U.S. v. Anthon, 80-1035
| Citation | 648 F.2d 669 |
| Decision Date | 11 June 1981 |
| Docket Number | No. 80-1035,80-1035 |
| Parties | 8 Fed. R. Evid. Serv. 268 UNITED STATES of America, Plaintiff-Appellee, v. Anthony ANTHON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
R. E. Thompson, U. S. Atty., Albuquerque, N. M. (Larry Gomez, Asst. U. S. Atty., Albuquerque, N. M., with him, on brief), for plaintiff-appellee.
Sarah M. Singleton of Pickard & Singleton, Santa Fe, N. M. (Timothy M. Padilla, Albuquerque, N. M., with her, on brief), for defendant-appellant.
Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.
Anthony Anthon (Anthon) appeals his jury conviction of possession with intent to distribute cocaine in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2.
Anthon was jointly charged in two counts, Counts I and XII of a twelve count indictment, with co-defendants Robert Harris (Harris) and Craig Bunton (Bunton). Count I charged Anthon with conspiracy to distribute cocaine over a period extending from July 12, 1979 to September 7, 1979. Count XII charged:
On or about the 7th day of September, 1979, at Albuquerque, in the State and District of New Mexico, the defendants, ROBERT G. HARRIS, CRAIG W. BUNTON and ANTHONY ANTHON, unlawfully, knowingly and intentionally did possess with intent to distribute a quantity of cocaine
The jury found Anthon not guilty of Count I and guilty of Count XII.
The Government established its case against Anthon on the testimony of four special agents of the Department of Justice, Drug Enforcement Administration (DEA), a detective with the Albuquerque Police Department, and co-defendant Harris.
DEA agents Lester Tuell and Robert Hastings, acting in undercover capacities, testified relative to a meeting with Harris and Bunton on September 6, 1979, the day before the sale, during the course of which Bunton told them that one pound of cocaine would be arriving the next day, that his connection was in Miami, Florida, and that his connection would arrive from Florida the next day between 12:00 and 2:00 p. m. It was then agreed that the sale to Tuell and Hastings would take place the next day at Harris' house. Tuell and Hastings also testified to the arrest of Harris and Bunton on September 7, 1979, after the cocaine arrived and a sale was attempted.
Detective Mike Dwyer testified relative to the surveillance of the Harris house on September 7, 1979, and his personal observations of Bunton leaving the house, proceeding to the airport to pick up an individual (later determined to be Anthon), leaving the airport, proceeding to the Airport Marina Hotel, and subsequently returning to the Harris residence.
Agents Abenicio Cordova and Rueben Prieto testified relative to the surveillance of Anthon's room at the Airport Marina Hotel, their arrest of Anthon after being notified by Agent Tuell that a large quantity of cocaine had been seized, and their subsequent interrogation of Anthon.
Harris, after pleading guilty to Count XII, testified relative to the events leading up to the September 7, 1979, sale, including a phone call Bunton received while at his (Harris') residence around noon on September 7, 1979, after which Bunton departed for the airport to meet the courier and later returned with a pound of cocaine.
Anthon testified in his own defense to the events surrounding his arrest at the Airport Marina Hotel. He denied bringing in a pound of cocaine from Florida. He stated that the small vial of cocaine found in his hotel room following his arrest had been given to him by Bunton.
Prior to trial, Anthon moved to suppress the evidence seized at the time of his arrest and the statements he had made to law enforcement officers after his arrest. A hearing was held on both motions, after which they were denied.
On appeal Anthon contends the trial court: (1) erroneously admitted certain statements he had made at a time when he had not been fully apprised of his Miranda rights; (2) erroneously admitted into evidence items seized from his hotel room; and (3) committed reversible error by admitting evidence of other crimes of which he was not a participant, together with statements of co-conspirators which were totally irrelevant to him.
