U.S. v. Lasanta

• Decision Date: 21 October 1992
• Docket Number: Nos. 1521-1523,s. 1521-1523
• Parties: , 36 Fed. R. Evid. Serv. 1404 UNITED STATES of America, Appellee, v. Doris LASANTA, Defendant, Luis Rivera, Juan Cardona, and Eladio Gonzalez, Defendants-Appellants. Dockets 91-1724, 91-1725 and 92-1008.
• Court: U.S. Court of Appeals — Second Circuit

Page 1300

978 F.2d 1300

61 USLW 2272, 36 Fed. R. Evid. Serv. 1404

UNITED STATES of America, Appellee, v. Doris LASANTA, Defendant, Luis Rivera, Juan Cardona, and Eladio Gonzalez, Defendants-Appellants.

Nos. 1521-1523.

Dockets 91-1724, 91-1725 and 92-1008.

United States Court of Appeals, Second Circuit.

Argued June 15, 1992.

Decided Oct. 21, 1992.

C.H. Miller, Atlanta, Ga. (C.H. Miller & Associates, of counsel), for defendant-appellant Gonzalez.

Darrell L. Paster, New York City (Berger, Poppe, Janiec & Mackasek, of counsel), for appellant Cardona.

Keith D. Krakaur, Asst. U.S. Atty., Brooklyn, N.Y., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., Stanley J. Okula, Jr., Miriam R. Best, Asst. U.S. Attys., of counsel), for appellee.

Jay Horlick, Brooklyn, N.Y., for appellant Rivera.

Before MESKILL, Chief Judge, PRATT, Circuit Judge, and ROBERT R. MERHIGE, Jr., District Judge of the District Court for the Eastern District of Virginia, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

FACTS AND BACKGROUND

In June 1989 the New York Drug Enforcement Task Force ("task force") began an investigation of the drug-trafficking activities of Adolfo Crespo, Doris Lasanta, Luis Rivera, Juan Cardona, and Eladio Gonzalez. After indictment, and as part of a plea agreement, Adolfo Crespo and his common-law wife, Doris Lasanta, agreed to Juan Cardona was convicted of conspiring to distribute and possess with intent to distribute an amount in excess of five hundred grams of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii)(II). He was sentenced to 60 months' imprisonment, 5 years' supervised release, and a $50 special assessment.

                testify against the three remaining defendants.   A seven-day trial resulted in convictions for all three
                

Eladio Gonzalez was convicted of both heroin and cocaine conspiracies, see 21 U.S.C. § 846; seven counts of distributing heroin, see 21 U.S.C. § 841; bribing a public official in violation of 18 U.S.C. § 201(b)(1)(C); and carrying a firearm during and in relation to a drug-trafficking crime, see 18 U.S.C. § 924(c). He was sentenced to 188 months' imprisonment on the drug and bribery convictions, a consecutive term of 60 months' imprisonment on the gun conviction, 5 years' supervised release, and a $550 special assessment.

Luis Rivera was convicted of distributing heroin and conspiring to distribute and possess with intent to distribute an amount in excess of five hundred grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 841(b)(1)(B)(ii)(II). He was sentenced to 97 months' imprisonment, 5 years' supervised release, and a $100 special assessment.

The numerous issues presented for our review include challenges to the district court's admission of certain prior-act evidence and attacks on the sufficiency of the evidence underlying several of the convictions. Cardona challenges the constitutionality of the government's civil forfeiture of his vehicle. Gonzalez claims he is entitled to be resentenced.

Additional facts are presented with the specific issues. For the reasons set forth below, we reverse Gonzalez's conviction under 18 U.S.C. § 924(c), but otherwise affirm as to each appellant.

DISCUSSION

I. Cardona

Cardona raises two objections to his conviction on one count of conspiracy to distribute cocaine, see 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii)(II).

A. Evidence Resulting From Warrantless Vehicle Seizure Should Have Been Excluded.

Juan Cardona was arrested pursuant to an arrest warrant between 6 and 7 a.m. on August 20, 1990. A professional livery driver, Cardona possessed a Lincoln Continental stretch limousine, which he kept parked in the driveway of his home in Brooklyn, New York. After placing Cardona in custody, the arresting agents asked him for his car keys and, under the purported authority of the civil forfeiture statute, 21 U.S.C. § 881(a), seized the limousine from the driveway of Cardona's house. Apparently, the agents intended all along to seize the car, but they made no attempt to obtain a warrant for that purpose. They seized Cardona's car, as well as the cars of the other defendants, on the assumptions that merely having probable cause to believe it was used in connection with narcotics trafficking was sufficient under the forfeiture statute to authorize seizure and that no warrant was required.

