997 F.2d 1273 (9th Cir. 1993), 90-50316, United States v. Garcia

Docket Nº:90-50316, 90-56082.
Citation:997 F.2d 1273
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joaquin GARCIA, Defendant-Appellant. Joaquin GARCIA, Plaintiff-Appellee, v. Margaret C. HAMBRICK, Warden, Metropolitan Detention Center Los Angeles, Defendant-Appellant.
Case Date:June 10, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1273

997 F.2d 1273 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joaquin GARCIA, Defendant-Appellant.

Joaquin GARCIA, Plaintiff-Appellee,

v.

Margaret C. HAMBRICK, Warden, Metropolitan Detention Center

Los Angeles, Defendant-Appellant.

Nos. 90-50316, 90-56082.

United States Court of Appeals, Ninth Circuit

June 10, 1993

Argued and Submitted March 1, 1993.

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[Copyrighted Material Omitted]

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Freddie Fletcher, Los Angeles, CA, for defendant-appellant and plaintiff-appellee Garcia.

David S. Tennant and Julie Ryan, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee U.S. and defendant-appellant Margaret C. Hambrick.

Appeal from the United States District Court for the Central District of California.

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Before: SCHROEDER, THOMPSON and O'SCANNLAIN, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

In his direct appeal in United States v. Garcia, No. 90-50316, Joaquin Garcia appeals his convictions after a bench trial on five counts of possession with intent to distribute cocaine and heroin, 21 U.S.C. § 841(a)(1); two counts of weapons possession, 26 U.S.C. §§ 5861(i) and 5871 and 18 U.S.C. §§ 922(o )(1) and 924(d); and one count of using a machine gun during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). Garcia contends the district court erred in determining that police officers did not violate the Fourth Amendment when, without a warrant, they walked up to the back door of his apartment, talked to the occupants for five minutes while pretending to be apartment hunters, looked through a dark screen door and saw Garcia holding cocaine, and then gained entry and arrested him inside. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. 1

In Garcia v. Hambrick, No. 90-56082, the government appeals from the district court's judgment granting Garcia's petition under 28 U.S.C. § 2255 to vacate his conviction for violating 18 U.S.C. § 924(c), one of the counts of which he was convicted in his bench trial. The district court vacated the section 924(c) conviction because it concluded that, as to this count, Garcia had received ineffective assistance of counsel during his trial. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255 and we reverse.

FACTS

On August 10, 1989, Los Angeles County Sheriffs Deputies Beers, Letizio and three others conducted undercover surveillance of an apartment complex on Beechwood Drive in Southgate, California. 2 Two months earlier, an informant had reported that narcotics were being sold there from Apartment B, one of three units in the complex. Apartment A is a detached single-family home. It is located on the east side of Beechwood Drive. A driveway on the south side of this house leads to an open parking area behind it. To the east of the parking area is a garage. It is attached to a two-story duplex, Apartments B and C. The front of these apartments faces south. Back entrances and porches are around the garage in back facing north. The area in front of Apartments B and C has a walkway and landscaping. The area in back is bare. When looking north at the front of Apartments B and C, B is on the left and C is on the right.

The officers stopped and questioned the apartment manager. The manager told them the tenants of Apartment B had vacated the premises, and that she believed a cleaning crew was inside. The manager told the officers that Apartment B was the "left apartment."

The officers did not have a search warrant. Nevertheless, they drove onto the driveway and parked their van. Cars were parked in the parking area in such a way that the officers could not see the front of Apartment B, the walkway leading to its front door, or the shrubbery along the south side of the walkway.

Deputies Beers and Letizio decided to pose as prospective renters looking for an apartment. They hoped to convince the cleaning crew they expected to find in Apartment B to let them enter. They wanted to get inside Apartment B to determine if the 60-day-old tip of narcotics activity at that location was still valid.

Beers and Letizio walked around the garage to the back of Apartment B, onto the back porch and up to the back door. The back door had a sliding glass door which was open. A dark metallic screen door, however, was closed. The officers shaded their eyes and pressed their faces against the screen so they could see into the apartment. Inside, they saw Cesar Cebreros at the back door and the defendant Garcia in the distance lying on the living room floor.

