U.S. v. Chavez

• Citation: 902 F.2d 259
• Decision Date: 09 May 1990
• Docket Number: No. 88-5217,88-5217
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonardo CHAVEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 259

902 F.2d 259

UNITED STATES of America, Plaintiff-Appellee, v. Leonardo CHAVEZ, Defendant-Appellant.

No. 88-5217.

United States Court of Appeals Fourth Circuit.

Argued Jan. 10, 1990.

Decided May 4, 1990.

As Amended May 9, 1990.

John A. Keats, Alexandria, Va., for defendant-appellant.

Andrew Joseph Kameros, Sp. Asst. U.S. Atty., Alexandria, Va., for plaintiff-appellee.

Richard Brownell, Alexandria, Va., on the brief, for defendant-appellant.

Henry E. Hudson, U.S. Atty., Andrew Bennett, Sp. Asst. U.S. Atty., Alexandria, Va., on the brief, for plaintiff-appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

JOSEPH H. YOUNG, Senior District Judge:

Leonardo Chavez appeals his conviction and resulting sentence for possession and interstate distribution of cocaine, contending that the evidence derived from a search warrant should have been suppressed at his trial and that an FBI agent's intrusion into his attorney-client relationship constituted a denial of effective assistance of counsel and due process. For the reasons stated below, we reject these contentions and affirm the conviction and sentence.

I

On June 20, 1988, FBI Special Agent Stephen Benjamin received information from a confidential informant that Chavez would be traveling to Washington, D.C., that evening with a quantity of cocaine to be delivered to Mansur Ahmed. The informant, who had provided corroborated and reliable information for the FBI over the past four months, gave a description of Chavez (but not Ahmed) and stated that he would be traveling on a flight from Denver. After receiving this information, Agent Benjamin called the Denver FBI office, whose agents stated that they were familiar with Chavez, who lived in Las Vegas. The Denver office then contacted the Las Vegas FBI office, which confirmed that Chavez was on a flight from Denver to Dulles Airport.

Agent Benjamin related all this information, including the reliability of the FBI's informant, to Loudoun County Sheriff W.P. Colavita, who then obtained a search warrant for Chavez and his luggage from a Loudoun County magistrate. In his Affidavit in Support of a Search Warrant, Sheriff Colavita stated that Chavez, described as an Hispanic male, 5'10" and 220 lbs., was due to arrive at Dulles with four kilograms of cocaine. Colavita averred that this information was based on facts relayed to him by Agent Benjamin, who based his information on the reliable but unnamed informant. The affidavit also explained that Benjamin's information was partially corroborated by other FBI offices and that the search was part of a case involving Ahmed, which was part of a "current on going investigation, and that there are many more people to be arrested."

After obtaining the search warrant, Benjamin and other local and federal law enforcement personnel went to Dulles Airport, where they saw an individual matching Chavez's description disembarking from a flight from Denver in the early morning of June 21, 1988. While Chavez made a phone call and proceeded to the luggage area, where he met with Ahmed and another individual, a trained narcotics dog sniffed every piece of luggage from the Denver flight and "alerted" the officers to a large, tan/brown suitcase. Just as Chavez was leaving the airport, Agent Benjamin accosted him and presented the search warrant. After the officer who controlled the narcotics dog stated that Chavez's suitcase was the one the dog sniffed, Benjamin searched the suitcase and found 794 grams of cocaine. Chavez and his companions were then arrested. In a private conversation with Benjamin after his arrest, Chavez indicated that he was willing to cooperate with federal authorities and could provide information regarding other drug traffickers in Las Vegas.

On July 1, 1988, Agent Benjamin testified at Chavez's preliminary hearing before a magistrate in the Eastern District of Virginia. Benjamin reiterated the information set out in the affidavit but added some details not in the affidavit. Over counsel's objection, the court limited the questioning to whether Benjamin was satisfied with the informant's credibility. Four days later, on July 5, the grand jury charged Chavez and Ahmed with (1) knowing possession of more than 500 grams of cocaine and (2) interstate distribution of cocaine in violation of 21 U.S.C. Sec. 841(b)(1)(B) and 18 U.S.C. Sec. 1952(a). At the grand jury hearing, Benjamin again testified as to the reliability of the informant and, in response to a question by one of the grand jurors, stated that the informant's knowledge was not firsthand but came from people who knew the defendant.