Anthon contends the trial court erroneously admitted statements he made at the time of his arrest because they were uttered at a time when he had not been fully advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Anthon was arrested in a hallway of the Airport Marina Hotel immediately after he had exited his hotel room. At that time he was advised that he had a right to remain silent, that anything he said could and would be used against him in a court of law, and that he had a right to counsel. Although Anthon stated that he understood his rights, it is uncontested that Anthon was not advised that his right to counsel encompassed the right to appointed counsel in the event he could not afford counsel, that his right to counsel encompassed the right to have counsel present during any questioning, and that he had the right to stop the questioning at any time.
After being advised of his rights, Anthon, who was wearing a swimming suit, was taken back into his hotel room where he was allowed to change clothes, and gather his personal effects. He was also questioned by the arresting officers before being taken to the Albuquerque district office of the DEA for processing.
During the course of this questioning Anthon gave a fabricated answer that he had walked to the hotel. Later, he admitted that this answer was fabricated when it became apparent to him that the agents knew how he had arrived at the hotel. Anthon also told the agents that he was vacationing in Albuquerque and that a small vial of cocaine and a marijuana cigarette found in the room were his. (Appellant's Brief at p. 6).
Anthon was subsequently taken to the DEA district office for processing and continued questioning. En route to the office Anthon indicated a desire to "cooperate" with the officers. Once at the office Agent Cordova testified relative to advising Anthon of his rights a second time.
Q (By United States Attorney Larry Gomez) And did you finally get to the Albuquerque District Office?
A (By Agent Abenicio Cordova, Jr.) Yes, we did.
Q And what occurred there?
A We took him to our office and began to process him; processing him, fingerprinting him, taking his personal history, photographing him. And at that time, I asked Mr. Anthon if he was still aware of his rights, he could have a right to remain silent, which he stated,
Q Was he under the influence of any drug or alcohol?
A No. He appeared to be very coherent and to be an intelligent person.
Q Was his speech slurred or did he have any problem walking or anything?
A No.
(R., Vol. III, at pp. 119-120).
On cross-examination Agent Cordova further testified:
Q (By Tim M. Padilla, defense counsel) Was he calm?
A He was very cooperative.
Q Then you've testified that you advised him again when you took him down to the DEA office, you stated, I believe it was your statement that you advised him of his rights, you said, "You know your rights, and you have the right to remain silent"?
A That's correct. And at that time he appeared to be annoyed that I repeated that particular portion again, and he said,
After processing Anthon at the DEA office, Anthon was advised of his rights a third time by Agent Cordova:
A We then placed Mr. Anthon in a room directly across the hallway from the fingerprint room, and myself and Special Agent Prieto spoke to Mr. Anthon and again advised him of his rights and stated, asked him if he would be interested in assisting the Albuquerque District Office. He made a statement, "What exactly do you mean by assisting?" The conversation went on to the extent that I told him that we would be interested in possibly getting major drug dealers that he might possibly know. And I, again, at this time, stated that he knew he did not have to talk to us, but it was his choice. Mr. Anthon stated that he would like to have some kind of guarantee as to what we could possibly do for him. I advised him that I was not in any position to make any guarantees to him, about the only thing I could do is bring it to the attention of the Court when and if he decided he wanted to cooperate.
(R., Vol. III, at pp. 120-121).
Subsequent thereto Agent Cordova testified that Anthon admitted bringing in the sixteen ounces of cocaine for the sale herein:
A At this time, Mr. Anthon stated that he could assist us with some heavy people that he knew in Florida and also Atlanta, Georgia. I asked him what was the heaviest deal he had ever done, and which he stated, "The deal right now." And I asked him, "What deal are you talking about?" and he said, "The sixteen ounces that you guys got." He stated that, however, if he was to return to Florida without the money for the sixteen ounces of cocaine, that it would make too much heat on him and he wouldn't be able to assist us in this manner.
Within this background, Anthon structures the underlying issues as follows:
These facts present the issues of (1) whether the admission to having lied to the agents, and the admission to possession of cocaine and marijuana were admissible in evidence despite the fact that the warning given failed to include the right to appointed counsel, the right to have counsel present during questioning and the right to stop the questioning at any time and (2) whether the admission to having transacted the pound deal was admissible in evidence despite the fact that the warning given failed to include the right to have counsel present during questioning and the right to stop the questioning at any time.
(Appellant's...
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