U.S. v. Andersson
| Citation | 813 F.2d 1450 |
| Decision Date | 22 May 1987 |
| Docket Number | Nos. 84-1366,85-1330,s. 84-1366 |
| Parties | 22 Fed. R. Evid. Serv. 1391 UNITED STATES of America, Plaintiff-Appellee, v. Alion ANDERSSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles W. HINCK, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Leland B. Altschuler, San Jose, Cal., for plaintiff-appellee.
Doron Weinberg and Nina Wilder, San Francisco, Cal., for defendant-appellant.
Appeal from the United States District Court for the Northern District of California.
Before HUG, BEEZER and KOZINSKI, Circuit Judges.
In this consolidated appeal, Alion Andersson and Charles W. Hinck appeal their convictions of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982) ("Count One"), possession of 21 kilograms of cocaine with intent to distribute ("Count Two"), and distribution of four kilograms of cocaine ("Count Three"). They argue that (1) the warrantless search of a hotel room containing the cocaine was improper; (2) the trial court erroneously admitted hearsay evidence of a coconspirator's statement; (3) the trial court erred in permitting two witnesses to testify as experts; and (4) the Government did not comply with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 25 (1963) and the Jencks Act, 18 U.S.C. Sec. 3500 (1982). They also appeal their sentences on the grounds that under United States v. Palafox, 764 F.2d 558 (9th Cir.1985) (en banc), they could not be sentenced to separate terms for distribution of a cocaine sample and possession with intent to distribute the remainder.
To summarize, this case concerns the arrest of several individuals involved in a cocaine transaction. Andersson and Hinck allegedly brought the cocaine to a hotel near the San Francisco airport, where they gave it to others who attempted to sell the cocaine to an undercover narcotics agent. While the actual negotiations took place, Andersson and Hinck left the hotel and drove around nearby streets. Before the sale was completed, federal and San Mateo County officers arrested all of the defendants almost simultaneously.
The evidence, viewed in the light most favorable to the Government, revealed the following details concerning the drug transaction. Fred Mirgoli, a drug dealer turned Drug Enforcement Agency ("DEA") informant, asked Shahab Gousheh, a heavy cocaine user to whom he had formerly supplied drugs, if Gousheh knew of a dealer who could supply cocaine to a buyer Mirgoli knew. Gousheh contacted Craig Daniels and Andrew Smith, and eventually they agreed to supply Mirgoli with 21 kilograms of cocaine. Daniels and Smith checked into the Burlingame Sheraton Hotel near the San Francisco airport. Mirgoli checked into the nearby Hyatt Hotel and then went to the Sheraton to discuss the upcoming deal with Daniels, Smith, and Gousheh.
At 10:45 p.m., Daniels telephoned Mirgoli and told him to come to the Sheraton. When Mirgoli arrived, Daniels told him that the delivery would be made at the Hyatt in approximately 20-25 minutes, or about 11:30 p.m. Mirgoli and Gousheh left for Mirgoli's room at the Hyatt; Daniels and Smith also went to the Hyatt, to Room 327, which Smith had checked into earlier.
In the meantime, at 11:00 p.m., federal agents and San Mateo County Sheriff's investigators observed Andersson and Hinck rent a white Cadillac at the San Francisco airport. They followed the car to the Hyatt's parking lot, where, at 11:15 p.m., the investigators saw Andersson and another man take a suitcase, which was later discovered to contain six kilograms of cocaine, into the first floor corridor of the hotel. Room 327 was on this corridor. One person then returned to the car and, after a short conversation, Hinck and perhaps a fourth occupant got out of the car, took out a second suitcase, which was later found to contain eight kilograms of cocaine, and also entered the first floor corridor. After five or ten minutes, or at approximately 11:30 p.m., the investigators saw Andersson and Hinck return to the car and drive away. The agents then saw Smith carry two suitcases from the first to the second floor of the hotel.
At approximately 11:30 p.m., Daniels called Mirgoli and told him to "come to the party." When Mirgoli and Gousheh arrived at Room 327 at 11:45 p.m., they found Daniels alone in the room. Shortly thereafter, Smith arrived with the first suitcase. He then left again and returned with the second suitcase. At approximately midnight, Mirgoli received two kilograms of cocaine and left, ostensibly to have it tested. Then, Smith once again carried the two suitcases to the second floor.
