617 F.2d 677 (D.C. Cir. 1979), 78-2246, United States v. Davis

Docket Nº:78-2246, 78-2247.
Citation:617 F.2d 677
Party Name:UNITED STATES of America v. Robert H. DAVIS, Appellant. UNITED STATES of America v. George D. GELESTINO, Appellant.
Case Date:October 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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617 F.2d 677 (D.C. Cir. 1979)



Robert H. DAVIS, Appellant.



George D. GELESTINO, Appellant.

Nos. 78-2246, 78-2247.

United States Court of Appeals, District of Columbia Circuit

October 26, 1979

Argued April 30, 1979.

Rehearing Denied March 7, 1980.

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Appeals from the United States District Court for the District of Columbia (D.C.Crim. Nos. 78-245 & 78-209).

Richard A. Rosen, Washington, D.C., with whom Silas J. Wasserstrom, Washington, D.C., was on brief, for appellant in No. 78-2247.

Stuart Stiller, Washington, D.C., with whom Barbara Kammerman, Washington, D.C., was on brief, for appellant in No. 78-2246.

H. Lowell Brown, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry, Peter E. George, and Joseph F. McSorley, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Margaret Ellen, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before TAMM and MacKINNON, Circuit Judges, and AUBREY E. ROBINSON, Jr., [*] United States District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In these related cases, consolidated for appeal, the appellants challenge their separate convictions of various charges related to illicit traffic in cocaine. Each maintains that police misconduct induced him to make self-incriminating statements that later were used against him at trial. Appellant Davis also asserts that admission of tangible evidence obtained in a search of his house was improper, and Appellant Gelestino adds to his arguments for exclusion of statements a claim under Federal Rule of Criminal Procedure 11(e) (6). We affirm the convictions.


In March of 1978, information gleaned from undercover work led officers of the

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Metropolitan Police Department in Washington, D.C., to believe that cocaine traffic was originating from apartment 31, 1848 Columbia Road, N.W., in the District of Columbia. 1 On the evening of March 22, a police party that included, among others, Sergeant Raymon N. Gonzales, Officer Patricia Williams, and Assistant United States Attorney C. Madison Brewer entered the apartment and there arrested Appellant Gelestino and his girlfriend, Sali Dimond. At the time, the police had neither an arrest warrant nor a search warrant.

The officers and Brewer quickly concluded that Gelestino was not a primary supplier of cocaine and sought his help in identifying his "source." Brewer told Gelestino that because he was not a major trafficker the Government would allow him to plead guilty to one felony count if he would cooperate. Throughout the evening, Gelestino appeared concerned about the fate of Dimond. As the police were taking Dimond from the apartment to transport her to the station, Officer Williams intimated that Dimond might be subject to sexual abuse if sent to the women's detention facility. Shortly thereafter, Gelestino agreed to cooperate. He identified Appellant Davis, a lawyer, as his source for drugs and agreed to participate in a controlled payment of money to Davis. He also stated that when he had been in Davis's house the previous evening he had observed a large amount of white powder, presumably cocaine, on the kitchen table. Gelestino showed police various items in his apartment but refused to let them seize anything until they obtained a warrant. Later, Magistrate Jean F. Dwyer issued a warrant, and the police then conducted a formal search of the apartment. 2

Sergeant Gonzales dialed a telephone number that the police believed was Davis's. Gelestino told the person who answered that he was "bringing over the money." Affidavit for Davis Search Warrant, reprinted in Brief for Appellee at 56, 59. Accompanied by Gonzales and funded with $450 in police money, Gelestino went to Davis's house at 5900 Moreland Street, N.W. He entered and a short time later emerged without the money. He said that he had used the money to pay for cocaine that he had purchased the night before and that Davis indicated he could get more.

Detective Steven S. Finkelberg approached Magistrate Dwyer for a warrant to search Davis's house. In his affidavit, Finkelberg described the undercover work that had led to the arrest of Gelestino, Gelestino's statements that Davis was his source and that he had observed more white powder in Davis's house the day before, and the circumstances surrounding Gelestino's paying Davis $450 that evening. Magistrate Dwyer issued the warrant.

