U.S. v. Bubis, s. 83-2708-S

• Decision Date: 28 September 1984
• Docket Number: 84-1144-SI,Nos. 83-2708-S,s. 83-2708-S
• Citation: 744 F.2d 61
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard M. BUBIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Warner BASS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 61

744 F.2d 61

UNITED STATES of America, Plaintiff-Appellee, v. Howard M. BUBIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Warner BASS, Defendant-Appellant.

Nos. 83-2708-SI, 84-1144-SI.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1984.

Decided Sept. 28, 1984.

Richard C. Turner, U.S. Atty., Ronald M. Kayser, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

James R. Vincent, Altoona, Iowa, for appellant Bass.

Mark S. Pennington, Kutmus & Pennington, P.C., Des Moines, Iowa, for appellant Bubis.

Before HEANEY and FAGG, Circuit Judges, and COLLINSON, ^* Senior District Judge.

COLLINSON, Senior District Judge.

Appellants Howard Mitchell Bubis and James Warner Bass were indicted with their codefendants Myron Daniel and Bruce Kadota on September 23, 1983. Appellant Bubis was convicted on stipulated facts of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846; possession with intent to distribute approximately forty-three ounces of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A); possession of a fully automatic machine gun which had not been registered to him in violation of 26 U.S.C. Secs. 5861(d) and 5871; and unlawfully carrying a firearm during the commission of the offense of possession with intent to distribute cocaine in violation of 18 U.S.C. Sec. 924(c)(2). Appellant Bass was convicted after a jury trial of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846; possession of a fully automatic machine gun which had not been registered to him in violation of 26 U.S.C. Secs. 5861(d) and 5871; and unlawfully carrying a firearm during the commission of the offense of conspiracy to distribute cocaine in violation of 18 U.S.C. Sec. 924(c)(2). The primary issue on appeal from these convictions is the legality of Bubis' arrest. Bubis maintains that his warrantless arrest was not supported by probable cause and, therefore, the district court erred in denying his motion to suppress the evidence seized following his arrest. In urging reversal of his convictions, Bass contends that his arrest and the evidence seized for use against him were a result of the unlawful arrest of defendant Bubis. For the reasons discussed below, we reject the appellants' arguments and affirm the judgments of the district court.

On Sunday, September 4, 1983, an investigation occurred in Des Moines, Iowa, involving the United States Drug Enforcement Agency (DEA) and the Iowa Division of Criminal Investigation (DCI). An undercover informant introduced government agents, also acting undercover, to the appellants' codefendant, Myron Daniel. Agent Overbaugh of the DEA, who was termed the "key negotiator" for the agents, arranged to purchase approximately three pounds of cocaine. Daniel informed the agents that three individuals would bring the cocaine from Florida to Des Moines by chartering a private jet. Through a telephone call to Daniel from codefendant Kadota, the suppliers of the cocaine requested that the transaction be completed in Iowa City rather than Des Moines, but Agent Overbaugh refused to travel to Iowa City. Daniel later received another telephone call informing him that Kadota and his two partners were approximately 100 miles from Des Moines and that they would lease a car and arrive in Des Moines within a few hours. Agents set up a command post at the Holiday Inn South on Fleur Drive in Des Moines. Kadota arrived there at approximately 5:21 p.m. and met in room 707 with Daniel, several government agents, and the undercover informant. At this time, Kadota offered to sell and Agent Overbaugh purchased four ounces of cocaine for $7000.00. Kadota stated that the four-ounce transaction, rather than the three-pound transaction anticipated by the government agents, was made to assure Kadota that he was not dealing with police officers. Kadota also informed the agents that he was accompanied by two others who must be consulted before delivering the balance of the cocaine. Kadota advised the agents that he and his companions had leased a Lear jet in Florida and had flown to a location in the midwest on the evening of September 3, 1983. They flew to another location in Iowa on September 4, 1983, rented a car with Iowa license plates and drove to Des Moines. Kadota stated that he and his partners had arrived in Des Moines approximately one hour before his meeting with the agents which occurred at 5:21 pm. At approximately 6:00 p.m. Kadota left room 707 after informing Agent Overbaugh that he was required to make telephone calls to his partners at certain times, or "something was going to happen." Kadota returned to the room at approximately 6:11 p.m.

At approximately 6:30 p.m., after concluding the transaction involving four ounces of cocaine, Kadota left the hotel room and was observed walking to the pay phones at the hotel lobby. At approximately 6:35 p.m., Agent Carter of the DCI who was conducting surveillance across the street from the Holiday Inn South, observed a 1981 beige Chevrolet automobile with Linn County, Iowa, license plates being driven by a large male with a black beard leave the parking lot and travel south on Fleur Drive. At approximately 6:58 p.m. Kadota was observed leaving the Holiday Inn South in a taxicab and traveling to the Hilton Inn, also on Fleur Drive approximately three to four miles south of the Holiday Inn where he exited the cab and walked into the Hilton Inn. At approximately 7:05 p.m., he made a telephone call, then left the Hilton Inn, walked next door, and entered the Hyatt House. Surveillance agents lost contact with Kadota at this point.

Agents Carter and Hallock of the DCI and an agent of the DEA remained in the area of the Hyatt House in an attempt to locate Kadota. At approximately 7:40 p.m., the agents were informed by other agents that Kadota had returned to the Holiday Inn South to make a second narcotics transaction. The agents then checked with the desk clerk at the Hyatt House and learned that at approximately 4:20 p.m. that afternoon, a large adult male with a black beard had checked into the hotel. This man had paid the room deposit from a large roll of cash, stating to the clerk that he normally paid with credit cards but had just arrived by airplane and had left his credit cards on the plane. The agents learned that the individual had registered under the name of "Howard Hoover" with a Florida address, and that he was staying in room 135 with one other person. Agents Hallock and Carter then set up their post outside room 135 at the Hyatt House. At approximately 8:13 p.m., the agents observed the same 1981 beige Chevrolet automobile with the driver earlier observed at the Holiday Inn South appear and park directly across from room 135. A police radio check confirmed that the 1981 Chevrolet automobile had been rented from a leasing company in Cedar Rapids, Iowa. Agents observed appellant Bubis get out of this vehicle, go to the trunk of the car, remove a plastic yellow shoe bag and go directly into room 135.

Meanwhile, as noted previously, Kadota returned to room 707 of the Holiday Inn South at approximately 7:40 p.m....