800 F.2d 916 (9th Cir. 1986), 84-1357, United States v. Perdomo

Docket Nº:84-1357.
Citation:800 F.2d 916
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Constanza PERDOMO, Defendant-Appellant.
Case Date:September 25, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 916

800 F.2d 916 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Constanza PERDOMO, Defendant-Appellant.

No. 84-1357.

United States Court of Appeals, Ninth Circuit

September 25, 1986

Argued and Submitted Feb. 10, 1986.

Page 917

Sanford Svetcov, Chief, Martin Healey, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Stephen J. Heiser, San Francisco, Cal., for defendant-appellant.

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

Before CHAMBERS, Senior Circuit Judge, SNEED and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Defendant Constanza Perdomo appeals her conviction by a jury of two counts of possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), and one count of conspiracy to distribute cocaine, 21 U.S.C. Sec. 846. Perdomo was sentenced to concurrent fifteen-year prison terms on each count and a five-year special parole term on the counts dealing with possession with intent to distribute. 1 Appeal was timely, 28 U.S.C. Sec. 1291, and we affirm.

I

In May, 1984, Robert Shelton, an undercover informant for the DEA, began negotiations to purchase a large amount of cocaine from Robert Agness. In July, Special Agent Thomas Feeney became involved in the undercover operation posing as the man supplying Shelton with money for the cocaine purchase. The final agreement provided that Agness would sell Feeney and Shelton two kilograms of cocaine for $90,000 on July 6.

Agness and Shelton had several telephone conversations about the transaction on the morning of July 6. At approximately 10:10 that morning, Manuel Santos arrived at Agness' home in Danville, California. Santos met with Agness for approximately 45 minutes. While Santos was at the house, Agness spoke with Shelton and told him that his source of supply was with him at the Danville residence. The cocaine was to be delivered later that day.

DEA agents and local law enforcement officials followed Santos after he left the meeting with Agness. Santos drove to a house in Newark, California, where he stayed until about 3:00 p.m. He left the Newark house at that time and drove to the defendant's house at 2976 Sombrero Circle, San Ramon, California.

When Santos arrived at the defendant's house he parked in front of the house for approximately one minute without getting out of the car. A yellow Ford Fairmont, apparently driven by Perdomo, then pulled into the garage at the house. After two to four minutes Santos came out of the house carrying a red paper bag with reddish coloring.

Santos got back into his car with the package and drove to Agness' home. All surveillance units followed him from 2967 Sombrero Circle. Santos entered the house where he met with Agness and Shelton.

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Agness asked Santos whether they could continue doing business, and Santos replied that they could "as long as she is happy with this," and that there was no problem with "her doing more."

After the meeting concluded, Santos left the house and returned to his car. He reached into the rear of the vehicle and removed the paper bag he had carried from defendant's house. Santos carried the bag to a red Porsche owned by Agness and left the bag behind the driver's seat. Shortly thereafter Agness delivered the bag to Special Agent Feeney. The package contained two kilograms of cocaine with 87% purity.

Agness and Santos were taken into custody. The agents then returned to Perdomo's residence. The officers knocked and announced their purpose and, after hearing voices inside but getting no response, the officers forced entry into the house.

The officers performed a brief security sweep of the premises, arrested Constanza Perdomo, and secured the house while a federal search warrant was obtained. Between six and seven hours elapsed before the warrant arrived. The house was searched pursuant to the search warrant and the officers recovered a kilogram of 85% pure cocaine in the garage, a smaller quantity of 80% purity, and an Ohaus scale.

Perdomo moved to suppress evidence at trial relating to the observations the officers made after entering the residence but before the arrival of the warrant. Perdomo also sought to suppress all evidence seized pursuant to the warrant on the ground that the warrant was overbroad in both scope and execution. The district court denied the motions.

During the trial, Perdomo requested that she be given a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), based upon her allegations that the affidavit supporting the search warrant contained statements that the affiants knew were false. The district court also denied the...

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