684 F.2d 1066 (2nd Cir. 1982), 1244, United States v. Burns

Docket Nº:1244, Docket 82-1016.
Citation:684 F.2d 1066
Party Name:UNITED STATES of America, Appellee, v. Perry BURNS, Defendant-Appellant.
Case Date:July 21, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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684 F.2d 1066 (2nd Cir. 1982)

UNITED STATES of America, Appellee,

v.

Perry BURNS, Defendant-Appellant.

No. 1244, Docket 82-1016.

United States Court of Appeals, Second Circuit

July 21, 1982

Argued June 8, 1982.

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Lawrence Stern, New York City, for defendant-appellant.

Stephen Schlessinger, Asst. U. S. Atty., S.D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., S.D. N. Y., Roanne L. Mann, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, Chief Judge, CARDAMONE, Circuit Judge, and SAND, District Judge. [*]

FEINBERG, Chief Judge:

Defendant Perry Burns appeals from a judgment of conviction entered in January 1982 after he pleaded guilty to possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2, in the United States District Court for the Southern District of

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New York before Gerard L. Goettel, J. With the government's consent and the district court's approval, appellant retained the right to appeal from Judge Goettel's adverse rulings on various pre-trial motions. The government in turn held in abeyance pending determination of the appeal the other count in the indictment, which charged appellant with conspiracy to distribute and possess heroin in violation of 21 U.S.C. § 846. Appellant was sentenced to 71/2 years in prison to be followed by 10 years of special parole. He thereafter pursued this appeal. We affirm.

I. Facts

According to evidence at a pre-trial suppression hearing in October 1981, the investigation leading to appellant's arrest began in April 1981 when James Heard, a paid informant for the Drug Enforcement Administration (DEA) in Chicago, told DEA agents that appellant was a substantial heroin distributor in New York and elsewhere. Because Heard stated that he could purchase narcotics from appellant, he was flown from Chicago to New York to work with Special Agent Ruth Higgs, who posed as a heroin purchaser for a long-time, Chicago- based narcotics dealer. On April 21, 1981, Heard arranged to meet appellant the following day at a bar in a local hotel. On April 22, Heard and Higgs met appellant as planned. Before the meeting, Heard had been searched for narcotics, but none were found on his person. After meeting appellant and being alone with him for a short time, Heard covertly gave Higgs a sample of heroin, for which he allegedly paid appellant $350. Higgs told appellant that if the heroin was of high quality, she would be interested in making a more substantial purchase. Subsequent analysis revealed that the sample was 55% pure heroin.

On June 1, 1981, Heard returned to New York to work with Special Agent Gerald Franciosa and DEA Group Supervisor Jeffrey Hall in pursuing further negotiations with appellant. Heard made various telephone calls to appellant, some of which were recorded, which culminated in a meeting arranged for the evening of June 2, 1981. Heard was to meet appellant and purchase a small packet of heroin for $150. Heard met appellant as planned and subsequently turned over a sample of 70% pure heroin, which he stated he had obtained from appellant. Franciosa could not recall whether he had searched Heard for narcotics before this meeting, however. Heard further stated that appellant said he had more heroin and instructed Heard to wait for a telephone call in his room.

Accompanied by the DEA surveillance team, Heard returned to his room, where he received a call from appellant about midnight. At Heard's request, this call was not recorded. Heard told Hall and Franciosa that appellant wanted him to go to the hotel bar, the place of the April transaction, where at approximately 1:00 a. m. he would meet a woman who would direct him to appellant. Appellant would then complete a sale of three ounces of heroin for $30,000. Because the DEA agents did not want to advance this large sum of money to Heard, they decided to arrest appellant at the scene of the proposed deal. They therefore told Heard that he should tell appellant's emissary when she came to the bar that Heard was afraid to consummate the transaction because he believed that he had been followed by the police.

