U.S. v. Foundas

• Decision Date: 23 January 1980
• Docket Number: No. 79-5054,79-5054
• Citation: 610 F.2d 298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ellen Lou FOUNDAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 298

610 F.2d 298

UNITED STATES of America, Plaintiff-Appellee, v. Ellen Lou FOUNDAS, Defendant-Appellant.

No. 79-5054.

United States Court of Appeals Fifth Circuit.

Jan. 23, 1980.

William P. Cagney, III, Miami, Fla., for defendant-appellant.

Linda Collins-Hertz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before JONES, BROWN and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

That neither the First Amendment nor the constitutional right to privacy is violated when a conversation is recorded by one of the participants is now settled. United States v. Rangel, 5 Cir. 1974, 488 F.2d 871, Cert. denied, 416 U.S. 984, 94 S.Ct. 2386, 40 L.Ed.2d 760; Koran v. United States, 5 Cir. 1969, 408 F.2d 1321, Cert. denied, 1971, 402 U.S. 948, 91 S.Ct. 1603, 29 L.Ed.2d 118. ¹ The contention here advanced that privacy is invaded if an undercover agent, instead of placing recording or transmitting devices on his person, conceals a transmitter in his motel room so that conversations with him occurring there are transmitted to another location for recording is too faint to broadcast beyond this opinion. See United States v. White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453. ²

Because the trial was to the court on a stipulation of what the witnesses would have testified, together with the introduction of a transcript of the transmitted conversation, only legal issues remain. We determine them in this clarified atmosphere.

Pursuant to arrangements made by telephone with one of the co-defendants to buy cocaine, an undercover agent of the Drug Enforcement Administration met Ellen Lou Foundas in a motel bar. The female who had made the telephone arrangements and one other female joined the group. In the course of a lengthy conversation, Ms. Foundas said she had one kilo of cocaine ready for sale with another available within 30 minutes if the first was satisfactory.

The agent insisted that the transfer of cocaine take place in his motel room where transmitting devices had been concealed. The agent and two of the women went upstairs to wait for Ms. Foundas. When she did not join them, they returned to the motel lobby to look for her. When she was located they all proceeded to the agent's room. (The government argues that during her absence Ms. Foundas must have obtained the cocaine from a hiding place.) What was said in the motel room was transmitted to another room where it was recorded by other DEA agents. In the room Ms. Foundas removed a brown paper bag from her purse and took from it a clear plastic bag containing 998 grams of 72% Pure cocaine. Another agent brought the group a briefcase containing money. Co-defendants counted the money and began to retrieve the price agreed on from the briefcase. The agent then arrested all three in the selling group. Thereafter, Ms. Foundas was indicted on three counts: (1) conspiracy to violate the drug control laws (21 U.S.C. § 846); (2) possessing cocaine with intent to distribute it (21 U.S.C. § 841) and (3) distributing cocaine (21 U.S.C. § 841(a)(1)).

It is also stipulated that Ms. Foundas would have testified that she was asked by one of the co-defendants, who was a friend, to deliver a package to the motel. She was told by her friends that there was a sale of coke arranged, that what she would actually sell would be lidococaine not cocaine, and she was to help persuade the dupe, a civil lawyer, that it was coke.

After reviewing the stipulation and the transcript of the hotel room conversations, the trial court found Ms. Foundas guilty on all counts and sentenced her to two years on each count, to run concurrently, with provision for release at the discretion of the Parole Commission pursuant to 18 U.S.C. § 4205(b)(2), and five years mandatory probation. He refused to suppress the recordings, and, for reasons we have already stated, we agree with his decision.

A paper blizzard of 29 motions was presented to the district court. Most were referred to a magistrate for recommendation. As a result of the flurry, the court failed to review her recommendations on one of the motions, but counsel, perhaps lost in his own storm, failed to draw the judge's attention to the matter as required by the local rules of court governing appeals from magistrate's rulings.

The appellant now objects both to the magistrate's making recommendations on various motions to dismiss and to the court's failure in the instance mentioned to review them. The plaintiff's motions to dismiss related to two issues: the method of jury selection and the alleged irrational classification of cocaine as a narcotic drug. The first issue was presented through several motions. It was proper for the magistrate to make preliminary findings on these motions until they had reached a point where the judge could review them all and dispose of defendant's principal argument in one shot rather than piecemeal. Cf. 28 U.S.C. § 636(b)(1)(A) (magistrate cannot finally determine motions to dismiss). The magistrate merely made recommendations that were reviewed by the judge who also considered all the supporting documents. The ultimate disposition was by the judge. This procedure is clearly valid. See 28 U.S.C. § 636(b)(1)(B).

The motion never acted on by the judge contended the statute was unconstitutional. This also was considered by the magistrate who recommended its denial. Even if the defendant cannot be said to have waived her right to a judge's determination of this issue, the error if any was harmless because of the clear legal precedent that cocaine is a narcotic drug within the meaning of the act. See e. g., United States v. Solow, 5 Cir. 1978, 574 F.2d 1318; United States v. Harper, 9 Cir. 1976, 530 F.2d 828, Cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80. See also United States v. Levine, 5 Cir. 1977, 546 F.2d 658.

Ms. Foundas also contends that the Parole Commission guidelines, 28 C.F.R. § 2.12(a), adopted pursuant to statute, 18 U.S.C. § 4203, are automatically applied, hence invalid. The short answer is that this argument is premature. Ms. Foundas has not yet commenced to serve her term. Whether the Parole Commission guidelines, as applied to her, will help or hurt her is mere speculation. For aught we now know, she may be released soon after imprisonment; or, before she is eligible for parole, the guidelines may be changed. We, therefore, leave debate to those not inhibited by the constitutional restriction that limits our jurisdiction to the decision of cases and controversies. U.S.Const. art. III.

The other arguments are not speculative; they simply lack merit. A special parole term may validly be imposed on a conspiracy count. United States v. Houde, 5 Cir. 1979, 596 F.2d 696, 704, Cert. denied --- U.S. ----, 100 S.Ct. 452, 62 L.Ed.2d 377; United States v. Dankert, 5 Cir. 1975, 507 F.2d 190. Accord United States v. Wiley, 2 Cir. 1975, 519 F.2d 1348, Cert. denied sub nom. James v. United States, 1976, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648; United States v. Rich, 8 Cir. 1975, 518 F.2d 980, Cert. denied, 1976, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200; United States v. Jacobson, 10 Cir. 1978, 578 F.2d 863, Cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327. But see United States v. Mearns, 3 Cir. 1979, 599 F.2d 1296.

Nothing in United States v. Hernandez, 5 Cir. 1979 (en banc), 591 F.2d 1019, prevents imposition of separate sentences for the three offenses charged here. Ms. Foundas' conspiracy conviction is based on a separate statutory section from the other convictions. As noted in Hernandez, that opinion did not deal with the violation of separate statutes....