U.S. v. Charria, 1516

• Decision Date: 03 December 1990
• Docket Number: No. 1516,D,1516
• Citation: 919 F.2d 842
• Parties: UNITED STATES of America, Appellee, v. Pedro J. CHARRIA, Defendant-Appellant. ocket 90-1120.
• Court: U.S. Court of Appeals — Second Circuit

Page 842

919 F.2d 842

59 USLW 2395

UNITED STATES of America, Appellee, v. Pedro J. CHARRIA, Defendant-Appellant.

No. 1516, Docket 90-1120.

United States Court of Appeals Second Circuit.

Argued July 19, 1990.

Decided Dec. 3, 1990.

Domenick J. Porco, New York City (Martin L. Schmukler, New York City, of counsel), for defendant-appellant.

Stephen C. Robinson, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Kerri Martin Bartlett, Asst. U.S. Atty., of counsel), for appellee.

Before WINTER, MAHONEY and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Pedro J. Charria appeals from a judgment of the United States District Court for the Southern District of New York (John F. Keenan, Judge ), convicting him after a jury trial of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. Secs. 846 and 841(a)(1), and money laundering, in violation of 18 U.S.C. Secs. 1956(a)(1)(B)(i) and 2, and sentencing him to concurrent terms of imprisonment of twenty-five years and ten years, respectively. Charria's principal challenge concerns his waivers of the right to counsel effected during his consents to questioning and to a search following his arrest pursuant to a filed indictment, as to the existence of which, he now says, he was never informed. He also challenges the district court's application of the Sentencing Guidelines' obstruction of justice and acceptance of responsibility adjustments, and its failure to downwardly depart. Because we find that the defendant's knowing and voluntary waivers of his sixth amendment right were constitutionally adequate and we conclude that Judge Keenan properly applied the Sentencing Guidelines, we affirm.

BACKGROUND

On October 6, 1988, following an extensive undercover operation, Charria and sixteen others were indicted for conspiracy to distribute narcotics and various money laundering violations. According to the trial evidence, the sufficiency of which is not disputed, Charria, the New York accountant for a member of a Colombian drug cartel, conspired to distribute cocaine and conducted a transaction designed to conceal and disguise illegal narcotics proceeds. Of the remaining defendants, only two others have been apprehended to date; both pled guilty to a single count of money laundering prior to Charria's trial.

Circumstances of Charria's Arrest and the Search

On October 9, 1988, agents of the United States Customs Service arrived at Charria's home in Dix Hills, Long Island, with an arrest warrant. After knocking on the door and ringing the doorbell, the agents were let inside by the defendant's wife. Several of the agents, with guns drawn, entered the defendant's bedroom, where they found Charria in his underwear. The agents told him in English that he was under arrest and asked him if he had any weapons, to which he responded that he did not. They then took him to the kitchen, where they again told Charria that he was under arrest and showed him a copy of the arrest warrant, which indicated that he was under indictment for conspiracy to distribute cocaine and money laundering. Although he did not raise the issue below, Charria asserts on appeal that he was not adequately informed of the existence of the indictment, despite testimony by two agents that, in addition to showing him a copy of the warrant, one of them explained to him that he was under indictment for the two offenses.

After viewing the arrest warrant, Charria began to reply, "I didn't do anything," but was interrupted by an agent who orally administered, in English and Spanish, the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At this juncture, no weapons were drawn and Charria was not handcuffed. Charria then signed "Advice of Rights" forms printed in both languages that waived his right to remain silent. He then told the agents that "he didn't know anything about any of those things, and [that] he was in the glass etching business."

Thereafter, the agents asked for, and received, Charria's oral consent to search his house. He also executed "Consent to Search" forms in English and Spanish. He thereupon admitted having a gun and directed the agents to a file cabinet in the basement where they found a weapon. The agents then discovered a Redweld envelope under Charria's desk, inches from where the gun had been seized, containing voluminous drug records. When one agent asked Charria about the contents of the envelope, Charria responded, "That's what's going to get me in trouble." The agents also found address books, receipt books, a beeper and a cellular telephone in the basement.

