U.S. v. Cruz

• Decision Date: 09 March 1979
• Docket Number: No. 78-1146,78-1146
• Parties: UNITED STATES of America, Appellee, v. Herminio CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 268

594 F.2d 268

UNITED STATES of America, Appellee, v. Herminio CRUZ, Defendant, Appellant.

No. 78-1146.

United States Court of Appeals, First Circuit.

Argued Dec. 6, 1978.

Decided March 9, 1979.

Allan A. Ackerman, Chicago, Ill., with whom Ackerman, Durkin & Egan, Chicago, Ill., was on brief, for defendant, appellant.

Walter B. Prince, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The procedural aspects of this case are a little out of the ordinary. Defendant-appellant, Herminio Cruz, appeals his conviction by the district court sitting without a jury of conspiracy to possess with intent to distribute and distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and § 846. Appellant was indicted, along with eight codefendants, on a one count conspiracy charge. All eight codefendants pleaded guilty prior to trial. Appellant had been convicted on December 30, 1977, and sentenced to a term of fifteen years after a jury trial in the Northern District of Illinois of possession of heroin with intent to distribute based on the same facts that were the basis of the conspiracy indictment. We held, on an interlocutory appeal, that the double jeopardy proscription of the Constitution did not bar the conspiracy prosecution in the District Court of Massachusetts. United States v. Cruz, 568 F.2d 781 (1st Cir. 1978). After receiving what amounted to a promise that any sentence would be concurrent to that imposed in the Northern District of Illinois appellant agreed to submit his case to the court on stipulated facts consisting mainly of the record of the Chicago trial. Appellant was found guilty and sentenced to a term of fifteen years imprisonment to be served concurrently with the sentence already imposed in the Northern District of Illinois and a three year special parole term. ¹

Four issues are raised on appeal: ²

1. the validity of the search warrant that opened appellant's premises;

2. appellant's right to attack the sufficiency of a wiretap affidavit and order;

3. whether the district court went outside of the record in determining guilt; and 4. whether the evidence proved appellant guilty beyond a reasonable doubt.

THE WARRANT

The Affidavit Statements

The case had its genesis in an investigation starting in 1976 by the Hartford office of the Drug Enforcement Administration (DEA). The investigation focused on one Rafael Kercado-Rivera of Springfield, Massachusetts. A court-authorized wiretap of Kercado-Rivera's telephone was installed, resulting in the intercept of two telephone conversations relative to bringing heroin from Chicago to Western Massachusetts. On December 15, 1976, Kercado-Rivera was called by Jose DeLeon of Chicago, an indicted coconspirator, and told that six kilos of heroin were available in Chicago at the price of $28,000 per kilo. Kercado-Rivera agreed to purchase one kilo. That same evening one Daisy Gonzales, known to be an acquaintance of Kercado-Rivera, made airline reservations to go to Chicago the next day. Neither appellant's name nor address was mentioned during either of the telephone calls intercepted.

After Hartford DEA agents had observed Gonzales board a flight to Chicago, this information, along with a physical description of Gonzales and Kercado-Rivera, was sent to DEA agents in Chicago. Gonzales was followed by DEA agents after she left O'Hare International Airport to a restaurant in Chicago where she met an individual who fit the description and was, in fact, Kercado-Rivera. A short time later, the two left the restaurant and drove to 3651 Belden Street, Chicago.

These facts, which are recited in paragraphs 1 through 7 of the affidavit underpinning the search warrant, are not challenged. Appellant's challenge to the validity of the warrant focuses on what was stated in the affidavit as to who left the Belden Street address after Kercado-Rivera and Gonzales had arrived there, and what that individual subsequently did. Paragraphs 8, 9, and 10 contain the following information. Kercado-Rivera left the Belden Street address carrying a brown paper bag and drove to 2514 West Hadden Street, which he entered with the bag. A short time later, he left the West Hadden Street residence with a white paper bag and drove back to the Belden Street address. Gonzales, Kercado-Rivera, and an unknown male left Belden Street together in an automobile which proceeded to the intersection of Leavitt and Milwaukee Streets, where Gonzales and Kercado-Rivera left the automobile and took a taxi to O'Hare Airport.

Paragraphs 11 and 12, which are undisputed, state that both Gonzales and Kercado-Rivera took a flight to Hartford, that Gonzales was arrested on her arrival in Hartford and that the heroin she was carrying was seized, along with a white paper bag which bore a Chicago address.

On the basis of this information, a warrant was issued for the search of the residence at 2514 West Hadden Street, Chicago, the home of appellant. Five kilos of heroin were found in the basement of appellant's home. Drug related paraphernalia and $29,000 in cash inside a torn brown paper bag with Massachusetts bank wrappers were found after a search of the first floor.

Appellant attacks the search warrant on the basis of the incorrect statements in paragraphs 8 and 9 of the affidavit, that it was Kercado-Rivera who went from the Belden Street address to the West Hadden Street house and then returned to Belden Street. Based on the statements made by the DEA agents at the suppression hearing, it is clear that the person who visited West Hadden Street was Jose DeLeon and that the unknown male in the car that drove to the intersection of Leavitt and Milwaukee Avenues was also DeLeon. The identification of DeLeon by the DEA agents as the West Hadden Street visitor was made subsequent to the execution of the affidavit after the agents had an opportunity to examine photographs taken during the surveillance.

After a series of lengthy suppression hearings, the district court, in a written memorandum and order, found that the error in identification of the courier between

Belden Street and West Hadden was "an honest mistake which was neither knowing, reckless, nor negligent." The court also found "that the identity of the courier was not a material fact in the establishment of probable cause."

The Law

Appellant's contention is deceptively simple. He argues that, since paragraphs 8 and 9 of the affidavit were factually incorrect, they must be eliminated and, if that is done, no probable cause existed for granting the search warrant for West Hadden Street and the warrant, therefore, falls.

The legal precedent applicable and followed when this case was before the district court was this court's opinion in United States v. Belculfine, 508 F.2d 58, 63 (1st Cir. 1974). In Belculfine, we held that evidence should be suppressed if it had been obtained in reliance on an intentional and material misstatement in an affidavit, but we did not consider whether suppression would be required if the statements were made recklessly. Since then, the Supreme Court has addressed the issue and has determined both the circumstances under which a defendant may challenge the veracity of an affidavit supporting a warrant and the consequences that follow if such a challenge is successful.

(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks v. State of Delaware, 438 U.S. 154, 156, 157, 98 S.Ct. 2674, 2676, 2677, 57 L.Ed.2d 667 (1978). The Supreme Court's decision in Franks made it clear that the reach of Belculfine must extend to statements made recklessly, but did not in other respects affect our prior holding. As the district court held a hearing and found that the statements in issue here were not made recklessly, this case can be analyzed appropriately under Franks. We need not consider whether that decision was retroactive, as it does not affect Belculfine in any way relevant here.

Initially, we note that, if the affidavit could be taken at face value, the information used to procure the warrant would clearly meet the Aguilar-Spinelli requirements. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In Aguilar, the Court held:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was "credible" or his information "reliable."

Id. at 114, 84 S.Ct. at 1514. Here, although the affidavit stated that the initial tip came from a confidential informant of the Hartford DEA office, it, in fact, came from a legally...