Cardona objects to the admission of evidence of cocaine found in a small canister discovered by the agents' dog underneath the driver's seat of the limousine. He argues that this fruit of the warrantless seizure should have been suppressed.

A threshold question presented here is whether the government's seizure of the car, without a warrant, as a civil forfeiture, was authorized. The forfeiture statute, 21 U.S.C. § 881, gives power to the attorney general to seize for forfeiture, inter alia, a vehicle that is used to facilitate a narcotics transaction. In carrying out such a statutorily authorized seizure, however, agents of the attorney general must also obey the constitution, particularly the fourth amendment's command that there be no unreasonable seizures.

Section 881(a) provides for forfeiture of conveyances in the following circumstances The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.

* * *.

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) * * *.

21 U.S.C. § 881(a).

The government relies on 21 U.S.C. § 881(b)(4) to support the warrantless seizure of Cardona's vehicle; the provision permits the attorney general to seize "[a]ny property subject to forfeiture" without process when he "has probable cause to believe that the property has been used or is intended to be used in violation of this subchapter". Id. The attorney general claims to have had probable cause to believe Cardona's vehicle was used "to transport, or * * * to facilitate the transportation, sale, receipt, possession, or concealment of" controlled substances. 21 U.S.C. § 881(a).

The government disclaims the need to justify its warrantless seizure of Cardona's limousine with any of the traditional exceptions to the fourth amendment's warrant requirement. It contends that the plain language of the civil forfeiture statute absolves it of any responsibility to obtain a warrant in executing seizures of property used in connection with controlled-substance transactions. The government argues that the forfeiture statute represents congress's decision to create a new exception to the fourth amendment's warrant requirement. In essence, it argues that congress has amended the constitution. To state the position is to refute it, because congress cannot authorize by legislation what the constitution forbids. Marbury v. Madison, 5 U.S. 87, 1 Cranch 137, 2 L.Ed. 60 (1803); see also Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) ("no act of Congress can authorize a violation of the constitution").

This statutory-forfeiture language has been the subject of a fair number of decisions among the circuits. Many circuits have upheld warrantless seizures even in the absence of the traditional exceptions to the warrant requirement. See, e.g., United States v. Pace, 898 F.2d 1218, 1242 (7th Cir.) (analogizing warrantless seizure of vehicle to warrantless, public seizure of felon), cert. denied, 497 U.S. 1030, 110 S.Ct. 3286, 111 L.Ed.2d 795 (1990); United States v. Valdes, 876 F.2d 1554, 1557 (11th Cir.1989) (rejecting argument that proper construction of § 881(b)(4) would obligate agents to obtain seizure warrant before seizing automobile); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir.1983) (statute does not place any exigent-circumstances requirement on warrantless seizure supported by probable cause); United States v. Bush, 647 F.2d 357, 368 (3d Cir.1981) (plain language of statute renders warrantless seizure of vehicle on public street constitutional). Other circuits have required at least exigent circumstances in order to reconcile these statutory seizures with the fourth amendment. See, e.g., In re Warrant to Seize One 1988 Chevrolet Monte Carlo, 861 F.2d 307, 311 (1st Cir.1988) (noting the continuing vitality of United States v. Pappas, 613 F.2d 324 (1st Cir.1979) (en banc), a case that required exigent circumstances for valid, warrantless forfeiture); United States v. Linn, 880 F.2d 209, 215 (9th Cir.1989) (forfeiture seizures must adhere to fourth amendment's warrant requirement or fall within an exception).

The government urges us to rule that the civil-forfeiture statute represents congress's considered exemption of the executive branch from the strictures of the fourth amendment; and that the war on drugs justifies a ruling that courts must deem warrantless seizures constitutionally adequate even when they are grounded solely on the attorney general's affirmation that probable cause existed to believe the property was used in connection with the We find no language in the fourth amendment suggesting that the right of the people to be secure in their "persons, houses, papers, and effects" applies to all searches and seizures except civil-forfeiture seizures in drug cases. U.S. Const. amend. IV. We reject out of hand the government's argument that congress can conclusively determine the reasonableness of these warrantless seizures, and thereby eliminate the judiciary's role in that task of constitutional construction. See U.S. Const. art. VI, cl. 2. While congress may have intended civil forfeiture to be a "powerful weapon in the war on drugs", United States v. 141st Street Corp. by Hersh, 911 F.2d 870, 878 (2d...