U.S. v. Castillo

Decision Date01 February 1989
Docket Number87-5045,Nos. 87-5042,s. 87-5042
Citation866 F.2d 1071
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Juan CASTILLO, aka: Luis Hong Rojas, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Antonio DE LA RENTA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Victor Sherman, Brian O'Neill, Santa Monica, Cal., for defendants-appellants.

Thomas K. Buck, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and NELSON, Circuit Judges, and ROSENBLATT, * District Judge.

ALARCON, Circuit Judge.

In these consolidated appeals, Antonio De La Renta (De La Renta) and Juan Castillo, also known as Luis Hong Rojas (Castillo) (collectively appellants) seek reversal of their convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and for being aliens in possession of a firearm in violation of Appendix II, 18 U.S.C. Sec. 1202(a)(5) (Supp.1985). 1 They also challenge the judgment requiring forfeiture of $134,998 pursuant to 21 U.S.C. Sec. 853(a) (Supp.1985).

Appellants contend that the district court erred in denying their motion to suppress evidence seized during the search of De La Renta's apartment. In addition, Castillo argues that the district court committed reversible errors during his trial and that the evidence was insufficient to support the jury's verdict. In addressing these contentions we must answer the following questions:

(1) Whether the affidavits presented in support of the request for the arrest warrant were sufficient to support the magistrate's finding of probable cause.

(2) Whether the district court's finding that the affidavits were not prepared with a deliberate or reckless disregard for the truth is clearly erroneous.

(3) Whether the officers had sufficient facts to justify a protective sweep of De La Renta's apartment after he was arrested.

(4) Whether the district court's finding that De La Renta voluntarily consented to a search of his apartment was clearly erroneous.

(5) Whether, during closing argument, the Government improperly commented on Castillo's failure to produce evidence.

(6) Whether the district court erred when it gave the jury supplemental instructions on the meaning of "intent to distribute."

(7) Whether there was sufficient evidence of dominion and control to support the jury's finding that Castillo had possession of the cocaine, guns and currency found in De La Renta's apartment.

I. FACTS

On June 29, 1986, a warrant for De La Renta's arrest was executed at De La Renta's apartment. The arrest team was comprised of federal and local law enforcement officers. When De La Renta opened the door, two officers of the Los Angeles Police Department (LAPD), Detectives Ray Martin and Michael Farrant, approached him with weapons drawn, identified themselves and stated the purpose of their visit. De La Renta was handcuffed and taken into the living room of the apartment.

Once De La Renta was in custody, the arrest team made a protective sweep of the apartment to assure themselves that no one else was present. During this sweep, the officers located two bedrooms. On entering the first bedroom, Detective Farrant saw some wrapped packages lying in plain view, between a nightstand and the wall. They were partially covered by a T-shirt and wrapped in the same manner that cocaine is packaged. The lettering on the outside of the packages was similar to that previously observed by Farrant on packages containing cocaine.

The second bedroom was locked. Farrant knocked on the door to the second bedroom and announced his presence. He could hear voices and noises inside. After announcing his presence two more times, he and a second officer forced entry into the bedroom. Castillo and Teresa Contreras were lying in the bed. Castillo was on the south side of the bed. The officers also observed a small amount of powder, which they believed to be cocaine, on top of the dresser in the second bedroom.

Farrant then took De La Renta into the first bedroom and obtained his verbal consent to search the apartment. De La Renta refused to sign a consent form. Farrant discussed the effect of De La Renta's refusal to sign a consent form with the other members of the arrest team. The officers decided that a search of the apartment was proper based on De La Renta's verbal consent. The search was terminated when one of the officers discovered a large sealed U-haul box in the second bedroom containing what appeared to be numerous packages of cocaine.