On July 14, 1988, Chavez, without telling his attorney, phoned Agent Benjamin from the Alexandria Detention Center and spoke to him about his potential cooperation. Chavez told Benjamin that he had heard through his attorney that the government was not interested in having Chavez plead guilty, that he thought his attorney was trying to "milk" him, and that Chavez wished to cooperate. ¹ Agent Benjamin told Chavez that he might want to think about obtaining a different lawyer because the government was interested in his cooperation.

On August 18, eleven days before trial, Chavez sought leave to file a motion to suppress out of time, ² arguing that the search warrant was based on information contained secondhand. Chavez explained that the delay in filing the suppression motion was due to the fact that he had just obtained a transcript of the grand jury hearing (with the agent's additional testimony). The district court denied this motion two days later. On August 23, the government filed a motion in limine under Fed.R.Crim.P. 44(c), alleging a possible conflict of interest between Chavez and his counsel. ³ Based on Chavez's assertions that he wished to keep his lawyer, the district court denied the government's motion but admonished the government regarding Agent Benjamin's ex parte contact with a represented defendant. On August 29, the case was tried before a jury, which convicted Chavez on both counts. Between the period of the verdict and the sentencing, Chavez asked to see Agent Benjamin while Benjamin was at the Alexandria Detention Center on other business. The two discussed Chavez's cooperation and the fact that Chavez faced indictment on drug charges in Denver.

On December 9, after the district court denied the defendant's motion requesting new counsel because of Agent Benjamin's interference, the court sentenced Chavez and this appeal followed.

II

The defendant's principal contention on appeal is that the search warrant executed against him was invalid because it was conclusory and not based on firsthand knowledge of the defendant. The government first contends, however, that the district court, in denying the motion to suppress out of time, never ruled on the substantive suppression claim. Accordingly, the government asserts, Chavez cannot litigate the merits of the validity of the warrant on appeal. We agree with the first contention, but because the district court abused its discretion in denying the defendant's motion to file out of time, we decline to evade the merits of the suppression motion in this appeal.

A

Chavez's motion to suppress filed out of time was denied with a one-page summary order. Although the court orally remarked on the merits of the search warrant, ⁴ those comments were directed more at defending the conduct of the FBI agent than on the issue of probable cause. When defense counsel attempted to obtain a ruling on the merits by inquiring whether the denial of the motion was "based on [United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ] and a good faith execution," the district court stated "[w]ell, I think I have set out what I said about it as clearly as I feel like doing." These comments and the one-page order indicate that the district court never ruled upon the issue Chavez now seeks to litigate.

B

Ordinarily, when a district court denies a motion to file out of time, and thus declines to rule on the merits of the search warrant, we would refuse to entertain any challenge of it on appeal. See United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982) (appellate review of district court's rejection of untimely motion "is limited"). Compare also United States v. Ulloa, 882 F.2d 41, 43 (2d Cir.1989) (failure to make timely motion constitutes waiver of that right even where trial court considers the merits), and United States v. Oldfield, 859 F.2d 392, 396 (6th Cir.1988) (issues raised in untimely motion to suppress are waived on appeal "even though the district court rules on the merits"), with United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988) (when "district court considers and resolves an untimely suppression motion on its merits, we may review that decision on appeal"), cert. denied, --- U.S. ----, 109 S.Ct. 847, 102 L.Ed.2d 978 (1989), and United States v. Contreras, 667 F.2d 976, 978 n. 2 (11th Cir.) (merits of suppression motion properly before court of appeals because district court entertained and ruled on merits), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982). However, we may reach the merits of the suppression issue if the district court committed clear error in denying the defendant's request to file out of time. See, e.g., United States v. Jones, 619 F.2d 494, 497 (5th Cir.1980) (district court abused its discretion in denying motion to suppress because "[g]overnment was not prejudiced by any delay").

Under Rule 12 of the Federal Rules of Criminal Procedure, motions to suppress must be raised prior to trial or by the court-appointed deadline. See Fed.R.Crim.P. 12(b)(3), 12(c). Under Rule 12(f), the failure of the defendant to raise a motion to suppress prior to the time set by the court "shall constitute waiver thereof, but the court for cause shown may...