U.S. v. Bowdach

• Decision Date: 26 October 1977
• Docket Number: No. 76-2258,76-2258
• Citation: 561 F.2d 1160
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gary BOWDACH, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1160

561 F.2d 1160

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gary BOWDACH, Defendant-Appellant, Cross-Appellee.

No. 76-2258.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1977.

Rehearing and Rehearing En Banc Denied Nov. 28, 1977.

Jackson B. Battle, Laramie, Wyo. (Court-appointed), for defendant-appellant, cross-appellee.

Gary Bowdach, pro se.

Jack V. Eskenazi, Asst. U. S. Atty., Gary L. Betz, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., for plaintiff-appellee, cross-appellant.

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

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

The defendant-appellant, Gary Bowdach, a previously convicted felon, was convicted by a jury of three counts of receiving weapons in violation of 18 U.S.C.App. § 1202(a). The district court, Judge Norman Roettger presiding, granted the defendant's motion for judgment of acquittal as to Count III of the indictment. The United States properly filed a petition to find the defendant a dangerous special offender pursuant to 18 U.S.C. § 3575. The district court, after holding a hearing and finding the defendant to be a dangerous special offender, sentenced the defendant to five years imprisonment on Counts I and II to run concurrently with each other, but consecutive to a fifteen year sentence the defendant is now serving. On appeal, the defendant raises several issues including: 1) the validity of his arrest by state police officers who were executing a federal arrest warrant; 2) the constitutionality of the subsequent search of his apartment under the guise of a security sweep and; 3) the constitutionality of the federal dangerous special offender statute. In addition to the issues raised by the defendant, the United States appeals the district court's granting of the judgment of acquittal as to Count III of the indictment. Finding no reversible error as to any of the points raised on appeal, we affirm the judgment of the district court.

I. FACTS

The rather lengthy facts of this case were set out in great detail by Judge Roettger, (see United States v. Bowdach, 414 F.Supp. 1346 (S.D.Fla.1976)) and, for the most part, are not challenged by the defendant. Our recitation of the facts is, therefore, drawn primarily from Judge Roettger's well-written opinion.

In 1971, the defendant was convicted of eight counts of extortionate extensions of credit in violation of 18 U.S.C. §§ 892 and 894. The defendant was originally denied bond pending appeal of these convictions by United States District Court Judge C. Clyde Atkins because the defendant was found to be a danger to the community. In July of 1973, the defendant moved again for release pending appeal of the extortionate credit convictions, and, after hearings were held, Judge Atkins granted bond to the defendant and retained jurisdiction. The defendant was subsequently released on this bond from the Atlanta Penitentiary in November 1973. In December of 1973, the district court added conditions to the defendant's bond requiring him not to associate with convicted felons and not to commit violations of state or federal laws while out on bond.

On December 16, 1974, the Government filed a motion with Judge Atkins to revoke the defendant's appeal bond and to issue a warrant for his arrest. The motion was supported by the affidavit of Special Agent Gersky of the F.B.I., which recited in great detail why the defendant was a danger to the community and likely to flee the jurisdiction of the United States. The affidavit recited, among other things, that two reliable confidential sources stated the defendant was a narcotics smuggler and dealer, and, in addition, was a professional killer in the employ of Rick Cravero (who has since been convicted of murder and conspiracy to distribute narcotics). The sources indicated that defendant kept a rifle, several pistols, and a silencer with him at all times, and that he had stated he would flee the country if his extortion conviction was affirmed (which it ultimately was). Judge Atkins announced to Gersky that he was going to issue a warrant for the defendant's arrest and revoke the bond. This was, in fact, done the same day.

Special Agent Gersky told Sgt. Havens of the Dade County Public Safety Department that a warrant had been issued for the defendant's arrest, but that he was unable to locate the defendant. Sgt. Havens was in charge of the investigation of the "Cravero gang" which had been underway since May, 1973. Defendant and several of his known associates were subjects of this investigation. On December 17, 1974, the Federal Grand Jury sitting in Ft. Lauderdale, Florida, returned an indictment against Cravero and seventeen other persons for conspiracy to distribute 52 kilos of cocaine and several thousand pounds of marijuana. The defendant was not one of the eighteen persons indicted. The indictment was sealed pending the arrest of the individuals because it was the plan of law enforcement officers to arrest all persons named in the indictment during the evening of December 18 lest some of them learn of it and flee the country.