Farrant contacted Assistant United States Attorney Enrique Romero and described what had occurred at De La Renta's apartment to that point. Romero advised Farrant that the search could continue without a search warrant based on the oral consent. The officers resumed the search of the apartment. In the first bedroom, they found approximately 9,035 grams of cocaine, $130,598 in United States currency and two fully loaded handguns. In the second bedroom, the officers located a fully loaded Model 20 .25 caliber Beretta handgun and approximately $4,000 in one hundred dollar bills under the mattress on the south side of the bed where Castillo was first observed. On the floor, next to the south side of the bed was a compact containing 1.2 grams of 88% pure cocaine. On top of the dresser, in plain view, was .5 grams of 35% pure cocaine. A search of the dresser drawers revealed three clear plastic bags containing cocaine with a total weight of 935 grams of approximately 88% purity. On a shelf in the dresser, behind a door, the officers discovered a cannister

containing 119.9 grams of 77% pure cocaine, a triple beam scale, and weights of a type commonly used to weigh narcotics. A duffle bag containing rolls of various colored masking tape commonly used to package cocaine was next to the dresser. The U-haul box observed earlier on the floor of the second bedroom contained 48.7 kilograms of 88% pure cocaine. In a closet in the second bedroom, the officers found a clear plastic bag with 5.2 grams of 56% pure cocaine, and a Lipton tea bag with .8 grams of 83% pure cocaine, hidden in a leisure suit pocket. On the closet floor, the officers also found 609 grams of manitol, a common cutting agent used to dilute cocaine, a pink duffle bag with containers of manitol and Vitamin B blends, and more weights for a triple beam scale

In the kitchen the officers found a plastic bag containing 29.9 grams of 36% pure cocaine on the counter top next to the stove.

After completing the search of the apartment, the officers allowed Castillo to go back to the second bedroom to get a shirt and pair of shoes. Detective Martin testified that when Castillo entered the second bedroom he showed irritation at the condition of the room. Castillo selected a shirt and pair of shoes from the clothing removed from the closet and dumped on the bed by the officers during the search.

Before leaving the apartment, DEA Agent Michael Wood removed two sets of keys from the top of a table in the entry way to the apartment. Wood asked Castillo and De La Renta to identify their keys. The set identified by Castillo included a key which operated the perimeter locks to that apartment building.

On July 10, 1986, a Federal Grand Jury returned a four-count indictment against Castillo and De La Renta. In count one of the indictment, Castillo and De La Renta were charged with possession with intent to distribute approximately 66 kilograms of cocaine. Each appellant was also charged with being an alien in possession of a firearm. Count four alleged that $134,998 found in De La Renta's apartment was subject to forfeiture. De La Renta entered a guilty plea to counts one, two and four pursuant to Fed.R.Crim.P. 11(a)(2), conditioned on his right to appeal the issues raised before the district court during pre-trial proceedings. Following a jury trial, Castillo was convicted of counts one and three. The currency was forfeited pursuant to count four.

II. MOTION TO SUPPRESS

On October 6, 1986, De La Renta and Castillo filed a joint motion to suppress all of the evidence discovered during the search of the apartment. They argued that the evidence seized was inadmissible because the officers did not act pursuant to a search warrant and the consent to search was involuntary.

The district court held an evidentiary hearing on the question of the validity of the consent on October 20, 1986. On that date, appellants advised the court that they would also challenge the arrest warrant. Pursuant to stipulation, appellants filed a second motion to suppress the evidence based on the alleged inadequacy of the arrest warrant and the lack of veracity of the allegations in the supporting affidavits.

After holding further hearings on the motion to suppress on November 24, 1986 and November 26, 1986, the district court ruled that the affidavit supporting the arrest warrant did not set forth sufficient facts to show probable cause to issue a warrant for De La Renta's arrest. The district court denied the motion to suppress, however, because it concluded that the arrest was valid under the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The district court also found that there were no deliberate or reckless falsehoods in the affidavits.

A further evidentiary hearing was held on the consent issue on December 4, 1986. Thereafter, the district court held that the protective sweep was proper and that De La Renta voluntarily consented to the search.

A. Validity of The Arrest Warrant

The district court found that the affidavits filed in support of the arrest...

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