866 F.2d 988 (8th Cir. 1989), 88-5162, United States v. Marin-Cifuentes

Docket Nº:88-5162, 88-5163 and 88-5164.
Citation:866 F.2d 988
Party Name:UNITED STATES of America, Appellee, v. Rubiel MARIN-CIFUENTES, Appellant. UNITED STATES of America, Appellee, v. Dairo Jesus RIOS, Appellant. UNITED STATES of America, Appellee, v. Leonardo H. QUITIAN, Appellant.
Case Date:January 19, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 988

866 F.2d 988 (8th Cir. 1989)

UNITED STATES of America, Appellee,

v.

Rubiel MARIN-CIFUENTES, Appellant.

UNITED STATES of America, Appellee,

v.

Dairo Jesus RIOS, Appellant.

UNITED STATES of America, Appellee,

v.

Leonardo H. QUITIAN, Appellant.

Nos. 88-5162, 88-5163 and 88-5164.

United States Court of Appeals, Eighth Circuit

January 19, 1989

Submitted Nov. 17, 1988.

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Terry L. Hegna, St. Paul, Minn., for Marin.

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Rick E. Mattox, Eagan, Minn., for Quitian.

Barry V. Voss, Minneapolis, Minn., for Rios.

Jon M. Hopeman, Asst. U.S. Atty., Michael Luzum, Legal Intern, Minneapolis, Minn., for U.S.

Before HEANEY and BEAM, Circuit Judges, and STUART [*], Senior District Judge.

STUART, Senior District Judge.

This appeal arises from the defendants' alleged participation in an illegal drug transaction in Minnesota. All three defendants were convicted of aiding and abetting the knowing and intentional distribution of 14 kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), 841(b)(1)(A) and 18 U.S.C. Sec. 2, and of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Defendant Rubiel Marin-Cifuentes (Marin) was also convicted of aiding and abetting the possession with intent to distribute of an additional 24 kilograms of cocaine and with importing 24 kilograms of cocaine into the United States in violation of 21 U.S.C. Secs. 952(a) and 960(b)(1)(B) and 18 U.S.C. Sec. 2. Defendants Dairo Jesus Rios and Leonardo H. Quitian were convicted of travelling in interstate commerce from New York to Minnesota for the purpose of carrying on unlawful narcotics activity in violation of 18 U.S.C. Sec. 1952(a). Seven other defendants were named in the indictment. Five plead guilty, and two are now fugitives. This appeal concerns only the claims of Marin, Rios, and Quitian.

Marin contends that the district court 1 erred in admitting "prior bad act" evidence and in admitting witness identification of his voice on audio cassettes and abused its discretion in sentencing him. Quitian appeals the district court's failure to sever his trial from trial of the others, and claims that his arrest and the search of his motel room were improper. Quitian and Rios both claim that the evidence presented at trial was insufficient for a jury to reasonably conclude beyond a reasonable doubt that they were guilty of the crimes charged. We affirm the District Court for the reasons that follow.

I. PROBABLE CAUSE TO ARREST AND EXIGENT CIRCUMSTANCES TO

ENTER MOTEL ROOM. (Quitian)

Quitian argues that his arrest was made without probable cause and that there were no exigent circumstances justifying the warrantless search of the Skywood motel room. Consequently, he asserts his post-arrest statement and any evidence seized from the motel room and/or car must be suppressed as "fruit of the poisonous tree."

A district court's finding of probable cause to make a warrantless arrest will not be overturned unless clearly erroneous. United States v. Woolbright, 831 F.2d 1390, 1393 (8th Cir.1987); United States v. Wajda, 810 F.2d 754, 758 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). The existence of probable cause sufficient to justify a warrantless arrest depends on "whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (citations omitted); Woolbright, 831 F.2d at 1393. The district court may consider the "collective knowledge and information of all of the officers involved." Id.

The facts underlying the decision to arrest Quitian are as follow. After his arrest in February of 1987, Thomas Mario Palis agreed to aid the Drug Enforcement Administration in accomplishing the arrest of his sources. Pursuant to this agreement,

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he contacted Marin in Columbia. Marin agreed to sell cocaine to Palis and recruited Karen Bordonaro to transport it to Minneapolis. Bordonaro transacted her part of the distribution with the aid of John Jairo Ochoa-Crespo (Ochoa), whom she learned of through Marin, and Dairo Jesus Rios. Bordonaro arrived in Minneapolis on August 28 and Ochoa joined her on August 29. She then informed Palis that she could not complete the transaction until August 31.

