U.S. v. Fleishman

• Decision Date: 26 August 1982
• Docket Number: Nos. 80-1410,80-1414 and 80-1451,s. 80-1410
• Citation: 684 F.2d 1329
• Parties: 11 Fed. R. Evid. Serv. 627 UNITED STATES of America, Plaintiff-Appellee, v. Leslie FLEISHMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter COMBS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stephen GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1329

684 F.2d 1329

11 Fed. R. Evid. Serv. 627

UNITED STATES of America, Plaintiff-Appellee, v. Leslie FLEISHMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Peter COMBS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stephen GREEN, Defendant-Appellant.

Nos. 80-1410, 80-1414 and 80-1451.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 7, 1981.

Decided Aug. 26, 1982.

Jaun P. Robertson, Los Angeles, Cal., for Green.

Brien Q. Robbins, Deputy Federal Public Defender, Los Angeles, Cal., for Fleishman.

Howard L. Weitzman, Weitzman & Fidler, Los Angeles, Cal., for Combs.

Frederick M. Flam, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Central District of California.

Before KENNEDY and ANDERSON, Circuit Judges, and MURPHY, Senior District Judge. ^*

J. BLAINE ANDERSON, Circuit Judge:

Fleishman was convicted of possession with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and of conspiracy to commit the same in violation of 21 U.S.C. § 846. Combs and Green were convicted as coconspirators, and for having aided and abetted the possession with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2(a). Appellants were sentenced to six years' imprisonment on each of the three counts set forth above, the sentences to run concurrently and with eligibility for parole as provided by 18 U.S.C. § 4205(b)(2). The appellants were further ordered to serve three-year minimum special parole terms on the counts not involving conspiracy. We affirm the convictions on all counts.

Appellants have raised numerous issues on this appeal which we discuss below.

FACTS

In February, 1980, George Kelly, a paid informant, introduced Fleishman to Drug Enforcement Administration (DEA) agent Needham. At this meeting, Fleishman told the agent that he had ten pounds of cocaine for sale. When asked whether he was in control of the substance, Fleishman indicated that he had partners. He stated that his partners would bring him a sample of the cocaine from the San Fernando Valley where "his people" were in possession of it. Fleishman also expressed the wishes of his purported partners concerning other details of the transaction.

On February 13, 1980, Fleishman provided a sample of the cocaine to Needham for a chemical analysis. At this time, Fleishman told the agent that "his people" wanted him to count the money prior to the delivery of any cocaine. He said that his people had moved the cocaine to an area near the Los Angeles International Airport and rejected Needham's request that it be brought to the Oceanside area.

Fleishman indicated that his people would get a hotel near the airport and suggested that Needham do likewise. Following the chemical analysis, Fleishman agreed to deliver ten pounds of cocaine in Los Angeles that afternoon. Needham asked for additional time to amass the money, but Fleishman said that he wanted to conclude the transaction that evening because the ten pounds would be the end of a large load.

Several conversations ensued between Needham and Fleishman, and it was finally determined that Fleishman would be at the Hyatt Hotel near the airport. When Needham arrived at Los Angeles, he called Fleishman and was informed that the cocaine had arrived and that "everything was okay." R.T. at 155.

Fleishman then met Needham at the Pacifica Hotel where Needham was registered. Fleishman indicated that after he counted the money, he would contact his people to report the same and then the transaction could continue. After counting the $105,000, the agreed upon price for the first three pounds, Fleishman made a telephone call and told the agents that his people were in the lobby of the Pacifica Hotel. He made a second call and asked that "Joseph Cotton" be paged. Thereupon, Fleishman left the room for approximately twenty minutes.

He was observed during that time by another DEA agent in the Pacifica lobby where he was met by Green. The two men apparently engaged in a brief conversation and then joined Combs for five to ten seconds. The agent had observed Combs in the lobby and concluded that he was a "lookout" engaged in countersurveillance activity. Fleishman then started toward the elevator, and Green and Combs went to the registration desk where Green inquired if there were any messages for "Stephen Cotton."

