U.S. v. Nocella

• Citation: 849 F.2d 33
• Decision Date: 07 April 1988
• Docket Number: No. 87-1929,87-1929
• Parties: UNITED STATES of America, Appellee, v. Robert NOCELLA, Sr., a/k/a Doc, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 33

849 F.2d 33

UNITED STATES of America, Appellee, v. Robert NOCELLA, Sr., a/k/a Doc, Defendant, Appellant.

No. 87-1929.

United States Court of Appeals, First Circuit.

Heard April 7, 1988.

Decided June 13, 1988.

Stephen T. Jeffco, Portsmouth, N.H., for defendant, appellant.

Deborah C. Sharp, Asst. U.S. Atty., with whom Richard V. Wiebusch, U.S. Atty., Concord, N.H., was on brief, for appellee.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Following a jury trial, defendant-appellant Robert "Doc" Nocella was convicted of distribution of cocaine, conspiracy to distribute cocaine, and threatening a witness. See 21 U.S.C. Secs. 841(a)(1), 846; 18 U.S.C. Sec. 1512(b)(3). The defendant appeals, claiming that the district court erred in denying his pretrial motions (i) to exclude a tape recording, and (ii) to suppress incriminating evidence found in a search of his home. We affirm.

I. BACKGROUND

Federal, state, and local authorities received bits and pieces of information about "Doc" Nocella from a variety of sources over a period of time. Many of these insights were thought dependable. When pooled, they led the gendarmes to believe that Nocella, along with his live-in bodyguard (Howie), was dealing drugs from the isolated confines of appellant's country home (located at the end of a mile-long dirt road known as "Jampsa Trail") in rural Nottingham, New Hampshire. In late 1986, a task force composed of agents of the federal Drug Enforcement Administration (DEA) and troopers attached to the New Hampshire State Police special investigations unit (SIU) began to focus on Nocella in earnest. We submit a synopsized summary of what occurred during the probe.

1. December 4, 1986. Operatives representing the DEA and the SIU met to plan an attempted "buy." Glover, an informant who was surreptitiously cooperating with the authorities, proceeded to purchase cocaine at Nocella's residence, utilizing $650 in serialized funds supplied by the officers. A police surveillance was in place outside the house. Glover said he had spoken with both Nocella and one Howard Sylvia, but that it was Nocella who actually transacted the sale.

2. December 10, 1986. With surveillance in place, Glover, using an additional $300 in serialized funds, again bought cocaine at Jampsa Trail from Nocella and Sylvia.

3. December 18, 1986. A third buy, similar to the second, was accomplished. Thereafter, the SIU obtained a warrant from a state magistrate and searched the residence. Much to the troopers' disappointment, they discovered only a small amount of marijuana. Appellant was arrested, charged under state law with possession of marijuana, and read his rights. He boasted that he was good at his trade and told a trooper that he knew the search would take place. Two $100 bills, part of the listed currency used in that day's transaction, were found on his person. Shortly after the arrest, Nocella retained counsel in respect to the pending state charge. The task force's investigation continued.

4. February 10, 1987. Glover met with DEA agents and a state trooper. They outfitted him with a concealed recording device and provided $400 in seed money. Glover went to Nocella's residence, but no purchase ensued. Nocella told Glover he was at risk; Glover would be killed if, as was suspected, he proved to be a turncoat. Nocella put it bluntly: "If you do ... narc me out ... I'll have your ... brains blown right straight out."

5. March 16, 1987. Another confidential source, Raoule Chasse, a/k/a Raoul Chase, advised the DEA that one Mike Stimans was distributing cocaine in the general vicinity of Candia, New Hampshire. Appellant was named as Stimans's supplier. The DEA believed Chasse's tale. Glover's cover being blown, the task force secured Chasse's agreement to cooperate and to wear a body wire.

6. March 20, 1987. A DEA agent gave Chasse $1,100 in serialized funds. Chasse arranged to meet with Stimans in a parking lot. Stimans's wife, Nancy, accompanied him. At the meeting, Chasse placed an order for cocaine and paid the money. The Stimanses left their customer in the parking lot and drove to Nocella's residence, tailed by task force personnel. They returned to the parking lot and delivered the cocaine to Chasse.

7. April 3, 1987. With surveillance again in place, an undercover officer, Welch, placed an order for cocaine and gave Stimans $4,100. He drove to Nocella's residence and returned once more with the drugs.

