929 F.2d 839 (1st Cir. 1991), 90-1650, United States v. Rosen

Docket Nº:90-1650.
Citation:929 F.2d 839
Party Name:UNITED STATES of America, Appellee, v. Jay Martin ROSEN, Defendant, Appellant.
Case Date:April 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 839

929 F.2d 839 (1st Cir. 1991)

UNITED STATES of America, Appellee,


Jay Martin ROSEN, Defendant, Appellant.

No. 90-1650.

United States Court of Appeals, First Circuit

April 5, 1991

        Heard Jan. 7, 1991.

        Rehearing Denied April 29, 1991.

Page 840

        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

Page 841

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.


        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...

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