Meanwhile, investigators Alvarez and Young had been following the white Cadillac. Andersson and Hinck drove to a warehouse, which Andersson used for his business. Andersson entered the warehouse and after approximately five minutes, he emerged with an athletic bag. Andersson and Hinck then returned to the Hyatt sometime after midnight and were seen carrying the bag into the hotel. Later, the athletic bag was found in Room 327 and it contained a cash-counting machine. The investigators saw Andersson, Hinck, and a third man emerge from the hotel, shake hands, and Andersson and Hinck again drove off; the third man returned to the hotel. Andersson and Hinck then drove around nearby areas until they returned to the vicinity of the Hyatt shortly after 1:00 a.m.
After leaving Room 327 at midnight, Mirgoli had turned the "samples" over to government agents at approximately 12:15 a.m. Because the agents did not know which room on the second floor was the "stash room," Mirgoli called Daniels in Room 327 to ask for additional "samples," in order to give the agents another chance to observe Smith's trips to the second floor. A government agent then saw Smith in the vicinity of Room 414. After reviewing the registration cards for several rooms, he decided, based on an incomplete registration card and the fact that the room had been paid for in cash, that Room 414 was probably the "stash room."
Mirgoli returned to Room 327 at approximately 1:00 a.m., where Daniels was arrested at 1:15 a.m. Shortly thereafter, Smith, who had been seen walking into Room 414, left this room with Gousheh for the lobby, where they were arrested at 1:25 a.m. At 1:29 a.m., agents knocked on the door of Room 414; when they received no response, they used a passkey to enter the room. There they found James Dorn, and two suitcases, one of which was open and contained approximately six kilograms of cocaine. Dorn was arrested and they then opened the second suitcase and discovered an additional eight kilograms of cocaine. In the meantime, Andersson and Hinck had been arrested near the Hyatt at approximately 1:20 a.m.
A Federal Grand Jury indicted Andersson, Hinck, Gousheh, Daniels, Smith, and Dorn on three counts: (1) conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982); (2) possession of 21 kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982); and (3) distribution of four kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982).
Shortly before trial began, on October 1, 1984, Daniels, Smith, Dorn, and Gousheh, through plea bargains, entered guilty pleas. Gousheh later agreed to testify for the Government. On October 16, the jury convicted Andersson and Hinck on all counts. Andersson received the following consecutive sentences: Count One (conspiracy): four years' imprisonment, three years' special parole, $25,000 fine; Count Two (possession with intent to distribute): four years' imprisonment, three years' special parole, $25,000 fine; Count Three (distribution): two years' imprisonment, three years' special parole, $25,000 fine. Hinck was sentenced to five years' imprisonment on each count, to run concurrently, to three years' special parole, and was not fined.
Andersson and Hinck contend that the warrantless search of Room 414 was not justified by exigent circumstances, and that the search of the closed suitcase, which contained approximately half of the cocaine seized, was also illegal. The Government disputes these contentions and also argues that appellants do not have standing to raise these issues on appeal.
The Government argues that appellants do not have standing to challenge the search of Room 414 because they did not demonstrate either ownership or a reasonable expectation of privacy and thus did not meet their burden of proof under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Appellants argue that under United States v. Perez, 689 F.2d 1336 (9th Cir.1982), they have standing to challenge the search.
The Supreme Court in Rakas noted that the inquiry is more accurately focused upon whether a particular defendant's own Fourth Amendment rights have been violated as a part of the merits of defendant's claim rather than on a concept of "standing." 439 U.S. at 138-39, 99 S.Ct. at 427-28.
The motion to suppress was made by defendant Dorn, who rented the room and clearly had a reasonable expectation of privacy in it. Andersson and Hinck merely joined in that motion. In that context, the district court did not deal with the issue of whether Andersson and Hinck had a reasonable expectancy of privacy in the room. It ruled on the justification for the warrantless search of the room and the suitcase and concluded that the searches were justified. Because we affirm the conclusion of the district court on that basis, we need not consider the issue of whether Andersson and Hinck had a legitimate expectation of privacy.
A warrantless entry into a hotel room must be justified by exigent circumstances. United...
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