8. May 5, 1987. Chasse called Stimans and arranged for Welch to make a further buy on the following day. The DEA recorded the conversation.

9. May 6, 1987. Welch, Chasse, and Stimans met in the by-now-familiar parking lot. $4000 in serialized funds changed hands. The middleman proceeded to the general vicinity of Jampsa Trail. (In this instance, the attempted surveillance was less than a complete success.) He later rejoined Welch at a prearranged spot, having in hand the contraband plus $300 worth of the serialized bills. At that point, he was arrested. Special agent Gerald Graffam of the DEA then obtained a search warrant from a federal magistrate. Graffam hit the jackpot: the search of appellant's house turned up 540.5 grams of cocaine, approximately $61,000 in currency (including serialized funds used in previous controlled purchases), handguns, and assorted drug-related paraphernalia.

Following these events, the instant indictment was returned.

II. THE SIXTH AMENDMENT CHALLENGE

Before trial, Nocella moved in limine to bar the prosecution from using the tape recording made during Glover's February 10 visit, or the fruits thereof, on the ground that the surreptitious recording of the conversation out of the presence of appellant's lawyer infringed defendant's sixth amendment right to counsel. This argument prescinded from the convergence of four circumstances: Nocella's December 1986 arrest, the attendant state possession of marijuana charge, retention of counsel in that case, and the continued pendency of the state charge when Glover came to call. ¹ The district court found appellant's contention to be meritless. So do we.

The right to counsel in a criminal case is of constitutional stature. It exists to insure that the accused not be left irretrievably to his own devices, without legal help when the heavy artillery of prosecutorial power is brought to bear. Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). Once a person stands formally accused of a crime, he is vulnerable to certain " 'critical' stages in the criminal justice process 'where the results might well settle the accused's fate and reduce the trial itself to a mere formality.' " Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985) (citations omitted). In order appropriately to safeguard the accused at such potentially decisive moments, the constitutional right to counsel inheres "at or after the time that judicial proceedings have been initiated...." Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). After the right has attached, it prohibits law enforcement personnel, and those acting in concert with them, from deliberate elicitation of statements from an accused in the absence of counsel. See Massiah v. United States, 377 U.S. 201, 204-07, 84 S.Ct. 1199, 1201-04, 12 L.Ed.2d 246 (1964). From that time on, the prosecutor and the police alike are constrained by an "affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Maine v. Moulton, 474 U.S. at 171, 106 S.Ct. at 485.

In this case, the government admits that it deliberately instigated the February 10 meeting between Glover and Nocella, but contends that the confrontation was not designed to obtain incriminating statements concerning the pending state marijuana charge, and was therefore permissible. In the government's view, the crime of distributing (or conspiring to distribute) cocaine--a federal crime for which Nocella was being investigated, but for which he had not yet been indicted--was separate and distinct from the earlier state charge. An even sturdier wedge divides the intimidation charge, 18 U.S.C. Sec. 1512(b)(3), from the marijuana count.

Predictably, appellant sees the mise-en-scene through a wider-angle lens: he claims that because the state charge and the February confrontation arose in the context of an ongoing, state-federal investigation of drug trafficking, his right to counsel--which had admittedly attached upon the bringing of the state charge--inhered to protect him from continued undercover investigation of the sort employed here and likewise barred the use of the evidence obtained in respect to any of the federal charges.

As a general rule, when a defendant's right to counsel has attached for one crime, he is not insulated against interrogation as to other crimes, notwithstanding the absence of counsel. Moran v. Burbine, 475 U.S. at 431, 106 S.Ct. at 1146-47; Maine v. Moulton, 474 U.S. at 179-80, 106 S.Ct. at 489-90. Moulton illustrates the point. Because the authorities suspected an indicted defendant, Moulton, of scheming to slaughter a witness, they secured the agreement of his codefendant, Colson, to wear a body wire. During an ensuing conversation between the two (recorded for the officers' benefit), Moulton made incriminating statements about the theft for which he and Colson stood indicted. The Court held that the sixth amendment barred admission of those statements because there was deliberate elicitation of incriminating statements with regard to a pending charge, after the right to counsel had attached thereon:

The police thus knew that Moulton would make statements that he had a constitutional right not to make to the[ ] agent prior to consulting with counsel.... By concealing the fact that Colson was an agent of the State, the police denied Moulton the opportunity to consult...