U.S. v. Marin

• Citation: 669 F.2d 73
• Decision Date: 18 January 1982
• Docket Number: D,Nos. 339,349,s. 339
• Parties: 9 Fed. R. Evid. Serv. 1659 UNITED STATES of America, Plaintiff-Appellee, v. Hugo MARIN and Virgilio Orlando Romero, Defendants-Appellants. ockets 81-1300, 81-1301.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 73

669 F.2d 73

9 Fed. R. Evid. Serv. 1659

UNITED STATES of America, Plaintiff-Appellee, v. Hugo MARIN and Virgilio Orlando Romero, Defendants-Appellants.

Nos. 339, 349, Dockets 81-1300, 81-1301.

United States Court of Appeals, Second Circuit.

Argued Nov. 10, 1981.

Decided Jan. 18, 1982.

Harvey J. Golubock, Asst. U. S. Atty., New York City (Edward R. Korman, U. S. Atty., E. D. New York, Jane Simkin Smith, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellee.

Edward Gasthalter, New York City (Hoffman, Pollok & Gasthalter, New York City, on the brief), for defendant-appellant Marin.

Edward M. Chikofsky, New York City (Marvin B. Segal, Segal & Hundley, New York City, on the brief), for defendant-appellant Romero.

Before OAKES, KEARSE, and PIERCE, ^* Circuit Judges.

KEARSE, Circuit Judge:

Defendants Hugo Marin and Virgilio Orlando Romero appeal from judgments of conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, for conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846 (1976), and for possession of cocaine with intent to distribute it, in violation of 21 U.S.C. § 841 (1976). Each defendant was sentenced to concurrent five-year terms of imprisonment on each count and a five-year special parole term on the possession count. At the trial, the government introduced, inter alia, a bag of cocaine that had been seized from Romero's car, and a redacted post-arrest statement made by Romero. On appeal, both defendants argue that their motions to suppress the cocaine were improperly denied. In addition, Marin argues that Romero's post-arrest statement, even as redacted, inculpated Marin and that its admission at trial therefore violated Marin's right of confrontation under the Sixth Amendment to the Constitution. In contrast, Romero contends that the redaction of his statement rendered the statement inculpatory of him and was therefore improper. Finding no merit in any of the defendants' arguments, we affirm.

I. FACTS

The events that led to the arrests of Romero and Marin on February 12, 1981, occurred during a narcotics investigation by the United States Drug Enforcement Administration ("DEA"). DEA agents and a DEA informant were the only witnesses at the suppression hearing or at trial. Since defendants argue that the information possessed by the agents was insufficient to allow the agents to stop the automobile in which the cocaine was found, we describe the events in some detail.

A. The Surveillances

In October 1980 and January 1981, the DEA received information from two confidential informants that Rafael Mateus ("Mateus"), who resided at 105-20 37th Avenue, Queens, N.Y., was selling cocaine from his home. On February 4, 1981, DEA agents, armed with a search warrant, positioned themselves outside Mateus's home and watched to determine whether the residents were at home. At about 6:00 p. m., the agents observed Mateus's wife, Elilce Mateus ("Elilce") and an unidentified woman leave the building and drive away: DEA Special Agent Celerino Castillo III followed their car to the New York Hilton Hotel in Manhattan. Elilce entered the lobby, followed by Agent Castillo who heard her ask a bellboy for directions and followed her to the eighth floor, where she knocked on the door of Room 849. The door was opened by Marin, who was then unknown to Castillo. Marin greeted Elilce, and, after letting her enter, stepped out, looked around, and reentered the room.

Castillo reported what he had observed to DEA Special Agent Alvin T. Hanna, who learned that Room 849 was registered to Hugo Marin: Hanna procured the adjoining room, number 850, for the DEA. Agent Castillo, who was fluent in Spanish, went to Room 850, where he listened at the wall adjoining Room 849 until about 2:30 a. m. ¹ Castillo testified that he overheard conversations in Spanish in which, inter alia, Elilce stated that it was necessary to be very careful with the New York City police. At various points during the evening an unidentified female, and later a man, entered the room; shortly thereafter Elilce and the unidentified woman departed, leaving in the room Marin, a woman who Castillo thought was Marin's wife, and the recently arrived male. During their conversation, the unidentified man stated that business in New York was very good and that New Yorkers liked good merchandise.

