U.S. v. Carrion

• Citation: 809 F.2d 1120
• Decision Date: 03 February 1987
• Docket Number: No. 86-1268,86-1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION and Fred Solmor, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1120

809 F.2d 1120

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION and Fred Solmor, Defendants-Appellants.

No. 86-1268.

United States Court of Appeals, Fifth Circuit.

Feb. 3, 1987.

Rehearing Denied March 27, 1987.

Charles Louis Roberts, Joseph Abraham, Jr., El Paso, Tex., for solmor.

Michael J. Brown, Houston, Tex., for Carrion.

Wm. Kim Wade, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Robert R. Smith, Asst. U.S. Atty., Dallas, Tex., for U.S.

Appeals from the United States District Court for the Northern District of Texas.

Before WISDOM, JOHNSON, and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant Anthony Nicholas Carrion appeals his conviction, arguing that the district court should have instructed the jury on the issue of entrapment. Defendant Fred Solmor appeals his conviction, arguing that the district court erred in imposing consecutive sentences for possession with intent to distribute and distribution, in denying severance of the two defendants' trials, and in failing to suppress certain evidence. Solmor also argues that the evidence was insufficient to sustain his conviction under the Travel Act (18 U.S.C. Sec. 1952). We affirm both convictions.

I. FACTS AND PROCEDURAL HISTORY

In July 1985, an undercover agent with the Drug Enforcement Administration (DEA) introduced defendant Anthony Carrion to Robert Paiz, another DEA undercover agent, at a Dallas nightclub. During that evening, Carrion mentioned to agent Paiz that he was involved in cocaine distribution back home in Los Angeles, California. Carrion indicated that he was capable of procuring multiple ounces of cocaine, possibly up to one or two kilograms, and gave Paiz a Los Angeles telephone number with which to contact him if Paiz was interested in pursuing a cocaine venture.

Some weeks later, agent Paiz called Carrion, using the Los Angeles number, and asked whether Carrion could organize a cocaine delivery in Dallas. Carrion said that he was more comfortable dealing in the Los Angeles area, but Carrion did encourage Paiz to call him again. When Paiz called again, he left his telephone number on Carrion's answering machine. Carrion used this number to call Paiz. Paiz and Carrion exchanged further telephone calls; sometimes Paiz initiated the call, sometimes Carrion did. In these telephone conversations, Carrion indicated that only a deal involving at least one kilogram of cocaine would make it worth his while to make a delivery in Dallas. Amounts as great as three kilograms were also discussed.

On October 13, Carrion called Paiz from Los Angeles and told Paiz that he would be travelling to Dallas the next day with one kilogram of cocaine. The next day, October 14, the two men met at a Dallas nightclub and Carrion provided Paiz with a cocaine sample. Paiz wanted to test the sample's purity, and the two men parted with the understanding that they would resume their discussion the next day. The following day, October 15, Carrion called Paiz, the two men met, and Carrion delivered one kilogram of cocaine to Paiz for $42,000. During the transaction, Carrion informed Paiz that his sources had some 150 kilograms of cocaine at their disposal and advised Paiz to travel to Los Angeles if he wanted to deal in larger quantities. Carrion also stated that he could provide heroin as well. Carrion noted that his sources would permit him to travel to Dallas with only one kilogram. If Paiz wanted larger quantities, Paiz would have to travel to Los Angeles; in Los Angeles, Carrion was not subject to a one kilogram restriction. The two men parted with the understanding that they would continue to do business with one another in the future.

Carrion returned to California. The two men continued to stay in contact by telephone. In some of these conversations, Carrion asked if Paiz wanted to purchase more cocaine. Eventually, Paiz inquired whether Carrion could deliver six to eight kilograms of cocaine. It was agreed that Carrion would deliver eight kilograms to Paiz in Los Angeles. In late November 1985, Paiz travelled to Los Angeles, but the two men were unable to meet.

On December 4, Carrion informed Paiz by telephone that he had received authority from his sources to travel to Dallas with as many as ten kilograms of cocaine. Carrion said he would be driving to Dallas with a friend. Paiz objected that the price had been jacked up over the price set for the Los Angeles delivery that had fallen through and indicated that he could finance only six kilograms. Carrion offered to see whether his sources would permit a sale on credit of two extra kilograms beyond the initial six. On December 6, Carrion called Paiz to announce his arrival in Dallas. Carrion explained that he had flown to Dallas and that his sources had had an associate drive the so-called load vehicle to Dallas. Carrion told Paiz the name of his hotel and his room number. The load vehicle arrived late in the evening of December 6.

