U.S. v. Arenal
| Decision Date | 18 July 1985 |
| Docket Number | Nos. 84-5137,s. 84-5137 |
| Parties | 18 Fed. R. Evid. Serv. 1250 UNITED STATES of America, Appellee, v. Juan Cabada ARENAL, a/k/a David Omera, a/k/a Cansio, Appellant. UNITED STATES of America, Appellee, v. Pablo DIAZ, Appellant. UNITED STATES of America, Appellee, v. Rene CORDERO, Appellant. UNITED STATES of America, Appellee, v. Daniel Rogelio GONZALES, Appellant. to 84-5140. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Koby, LaCrosse, Wis., Scott F. Tilsen, Minneapolis, Minn., Mark W. Malzahn, Anoka, Minn., for appellant.
Daniel W. Schermer, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, and ARNOLD, Circuit Judge.
In these consolidated drug cases, Juan Cabada Arenal, Rene Pena Cordero, Pablo Diaz, and Daniel Rogelio Gonzales appeal from their convictions for violations of 21 U.S.C. Sec. 841(a)(1). Appellant Cordero was also convicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Arenal, Diaz, and Gonzales entered conditional guilty pleas under Fed.R.Crim.P. 11(a)(2), reserving the right to appeal from adverse rulings on pretrial motions for severance and for suppression of evidence. Cordero pleaded not guilty and was convicted following a jury trial. For reversal, Cordero contends that the district court 1 erred in (1) denying his motion for a bill of particulars, and (2) permitting certain improper expert testimony concerning the existence of a conspiracy. We reverse Cordero's conviction on the conspiracy count, and affirm the district court with respect to all other issues on appeal.
On January 6, 1984, Sergeant Ronald Johnson of the Minneapolis Police Department obtained a warrant to search an apartment at 2640 Second Avenue South, Minneapolis, based on information supplied by a "confidential reliable informant." Johnson executed the warrant and found On January 13 and 14, 1984, Sergeant Johnson obtained and executed four additional search warrants based on information supplied by the same "confidential reliable informant." 2 The searches resulted in the arrests of appellants Diaz, Gonzales, and Arenal for possession of cocaine. All of the cocaine seized from various locations was cut with Inositol.
forty-seven grams of cocaine wrapped in packages and priced for sale. All of the cocaine was cut with Inositol. Appellant Cordero, who was in the apartment at the time of the search, was arrested for possession of cocaine.
A federal grand jury returned a twelve-count superseding indictment against the appellants and two other individuals, charging all six with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846. The four appellants were also charged with substantive counts of distributing cocaine or possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1).
Diaz, Gonzales, and Arenal filed motions to suppress evidence seized in the searches and to sever trials. Following a pretrial hearing before a magistrate, the district court adopted the magistrate's report and recommendation and denied the motions. Thereafter, Diaz, Gonzales, and Arenal entered conditional guilty pleas pursuant to Fed.R.Crim.P. 11(a)(2), specifically reserving the right to appeal the district court's adverse determinations on their severance and suppression motions.
Cordero pleaded not guilty, and stood trial on three substantive counts of possession of cocaine with intent to distribute and one count of conspiracy. A jury convicted him on the conspiracy count and one of the substantive counts, and acquitted him on the remaining counts. This appeal followed.
Appellants first challenge the denial of their motions to suppress evidence seized in the searches, arguing that, because of alleged deficiencies in the warrants and supporting affidavits, police obtained the evidence in violation of their fourth amendment rights. According to appellants, the affidavits 3 failed to establish probable cause because they referred to information supplied by a "confidential reliable informant," but did not adequately demonstrate the informant's underlying reliability or the basis of his knowledge. Appellants also contend, among other things, that the affidavits lacked independent corroboration of the informant's allegations, and that alterations on the face of some of the documents invalidated the warrants.
Under the standard established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the task of a magistrate issuing a search warrant is to determine whether, in light of all the circumstances set forth in the affidavit, Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Courts are to interpret affidavits in a nontechnical, common-sense fashion, and the magistrate's determination of probable cause is entitled to great deference. See, e.g., Gates, 462 U.S. at 236, 103 S.Ct. at 2331; United States v. Little, 735 F.2d 1049, 1055 (8th Cir.), modified on other grounds sub nom. United States v. Sager, 743 F.2d 1261 (8th Cir.1984), cert. denied Applying the Gates "totality of the circumstances" analysis to the present case, we agree with the district court that the state court judges 4 had a substantial basis for concluding that probable cause existed for issuing the warrants. The affidavits contained explicit details concerning the appellants' alleged drug-related activities, along with statements about the informant's firsthand observation of Diaz and Gonzales in possession of weapons and Arenal selling cocaine. The affidavits also established the informant's reliability by detailing the accuracy of information he provided in connection with the January 6, 1984 search leading to Cordero's arrest.
--- U.S. ----, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).
In addition, Sergeant Johnson corroborated some of the information provided by the informant through independent investigation. Appellants argue that Johnson verified only "innocent details," such as addresses, phone numbers, the registration of an automobile, and Arenal's use of certain aliases. However, "completely innocent activity can provide sufficient corroboration in some circumstances." Little, 735 F.2d at 1055. See also Gates, 462 U.S. at 243-44 n. 13, 103 S.Ct. at 2335 n. 13. In light of all the information before the issuing judges, we conclude that the affidavits in question provided a sufficient basis for crediting the hearsay. See United States v. Robinson, 756 F.2d 56, 59-60 (8th Cir.1985); United States v. Thompson, 751 F.2d 300, 302 (8th Cir.1985).
Appellants' other allegations concerning the validity of the warrants are also without merit. Specifically, we note appellants' claim that alterations on the face of some of the documents rendered three of the warrants invalid. The challenged alterations involve the address of one of the apartments searched, 3028 Third Avenue South, which in several places was mistakenly typed as "3208" Third Avenue South. In each instance, Johnson corrected the error and initialed the change. The address was correctly typed in a number of places on the various documents, and no doubt exists about which location was to be searched. We agree with the district court that these obvious typographical errors did not render any of the warrants invalid. Although the documents on which the error appears include the application and warrant to search the Third Avenue address, Johnson called a state district court judge prior to executing the warrant and informed him of the mistakes. The judge told Johnson to correct the address and execute the warrant. The judge later initialed the address changes. A police officer is not "required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested." Massachusetts v. Sheppard, --- U.S. ----, 104 S.Ct. 3424, 3429, 82 L.Ed.2d 737 (1984). Nor was the warrant so facially deficient that Johnson could not reasonably have presumed it to be valid. See United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984). The evidence seized pursuant to the warrants was therefore admissible.
Appellants next contend that the district court's denial of their motions to sever trials deprived them of their right to a fair trial. They argue that the evidence against each of them individually was insufficient to convict, and that, in a joint trial, evidence introduced against other defendants would have spilled over against them, allowing the Government to obtain a "bootstrap" conviction. Appellants also suggest that severance was warranted because they would have raised inconsistent or antagonistic defenses, and because open hostility existed among them.
Generally, persons charged in a conspiracy should be tried together, especially where proof of the charges against the defendants is based upon the same evidence and acts. See, e.g., United States v. Lee, 743 F.2d 1240, 1248 (8th Cir.1984); In this instance, the record before the court does not support a finding of clear prejudice from denial of the motions to sever. Appellants have not shown the existence of circumstances mandating severance. None of the appellants has asserted, for example, that a co-defendant would offer exculpatory evidence on his behalf in the event of a separate trial. See, e.g., United States v. Reed, 733 F.2d 492, 508 (8th Cir.1984); Jackson, 549 F.2d...
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