U.S. v. DiCesare

• Decision Date: 10 July 1985
• Docket Number: 84-5021 and 84-5056,Nos. 84-5013,s. 84-5013
• Citation: 765 F.2d 890
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dario DICESARE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 890

765 F.2d 890

UNITED STATES of America, Plaintiff-Appellee, v. Dario DICESARE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.

Nos. 84-5013, 84-5021 and 84-5056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1985.

Decided July 10, 1985.

Christine W.S. Byrd, Los Angeles, Cal., for plaintiff-appellee.

Stanley I. Greenberg, Los Angeles, Cal., Manuel Araujo, Santa Ana, Cal., for defendant-appellant.

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

Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.

WALLACE, Circuit Judge:

DiCesare and Flannery appeal their convictions entered after conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Marin appeals his conviction after a jury trial. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm DiCesare's conviction, but vacate Flannery's conviction and remand for an evidentiary hearing. We vacate Marin's conviction and remand for a new trial.

I

In January 1983, the government began investigating DiCesare after he and his wife insisted on depositing large amounts of cash in the First Los Angeles bank without filing the currency transaction reports required by 31 C.F.R. Secs. 103.22, 103.25 (1984). On July 25, 1983, Glendale police seized approximately 33 pounds of cocaine at a hotel room in Glendale. DiCesare arrived at the hotel room and provided inconsistent explanations of his presence to the police. He was arrested, but later released.

A team of law enforcement officers from the United States Customs Service, and the Los Angeles and Glendale police departments began a surveillance of DiCesare. During late August, this surveillance revealed meetings and rendezvous between DiCesare and codefendant Marin under secretive and suspicious circumstances. The police observed DiCesare and Flannery drive in DiCesare's automobile to the home of a suspected drug trafficker. Upon their return to Flannery's apartment, DiCesare switched vehicles to Flannery's BMW and returned to his apartment in Marina del Rey. Later, DiCesare placed a suitcase in the BMW's trunk. The officers requested a narcotics canine, which "alerted" to the presence of narcotics in the trunk.

On the basis of these observations, Special Agent Rodriguez, a customs officer who had participated in the surveillance, obtained a search warrant for DiCesare's and Flannery's apartments from a Glendale municipal court judge. The search of DiCesare's apartment revealed large quantities of cash, cocaine, other narcotics trafficking paraphernalia, and several envelopes containing large amounts of currency addressed to an attorney. The BMW also was searched, and the suitcase in the trunk contained six pounds of cocaine and a balance scale. Both DiCesare and Marin were arrested in DiCesare's apartment. When the officers searched Flannery's apartment, they found cocaine, paraphernalia and cocaine trafficking notations. Flannery also was arrested.

When Marin was arrested, he had a small child with him. The officers took custody of the child, and then drove to Marin's apartment in an attempt to locate the child's mother. Outside Marin's apartment, the officers stopped Liguori, DiCesare's secretary, and searched her purse. It contained an envelope addressed to the same attorney as the envelope containing currency that had been found in DiCesare's apartment. The envelope found in Liguori's purse contained $9,700 in cash. The officers arrested Liguori. A later inventory search of the purse revealed cocaine and a rental receipt for Marin's apartment.

At Marin's apartment, the officers met several Spanish-speaking occupants. Although it is not clear whether the officers received permission to enter or whether the occupants understood why the officers were present, the officers entered the apartment with the avowed purpose of returning the child. Once in the apartment, the officers observed the following items in plain view: a utility bill with DiCesare's name on it, a note pad containing figures that, in the officers' opinions, were consistent with cocaine trafficking, and a large green suitcase. The officers first secured the apartment, and then requested a narcotics canine. When the dog arrived, it entered the apartment and alerted to the suitcase. Two hours after their initial entry, the officers decided to obtain a search warrant, and detained the occupants for several hours while awaiting the warrant. The search revealed $2,000 in cash next to an envelope addressed to the same attorney as the envelopes found in DiCesare's apartment and Liguori's purse. The search of the suitcase revealed no contraband.

