859 F.2d 1501 (6th Cir. 1988), 87-5667, United States v. Sangineto-Miranda

Docket Nº:Francisco SANGINETO-MIRANDA, (87-5667); Luray Betts,
Citation:859 F.2d 1501
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:October 27, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1501

859 F.2d 1501 (6th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francisco SANGINETO-MIRANDA, (87-5667); Luray Betts,

(87-5668); Enrique Vargas, (87-5711); & Benjamin

Nelson, (87-5712), Defendants-Appellants.

Nos. 87-5667, 87-5668, 87-5711 and 87-5712.

United States Court of Appeals, Sixth Circuit

October 27, 1988

Argued March 22, 1988.

Rehearing Denied in No. 87-5667 April 30, 1990.

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W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Timothy R. DiScenza, Asst. U.S. Atty. (argued), for plaintiff-appellee.

Alan Lubin (argued), Memphis, Tenn. (Court-appointed), for defendants-appellants in No. 87-5712.

Donald L. Ferguson (argued), Coconut Grove, Fla., for defendants-appellants in No. 87-5667.

Robert M. Brannon, Jr. (argued), Memphis, Tenn. (Court-appointed), for defendants-appellants in No. 87-5668.

Michael W. Burnbaum (argued), Coral Gables, Fla., for defendants-appellants in No. 87-5711.

Before JONES, MILBURN and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Francisco Sangineto-Miranda ("Sangineto"), Luray Betts and Enrique Vargas pled guilty pursuant to Rule 11(a)(2), Fed.R.Crim.P., to charges of conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. After a jury trial, Benjamin Nelson was convicted of the conspiracy charges and of one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1)

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and 18 U.S.C. Sec. 2. Finding no merit to the contentions raised on appeal, we affirm.

I. FACTS

In early April 1986, Gregory Hamilton, a government informant, notified Sergeant Charles R. Swain of the Shelby County Sheriff's Department, Narcotics Unit, that Luray Betts was planning to furnish large quantities of cocaine in Memphis. Since his arrest in early 1986, Hamilton had proved to be a reliable informant, providing information on several occasions that led to seizures of cocaine. Hamilton and Swain began negotiating with Betts for the purchase of cocaine. According to Swain, "the discussion had been for thirteen kilograms of cocaine."

During the negotiations, Betts let it be known that his source for cocaine was a man from Florida named "Ben" who could provide any quantity of cocaine they requested. On April 28, 1986, Betts told Hamilton that "his man Ben" was coming into town. He would be picking Ben up at the airport, although the cocaine would be coming by another route.

That afternoon, Special Agent Richard Holmes of the Drug Enforcement Administration ("DEA"), who was stationed in Memphis, received a call from DEA agents in Atlanta, asking him to check out an individual named Ben Nelson who was scheduled to arrive in Memphis from Miami. Holmes testified that "this was a man from Miami [that he] suspected of some type of drug activity." Holmes knew little about Swain's local undercover operation. Special Agent Laurence Courtney was in charge of the Betts investigation for the DEA and coordinated the undercover operation with local officials.

Holmes went to the Memphis airport with several officers and stopped Nelson for questioning. Nelson was escorted to an airport office, where he and his luggage were searched. The search failed to reveal narcotics, but Holmes remained suspicious because hotel receipts found in Nelson's inside coat pocket indicated that he had frequently traveled outside the United States, particularly to the Caribbean. Holmes testified that Nelson was advised of his rights, agreed to answer questions, and was free to leave at any time. Betts, who had arrived at the airport to meet Nelson, was briefly questioned by police. Both men were released less than thirty minutes after Nelson's initial encounter with Holmes.

That evening, Hamilton told Sergeant Swain that he was negotiating a cocaine deal with Betts in an apartment on Pidgeon Perch Lane in Memphis. 1 Betts had insisted that the deal be consummated in the presence of Swain, who was posing as the "money man." The informant also told Swain that he had observed two kilograms of cocaine in the apartment. Hamilton relayed this message from a nearby telephone.

Based on Betts's prior criminal record, Swain decided, with Special Agent Courtney's concurrence, that it was too dangerous to continue the undercover operation in the apartment. He instructed Hamilton to get the exact address of the apartment and call him back. When Hamilton returned to Pidgeon Perch Lane, Betts was waiting outside, quite upset that the "money man" had not arrived. Betts went into Hamilton's car and they drove together to a public telephone to call Swain. Police officers converged on the telephone booth and arrested Betts.

