U.S. v. Hyson, s. 82-1837

• Decision Date: 23 November 1983
• Docket Number: Nos. 82-1837,82-1838 and 82-1911,s. 82-1837
• Citation: 721 F.2d 856
• Parties: 14 Fed. R. Evid. Serv. 1149 UNITED STATES of America, Appellee, v. Robert HYSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward ENNIS, a/k/a "Tiger", Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard GOMES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 856

721 F.2d 856

14 Fed. R. Evid. Serv. 1149

UNITED STATES of America, Appellee, v. Robert HYSON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edward ENNIS, a/k/a "Tiger", Defendant, Appellant.

UNITED STATES of America, Appellee, v. Richard GOMES, Defendant, Appellant.

Nos. 82-1837, 82-1838 and 82-1911.

United States Court of Appeals,

First Circuit.

Argued Aug. 3, 1983.

Decided Nov. 23, 1983.

Thomas R. DeSimone, Providence, R.I., with whom Robert S. Ciresi, North Providence, R.I., was on brief, for Robert Hyson.

Edward J. Romano, Providence, R.I., with whom John F. Cicilline, Providence, R.I., was on brief, for Edward Ennis and Richard Gomes.

William C. Bryson, Attorney, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., and Edwin J. Gayle, Sp. Atty., were on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, ^* District Judge.

BOWNES, Circuit Judge.

This is an appeal by defendants-appellants Richard Gomes, Edward Ennis and Robert Hyson from jury convictions of conspiring with Federick Martineau to distribute and to possess with intent to distribute heroin, marijuana, hashish and cocaine in violation of 21 U.S.C. Sec. 846. ¹ Gomes and Ennis have filed consolidated briefs; Hyson has appealed separately. We reverse the conviction of Gomes and affirm the convictions of Ennis and Hyson.

I. Whether the District Court Properly Denied the Motion of Hyson to Suppress

The pertinent evidence adduced at the motion to suppress is summarized as follows. ² Hyson allowed Gomes and his girl friend to live in an apartment which Hyson had rented. Hyson had used the apartment sporadically, but it was not his regular residence either prior to or at the time of the search and seizure. Gomes and his girl friend had occupied the apartment for five weeks prior to the search and seizure.

The FBI had an arrest warrant for Gomes charging him with unlawful flight to avoid prosecution for extortion. Agents Shay and Hargreaves received information that Gomes and his girl friend, Janet Armstrong, were living in an apartment house in Rehoboth, Massachusetts. The two FBI agents followed Armstrong to the house and she was observed entering an apartment. A male voice was heard after Armstrong went into the apartment. The agents ascertained from another tenant in the building that a man matching Gomes' description was living in the apartment. The agents entered the apartment and arrested Gomes. Gomes told them, "there's a bag of hashish in the closet and its not mine." The agents seized a travel bag from the closet which contained seven and a half kilograms of hashish, packaged in fifteen separate 500-gram bags. It is this evidence which Hyson sought to suppress.

In denying the motion to suppress, the district court found that Gomes was dwelling in the apartment at the time of his arrest, that he was a "co-owner" and in "co-control" of the apartment along with Hyson, that Gomes consented to the seizure of the hashish, and that Hyson was bound by Gomes' consent.

We begin our analysis by noting that the district court's findings of fact are subject to the clearly erroneous standard of review. United States v. Annese, 631 F.2d 1041 (1st Cir.1980); United States v. Romano, 583 F.2d 1, 7 (1st Cir.1978); United States v. Christian, 571 F.2d 64, 66 (1st Cir.1978). The evidence was sufficient to sustain the district court's finding that Gomes had common control of the apartment along with Hyson. Hyson was the one who rented the apartment, but he did not live there. He allowed Gomes to occupy it, which Gomes did for a period of five weeks prior to his arrest. Hyson has not claimed that the closet in which the hashish was found was restricted for his own personal use.

The holding and reasoning of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), are applicable.

These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. ⁷

7 Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 [81 S.Ct. 776, 5 L.Ed.2d 828] (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 [84 S.Ct. 889, 11 L.Ed.2d 856] (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171, 94 S.Ct. at 993 (emphasis added).

