U.S. v. Spetz, s. 80-1331

• Citation: 721 F.2d 1457
• Decision Date: 13 May 1983
• Docket Number: Nos. 80-1331,80-1334 and 80-1335,s. 80-1331
• Parties: 12 Fed. R. Evid. Serv. 1901 UNITED STATES of America, Plaintiff-Appellee, v. Charles Kent SPETZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincent Anthony GULINO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Max Andrew KALIK, Defendant-Appellant. . Original Opinion
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1457

721 F.2d 1457

12 Fed. R. Evid. Serv. 1901

UNITED STATES of America, Plaintiff-Appellee, v. Charles Kent SPETZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Anthony GULINO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Max Andrew KALIK, Defendant-Appellant.

Nos. 80-1331, 80-1334 and 80-1335.

United States Court of Appeals, Ninth Circuit.

Original Opinion May 13, 1983.

Modified Opinion Dec. 14, 1983.

Gerald M. Birnberg, Houston, Tex., for Spetz.

Philip Deitch, Westwood, Cal., for Gulino.

Richard H. Kirschner, Los Angeles, Cal., for Kalik.

Theresa Kristovich, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ELY, FLETCHER, and REINHARDT, Circuit Judges.

The motion of appellee to modify the opinion is granted. A modified opinion is filed concurrently herewith.

MODIFIED OPINION

REINHARDT, Circuit Judge:

Appellants Charles Spetz, Vincent Gulino, and Max Kalik were charged with violation of the federal narcotics laws in a five count indictment. Count One charged Spetz, Gulino and Kalik with conspiracy to distribute and to possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846 (1976). Count Two charged Gulino with possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1) (1976), and Kalik and Spetz with aiding and abetting, in violation of 18 U.S.C. Sec. 2 (1976). Count Three charged Spetz with possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1976). Count Four charged Kalik with possession of marijuana, in violation of 21 U.S.C. Sec. 844 (1976). Count Five charged Kalik and Spetz with possession of cocaine, in violation of 21 U.S.C. Sec. 844(a) (1976).

Prior to trial, Spetz, Gulino, and Kalik filed various motions to suppress a quantity of marijuana seized in a van pak, marijuana, narcotics, and narcotics paraphernalia seized during the search of a residence, the contents of a briefcase taken during a search of the trunk of Gulino's automobile, and a quantity of marijuana seized in Spetz' Datsun truck. Following a hearing, the district court denied the motions to suppress.

Spetz and Gulino were then tried by the court on the basis of the transcripts of the suppression hearing and additional stipulated facts and testimony. There was no dispute as to the material facts relating to guilt or innocence, although the parties disagree as to their legal significance. Spetz and Gulino were convicted on Counts One and Two, as charged. Spetz was also convicted on Count Three of the lesser included misdemeanor of simple possession. Kalik was tried separately before the court. He was convicted on Counts One and Two and acquitted on Count Four. The district court granted the government's motion to dismiss Count Five with regard to all defendants.

Spetz, Gulino, and Kalik appeal, arguing that the district court erred in denying their motions to suppress. Kalik also charges error in the district court's admission into evidence of a book entitled Fortune Favors the Brave, and contends that there was insufficient evidence to support his conviction.

I. BACKGROUND

On December 10, 1979, members of the United States Customs Special Contraband and Narcotics Interdiction Team took two detector dogs and their handlers to the Matson Terminal in the Los Angeles harbor. The dogs were part of the Customs Narcotics Dog Interdiction Force. The terminal handles merchandise for Matson, a shipping company which deals in cargo from Hawaii and Guam, and two Japanese steamship companies. The terminal consists of a On December 10th, there were two ships unloading at the terminal, one a Matson vessel, the other a Japanese ship. The customs inspectors entered the container yard and ran the detector dogs within the yard. The dogs mildly alerted on two containers. ² The customs inspectors noted the container numbers, had a Matson employee run them through a computer, and ascertained that both containers had been transported from Hawaii on the Maunalani, the Matson vessel. The manifest of the Maunalani indicated that one container was to be delivered in full outside of the yard, while the other container was to be devanned ³ and placed in the container freight station in the terminal.

fenced area inside which are berths where ships from the three shipping companies dock, a container yard where container cargo is stored, a container freight station where van paks are stored, company offices, and a customs office where two customs inspectors are permanently stationed. ¹

