U.S. v. Brooks, 81-7704
| Decision Date | 25 April 1983 |
| Docket Number | No. 81-7704,81-7704 |
| Citation | 703 F.2d 1273 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fred O. BROOKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Joseph Beeler, Miami, Fla., John R. Martin, Atlanta, Ga., for defendant-appellant.
Joseph D. Newman, Frederick Kramer, G.R. Smith, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before FAY and VANCE, Circuit Judges, and ALLGOOD *, District Judge.
On May 21, 1981, Fred Brooks, Roberto Cordero, and Guido Drago were indicted for various drug violations under Titles 18 and 21 of the United States Code. 1 Following a jury trial, Cordero and Drago were acquitted of all charges and Brooks was convicted on three counts of the eight count indictment. Brooks was found guilty of violations under 21 U.S.C. Secs. 952(a) and 960 (Count Four) for importing approximately eleven pounds of cocaine, 21 U.S.C. Sec. 843(b) (Count Six) for using a telephone to facilitate a conspiracy to possess the cocaine with the intent to distribute, and 18 U.S.C. Sec. 1952(a)(3) (Count Seven) for traveling in interstate commerce for the purpose of facilitating the importation and distribution of the cocaine. 2
Fred Brooks raises two issues on appeal. He first contends that there was insufficient evidence to support the jury's guilty verdict on each of the three counts stated above. He further asserts that he was subjected to an unlawful search and seizure in violation of his Fourth Amendment rights. We conclude that there is no merit to appellant's search and seizure challenge and we therefore turn our attention to his attack on the sufficiency of the evidence. We find it necessary to detail the precise occurrences which led to Mr. Brooks' arrest and subsequent conviction.
On May 2, 1981, a Peruvian vessel, the INCA PACHACUTEC, entered the port of Savannah, Georgia. The vessel docked at the Georgia Ports Authority's Ocean Terminal. 3 The United States Customs Patrol Office (CPO) established surveillance on the vessel immediately upon its arrival in the Savannah Port because the vessel had previously been used to import cocaine into the United States and it had arrived directly from one of the source countries for cocaine. 4
At approximately 8:00 p.m., on the evening following the vessel's arrival, Robert Clark, a Customs Patrol Officer, observed an individual leave the ship and approach a nearby telephone. Before a call was completed, a black automobile approached the individual whereupon he got inside the vehicle. The automobile then proceeded to exit the dock through the main gate. At approximately 9:15 or 9:20 p.m., the automobile returned to the dock and pulled alongside the ship. The individual, who had earlier exited the vessel, got out of the car and very hurriedly reboarded the ship. The car remained parked beside the vessel for approximately fifteen minutes, when the individual once again exited the ship and got back into the car.
As the vehicle proceeded toward the main gate, Officer Clark radioed the gate officer and requested that the car be stopped and held until he arrived at the gate. Upon his arrival, Officer Clark requested identification from both the driver and the passenger. The passenger provided Officer Clark with identification indicating that his name was Carlos Rivera-Arteaga and that he was a crew member of the INCA PACHACUTEC. During the course of a pat-down search, Officer Clark discovered that Rivera had two packages, wrapped in pink plastic, concealed underneath his shirt in an elastic belt or "belly band." The packages contained two and a half pounds of ninety-eight percent pure cocaine hydrochloride.
The discovery of the cocaine on Rivera's person prompted Officer Clark to board the INCA PACHACUTEC and search his quarters. Packages, similar to the ones found on Rivera, were discovered in his closet and dresser drawer. These packages contained approximately five and a half pounds of cocaine of a grade and purity similar to the cocaine concealed on Rivera's person. After discovering the cocaine, customs officials requested the assistance of the DEA.
