrusions into his home, U.S. Const. amend. IV; United States v. Foxworth, 8 F.3d 540, 544 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1414, 128 L.Ed.2d 85 (1994), and we have extended this protection beyond residences to cover...

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