U.S. v. Rosen, 90-1650

• Decision Date: 07 January 1991
• Docket Number: No. 90-1650,90-1650
• Citation: 929 F.2d 839
• Parties: UNITED STATES of America, Appellee, v. Jay Martin ROSEN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 839

929 F.2d 839

UNITED STATES of America, Appellee, v. Jay Martin ROSEN, Defendant, Appellant.

No. 90-1650.

United States Court of Appeals First Circuit.

Heard Jan. 7, 1991.

Decided April 5, 1991.

Rehearing Denied April 29, 1991.

Richard S. Emerson, Jr., with whom Childs, Emerson, Rundlett, Fifield & Childs, Portland, was on brief, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and William H. Browder, Jr., Asst. U.S. Atty., Bangor, Me., were on brief, for U.S.

Before CAMPBELL and CYR, Circuit Judges, and POLLAK, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This is another appeal resulting from an undercover operation conducted in the fall of 1988, when state and federal law enforcement officers infiltrated a marijuana importation network in Maine. See United States v. Panitz, 907 F.2d 1267 (1st Cir.1990) (appeals of defendants Solomon Philip Panitz and Andrew Stewart Baumwald). Appellant Jay Martin Rosen was indicted with others on charges of conspiracy to possess with intent to distribute in excess of 50 kilograms of marijuana, a schedule I controlled substance listed in 21 U.S.C. Sec. 812 (Count I), and of aiding and abetting in that offense (Count III), in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(C). ¹ In a consolidated pretrial suppression hearing, Rosen unsuccessfully requested the court to suppress the marijuana found in the car he was driving when arrested, and certain statements made to the arresting police officer. ² Rosen also moved unsuccessfully to dismiss the indictment for outrageous police conduct. After the court rejected the suppression and dismissal motions, Rosen entered a conditional guilty plea to Count I pursuant to Fed.R.Crim.P. 11(a)(2), ³ and the court dismissed Count III on the government's motion. At sentencing, the judge calculated Rosen's "Base Offense Level" from the amount of marijuana found in Rosen's car (150 pounds). Rosen was sentenced on June 18, 1990 to 51 months imprisonment, a three-year term of supervised release, and a $50 fine.

Rosen now asserts as errors the district court's (1) denial of his motions to suppress evidence and statements; (2) denial of his motion to dismiss the indictment for outrageous police conduct; and (3) basing of the sentence on the amount of marijuana seized (150 pounds) rather than on a lesser amount Rosen had bargained for earlier.

I. BACKGROUND

On November 22, 1988, Rosen was arrested with Andrew Stewart Baumwald as they headed south toward Boston on the Maine Turnpike in a BMW automobile carrying 150 pounds of marijuana in its trunk. They were part of a marijuana distribution network led by one Michael Goldin, who had arranged to have a 10,000 pound shipment of marijuana smuggled from Colombia. Unbeknownst to Goldin, the shipment was intercepted by the U.S. Coast Guard before its arrival in Maine, and the marijuana was taken into the possession of the Drug Enforcement Administration (DEA). The DEA agents, posing as smugglers, then contacted Goldin with the news that the marijuana had arrived in Maine. Goldin inspected it and induced a number of customers and their drivers, including Rosen, to drive to Maine to procure marijuana. We described as follows what next ensued in United States v. Panitz: ⁴

Goldin devised a plan for distributing the marijuana. He would make a series of vehicles available to his accomplices (agents all), turning over the keys. The agents would drive each vehicle, as received, to the place where the marijuana was being stored, stuff it with whatever amount of marijuana Goldin specified, park at a prearranged spot, and return the keys to Goldin. The smuggler [Goldin] would then complete the transaction with the customer, exchanging a drug-laden vehicle for the balance of the agreed price.

907 F.2d at 1269. (Footnote omitted). The loaded vehicles were kept under constant surveillance by the agents, and when the cars were claimed and driven away by the customers they were followed. At a point along the road, uniformed officers stopped the vehicles, searched them, seized the contraband and arrested the occupants. At 2:30 p.m. on November 22, Rosen and Baumwald entered their BMW which had been loaded with 150 pounds of marijuana. As they headed south on the Maine Turnpike, they were stopped, the BMW was searched, the marijuana was seized and they were arrested.