Thomas Sprague, a DEA agent, went to the Ocean Terminal and was apprised of the situation and informed that Rivera had been arrested. After advising Rivera of his constitutional rights, agent Sprague questioned him. Rivera told agent Sprague that he was a crew member of the INCA PACHACUTEC and that at the time of his arrest he was attempting to deliver the cocaine to a Peruvian national named Guido in Room 130 of the Dreamland Motel. 5
After questioning Rivera, agent Sprague and three other officers went to the Dreamland Motel. The owners of the motel informed the agents that Room 130 was registered to a man named "Cordero" and that he and another individual had registered during the early morning hours of May 3, 1981. The agents also learned that there had been two long distance phone calls made from Room 130. One call was to a Miami, Florida area code and the other was to Peru. 6
At approximately 12:00 a.m. agent Goodowens and two customs patrol officers arrested the two individuals occupying Room 130. They identified themselves as Roberto Cordero and Guido Drago. The agents took the two men to the customs office. After being apprised of their constitutional rights, agent Sprague requested the men furnish certain biographical information. Both men stated that they were Peruvian citizens and that they had entered the United States on May 2, 1981 at Miami, Florida. 7
On the morning of May 4, 1981, agent Goodowens secured a search warrant for both Room 130 and 125 at the Dreamland Motel. In searching Room 125, agent Goodowens found two packages of cocaine concealed under a mattress. In addition, agent Goodowens recovered an envelope which contained the airline tickets, passports, and immigration visas of both Cordero and Drago. He also found two address books and some identification cards. The airline tickets established that Cordero and Drago had flown into Miami from Lima, Peru on May 2, 1981. After a brief stay at Miami's DuPont Plaza Hotel (Room 724), the two men departed Miami at 9:15 p.m. for Savannah via Atlanta. The plane was to arrive in Savannah at approximately 2:30 a.m.
The search of Room 130 revealed several documents. One of the papers, a piece of DuPont Plaza stationery, had a handwritten inscription on it which listed the name "Fred" and the number "914-3449". The agents determined later than this number, when read from right to left (944-3419), was a telephone number registered to Fred Brooks' wife in Hallandale, Florida. The telephone records of the Dreamland Motel established that this number was called from Room 130 immediately after Drago and Cordero arrived. This same phone number and the name "Fred" was also written in one of the address books recovered from Room 125. In addition, on the back of the address book the name "Fred" was written again with another transposed telephone number. This number corresponded to another telephone number registered to Fred Brooks' wife. The second address book contained these same inscriptions and numbers.
Pursuant to the investigation at the Dreamland Motel, the drug agents learned that on May 3, an individual had called and left a message for the occupants of Room 130 that "Fred called." This prompted the DEA agents to request the motel switchboard operator to tell Fred, the next time he called, to meet the people in 130 at the airport at 1:00 p.m. This message was relayed to Fred on his next call. Fred later called the motel and said he had not seen the people at the airport. 8
Later in the afternoon of May 4, Fred called the Dreamland Motel and left a telephone number where he could be reached. The number he gave was a Garden City exchange registered to a pay phone across the street from the Land of Oaks Motel. The DEA agents subsequently attached a recording device to the telephone in Room 130 and a Spanish speaking officer called the number Fred had left. Soon after Fred answered the phone, he asked to speak to Roberto. When the officer, who was impersonating a companion of Roberto's, told Fred that Roberto was not there Fred became angry and demanded that Roberto be available to speak to him within fifteen minutes. Fred called the room on two more occasions attempting to contact Roberto. Finally, he stated that he did not like the situation too much and hung up the phone in disgust.
At approximately 6:30-6:45 p.m., an employee of the Land of Oaks Motel informed customs officer Bobby Masters that Brooks had just left the motel. A description of Brooks and the vehicle, in which he was riding, was radioed to a surveillance unit. The vehicle was found at a nearby shopping center. As soon as Brooks returned to the vehicle, DEA agents approached the vehicle for an investigatory stop and pat-down search for weapons.
The officers asked Brooks for identification and questioned him as to the ownership of the vehicle and a vinyl suitcase, which was visible in the rear of the vehicle. Brooks denied ownership of either the vehicle or the suitcase and further stated that proof of his identification was in his motel room at the Land of Oaks Motel. 9 The officers asked Brooks to go to his motel room and produce the proper identification. Upon going to his room, Brooks produced his driver's license from a briefcase he had underneath his bed. The officers then asked Brooks to accompany them to the customs office for further questioning. Brooks agreed and they all departed for the customs office. 10
After arriving at the CPO headquarters, Brooks was again questioned about the vehicle and the suitcase. When no satisfactory answers were obtained, a trained drug detection dog, "Sgt. Blitz," was summoned to sniff the vehicle, the suitcase, and...
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