On the morning of December 7, DEA agent Dennis Michael Harrington set up surveillance of the hotel at which Carrion had said he was staying. Agent Harrington observed a van with California plates in the hotel parking lot. He saw defendants Carrion and Fred Solmor exit the hotel and enter the van. Harrington followed the van. Solmor was driving. Defendants drove to two gas stations and an auto parts store. Harrington saw Carrion and Solmor moving, at various times, about the van's interior. They were concentrating on an area behind the front seats called the headliner. The defendants were seen applying a tool to a latch in the headliner area. Harrington followed the van as it returned to the hotel. The defendants left the van and entered the hotel. Solmor carried a medium-sized dark brown luggage piece from the van. Later, Carrion exited the hotel alone, carrying a smaller dark suitcase, and drove away in a white car.

Carrion arrived at Paiz's undercover apartment at approximately 1:25 in the afternoon of December 7. Carrion brought only three kilograms of cocaine to the apartment, explaining that it was safer this way "if they grab us." Because of his earlier conversations with Carrion, Paiz was confident that Carrion had more than three kilograms with him in Dallas. Knowing that Carrion would be arrested once delivery of any amount had been made, Paiz tried unsuccessfully to talk Carrion into delivering the full quantity--the three kilograms and all additional amounts--at one time. During their conversation, Carrion indicated that he had to be back by 2:30 that afternoon. Carrion delivered the three kilograms to Paiz. The transaction lasted some twenty to twenty-five minutes. Carrion was then placed under arrest.

Once agent Harrington, still at the hotel, knew that Carrion had been arrested, he went about locating Solmor. Hotel personnel supplied the numbers of rooms Solmor could have been occupying. Harrington and another agent Gene Gee went to one of the hotel rooms listed. Harrington identified himself to a housekeeping employee in the hallway and asked him to knock on the door of the room and check whether anyone was in the room. The employee knocked, saying, "Housekeeping." Solmor opened the door. Harrington and Gee recognized Solmor immediately. Gee drew his weapon, pointed it at Solmor, and ordered him to raise his hands. Solmor immediately raised his hands and said to the agents: "I won't give you guys any trouble. I've got a gun in my right pocket." Both agents, with their weapons drawn, entered the room. Agent Gee removed Solmor's gun, and Harrington performed a pat-down search, removing a billfold and an address book from Solmor's pocket. Gee then advised Solmor that he was under arrest.

The bathroom and an adjoining room were checked to make sure there were no other persons on the premises. A woman and two children were in the adjoining room. The agents tried unsuccessfully to obtain Solmor's consent to a search of his hotel quarters. The agents, joined by other agents, secured Solmor's hotel room and the adjoining room. Solmor was then taken away. The woman and children moved, with their personal belongings, into another room in the hotel. Another agent then prepared an affidavit with which to obtain a search warrant. A federal magistrate issued search warrants authorizing searches of Solmor's hotel room and the adjoining room. The warrants were executed approximately five to six and one-half hours after the initial entry into Solmor's hotel room. Five kilograms of cocaine were found in a suitcase in the closet of Solmor's hotel room.

A seven-count superseding indictment was issued against Carrion and Solmor. Count I charged both men with conspiring on or about December 7, 1985, to distribute more than one kilogram of cocaine. Count II charged Carrion with distributing cocaine on or about October 14, 1985. Count III charged Carrion with distributing one kilogram of cocaine on or about October 15, 1985. Count IV charged that both men, aided and abetted by one another, possessed eight kilograms of cocaine on or about December 7, 1985, with the intent to distribute it. Count V charged (1) Carrion with distributing three kilograms of cocaine on or about December 7, 1985, and (2) Solmor with aiding and abetting that distribution. Count VI charged Carrion with travelling in interstate commerce on or about October 14, 1985, with the intent to promote and to distribute the proceeds of an unlawful activity. Finally, count VII charged both defendants with travelling in interstate commerce on or about December 5, 1985, with the intent to promote and to distribute the proceeds of an unlawful activity.

Both defendants were convicted on all counts against them.

II. DISCUSSION

A. Appeal of Defendant Carrion

Carrion contends that the district court erred in declining to charge the jury on the issue of entrapment. We detect no error.

In United States v. Stanley, 765 F.2d 1224 (5th Cir.1985), the Court canvassed...