Hyson also contends that the case of Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), precludes the use of the hashish as evidence against Hyson. The question in Steagald was "whether an arrest warrant--as opposed to a search warrant--is adequate to protect the Fourth Amendment interests of persons not named in the warrant when their homes are searched without their consent and in the absence of exigent circumstances." Id. at 212, 101 S.Ct. at 1648. It seems obvious that Steagald simply does not apply. Here, the person named in the arrest warrant, Gomes, was occupying the premises with the consent and knowledge of the owner, Hyson. Gomes was not a guest or visitor at Hyson's home. The search and seizure was of an apartment in which Gomes lived and over which he had as much control as Hyson. By allowing Gomes to occupy the apartment, Hyson assumed the risk that Gomes might permit it to be searched.

Under the facts and the applicable law, the hashish was properly admitted as evidence against Hyson.

II. The Preliminary Credibility Instructions

The first instruction the district court gave on credibility was not entirely correct. This, however, was immediately corrected. And most importantly, the final charge to the jury contained a credibility instruction that was complete, comprehensive and impeccable. There is no merit at all in this assignment of error.

III. The Evidence

The rest of the issues raised requires a review of the evidence, including all reasonable inferences which may be drawn therefrom, in the light most favorable to the government. United States v. Fortes, 619 F.2d 108, 122 (1st Cir.1980).

The government's case was based on the testimony of an informant, Nelson Monteiro, and on the testimony of Federal Drug Enforcement Agency (DEA) agents who conducted surveillances by observation and "bugs" of Frederick Martineau and his associates. The evidence adduced showed that Martineau, who pleaded guilty prior to trial, but did not testify, was a large-scale dealer in heroin, cocaine, hashish, and marijuana.

The basic issue is whether the evidence was sufficient for a jury finding that defendants Hyson, Ennis and Gomes conspired with Martineau to possess and distribute illegal drugs in Massachusetts and in Rhode Island. The government had to prove beyond a reasonable doubt that each defendant had the specific intent to violate the substantive statute, United States v. Mora, 598 F.2d 682, 683 (1st Cir.1979); such proof can be largely circumstantial. United States v. Bithoney, 631 F.2d 1, 5 (1st Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981).

Martineau approached Monteiro in the summer of 1981 about selling marijuana and Monteiro agreed to do so. A short time later, five pounds of marijuana was turned over to Monteiro on the understanding that after it was sold Martineau would be paid $1500. Two pounds of the marijuana was stolen. Monteiro's wife sold the rest and paid Martineau $700. Martineau, along with Kevin Hanrahan, came to Monteiro's home to collect the balance due of $800. Hanrahan physically assaulted Monteiro and he was told that if he did not pay the money both his legs would be broken. This collection attempt proved to be Martineau's undoing because it resulted in Monteiro contacting the DEA. He thereafter became a paid informant.

Monteiro started his informant duties with the purchase of a sample package of heroin from Martineau for $300. The money was furnished by the DEA and the purchase was witnessed by a DEA undercover agent. A few days after this purchase Martineau offered to sell Monteiro half an ounce of heroin for $3500. This was followed by a visit from Hyson and Ennis to Monteiro. They told him that they "wanted to get the ball rolling," and that "they were holding the stuff." Monteiro told them that he would get back to them. Before they drove away, Monteiro noticed Hyson pick a Marlboro cigarette box out of the gutter.

Martineau and Ennis visited Monteiro some days later. Ennis got out of the car and told Monteiro to walk with him. When they got to an open field Ennis pointed to a Marlboro cigarette box. Monteiro picked up the box and, after Martineau and Ennis left, delivered it to the DEA agents. The box contained almost thirteen grams of heroin. Later that same day Martineau and Monteiro went to Spumoni's Restaurant in Pawtucket. They met with two DEA undercover agents whom Monteiro introduced as "his partners." One of the agents paid Martineau $3500.

The agents met Martineau again the next day at the same place. Martineau said he had five people working with him. He offered heroin to the agents at a price of $3000 a half an ounce, $6000...