U.S. v. Arango

• Decision Date: 29 August 1988
• Docket Number: Nos. 86-5635,87-5538,s. 86-5635
• Citation: 853 F.2d 818
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Arturo ARANGO, Simeon Rojas-Lopez and Sixto Mario Arango, Defendants- Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 818

853 F.2d 818

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Arturo ARANGO, Simeon Rojas-Lopez and Sixto Mario

Arango, Defendants- Appellants.

Nos. 86-5635, 87-5538.

United States Court of Appeals, Eleventh Circuit.

Aug. 29, 1988.

Lawrence F. Ruggiero, New York City, for defendants-appellants.

Dexter W. Lehtinen, U.S. Atty., Thomas A.W. FitzGerald, Linda Collins Hertz and David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before JOHNSON, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and PITTMAN ^**, Senior District Judge.

PITTMAN, Senior District Judge:

The defendants, Carlos Arturo Arango (Carlos), Simeon Rojas-Lopez (Simeon), and Sixto Mario Arango (Sixto), appeal their convictions on one count of conspiracy to manufacture cocaine ¹, two counts of possession with intent to distribute cocaine ², and one count of manufacturing cocaine. ³ The defendants have raised five issues on appeal. We affirm.

I. STATEMENT OF FACTS

A. The Trial

The evidence at trial would warrant the jury's finding the following facts:

Between March 14th and 16th, 1986, Metro-Dade police officers and various Drug Enforcement Administration (DEA) officers conducted a joint surveillance of a warehouse district in Miami, Florida, on the suspicion that one or more cocaine manufacturing laboratories might be in operation in that vicinity. The investigation was initially begun due to complaints about ether-type smells in that neighborhood.

The warehouses focused upon during this investigation were referred to throughout trial as Location 1 and Location 2. This court will refer to those warehouses in the same manner.

During the evening of March 15, 1986, surveillance agents observed Sixto and Carlos leaving Location 1 and driving to a nearby convenience market. Later that night, the agents observed Carlos, wearing a yellow construction helmet, leaving Location 1 in a white van with a Fraternal Order of Police sticker on it. In the early morning hours of March 16, 1986, the agents saw Carlos, Sixto, and Simeon depart Location 1 in a light blue automobile and travel to Location 2, where they dropped Carlos off, continuing towards downtown Miami.

Sixto and Simeon were stopped and arrested shortly thereafter. At the time of the arrests, the agents seized the keys Sixto was carrying and those in the ignition of the vehicle which Simeon was driving. The agents also seized the clothing which these defendants were wearing, along with some yellow construction helmets found in the car's back seat.

The agents noticed the smell of ether on both Sixto and Simeon at the time of their arrests. Both defendants' clothing tested positive for traces of cocaine. The keys obtained from Sixto fit all the main locks at both locations and those seized from Simeon fit some, but not all, locks at both locations.

In the meantime, at approximately 4:30 a.m., a search warrant was being executed at Location 1. This search turned up approximately six pounds of finished cocaine, and all of the precursor chemicals necessary for the manufacture of cocaine, as well as screens, drying stands, plastic gloves, etc.

During this same time frame, surveillance continued at Location 2. At some point after 7:00 a.m., Carlos was arrested there and gave his signed consent for the search of the warehouse known as Location 2. There is some dispute as to how Carlos' arrest was effected, which will be discussed infra.

The search of Location 2 uncovered approximately 45 pounds of finished cocaine, along with 13 pounds of cocaine base almost all of the requisite precursor chemicals necessary for the manufacture of cocaine, and the various equipment as was found at Location 1. At the time of his arrest, keys were seized from his person, along with the clothing he was wearing, which tested positive for the presence of traces of cocaine.

After waiving his rights in writing, Carlos admitted that he had been solicited to come to Miami from Colombia a few months before by a man named Orlando to guard and clean cocaine laboratories. He had been sleeping on a mattress in the back of Location 2 and was being paid $1,000.00 per month for these services. He further stated that approximately 40 to 50 pounds of cocaine had been manufactured at Location 1 the night before.

Prior to the trial, a Motion to Suppress was filed on behalf of Carlos, grounded on the factual allegation that these "statements were involuntary and coerced at gunpoint." [R1:Tab 42] On June 16, 1986, the district court denied the motion, after conducting an evidentiary hearing, finding that the statements were not involuntary.

On June 19, 1986, all three defendants were found guilty on four counts of the five-count indictment filed against them.