At approximately 1:00 a. m. on June 3, 1981, DEA agents observed a Volvo parked near the hotel. A young woman, Charlene Smith, got out of the car, entered the hotel, and approached and spoke with Heard. She then left the hotel and returned to the Volvo. When the Volvo pulled away from the curb, DEA agents stopped it by ramming it with a back-up car. DEA agents thereupon arrested the driver, David Emanuel Fernandez, and his passengers, appellant and Smith. After pat-down searches, the agents discovered that Fernandez was carrying a weapon. Agents then searched the passenger compartment of the car and discovered a gun and a brown paper bag containing 70% pure heroin. After searching the interior of the Volvo, agents removed the keys from the ignition, opened the trunk, and found a loaded, sawed-off

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shotgun and a brown bag containing additional shells.

Appellant, Fernandez and Smith were advised of their constitutional rights and taken to DEA headquarters for routine processing. A search of appellant's person at headquarters revealed that he was carrying $2,075 in cash and slips of paper with the telephone number of one meeting place and Heard's nickname written on them. After providing some background information, including information relevant to setting bail, appellant inquired about the possibility of making a deal whereby Fernandez would receive favorable treatment and Smith would be released outright in return for his cooperation. Franciosa repeated appellant's constitutional rights before speaking with him about making such a deal and explained that any such arrangement had to be approved by the United States Attorney's Office. At appellant's and Fernandez's request, they were permitted to meet privately. After their meeting, appellant told DEA agents that he knew a number of heroin dealers and that he was normally given approximately one week to pay his supplier. After making some other remarks about the heroin trade, appellant asked to speak with his attorney, and the interview was terminated.

Partly at his own request, appellant was lodged overnight at DEA headquarters, rather than at the Metropolitan Correctional Center, to prevent the fact of his arrest from becoming known, should he decide to cooperate. The following day, appellant was taken to the United States Attorney's Office for a bail interview. At the interview, an Assistant United States Attorney repeated appellant's rights and asked him questions about his background for purposes of setting bail. When the Assistant finished with background questions and began inquiring about the charges against appellant, he declined to answer and again asked to see a lawyer. Appellant was arraigned in the late afternoon.

II. Pre-trial Rulings and Sentencing

After the seven-day evidentiary hearing at which the foregoing facts were presented, Judge Goettel ruled on appellant's pre-trial motions to suppress. Appellant sought to suppress the paper bag containing heroin and other evidence seized upon his arrest on the grounds that the agents lacked probable cause to arrest him and that the search violated the Fourth Amendment. He further sought to suppress his post-arrest statements on the grounds that he did not receive adequate Miranda warnings, was interrogated without an attorney present after he had requested one and was subjected to unwarranted pre-arraignment delay. 1 Judge Goettel denied these motions to suppress. However, he did grant appellant's motion to suppress the tape recordings of telephone conversations between himself and Heard on the ground that Heard had not consented to the recordings. After reviewing the entire presentation to the grand jury, Judge Goettel also denied appellant's motion to dismiss the indictment on the grounds that it was the product of willfully false, misleading testimony and that the conspiracy charge had been used as a pretext to introduce hearsay testimony.

By the time of the suppression hearing, Heard was no longer cooperating with the government and he appeared as a defense witness. With respect to questions about his purchase of heroin samples, he invoked his Fifth Amendment privilege over the government's objection. After in camera discussions with Heard and his attorney, Judge Goettel sustained Heard's invocation of the privilege. Appellant then moved for an order compelling the government to apply for immunity for Heard. Judge Goettel denied the motion. He also denied a similar request that the government seek immunity for Smith, with respect to whom an order of nolle prosequi had previously been entered in September 1981.

After the district court's rulings on these pre-trial motions, appellant entered a plea

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of guilty to the substantive count of the indictment and reserved his right to appeal from Judge Goettel's adverse rulings. As previously noted, the government held in abeyance the conspiracy count pending the outcome of this appeal. As part of the agreement, the government promised to take no position on sentencing except to respond to appellant's presentation. In his pre-sentencing memorandum and at the sentencing hearing, appellant attempted to establish that he was a rehabilitated, law-abiding individual and that he had engaged in heroin dealing as an aberrational response to a recent business failure. The government orally responded at the sentencing hearing that such an explanation was implausible in light of appellant's ability to obtain three ounces of 70% pure heroin on one week's credit. Appellant questioned whether these remarks...

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