Upon returning to Needham's room, Fleishman admitted that he was merely an intermediary and indicated that his people were "a little leery," R.T. at 160, and wished to supply only slightly more than a pound in the first transfer. Needham demanded that Fleishman again contact his people and direct them to deliver the three pounds as initially agreed. Fleishman departed and returned approximately fifteen minutes later.

During that time, Fleishman was observed by another agent. Fleishman had driven to the Ramada Inn and proceeded toward the elevators. The agent approached that area and observed the indicator lights on the two elevators in operation. Both of the elevators apparently stopped momentarily on the tenth floor. Approximately five minutes later, Fleishman returned to his car and drove back to the Pacifica.

Upon his return to Needham's room, he declared that his people would only supply 480 grams on the first transaction and the remainder of the ten pounds would follow, provided the first transaction went smoothly. Fleishman told the agents that his people were at the Ramada, and agreed to again contact them.

Fleishman was observed returning to the Ramada where he parked his car in the rear parking lot and entered the hotel, and then returned to the car. He did not carry a briefcase, either from the car or to it. When Fleishman returned to the car, he turned on the interior light for 10 to 15 seconds and appeared to open and close a briefcase in the front seat.

Fleishman returned to Needham's room with a briefcase containing the 480 grams of cocaine and was then arrested. The agents then proceeded to the Ramada where they enlisted the aid of the hotel manager, Lee Holcomb. The agent who had observed Combs and Green at the Pacifica described the two men and asked for registration cards for persons that may fit their descriptions and who lived in the San Fernando Valley or the San Diego area. Holcomb produced cards for rooms 1021 and 1022 which were registered in the name of "Stephen Price." (Green's name is Stephen Price Green).

The agents and Holcomb went to room 1021 and Holcomb knocked and announced his identity, and requested that the occupant open the door. When Combs opened the door, Agent Clayton announced his identity and informed Combs that they were conducting a narcotics investigation. Combs allegedly invited the agents in and stated that his name was Peter Everett. He said that the room belonged to his "business associate," Stephen Price, and that he was waiting for Price to return. Combs allegedly consented to a search of the room, which resulted in the discovery of a piece of paper with a series of numerals inscribed on it. These numerals were later linked to the cocaine negotiations over price and quantity. Combs denied having made the writing and stated that he had observed Price writing something at the table where the paper was found. Virtually nothing else was in the room. Combs was allegedly told that he was not under arrest and that he was free to go.

Green was then found in room 1022. Green told the agents that he was "to meet a lady or be with a lady." R.T. at 334. A search of the room revealed only Green's personal effects. Apparently, both men were arrested shortly after the searches.

At trial, the agents testified to these events, including the statements made to them by Fleishman. The agent who had observed Green and Combs in the lobby of the Pacifica Hotel testified about his experience in undercover investigations, and was permitted to testify that Combs was acting as a "look-out." In addition, the Government called Bruce Greenwood and qualified him as a handwriting expert. Greenwood concluded that "there are definite indications" that Combs had made the numerical notations on the paper found in room 1021, and that "most probably" Green had not. R.T. at 432. Greenwood testified on cross-examination that due to the limited amount of writing involved, his opinion was necessarily inconclusive. The jury returned a verdict against all the defendants on all counts.

Combs' Fourth Amendment Contentions

Combs argues that the Ramada Inn slip containing numerical notations was illegally seized during the warrantless search of Room 1021 and that his statements made before, during, and after the search were illegally obtained. The district court denied Combs' pre-trial motion to suppress this evidence finding that Combs was not detained or in custody, and that Combs' consent to the search of the room was voluntarily given. (R.T. at 91-92).

The determination whether consent to search was voluntarily given is a question of fact, and the district court's finding of voluntariness will be reversed only if clearly erroneous. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); United States v. Tavelman, 650 F.2d 1133, 1139 (9th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982). It is apparent from the record that Combs freely consented to the entry and search of Room 1021 of the Ramada Inn in Los Angeles on the evening of February 13, 1980. (C.R. at 6; R.T. at 36-38). The district court's finding of Combs' voluntary consent is therefore not clearly erroneous.

The district court also found that Combs was free to leave during the search and questioning that ensued in Room 1021 on February 13, 1980. Whether a reasonable person would feel free to leave is the correct test to...