U.S. v. Calvente, s. 1540
| Decision Date | 15 November 1983 |
| Docket Number | 1573,1571,1542,1541,1582,1574,1575,1576,Nos. 1540,D,1572,s. 1540 |
| Citation | 722 F.2d 1019 |
| Parties | 14 Fed. R. Evid. Serv. 1279 UNITED STATES of America, Plaintiff-Appellee, v. Jose CALVENTE, Ramon Molina-Santiago, Jose Martinez-Torres, Arturo Alamo, Nancy Medina, Ramon Santiago-Colon, Iris Norma Rodriguez, Nelson Soto, Georgina Rodrigues-Vargas, and Pablo Rodriguez, Defendants-Appellants. ockets 83-1035, 83-1036, 83-1041, 83-1042, 83-1053, 83-1057, 83-1058, 83-1062, 83-1079, 83-1098. |
| Court | U.S. Court of Appeals — Second Circuit |
Hermena Perlmutter, New York City, for defendant-appellant Calvente.
Irving Cohen, New York City, for defendant-appellant Molina-Santiago.
Martin I. Saperstein, Mineola, N.Y. (Michael L. Cirrito, White & Cirrito, Mineola, N.Y., on the brief), for defendants-appellants Martinez-Torres and Medina.
Paul E. Warburgh, Jr., Axelrod & Warburgh, New York City, for defendant-appellant Alamo.
Michael P. Stokamer, New York City, for defendant-appellant Santiago-Colon.
Eric Greenbush, New York City, for defendant-appellant Iris Norma Rodriguez.
Philip R. Edelbaum, New York City, for defendant-appellant Soto.
James Moriarty, New York City, for defendant-appellant Rodrigues-Vargas.
C. Joseph Halligan, New York City, for defendant-appellant Pablo Rodriguez.
James R. Devita, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph Giuliani, U.S. Atty., Gerard E. Lynch, Asst. U.S. Atty., New York City, on the brief), for plaintiff-appellee.
Before NEWMAN and WINTER, Circuit Judges, and MALETZ, Judge. *
Jose Calvente, Ramon Molina-Santiago, Jose Martinez-Torres, Arturo Alamo, Nancy Medina, Ramon Santiago-Colon, Iris Norma Rodriguez, Nelson Soto, Georgina Rodrigues-Vargas, and Pablo Rodriguez appeal from judgments of conviction in the United States District Court for the Southern District of New York following a three-week trial before Chief Judge Motley and a jury.
The ten defendants were convicted of twelve counts of violating the federal narcotics laws and laws relating to possession and use of firearms. 1 Numerous claims of error are raised, all but two of which clearly lack merit. One claim involves the constitutional validity of a consent to search, the other, the denial by Chief Judge Motley of a motion to strike a witness' testimony.
We affirm.
We view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Defendant Jose Martinez-Torres headed a major, wholesale narcotics organization centered in the Bronx, which sold almost $1.3 million worth of heroin and cocaine in the first six months of 1982, utilizing the names of "La Tunba" for heroin and "Nice" for cocaine. The primary base of operations was a cutting mill, or narcotics factory, located at 2526 Bronx Park East. Martinez-Torres' largest wholesale distributor was Arturo Alamo, who received on consignment some $460,000 worth of narcotics during the first six months of 1982. Nancy Medina, Martinez-Torres' common-law wife, assisted him in running his narcotics business and in maintaining records. Jose Calvente acted as a courier A government informant, Cologero Luigi Vizzini, infiltrated Martinez-Torres' organization with the unwitting assistance of Jaime Vila, a convicted narcotics dealer, who befriended Vizzini in 1979 when both were in prison and enabled him to gain the trust of Martinez-Torres and more important, access to the Bronx apartment. During his first visit to the apartment, Vizzini saw brown paper bags on a living room table filled with bundles of small cellophane or glassine bags with the name "La Tunba" stamped on them. He also saw amounts of money on the table and a number of weapons lying around the apartment.
and made deliveries to wholesale distributors.
During subsequent visits to the apartment, Vizzini saw all the defendants, except Medina and Alamo, participate in the cutting and bagging of narcotics. He saw Alamo pick up narcotics for street distribution on a consignment basis and return subsequently with money and leftover drugs. Finally, Vizzini witnessed large financial transactions all of which were recorded in ledger books by Martinez-Torres and Medina.