While Castillo was in Room 850, Agent Hanna remained in the lobby of the Hilton. At about 11:00 p. m. Hanna saw Rafael Mateus in the lobby, followed him, and heard him say something to a bellboy about the eighth floor. A short while later, Hanna observed Elilce Mateus and another woman leave the hotel and drive away. He followed the women, who drove to Queens, immediately made a U-turn despite oncoming traffic and returned to Manhattan, drove around Manhattan for some 20 minutes, and then returned to Queens where additional U-turns were made. Hanna gave up trying to follow them, and later that night saw them return to the Mateus residence where Hanna had resumed surveillance.

At some point during the night, Hanna put the names of Hugo Marin and Rafael Mateus into a DEA computer, the Narcotics and Dangerous Drugs Intelligence System ("NADDIS"), which maintained data about individuals associated with narcotics. The computer yielded the information that there was a connection between Rafael and Marin, and that Marin was suspected of drug smuggling.

On the following day, February 5, Castillo, while stationed in the lobby of the Hilton, saw a man, later identified as Alberto Farradaz, a cousin of Romero, enter the hotel and walk around the lobby, eventually inquiring as to which elevator would take him to the eighth floor. Castillo followed Farradaz to Room 849, where Farradaz was On February 8, Castillo, again in a room adjoining 849 overheard Marin talking on the telephone. Marin told the caller that everything was fine, and that he was waiting for someone and would see the caller the next day. Castillo also overheard Marin's wife tell Marin that she had spent money on a "muestra." Castillo testified that in Spanish "muestra" means "sample," and that he knew, from his experience as a DEA agent, that the word is often used to denote a sample of narcotics.

greeted by Marin. Castillo entered the adjoining room and overheard Marin use the term "140,000."

On February 11, the Marins checked out of the Hilton, and, in the company of two unidentified women, drove away, with Agent Hanna following. The group drove to Queens, eventually arriving at the Holiday Inn at LaGuardia Airport, where the Marins checked into Room 736. Once more the DEA obtained an adjoining room. Eduardo DeMarzo, a Spanish-speaking DEA informant, arrived at the DEA's room between 11:00 a. m. and 1:00 p. m., and began overhearing conversations taking place in Room 736. DeMarzo heard a man engage in several telephone conversations, during which he mentioned the sum of $27,000, and stated that he was going to deliver two "aparatos." DeMarzo testified that the Spanish word "aparato" literally means gadget or appliance and that it is commonly used by cocaine dealers to refer to a kilogram of cocaine.

Agent Hanna, stationed outside the Holiday Inn, saw the Marins and an unidentified woman leave the hotel at about 5:00 p. m., and he followed them. After dropping off the woman at an apartment complex, the Marins drove on to a meat market at 86-10 37th Avenue in Queens, some blocks down the street from Mateus's home at 105-20 37th Avenue. The Marins were greeted outside the market; they went in, remained for thirty to forty-five minutes, and left carrying what appeared to be meat. The Marins next drove to an apartment house at 86-06 35th Avenue and went inside. Hanna had been informed by DeMarzo that the Marins had mentioned planning to attend a party that evening, so surveillance was terminated at 7:00 p. m. with the Marins still in 86-06.

Early the following afternoon, February 12, the Marins again left the Holiday Inn by car, followed by Hanna, and returned to the meat market. After remaining there some twenty minutes, the Marins drove down the street to the Mateus home. When they entered Mateus's building Marin's wife was carrying a large shoulder bag. After about an hour, Mateus left the building; and an hour after that, the Marins left. When they left, neither of the Marins was carrying the shoulder bag with which Mrs. Marin entered. The Marins again drove to the meat market, where they remained about an hour, then drove to the apartment house at 86-06 35th Avenue, and went inside.

Agent Hanna remained outside of 86-06, where he saw a white Thunderbird pull up and double-park beside the car the Marins had been driving. Minutes later Marin and two other men got into the Thunderbird; the three men drove away, followed by Hanna and other DEA agents. The Thunderbird parked in a shopping center at 86th Street and Roosevelt Avenue in Queens; there DEA Agent George Papantoniou saw the driver, later identified as one Carlos Lopez, ² leave the car and enter a butcher shop on Roosevelt Avenue, while Marin and the other passenger waited in the car. A few minutes later Lopez returned to the car carrying a light brown plastic shopping bag. The Thunderbird then proceeded to the Bronx, where it entered the underground garage of an apartment house, and the agents lost sight of it. Eventually, the car left the garage, carrying only Lopez and Marin.

As the Thunderbird was being driven through the Bronx, a gray Cadillac with Florida license plates sounded its horn, and

both cars pulled over to the side of the road. The Cadillac was driven by Romero, with Farradaz as his passenger. Romero got out and spoke with the occupants of the Thunderbird; Marin then got out of the Thunderbird and into the Cadillac. The Thunderbird drove away, and the Cadillac remained parked, with Romero, Marin,...