On August 30 at 11 a.m. a call was placed from a portable phone rented by Ochoa to Dairo Rios' New York residence. Another call was placed to Rios' New York number at 11:21 p.m. Three minutes later a call was placed to the Skywood Motel in Fridley, Minnesota, where German Rios and Quitian were staying. Agents later learned that German Rios and Quitian had checked into the motel at 8:00 p.m. on August 30. The clear inference from these facts was that Ochoa was waiting for the cocaine to arrive in Minneapolis. He knew that the drivers were bringing it from New York. He did not know exactly where they were staying and he had to call Dairo Rios' residence in New York to find out where the drivers, German Rios and Leonardo Quitian, would be staying when they arrived in Minnesota.

On August 31 at approximately 9 a.m. Bordonaro told Palis that she needed a rental car, that the transaction would be completed in three separate trips, and that approximately fifteen kilograms of cocaine would be delivered. In Minneapolis, Dairo Rios rented a car and portable phone. Immediately thereafter, a call was placed from Ochoa's phone to the Skywood Motel. Shortly thereafter undercover agent Deputy Burchette and Palis delivered the keys of a red rental car to Bordonaro. She then stated that her people were out there and would be back in forty-five minutes with the cocaine. At 1:15 p.m., the officers observed Ochoa and Dairo Rios leaving the Marriott in two blue rental cars. Four minutes prior to their arrival at the Skywood, a telephone call was placed from Dairo Rios' telephone to the Skywood motel. Ochoa and Dairo Rios arrived at the Skywood at 2:15 p.m. At 2:20 p.m. they were observed coming out of the rear of the motel with Quitian. The three met at the back of a Chevrolet with New York license plates. They then stood near one of the rented cars. Quitian was then observed doing counter surveillance in the vicinity of the motel for the next hour.

Ochoa and Dairo Rios returned to the Marriott and transferred a black suitcase from the trunk of their car to the trunk of the red car rented for Bordonaro. Ochoa and Bordonaro then delivered the suitcase, which contained fourteen kilograms of cocaine, to Palis and Deputy Burchette. Burchette told Ochoa he would not be able to pay him until the cocaine was sold. Ochoa told him the money had to be sent back to New York with the same people who brought the cocaine.

Calls were exchanged between Ochoa's phone and a pay phone at a restaurant across from the Skywood early the next morning. The officers were still awaiting the arrival of an additional 24 kilograms of cocaine that Marin had promised to have delivered. Once Bordonaro advised Palis that the additional cocaine had arrived, Ochoa, Dairo Rios, Bordonaro, and two other defendants were arrested. Five minutes later officers entered room 154 of the Skywood Inn in Fridley, where they arrested Quitian.

The facts in the record as known to the officers on September 1 gave them cause to arrest Quitian at that time for drug dealing. This court must affirm the trial court's findings of probable cause and exigent circumstances to enter room 154 and arrest Quitian unless those findings are clearly erroneous. United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984); United States v. Jones, 635 F.2d 1357, 1360 (8th Cir.1980). The magistrate found that exigent circumstances were present here. The district court affirmed. The facts clearly show that this finding was correct.

The officers knew of the meeting between Quitian and Ochoa and Dairo Rios immediately before delivery of the cocaine.

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They believed that the New York car where the meeting occurred was the load vehicle and that its drivers were waiting for the $936,000. They knew of frequent telephone communications between Ochoa and Dairo Rios and the occupants of Room 154 by means of portable telephones, hotel telephones, and pay telephones. The officers knew that Quitian especially was very surveillance conscious. Ochoa and Dairo Rios had been arrested. It would have been foolhardy to not make the arrest of Quitian at the same time to avoid the destruction of evidence or risk the chance of flight. Quitian's contention that the fears of destruction of evidence were only speculative is therefore wrong.

These facts are similar to those in United States v. Palumbo, 735 F.2d 1095 (8th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984), in which the court held that there were exigent circumstances to enter a hotel room when the arrest of a single defendant outside of the room would have alerted a second defendant who was in the room with the evidence. Id. at 1097. Accord, United States v. Knobeloch, 746 F.2d 1366, 1367 (8th Cir.1984), cert. denied. 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383. See also, United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978) (when narcotics source observed police officers outside his house after arrest of codefendant who could not return with money, exigent circumstances existed); and United States v. Wentz, 686 F.2d 653, 657 (8th Cir.1982) (exigent circumstances existed upon arrest of codefendant and his failure to return to source with money).

We therefore find that there was...

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