On December 12, the customs inspectors went to the container freight station. ⁴ They learned that the container that was to be devanned had already been opened and the individual van paks placed in the container freight station. The inspectors received permission to enter the freight station. They first ran "Humphrey," one of the dogs that had been run through the container yard on December 10th, through the station. "Humphrey" alerted on a large van pak. ⁵ The customs agents then ran "Randy," a second detector dog, through the area. "Randy" alerted on the same van pak. ⁶

The agents determined that the van pak had been transported on the Maunalani and was addressed to one Mike Murray, 14540 Round Valley Drive, Sherman Oaks, California. After learning that the customs computer listed a Michael J. Murray as having been convicted of marijuana smuggling, the customs agents called the Drug Enforcement Administration (DEA) and discussed the alert with a DEA agent. ⁷ Based on the foregoing information, DEA Agent Clifford Loveless prepared an affidavit for a search warrant for the van pak.

When he executed the warrant, Loveless discovered 1440 pounds of marijuana packed in plastic bags inside the van pak. He removed one plastic bag and field tested the contents. The test proved positive. Loveless inserted a beeper, which would trigger if the container were shaken or the beeper wire broken, into the van pak and resealed it. ⁸

DEA agents then established surveillance at the terminal. On December 14, John Kelly, driving a Ford truck, and Gulino, driving a Mercedes Benz, arrived at the freight station. Kelly entered the terminal office and took delivery of the van pak, which was loaded into his truck.

Kelly and Gulino left the terminal in their respective vehicles. Kelly parked the truck at one point and walked to the corner. Shortly thereafter, Gulino arrived in the area in his Mercedes, parked and "proceeded to go where Kelly was parked." Kelly and Gulino conferred, returned to their vehicles and then proceeded in tandem to Van Alden Street in Van Nuys, approximately 35 miles from the terminal. After turning onto Van Alden, Gulino parked the Mercedes, placed a briefcase in his trunk, and entered the Ford truck that Kelly was driving. The truck then continued along Van Alden for approximately two miles and turned into a driveway to a residence. The driveway was an eighth to a quarter of a mile long.

Surveillance was established at the Van Alden residence. At 1:00 p.m., approximately one-half hour later, the beeper inside the van pak triggered. Loveless instructed the ten DEA agents present to make arrests. One agent observed the scene from a helicopter, and the remaining DEA agents, in six separate vehicles, proceeded up the driveway. There were five vehicles and five individuals in the driveway. The Ford truck was backed up to the open garage, and a Datsun truck was parked beside it. The van pak was still in the bed of the Ford truck. The agent in the helicopter saw Spetz, who had been standing next to the Ford, run to the Datsun, get in, and drive rapidly away. Spetz's truck was stopped by other agents before it reached Van Alden Street, and Spetz was arrested and removed from the vehicle. The agents also arrested Kelly, ⁹ who was in the Ford truck, Gulino, Kalik, and Hugh Rankin, ¹⁰ who were standing between the Ford and the house. The side, front, back, and garage doors of the house were open.

Loveless and two other agents entered the house through the open front, side, and back doors, and made a two to three minute room-by-room search for other suspects. While in the house, one agent noticed an envelope with money protruding from it, and Loveless observed what he believed to be small quantities of marijuana, narcotics, and narcotics paraphernalia.

In front of the house near the garage and the Ford and Datsun trucks, Loveless observed a second van pak. It was empty and, like the van pak that was still in the Ford, bore the name Mike Murray. Loveless detected the odor of marijuana emanating from the crate. At some point, another agent looked through a window in the rear of the Datsun and observed a bulging tarpaulin covering the bed of the truck.

With the exception of Spetz, all of the individuals previously arrested were taken to the DEA office that afternoon. Spetz elected to go inside the house to await arrival of the search warrant. Loveless accompanied him into the house, where, in front of Spetz, he counted the money in the envelope. While in the house, Loveless observed a utility bill in plain view on the table. ¹¹ The bill indicated that Kalik lived at the residence.

Meanwhile, two of the DEA agents went to get Gulino's Mercedes. They had previously announced that the Mercedes would be forfeited and obtained the keys from Several other DEA agents returned to the house with a search warrant at approximately 9:00 p.m. After the search was completed, one of the agents inquired whether Spetz was the registered owner of the Datsun truck. The agent told him the truck was being forfeited and obtained the keys from him. The agent opened the rear of the truck, removed the bulging tarpaulin and found approximately 400 pounds of marijuana wrapped in a manner similar to the marijuana discovered in the van pak...