U.S. v. Medina

• Decision Date: 30 August 1991
• Docket Number: D,No. 1453,1453
• Citation: 944 F.2d 60
• Parties: UNITED STATES of America, Appellee, v. Luz MEDINA, Silverio Polanco, Franklin Marmolejo, Juan A. Mata, Defendants, Franklin Marmolejo, Silverio Polanco and Juan A. Mata, Defendants-Appellants. ockets 91-1033, 91-1034 and 91-1130.
• Court: U.S. Court of Appeals — Second Circuit

Page 60

944 F.2d 60

UNITED STATES of America, Appellee, v. Luz MEDINA, Silverio Polanco, Franklin Marmolejo, Juan A Mata, Defendants Franklin Marmolejo, Silverio Polanco and Juan A. Mata Defendants-Appellants.

No. 1453, Dockets 91-1033, 91-1034 and 91-1130.

United States Court of Appeals Second Circuit.

Argued July 25, 1991.

Decided Aug. 30, 1991.

Charles D. Adler, New York City (Glotzer & Adler, of counsel), for defendant-appellant Polanco.

Adina Schwartz, New York City (The Legal Aid Society, of counsel), for defendant-appellant Marmolejo.

Jorge DeJesus Guttlein, New York City (Aranda & Guttlein, of counsel), for defendant-appellant Mata.

Mark J. Stein, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Daniel C. Richman, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellee.

Before WINTER, ALTIMARI and MAHONEY, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants Franklin Marmolejo, Silverio Polanco, and Juan Mata appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (John F. Keenan, Judge ). The underlying two-count indictment charged the defendants in Count One with conspiracy to possess with the intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846 (1988). Count Two charged defendant Mata with using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1988). Following a five-day jury trial, Marmolejo, Polanco, and Mata were convicted as charged.

On appeal, all three defendants contend that the district court erred by denying their requests to instruct the jury on the issue of multiple conspiracies. Defendant Mata also argues that there was insufficient evidence to support his conviction under either count of the indictment. Mata further contends that the district court erred in failing to suppress evidence seized from his apartment.

For the reasons set forth below, the judgments of conviction are affirmed.

BACKGROUND

The government's evidence at trial showed that in January 1990, a Drug Enforcement Administration ("DEA") informant named "Maria" visited a beauty shop where defendant Luz Medina worked. After several visits to the shop, the two became friends. Thereafter, Maria met with Medina and defendant-appellant Polanco at Medina's home and told them that she was a drug dealer. Medina and Polanco indicated that they would find customers for her. Several days after this meeting, Maria phoned Medina and explained that she was arranging for a man who had drugs to sell to contact Medina. Subsequently, DEA informant Mario Perez visited Medina at the beauty shop and told her that he was a cocaine dealer, and that a kilogram of his cocaine cost $19,000. In response, Medina told Perez that she would contact him when she had a buyer.

Medina then informed Polanco of her meeting with Perez. The next day, Polanco told Medina that a man named "Franklin," later identified as defendant-appellant Marmolejo, wanted to buy two kilograms of cocaine. Medina relayed this information to Perez, and the two arranged to complete the transaction the following day. On January 23, 1991, Medina, Polanco, and Marmolejo traveled to 66th Street and West End Avenue in Manhattan to meet Perez. En route, Polanco promised Medina $500 if the deal went through. Upon arrival, the trio met Perez as planned. Marmolejo told Medina that he had to call the "money man," later identified as defendant-appellant Mata, to find out if he wanted to meet them at 66th Street. After Marmolejo called Mata from a public telephone, Marmolejo told Medina that they had to pick Mata up at 144th Street and Broadway.

Medina, Marmolejo, and Polanco then proceeded by livery cab to 144th Street, followed by Perez in his car. A team of DEA agents, who had been surveilling the 66th Street meeting, also followed. Along the way, Marmolejo commented that if Perez had more cocaine, he "would keep buying for somebody else." Upon their arrival at 144th Street, Mata met the group and informed them that the deal would be finalized at his apartment, located at 621 West 172nd Street. Mata then joined Medina, Marmolejo, and Polanco in their cab and travelled to his apartment. Perez, trailed by the DEA agents, again followed in his car. Upon arriving at 172nd Street, Perez and the four defendants proceeded to Mata's apartment.