In Panitz this court reviewed two of the same issues Rosen now raises: the legality of the warrantless search of the BMW and of the police's allegedly outrageous conduct in planning and conducting this "sting" operation. We sustained the vehicular search under the "automobile" exception. 907 F.2d at 1270-1272. We also held that the utilized law enforcement practices were neither fundamentally unfair nor offensive to principles of due process. Id. at 1273. We now turn to Rosen's contentions.

II. MOTION TO SUPPRESS EVIDENCE AND STATEMENTS

A. The Automobile Search

Rosen argues that the marijuana seized from the trunk of his vehicle was the fruit of an illegal search and should have been suppressed. Having considered the identical question in companion Baumwald's appeal, Panitz, 907 F.2d at 1271-1272, we are not persuaded that the search was improper nor are we any more persuaded than before that the district court erred in allowing the marijuana to be used as evidence. Thus, for the reasons stated in Panitz, we reject this claim of error. ⁵

B. Statements after Arrest

After Rosen was stopped on the Maine Turnpike and the car was searched by Agent Bryfonski, Rosen and Baumwald were arrested. Bryfonski administered Miranda warnings to Rosen, and Rosen indicated that he understood them. Rosen then answered a number of questions posed by Bryfonski about where he had obtained the marijuana and whether he was under direction to make any telephone calls to anyone at that time. Rosen now argues that these statements should have been suppressed because he never indicated to Agent Bryfonski that he was waiving his rights. The district judge found, however, that Rosen had explicitly waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Reviewing the district court's findings under the strict "clearly erroneous" standard, United States v. Walker, 924 F.2d 1 (1st Cir.1991); United States v. Jobin, 535 F.2d 154, 156 (1st Cir.1976), we find no error. The district judge's decision was based primarily on Agent Bryfonski's testimony at the suppression hearing, where he testified that after the Miranda warnings were read, Rosen appeared to understand those rights, and that he asked Rosen if he was going to answer any questions. Bryfonski then stated that "[h]is acknowledgement to me was that he was willing to answer questions." This sworn testimony of the agent supports the district judge's finding of consent by Rosen to answer questions, and the judge's conclusion that the statements were admissible. The district court's findings, as well as its decision to credit Bryfonski's testimony, are owed deference by reviewing courts. See Jackson v. Denno, 378 U.S. 368, 390-391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908 (1964). We find no error by the district judge in refusing to suppress Rosen's statements to Bryfonski. ⁶

III. OUTRAGEOUS POLICE CONDUCT

During pretrial proceedings, Rosen and his codefendants unsuccessfully moved to dismiss the indictments on the basis of outrageous government conduct. At issue in Panitz was the same motion to dismiss that Rosen now claims should have been granted. We defer to our discussion in Panitz, 907 F.2d at 1272-1274, and hold that the district court did not err. See n. 5, supra.

IV. BASE OFFENSE LEVEL

Rosen's final contention is that the quantity of drugs loaded by the undercover agents into the vehicle he was driving should not have been used to tabulate the base offense level for purposes of sentencing. At sentencing, defendant's counsel explained that Rosen negotiated, paid for, and expected to receive only 30 pounds of marijuana. However, Rosen was notified by the agents acting undercover, at the time he went to the parking lot to retrieve the BMW on November 22, that they had loaded the car with 150 pounds of marijuana. Counsel for Rosen acknowledged that the defendant knew at the time he got into the car and "put the key in the switch" that he was transporting 150 pounds. At the time of sentencing, Rosen was held accountable for the full 150 pounds. ⁷ Rosen argues that the district court misconstrued Sec. 1B1.3(a)(1) of the guidelines, which states in relevant part that the base offense level shall be determined on the basis of:

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense ...

The commentary to that section explains that:

[i]n the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant 'would be otherwise accountable' also includes conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonably foreseeable by the defendant.... Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant's offense level under this guideline.

U.S.S.G. Sec. 1B1.3, comment. (n. 1).

Rosen claims that a defendant should be sentenced for the conduct of others only when the conduct is jointly undertaken...