On June 28, 1982, Vizzini introduced undercover Drug Enforcement Administration ("DEA") agent Frank Marrero into the narcotics organization and Martinez-Torres invited Marrero to the cutting mill. Marrero was taken into the bedroom which contained a marble table used for cutting drugs. While in the room, Marrero saw four or five automatic weapons, bundles of glassine envelopes wrapped with rubber bands, scales and plastic bags. During the course of his visit, he met Soto, Santiago-Colon, Medina and Pablo Rodriguez.
On July 1 at approximately 10:00 p.m., Vizzini informed the chief DEA agent, Frederick Marano, that a shipment of heroin had been received at the apartment for processing. He decided to act immediately.
At 11:15 p.m., DEA agents observed Molina-Santiago and Santiago-Colon leaving the Bronx building with a brown paper bag. These individuals were arrested within the hour as they were driving out of the neighborhood and were taken to a McDonald's parking lot. Shortly thereafter, the DEA agents observed Martinez-Torres and Vizzini leave the building. They too were apprehended after a high speed chase through the Bronx during which two loaded handguns were thrown out of the car. Martinez-Torres and Vizzini were also taken to the McDonald's lot.
Agent Marano testified that he then read Martinez-Torres his rights and that the following conversation ensued:
I said ... that my name was Marano and I was a federal agent; that I had been investigating the heroin activity at 2526 Bronx Park East, Apartment 5B; that I knew that there were machine guns and weapons in the apartment; that I knew that there was heroin in the apartment; and that I was going to enter the apartment that evening.
I said to him that I was concerned about entering the apartment, because I knew that there were children and females in the apartment, but inasmuch as I knew that there were heavy weapons, dangerous weapons in the apartment, I was concerned for everyone's safety. I asked that he assist me in entering the apartment by letting me in peacefully.
Martinez-Torres consented to the entry on the condition that the DEA agents not harm his wife and child. The agents thereafter took Martinez-Torres to the apartment where Martinez-Torres kicked the door and shouted in Spanish to his wife inside, At that point Marano asked Martinez-Torres to let the agents into the apartment. Martinez-Torres motioned to his key ring and indicated the key to the apartment. Marano opened the lock and entered the apartment.
Upon entering, the agents placed Medina, Rodrigues-Vargas and Iris Rodriguez under arrest. They promptly engaged in a security check or protective sweep to see if anyone else was on the premises. While doing this, they noticed an open brown paper bag on the kitchen table and looked inside it. The bag contained a small quantity of heroin and $2,400. In the bedroom, DEA Upon completion of the security check, the agents sought a search warrant over the telephone. While they were waiting for the warrant, Arturo Alamo arrived, and the DEA agents placed him under arrest. The warrant was obtained shortly thereafter and, the agents began to search the apartment. They seized $6,900 in cash, large quantities of narcotics, chemicals used to dilute drugs, narcotics cutting and packaging paraphernalia, and detailed and explicit ledgers of narcotics transactions in Martinez-Torres' and Medina's handwriting. They also seized an arsenal of heavy weapons including a .45 caliber machine gun equipped with a silencer. Other documents found in the apartment established links among all the defendants.
agents saw the marble cutting table, several boxes of ammunition, a scale for measuring narcotics and large glass jars with white powder. Next to the cabinet near the door to the bedroom were three large packing boxes filled with thousands of glassine bags stamped with the names "La Tunba" and "Nice."
On the afternoon of July 2, 1982, the DEA agents obtained a warrant to search Martinez-Torres' and Medina's home at 774 East 236th Street. In that apartment they found another ledger book and additional illegal firearms.
Martinez-Torres and Medina argue that the evidence seized at the cutting mill and the 236th Street apartment should have been suppressed since Martinez-Torres' consent to the police entering the cutting mill was not freely and voluntarily given. They argue that the agents' initial entry into the cutting mill violated their Fourth Amendment rights, and, therefore, that the agents' plain view observations cannot support the subsequent search warrant. Similarly, they argue that the warrant for the search of the 236th Street apartment was also based on the fruits of the illegal entry.
Chief Judge Motley rejected these arguments in a lengthy opinion following a two day hearing. United States v. Martinez-Torres, 556 F.Supp. 1236 (S.D.N.Y.1982). She held that the initial entry into the mill was permissible because Martinez-Torres voluntarily consented to it, and, in the alternative, because it was justified by exigent circumstances. Id. at 1250-53. Because we agree with her conclusion as to consent, we find it unnecessary to reach the question of exigent circumstances.
A warrantless search or entry to secure the premises is constitutional if conducted pursuant to the valid consent of a person in control of the premises. See generally Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government has the burden of proving consent voluntarily given by a preponderance of the evidence. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88...
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