Once inside the apartment, Mata stated that he was going to his bedroom to get the buy money. Moments later, Mata returned with a bag containing almost $47,000 in cash and handed it to Perez. Perez dumped the money onto the dining room table and asked Mata and Marmolejo to accompany him to his car to get the cocaine. Polanco and Medina remained in the apartment. Once outside, Perez gave DEA agents a pre-arranged signal and the agents arrested Mata and Marmolejo. Perez told the agents that "the money was in apartment 39" and that there were "other people in the apartment" who expected the trio to return.

DEA Agent Jonathan Wilson and a group of six other DEA Agents then went to apartment 39, knocked on the door, and announced "police" in both Spanish and English. No one answered the door. After hearing scuffling noises and people speaking in Spanish, the agents forced the door using a battering ram. Upon entering the apartment, the agents saw two men, two women, and a small child. Recognizing Medina and Polanco from their earlier surveillance, the agents placed them under arrest. Near the entrance, agents also saw a large quantity of cash on the dining room table. The agents, including Agent Wilson, then conducted a protective sweep of the premises. When Wilson entered Mata's bedroom, he saw a .9 millimeter pistol and a spare loaded magazine in a partially opened gun case lying on a table next to the bed. The agents seized the cash and the gun.

The government filed a two count indictment against the defendants. Count One charged Mata, Medina, Marmolejo, and Polanco with conspiracy to possess with the intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846. Count Two charged Mata alone with using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

Mata filed a motion to suppress the cash and gun seized from his apartment, contending that the physical evidence was seized during a warrantless search in contravention of the fourth amendment. After holding an evidentiary hearing, Judge Keenan found that exigent circumstances justified the warrantless entry into Mata's apartment and that the agents properly seized the physical evidence found there in plain view.

Prior to trial, Medina pleaded guilty to Count One of the indictment and was sentenced to four years of probation, with a condition that she perform 200 hours of community service annually during the probation period. Medina testified on behalf of the government at trial. Following a five-day trial before Judge Keenan and a jury, Mata, Marmolejo, and Polanco were convicted on Count One of the indictment. Mata was also convicted on Count Two. Mata was sentenced to eight years in prison on Count One and to five years in prison on Count Two, the sentences to run consecutively, followed by five years of supervised release. Marmolejo was sentenced to seven years in prison, followed by four years of supervised release. Polanco was sentenced to a thirteen-year term of imprisonment, followed by eight years of supervised release. This appeal followed.

DISCUSSION

I. The District Court's Refusal To Give A Multiple Conspiracies Instruction.

The indictment in the instant case charged all of the defendants with participation in a single conspiracy to possess and distribute cocaine. The defendants requested the district court to give the jury an instruction on multiple conspiracies. The defendants also requested an instruction that a mere "buyer-seller" relationship in a single transaction does not alone support a conspiracy conviction. See United States v. Morris, 836 F.2d 1371, 1374 (D.C.Cir.1988); United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). These two requests are interrelated as the overarching defense theory was that there were two conspiracies afoot: a "buyer" conspiracy and a "seller" conspiracy. According to defendants Mata and Marmolejo, there existed a conspiracy involving Medina, Polanco, and Marmolejo to sell cocaine for the DEA informants to Mata, as the sole buyer, or to Mata and whatever unknown persons were associated with him. Alternatively, defendant Polanco claims that the evidence demonstrated a conspiracy between him and Medina to sell cocaine to Marmolejo and Mata, who allegedly formed a separate "buyer" conspiracy. The district court refused to give either requested instruction, finding that no view of the facts supported the existence of multiple conspiracies or justified giving a "buyer-seller" instruction. On appeal, all three defendants contend that the district court erred in refusing to give the requested instructions. We disagree.

It is well-established that a criminal defendant is entitled to a jury instruction reflecting his or her theory of defense "for which there is some foundation in the proof, no matter how tenuous that defense may appear to the trial court." United States v. Dove, 916 F.2d 41, 47 (2d Cir.1990). The defense theory in the instant case was that instead of the single conspiracy to possess (buy) cocaine with the intent to distribute, there were separate conspiracies consisting of a "buyer" group and a "seller" group.

Where there is evidence supporting an inference that there existed more than one conspiracy, the issue of single versus multiple conspiracies is a jury question. See, e.g., United States v. Alkins, 925 F.2d 541, 553-54 (2d Cir.1991) (citation omitted). However, " 'if only one conspiracy has been alleged and...