U.S. v. Almonte

Citation952 F.2d 20
Decision Date09 September 1991
Docket NumberNos. 90-1939,90-2004,s. 90-1939
PartiesUNITED STATES of America, Appellee, v. Maria ALMONTE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Artemia FELIZ, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Francis X. Mackey, Providence, R.I., for defendant, appellant Maria Almonte.

Scott A. Lutes, Providence, R.I., for defendant, appellant Artemia Feliz.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and James H. Leavey, Asst. U.S. Atty., Providence, R.I., were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

This appeal arises out of two related criminal cases. One of the defendants pled guilty to conspiracy to distribute cocaine, while the other was convicted by a jury of conspiracy to distribute, possession with intent to distribute, and distribution of cocaine. The defendant convicted by the jury appeals her conviction. The other appeals the appropriateness of her sentence. We affirm.

FACTS

In United States v. Flete, No. 90-1940, slip op. at 2-3, (1st Cir. Sept. 9, 1991), in an order dismissing the appeal involving a third co-defendant to the parties involved herein, we recited the salient facts to these appeals as follows:

On March 20, 1990, an informant for the Pawtucket Police Department, working with the FBI, arranged for the purchase of a kilogram of cocaine from Artemia Feliz ("Feliz"). The sale was to take place the following day. On March 21, 1990, the informant entered the Glency Market which is managed by Feliz and owned by her and/or her husband. The quantity of cocaine was reduced to 1/2 kilogram. Feliz directed William Flete ("Flete") to leave the market and obtain the cocaine. Flete left and went to the first floor apartment located at 173 Colfax ("173 Colfax"). A short time later, Flete and Maria Almonte ("Almonte") left 173 Colfax and returned to the Glency Market. In a restroom of Glency's Market[,] Flete delivered 449.3 grams of cocaine to the informant.

The informant was wearing a monitoring device and when the above-mentioned delivery was made, agents and police officers converged on the market and placed Feliz and Flete under arrest. Agents, who had stalked out 173 Colfax, which is across the street from Glency's Market, entered the first floor apartment of 173 Colfax to secure it pending a search warrant.

Almonte was brought back to 173 Colfax. Despite having received Almonte's permission to search, the agents did not search the premises. United States Magistrate Jacob Hagopian subsequently signed search warrants for 173 Colfax and Glency's Market. The search warrants were executed later that afternoon. Inside the bedroom of Flete and Almonte's apartment, agents seized in excess of $4,565 in U.S. currency and 362 grams of cocaine and 'cutting' material. 1

                In a pouch, with Flete's identification inside, agents seized 8.4 grams of crack.   This pouch was found in the closet of the bedroom in which the above-mentioned cocaine and money were found.   A search of Glency's Market revealed a loaded '357' magnum pistol and an Ohaus electronic scale
                

At the time of her arrest, Feliz was standing behind the cash register counter in the market. The loaded .357 magnum pistol was found in a covered box underneath the counter. Flete, Almonte and Feliz were charged in a three count indictment with (1) conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; (2) distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

On June 20, 1990, Feliz pled guilty. Flete also pled guilty. A jury convicted Almonte of all counts. Feliz and Almonte appeal herein. Being that their appeals raise unrelated issues, we will address each separately.

A. Maria Almonte (No. 90-1939)

On appeal Almonte raises two issues. She first claims that the cocaine seized at 173 Colfax should have been suppressed as "fruit of an illegal search and seizure" under the Fourth Amendment to the Constitution. Almonte argues that warrantless entries are justified when agents have a reasonable belief that there are persons inside and a reasonable belief that those persons are aware of the arrest outside the premises so that they might destroy evidence. United States v. Schaper, 903 F.2d 891, 894 (2d Cir.1990). She asserts that, in the instant case, the officers staking out 173 Colfax had absolutely no evidence, nor any reason to believe, that anyone was inside the house. She claims that, as a result of their improper entry, the cocaine subsequently seized pursuant to the warrant should have been suppressed.

The government responds that the cocaine found at 173 Colfax was not suppressible on two grounds. First, the initial entry into the house was for the purpose of securing the premises. It claims that exigent circumstances, namely Flete's suprise entry to 173 Colfax to get the cocaine, justified the government's initial sweep of the apartment so that evidence could be secured and other possible defendants detained. According to the government, prior to Flete's trip from the market to 173 Colfax, the agents on the scene had no reason to believe that 173 Colfax Street would be the site of any illegal activity. It was therefore reasonable to believe that anyone inside the apartment would have been alerted by the arrest and could have destroyed evidence in 173 Colfax. In short, the government argues that these exigent circumstances justified the warrantless search.

Unless exigent circumstances exist, warrantless searches are impermissible. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The test for determining exigent circumstances in this Circuit, "is whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980). We agree with the government that exigent circumstances, namely the commotion at the market resulting from the convergence of the agents, justified the initial sweep. Moreover, in light of the subsequently obtained warrant discussed below, the government need not rely on the initial sweep to sustain a conviction.

Second, the government contends that the subsequent, independently obtained warrant obviates the need to consider any illegality in the initial search. The government states that no incriminating evidence was found until after the warrant was issued. Thus the search was legal and the cocaine was properly admitted into evidence at trial. On this point, we also agree with the government. 2

When the agents conducted their initial sweep of the apartment, the record does not reflect that they observed any incriminating evidence. In fact the warrant affidavit subsequently issued to search 173 Colfax made no mention of the prior entry or any observations resulting from that entry. As explained in Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984):

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.

The cocaine seized in 173 Colfax was obtained by an independent source. It resulted from a search conducted pursuant to a legal warrant. Thus the cocaine was legally obtained and the district court's holding was proper in not suppressing that evidence.

SUFFICIENCY OF THE EVIDENCE

Almonte also claims that her conviction should be reversed because there was insufficient evidence produced at trial to support a conviction. Specifically she claims that the government was required to prove that she knowingly possessed the cocaine. She acknowledges that constructive possession is enough. Almonte argues that the government failed to establish that she had the requisite dominion and control over the cocaine and the premises which would justify a conviction. According to Almonte, because she neither said nor did anything overt to connect her with the cocaine, the government did not prove its case.

STANDARD OF REVIEW

Almonte filed a motion for judgment of acquittal and a motion for a new trial. The motions were denied. In reviewing the denial of a judgment of acquittal and/or motion for a new trial, "the standard of appellate review on sufficiency of evidence is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Blair, 886 F.2d 477, 478 (1st Cir.1989) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). See also United States v. McHugh, 769 F.2d 860, 867 (1st Cir.1985). Framed another way, the inquiry we make "[i]s [whether] the evidence adduced at trial [is] sufficient to support a rational determination of guilty beyond a reasonable doubt?" Article, A Basic Guide to Standards of Judicial Review, 33 S.D.L.Rev. 469, 478 (1988). Viewing the record before us, there is no doubt that a rational trier of fact could have found that the essential elements of the crimes have been proven beyond a reasonable doubt and the conviction must stand.

The essential elements which must be proven beyond a reasonable doubt to establish a violation of 21 U.S.C. § 841(a)(1) are that Almonte

knowingly possessed the cocaine found in the apartment at [173 Colfax]. The government need not prove actual possession;...

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