891 F.2d 389 (1st Cir. 1989), 88-2171, United States v. Browne
|Docket Nº:||88-2171, 88-2172.|
|Citation:||891 F.2d 389|
|Party Name:||UNITED STATES, Appellee, v. Franklyn Milton BROWNE, Defendant, Appellant. UNITED STATES, Appellee, v. Darrin TAYLOR, Defendant, Appellant.|
|Case Date:||December 12, 1989|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Heard Oct. 6, 1989.
Jeffrey M. Williams, Santurce, P.R., by appointment of the Court, for defendant, appellant Franklyn Milton Browne.
Victor Amador, San Juan, P.R., by appointment of the Court, for defendant, appellant Darrin Taylor.
Jose R. Gaztambide, Asst. U.S. Atty., Rio Piedras, P.R., with whom Daniel F. Lopez Romo, United States Attorney, Hato Rey, P.R., Charles E. Fitzwilliam, Acting U.S. Atty., and Jorge L. Arroyo, Asst. U.S. Atty., Old San Juan, P.R., were on briefs, for appellee.
Before CAMPBELL, Chief Judge, TIMBERS, [*] Senior Circuit Judge, and BREYER, Circuit Judge.
TIMBERS, Circuit Judge:
Appellants Franklyn Milton Browne and Darrin Taylor (collectively "appellants") appeal from judgments of conviction entered on October 6, 1988 and November 3, 1988, respectively, in the District of Puerto Rico, Raymond L. Acosta, District Judge, upon jury verdicts of guilty on charges of aiding and abetting in the unlawful importation of cocaine into the United States in violation of 21 U.S.C. § 952(a) (1988), aiding and abetting in the unlawful possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1988), and aiding and abetting in the unlawful possession of cocaine on board an aircraft in violation of 21 U.S.C. § 955 (1988). A pretrial motion to suppress incriminating statements made by appellants during their interrogations was denied by the district court upon findings that Browne and Taylor made their statements freely and voluntarily.
On appeal, both appellants contend that, in light of the chain of custody defects, the district court erred in admitting in evidence drugs seized during a customs search. They also contend that the district court erred in denying their motions to suppress incriminating statements obtained during custodial interrogation. They claim that these statements were obtained illegally as a result of coercion and intimidation by federal agents in violation of the Fifth Amendment privilege against self-incrimination.
Each appellant also raises separate claims of error.
Taylor contends that the district court erred in denying his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29.
Browne contends that his incriminating statements were obtained in violation of his Fifth Amendment right to have counsel present during custodial interrogation. Browne also contends that the district court erred in allowing his oral statements in evidence since the government had assured his counsel that it would not use the statements. He further contends that the district court erred in admitting in evidence tape recordings of the conversation between co-defendant Billy McDowell and himself.
For the reasons set forth below, we affirm the judgment of conviction with respect to Taylor; but we reverse the judgment of conviction with respect to Browne and remand for a new trial as to him.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Appellants arrived at Roosevelt Roads Naval Base in Puerto Rico from Howard Air Force Base in Panama on January 30, 1988. They were on board Military Air Command flight number 480.
U.S. Customs Inspector Angel Luis Villegas was the inspector on duty at the terminal. Villegas conducted a customs search of the passengers' baggage on that flight. He initially discovered a substance in two duffel bags which he suspected was cocaine. These bags belonged to individuals not involved in this case. A third duffel bag was searched in which cocaine and a military garment bearing the name "Taylor" were found. The boarding manifest indicated the presence of only one person named "Taylor", namely Darrin Taylor. A fourth duffel bag was opened in which cocaine and a military garment bearing the name "Browne" were found. There was only one passenger with the name "Browne" on the flight.
Appellants were arrested and advised of their constitutional rights. They signed waiver of rights forms. During interrogation, both gave incriminating statements. Two notes with similar names and telephone numbers were found in the possession of appellants. The edges of the notes matched and appeared to have been written on one piece of paper. Browne agreed to call Billy McDowell, whose telephone number appeared on one note. The conversation was monitored and recorded. A sham narcotics transaction was arranged. This took place in Texas and led to the arrest of McDowell.
Appellants were charged in a three count indictment returned February 10, 1988 with the three offenses set forth in paragraph one of this opinion.
At a hearing held on June 21, 1988, Judge Acosta denied appellants' motions to suppress incriminating statements made during custodial interrogation. He stated that "[a]fter careful consideration of the demeanor and credibility of the witnesses, as well as the evidence submitted, together with the arguments of counsel, I find that from the totality of the circumstances that the statements made by Mr. Browne and Mr. Taylor were freely and voluntarily given."
Following a jury trial, each appellant was convicted on each of the three counts. This appeal followed.
II. TAYLOR'S CLAIMS OF ERROR
Chain of Custody Claim
Taylor contends that the packages of cocaine seized during the customs inspection were improperly admitted at trial because the government failed to identify the initial link in the chain of custody. Taylor therefore contends that...
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