Police arrived at the Davis residence at approximately 2:20 a.m. on March 23. They observed lights on in the house. They announced their presence and, after waiting briefly without being admitted, 3 gained entry with a battering ram. Sergeant Gonzales and Detective Finkelberg entered and found Davis and another man, Bert Hoff, in the kitchen near the front door. Finkelberg identified himself and the others as police officers and advised Davis of his Miranda rights. 4 Quickly fanning through the house, the police found two other persons. The officers placed all four in the same room and advised them of their rights again.

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In the meantime, the police still were surveying the premises and reporting what they were finding. One officer stated that he had discovered several pinball machines in the basement, and the police indicated, in Davis's presence, that searching them would be difficult and time consuming. 5 Shortly thereafter, Davis agreed to show the officers where the cocaine was hidden. He also led them to supplies of peyote and marijuana. 6 During this time, Officer Gonzales had reminded Davis of his rights on several occasions. 7

Gelestino was brought before Magistrate Dwyer on the morning of March 23. The magistrate appointed an attorney to represent him and released him on personal bond. On April 13, Gelestino and his attorney appeared in the office of Assistant United States Attorney Joseph F. McSorley, at which time Gelestino and the Government entered into a formal plea agreement. Gelestino promised to testify before the grand jury and at any trial concerning his activities and any knowledge that he had of the drug traffic. In return, the Government was to permit Gelestino to plead guilty to a single charge of distributing cocaine, a violation of 21 U.S.C. § 841(a) (1976). Gelestino appeared before the grand jury on April 20, and during his testimony he admitted to trafficking in cocaine.

Gelestino was scheduled to enter his plea of guilty on May 5. Minutes before his appearance, however, he withdrew from the plea agreement. Later, the grand jury indicted him on six counts relating to possession and sale of cocaine and possession of implements of a crime. Gelestino moved to suppress the tangible evidence obtained in the search of his apartment and the statements he made both following his arrest and during his appearance before the grand jury. After three days of hearings, Judge William B. Jones of the United States District Court 8 on September 1 ruled that the warrantless entry into Gelestino's apartment and his warrantless arrest had been illegal and thus the tangible evidence seized there was inadmissible. Judge Jones also suppressed all statements made by Gelestino from the time of his arrest until Magistrate Dwyer appointed an attorney to represent him. 9 Nevertheless, Judge Jones found that Gelestino's statements to McSorley at the time he entered into the plea agreement and his testimony before the grand jury were voluntary and denied the motion to suppress them. Following a trial on stipulated facts, Judge Jones found Gelestino guilty of conspiracy to distribute cocaine, a violation of 21 U.S.C. § 846 (1976), and three counts of unlawful distribution of cocaine, violations of 21 U.S.C. § 841(a). The court sentenced him on each charge to three years' imprisonment with a special parole term of three years, the sentences to run concurrently.

Meanwhile, the grand jury had indicted Davis on eight counts of drug violations. Davis moved to suppress the tangible evidence seized in the search of his house and the statements he made during the search. He objected to the search and the seizure on several grounds: (1) that they were fruits of the unlawful police conduct at Gelestino's apartment; (2) that the affidavit supporting the search warrant was insufficient to justify a finding of probable cause; (3) that the warrant was overbroad; (4) that the warrant was executed in violation of 18 U.S.C. § 3109 (1976); 10 and (5) that a night

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time search was not justified. He also asserted that the officers' conduct during the search coerced him into making self-incriminating statements against his will. After a hearing on July 7, 1978, District Judge Louis F. Oberdorfer denied the motions to suppress. 11 The case subsequently was transferred to Judge Jones, before whom Davis unsuccessfully attempted to reopen the suppression questions. Following a stipulated trial, the court convicted him of one count of possession with intent to distribute a controlled substance (cocaine), a violation of 21 U.S.C. § 841(a), and one count of unlawful possession of a narcotic drug (marijuana), a violation of D.C. Code § 33-402(a) (1973). Judge Jones sentenced Davis to concurrent terms of seven years imprisonment with a special parole term of four years on the cocaine charge and one year on the marijuana charge.


Appellant Gelestino now challenges Judge Jones's failure to suppress the statements he made before the grand jury on April 20, 1978. 12 Gelestino raises three...

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