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The officers asked Cebreros questions about rent and the neighborhood. Garcia translated from his position on the living room floor. The conversation lasted approximately five minutes. The officers were doing their best to see through the darkened screen throughout the conversation. They asked Garcia to join the conversation at the door. When Garcia got up, the officers saw that he was holding a "kilo-sized" package wrapped in tape. They suspected it contained cocaine. Garcia put the package down and came to the door.

Deputy Letizio had an empty soda pop bottle in his hand. He asked Garcia to throw it away for him. When Garcia opened the screen door to take the empty bottle, the officers grabbed the door to keep it from closing. Beers then flashed his badge and said, in a normal tone of voice, "we're police officers, we'd like to talk to you." Garcia said "okay," nodded his head, and stepped back into the house and out of the doorway. Deputy Beers entered the apartment and pushed Garcia against a wall in the kitchen. Letizio signaled the three officers in the van, and all of them entered the apartment. No guns were drawn.

During a sweep of the apartment, the officers found and seized the package Garcia had held. It contained 1,021 grams of cocaine. Upstairs, the officers found a machine gun in plain view and two other guns in a closet. Deputy Beers then placed Garcia under arrest. After obtaining Garcia's written consent to conduct a further search, the officers found 24 grams of cocaine base hidden in a wall heater plus empty wrappings, cutting agents, and other tools of the drug trade.

The next day, August 11, deputies returned with a search warrant. They found 3.5 kilograms of cocaine, a kilogram of heroin, and 100 grams of cocaine base all under a false floor in an upstairs closet.

Deputy Beers later testified that the apartment appeared to be a typical stash house where drugs are stored and weapons are kept to protect the merchandise. The apartment was sparsely furnished. The only bed was in the room with the machine gun. The living room was empty. A resident of Apartment C testified that she had seen Garcia at the duplex several times in the months prior his arrest.

PROCEEDINGS

Garcia filed a motion to suppress the evidence seized on August 10 and 11. On November 20, 1989, the district court held a hearing, and the next day denied the motion in a telephonic ruling. The ruling was not placed on the record at that time. After a bench trial, Garcia was convicted of all eight drug and weapons offenses charged in the indictment. The court imposed a 165-month sentence on the five drug counts, a concurrent 120-month sentence for two counts of possession of weapons without serial numbers, and an additional 360-month consecutive sentence for using or carrying a machine gun in a drug offense, 18 U.S.C. § 924(c)(1).

Immediately following sentencing, Garcia petitioned the district court under 28 U.S.C. § 2255 to set aside his section 924(c)(1) conviction. The court granted the petition. It held that Garcia's trial counsel had been ineffective because during the trial he had failed to bring to the court's attention United States v. Phelps, 877 F.2d 28 (9th Cir.1989). The district court determined that under Phelps no rational trier of fact could find Garcia guilty beyond a reasonable doubt of using a gun in committing a drug offense in violation of 18 U.S.C. § 924(c)(1).

DISCUSSION

  1. District Court's Supplement of Record on Appeal Under Rule 10(e)

    On August 5, 1991, after Garcia's opening brief had been filed in his direct appeal, we granted the government an extension of time to file its answering brief. On August 23, 1991, the district court signed and entered a 32-page written order denying Garcia's suppression motion. This order set forth detailed findings, conclusions and reasons for the court's November 21, 1989 telephonic denial of Garcia's motion to suppress. The order was prepared by the government and adopted without change by the district court to supplement the record on appeal under Federal Rule of Appellate Procedure 10(e).

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    The government then filed its answering brief. Garcia filed a motion objecting to the district court supplementing the record on appeal. We denied that motion as moot, but invited Garcia to file a motion for permission to file a revised opening brief. He filed that motion, we granted it, and Garcia filed his revised opening brief. With our permission, the government then filed its supplemental answering brief.

    Garcia argues that the government's conduct in waiting more than 1 1/2 years to ask the district court to enter its written order denying his suppression motion unfairly prejudiced him. By the time that order was filed, Garcia had already filed his opening brief in this court. He correctly points out that the district court's August 23, 1991 written order undercuts some of the contentions he made in his opening brief. He asks us to review the district court's decision to...

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