DiCesare, his wife Beatrice, Flannery, Marin, and Liguori were indicted for a conspiracy in violation of 21 U.S.C. Sec. 846 (count one: conspiracy to possess or distribute cocaine). In addition, Flannery and the DiCesares were indicted for the following violations: 21 U.S.C. Sec. 841(a)(1) (possession of cocaine with intent to distribute) (count four: DiCesare and Flannery; count two: DiCesare alone); 18 U.S.C. Sec. 924(c) (count three: carrying a firearm during a felony) (DiCesare alone); 26 U.S.C. Sec. 5861(h) (count five: possessing a firearm with an obliterated serial number) (DiCesare alone); 18 U.S.C. Sec. 371 and 31 U.S.C. Secs. 5313, 5322 (count six: conspiracy of and a willful failure to report a domestic currency transaction) (both DiCesares). The firearm serial violation was later dismissed. Beatrice DiCesare entered a guilty plea, while Liguori's charges were dismissed after she cooperated; neither is a party to this appeal. Both DiCesare and Flannery entered conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Pursuant to the plea agreement, counts two and three were dismissed against DiCesare at the time of sentencing, and count four was dismissed against Flannery. Marin entered a plea of not guilty, and was convicted by a jury on count one.

II

We first address the issues raised by DiCesare and Flannery, who joined in the motions of her co-defendants.

A.

DiCesare and Flannery contend that the district court erred by denying their motions for hearings required by Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks ). There are five requirements for a sufficient motion for a Franks hearing: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983) (Kiser ).

We review the denial of a Franks hearing de novo. See, e.g., United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985). DiCesare argues that five statements or omissions in Rodriguez's affidavit warranted a hearing: (1) he used information from a search that was quashed three years previously; (2) he referred to an earlier arrest but failed to relate that the state subsequently declined to prosecute; (3) he advised the magistrate that the apartment trash revealed evidence of narcotics transactions when the trash could have been commingled; (4) he failed to disclose the unreliability of the canine; and (5) he misrepresented that DiCesare was using an alias.

An examination of DiCesare's moving papers reveals only two allegations that arguably suffice to show an intentional or reckless omission or misstatement by Rodriguez: (1) the inclusion of the results from a three year old search, and (2) whether the trash could have been examined since it was deposited in a large common container. Thus, the remaining three statements fail to qualify. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; Kiser, 716 F.2d at 1271. There was no error in the denial of a hearing on those two statements, however, because a hearing is required only if the challenged information is necessary to find probable cause. See id. Even without these statements in the affidavit, we conclude that the other allegations in the affidavit supported a finding of probable cause. Therefore, we affirm the district court's denial of DiCesare's and Flannery's motion for a Franks hearing.

B.

Both DiCesare and Flannery argue that the district court erroneously denied their motions for other evidentiary hearings. We review the denial of an evidentiary hearing for an abuse of discretion. See United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), amended on other grounds, 609 F.2d 433 (1979) (order).

Flannery argues that the disputed facts surrounding the execution of the search warrant at her apartment on August 26 and a second entry on September 14 require an evidentiary hearing. On August 26, the officers executed the search warrant for Flannery's and DiCesare's apartments. When they arrived at Flannery's apartment, the main door was open, but the screen door was closed and locked. In Flannery's declaration, she stated that the officers forcibly entered and announced simultaneously, and that "[p]rior to breaking open the door, none of the officers knocked, announced their identity, or stated the purpose of their presence." Upon entry, Flannery stated that she was assaulted and verbally abused. The officer declared, however, that he saw Flannery speaking on the telephone and announced the presence of the police. He stated that Flannery became hysterical, dropped the telephone, and turned as if to flee. He then forcibly entered to prevent possible destruction of evidence. He flatly denied the occurrence of an assault and verbal abuse. Flannery introduced photographic exhibits supporting...