On December 18, 1974, Detectives Jane Kelly and Dave Saleeba, two Dade County police officers, had defendant's house under surveillance. When defendant left in mid-afternoon, he saw them, stopped and got out of the car to look at them sitting about 100 feet away in the cemetery, but then drove off. The officers next located defendant's car at Cravero's residence in Hollywood around 8 o'clock. Bowdach left in his car with two other persons, described as males with shoulder-length hair, both thin and having brown hair, one with a lighter shade of brown. Sgt. Havens suspected the persons accompanying defendant were Paul Jacobson and Kenneth Townsend, both named as defendants in the sealed indictment. Defendant had frequently been in the company of Jacobson who was under another indictment and investigation at that time. Defendant left Cravero's residence, drove at a high rate of speed on side streets, and eluded the detectives. They searched at various likely places where they hoped to make contact again with defendant, but failing to do so they returned to defendant's residence.

Meanwhile, at defendant's residence four other officers had set up surveillance at approximately 8:00 P. M. Two officers were in front of the apartment and two in the rear most of the time. The two officers in the rear of the apartment were unable to position themselves so as to command a clear view of the rear door. However, they felt they would see anyone leave by the rear door by a beam of light coming from the well-illuminated house in the event anyone opened that door. Between 8:30 P. M. and 9:30 P. M. Detectives Kelly and Saleeba returned from Hollywood and were added to the surveillance forces. At 9:30 P. M. another officer radioed Havens that defendant and two males of a thin build, 5'7 to 5'9 , and shoulder-length hair were observed outside defendant's residence where they opened the trunk of his Cadillac. They stayed outside only a short time, although one of the three men actually got into the trunk. They returned to the house and then came back out approximately five minutes later and again went to the Cadillac.

When Sgt. Havens arrived about 10 o'clock he began to plan the strategy to arrest Bowdach and also the other two individuals who he believed to be Jacobson and Townsend, all without having the matter result in danger to anyone. In the time since 9:40, approximately the last time the trio returned to the apartment, none of the six-plus police officers had seen anyone leave the apartment, either by the front or rear doors.

What Havens didn't know was that in the evening or on the way from Cravero's home the defendant and his wife had made several purchases: a 12-gauge pump shotgun and a Colt .357 Magnum revolver (which are the objects of the motion to suppress), and a police band radio scanner. Defendant wasn't using the scanner, but did so after receiving a phone call from one Bobby Miller, who had advised Bowdach that the Organized Crime Bureau not only had his house surrounded, but they had been following him all day and were talking about it on the radio. Armed with this bit of counter-intelligence defendant made a bold move: he called the Dade County police and requested assistance alleging that there were a "bunch" of black males armed with shotguns who were trying to force their way into his house. The call was received at 10:08 P. M. and a unit dispatched at 10:11 P. M. Police Officer Snyder arrived at 10:20 P. M., much to the surprise of Sgt. Havens and his surveillance crew which numbered over 10 officers at this time.

Shortly after entering the house, Officer Snyder and the defendant walked out of the house and Sgt. Havens ran to the front of the house as the door closed; he distinctly remembers hearing the door lock. He announced his identity and that a warrant had been issued for Bowdach and placed defendant under arrest.

At this moment Sgt. Havens heard a shout from the back of the house to the effect: "Look out they have a shotgun." He asked who was inside and the defendant replied no one was. Havens turned to Mrs. Bowdach to inquire and defendant told her to shut up. Then came a shout from a female voice which Havens recognized as Detective Kelly's: "Look out, there are shadows in the house."

Sgt. Havens and Officer Snyder locked defendant inside Snyder's police cruiser and then Havens ran to the apartment building. He flattened himself against the wall under the only window on that side and edged around the building to the rear. He could see five or six police officers with guns drawn, either crouching or in covered positions; the police officers were pointing to the windows or the rear door.

Mrs. Bowdach came around to the rear of the house but refused to open the rear door or permit Havens to go in....