The agents then walked outside with Charria and noticed a pile of ashes in the driveway. Underneath the ashes, still in a readable condition, were other drug records matching those found in the Redweld envelope. Charria told the agents that he had burned those materials the night before when he was outside and wanted to keep warm. Similar records were found in a nearby garbage can. Attempting to explain the existence of the records, Charria told the agents that while he was on vacation in Colombia, two unknown men asked him if he would store some financial records for someone in New York, and thereafter, a certain individual would beep him and arrange to meet him to transfer the records.

Charria's Suppression Motions in the District Court

Before trial, Charria filed a motion to suppress his oral statements and the physical evidence seized from his residence on the day of his arrest. The district court concluded that, despite the fact that he was under arrest and in custody, Charria had been neither coerced nor misled into consenting to the search or making the statements in violation of either the fourth or fifth amendments. Charria does not challenge the district court's finding of "voluntary and intelligent" waivers of these rights.

In a renewed suppression motion under the sixth amendment, Charria, relying on our decisions in United States v. Satterfield, 558 F.2d 655 (2d Cir.1976), and United States v. Mohabir, 624 F.2d 1140 (2d Cir.1980), raised the issue of whether the right to counsel during postindictment interrogation is compromised by law enforcement officials' obtaining uncounselled consents to questioning and search without first bringing the defendant before a neutral judicial officer for an explanation of the sixth amendment right. The district court ruled that, under Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), the sixth amendment does not require judicial supervision of a waiver of the right to counsel during postindictment questioning, and found that, after being given the appropriate Miranda warnings, Charria had made a knowing and intelligent waiver of his sixth amendment right, as well as his fourth and fifth amendment rights. Charria does not press this argument on appeal, but instead asserts that for a sixth amendment waiver by an indicted defendant to be effective, the defendant must be informed of the indictment, which he now alleges never occurred.

Charria's Conviction and Sentence

The jury found Charria guilty on Count One of conspiring to distribute cocaine, in violation of 21 U.S.C. Secs. 846 and 841(a)(1), and on Count Two of money laundering, in violation of 18 U.S.C. Secs. 1956(a)(1)(B)(i) and 2. Judge Keenan imposed concurrent prison terms of 25 years on Count One and 10 years on Count Two, plus a $50,000 fine and five years supervised release on Count One. Unlike the sentence on Count Two, which alleged conduct prior to the November 1, 1987 effective date of the Sentencing Guidelines, the sentence on Count One was governed by the Guidelines as the conspiracy continued past that date. The district court based Count One's 25-year prison term upon an adjusted offense level of 40 which, at the criminal history category I applicable to Charria, carries a range of incarceration of 292 to 365 months. Level 40 was arrived at from: (a) the documents found in Charria's home that reflected the transfer of over 7,766 kilograms of cocaine and earnings of over $106 million and resulted in a base offense level of 36 under Guidelines Sec. 2D1.1(a)(3); (b) Charria's possession of a weapon during the commission of the crime that resulted in a two-point enhancement under Sec. 2D1.1(b)(1), and (c) a two-point enhancement for obstruction of justice under Sec. 3C1.1 based upon Charria's burning of drug records and his attempt to deceive the arresting agents by initially denying having a weapon and by lying about how the documents became burned and how he acquired them. The district court declined to award Charria a two-level reduction for acceptance of responsibility under Sec. 3E1.1, and to downwardly depart from the Guidelines range.

DISCUSSION

I. Sixth Amendment Right to Counsel

On appeal, Charria contends that his waivers of his sixth amendment right to counsel during the postindictment questioning and search of his house were ineffective because the arresting officers did not inform him of the indictment pending against him, and therefore the fruits of that questioning and search should have been suppressed at trial. ¹ Charria does not challenge the fact that he was not brought before a neutral judicial officer prior to his waiver. Nor does he assert that he was never given the appropriate Miranda warnings. He asserts only that in order for an indicted defendant to effectively waive the right to counsel he must, in addition to being advised of his Miranda rights, be informed by an arresting officer of the indictment pending against him. The sole issue before us, therefore, is whether an indicted defendant who has been given the Miranda warnings but not informed of the indictment against him may waive the right to counsel when consenting to custodial questioning and a search of his home.

The sixth amendment as...