Several officers on the arrest scene then went to the Pidgeon Perch apartment where Hamilton had observed two kilograms of cocaine. The officers decided to enter the residence and "secure" the premises to ensure that evidence would not be destroyed. This group included Special Agent Holmes, who had been enlisted by Courtney earlier that evening to assist in the Betts investigation. When Holmes entered the apartment, he was "shocked" to find the same "Ben Nelson" he had questioned earlier that day at the airport. Nelson was sitting on the couch when the officers entered. He was arrested and read his rights.

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While the officers were "securing" the apartment, the telephone rang and DEA agent Cecil Sherman answered it. The caller asked for "Ben." Agent Holmes took the phone and, affecting a "black street slang dialect," identified himself as "Ben." According to Holmes, he was trying "to ascertain who was on the other end of the phone without [the caller] discovering that I was a law enforcement officer." By the accent on the line, he thought the male caller was "Hispanic." When the caller had difficulty communicating with Holmes, a second person with "a heavy Spanish accent" came on the line. The second caller was able to converse with Holmes in English.

During the conversation, Holmes indicated that he was "ready to do the deal," and the caller "insinuated that they had the package." 2 Believing this to be an agreement to deliver the cocaine for which Hamilton and Swain were negotiating, Holmes and the caller arranged a meeting at a 7-Eleven about ten minutes from the Pidgeon Perch apartment.

Holmes went immediately to the convenience store following the telephone conversation. 3 He was accompanied by a surveillance team, which included Sergeant Bobby Cox of the Memphis Police Department, and Carl Pike, a Tennessee park ranger. Both officers, having been at the Pidgeon Perch apartment when the telephone calls came in, knew they were looking for "Hispanic or Latin type people" who had agreed to deliver narcotics.

Holmes did not see any Hispanic people at the 7-Eleven. After waiting a few minutes, he decided to return to the Pidgeon Perch apartment in the hope of making further contact with the callers. Before leaving, he instructed Cox, Pike and a third officer in a second car to maintain their surveillance of the convenience store. Cox and Pike positioned themselves in a parking lot across the street in view of the outdoor public telephone.

After Holmes returned to the Pidgeon Perch apartment, the telephone rang and he spoke again with the "Hispanic" callers. According to Holmes, "they wanted to put the deal off until tomorrow morning. I advised them that I was going back home to Miami and I wasn't going to wait until the following day. They agreed to meet me again at the 7-Eleven." The DEA agent told the callers he would be right over to the convenience store.

Meanwhile, Cox and Pike were watching the 7-Eleven when they observed two individuals, who ultimately turned out to be appellants Vargas and Sangineto, walk to the outdoor public telephone. Cox testified that they "observed two subjects walk into the 7-Eleven store, which was at the place where the deal was supposed to go. They walked up to the phone, stood around the phone for a few minutes, kind of suspicious acting way, not particularly dialing the phone number, just standing there really. After a few minutes one of the guys did get on the phone." While the subject was on the telephone, Cox stated, they received a radio transmission that a second call had been received at the apartment and that "the subjects were back at the 7-Eleven ... wanting to do the deal." The officers were instructed to detain the callers if they attempted to leave the area.

Following the radio transmission, Pike moved in closer, as Cox pulled his unmarked car around the corner on the west side of the 7-Eleven. Pike heard Vargas and Sangineto speak in Spanish and relayed that information to Cox. When the officers concluded that Vargas and Sangineto were leaving the area, they moved in to stop the subjects. With guns drawn, Cox and Pike and a third officer arrested Vargas and Sangineto, handcuffed them, and put them in the police car. Neither defendant was advised of his rights under

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Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cox asked the arrestees about their means of transportation to the convenience store, to which Sangineto replied he was in the "old truck" parked around the corner of the 7-Eleven.

A short time later, Holmes arrived at the convenience store. After briefly listening to Vargas and Sangineto speak, he concluded that they were the callers to the Pidgeon Perch apartment with whom he had spoken earlier. Holmes then effected what he characterized as an official arrest, and read them their rights in English and Spanish. According to the...

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