B. The Remand Hearing

Sometime after defendants' appeals brief was filed with this court on March 10, 1987, the government filed a Motion for Stay of Briefing Schedule and Motion to Remand. The government stated that it sought this relief because:

Subsequent to the convictions and sentencing in this matter, information came to the attention of undersigned counsel which was within constructive knowledge of the government at the time of trial, which should have been subjected to in camera examination by the court to determine its character as Brady/Giglio material disclosable to the defendants.

[SR1:Tab 85]

On April 1, 1987, the district judge who tried the case set the government's motion for a hearing on April 9, 1987. At that time, the Assistant U.S. Attorney who tried the case, Fitzgerald, gave a summation of the undisclosed evidence in the constructive possession of the government. Subsequent to AUSA Fitzgerald's proffer, he petitioned the trial court to hold further proceedings on the issue and certify the results to this court.

In defendants' response, counsel consented to the trial court's resolution of the Brady issue raised by the government's motion.

The trial court determined that the proper procedure was that of United States v. Ellsworth, 814 F.2d 613 (11th Cir.1987), and set the matter for an evidentiary hearing on May 13, 1987.

Defense counsel was instructed to submit his post-trial motions prior to the evidentiary hearing. As such, counsel filed a Motion for Vacatur of Defendants' Convictions; Dismissal of Indictment; New Trial; and Production of Documents.

After two days of testimony the district court took the matter under advisement, rendering its Memorandum Opinion and Order denying defendants' motion in its entirety. The defendants now appeal from this order as well.

The trial court's memorandum opinion was reported at 670 F.Supp. 1558 (S.D.Fla.1987). This court finds the trial court's findings of fact to be without prejudicial error. The trial court found that:

II. FINDINGS OF FACT

1. In the early morning hours after his arrest on March 16, 1986 at a cocaine manufacturing laboratory located at 7943 N.W. 64 Street, Miami, Florida, Defendant Carlos Arturo Arango was taken by Metro-Dade police officers and DEA agents to the parking area of the Villa Regina Apartments located on Brickell Avenue in Miami, Florida.

2. Carlos Arturo Arango pointed out a vehicle parked in the parking garage of the Villa Regina Apartments, claiming that said vehicle belonged to his boss.

3. The police believed that Carlos Arturo Arango's boss was the money man behind the cocaine manufacturing operation.

4. A check with the apartment security disclosed that the vehicle belonged to Apartment 706.

5. Apartment 706 was leased to defendant Sixto Mario Arango.

6. The police then proceeded to enter Apartment 706, without a warrant, using keys obtained either from Carlos Arturo Arango's brother, Sixto Mario Arango, at the time of Sixto's arrest the night before, or those seized from Carlos Arturo Arango at the time of his arrest.

7. Present at the time of this warrantless entry were DEA agents Kenneth B. Peterson, Anthony Marratta, and John Andrejko, and Metro-Dade County officers Gerry Stinson, Gail Shaver, and Judy Gable. Agents Peterson and Andrejko were apparently in charge of the entry.

8. A search of the apartment was conducted whereupon a plasticene bag containing approximately two ounces of white powder was discovered on a table in the living area.

9. The white powder was never fieldtested to determine whether it was an illegal controlled substance.

10. Agent Peterson telephoned AUSA William Norris from the apartment for the purpose of inquiring as to whether a search warrant could be obtained for the apartment, at which time Agent Peterson was referred to the Duty AUSA, Richard Scruggs.

11. AUSA Richard Scruggs instructed Agent Peterson to completely vacate the apartment, leaving its contents untouched, and to meet him at his office to discuss whether a search warrant could be obtained.

12. The police then vacated the apartment, leaving agents posted at the apartment complex, while Agents Peterson and Andrejko proceeded to meet with AUSA Richard Scruggs.

13. AUSA Richard Scruggs informed the DEA agents that a search warrant could not be obtained because of a lack of probable cause and advised the agents not to prepare a report of the incident. AUSA Richard Scruggs testified that his reasoning for this instruction was that 'he did not want to tie the hands of the handling AUSA' as to how the matter should be handled. He did, however, advise the agents that he would apprise the handling AUSA of the incident.

14. AUSA Scruggs also testified that he did make notes of this meeting with Agents Peterson and Andrejko in his capacity as Duty AUSA, but that these notes could not now be located.

15. Apparently, this file passed through the hands of several United States Attorneys, until it finally landed in the lap of AUSA Thomas A.W. Fitzgerald, who eventually tried the case on behalf of the government. None of the handling United...