U.S. v. Garcia

• Decision Date: 10 September 1984
• Docket Number: No. 84-5033,84-5033
• Citation: 741 F.2d 363
• Parties: 16 Fed. R. Evid. Serv. 830 UNITED STATES of America, Plaintiff-Appellee, v. Jose Celso GARCIA, Michael Trupei, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 363

741 F.2d 363

16 Fed. R. Evid. Serv. 830

UNITED STATES of America, Plaintiff-Appellee, v. Jose Celso GARCIA, Michael Trupei, Defendants-Appellants.

No. 84-5033

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Sept. 10, 1984.

Rehearing Denied Oct. 3, 1984.

Geoffrey C. Fleck, Miami, Fla., for Garcia.

Carlos A. Rodriguez, Miami, Fla., for Trupei.

Stanley Marcus, U.S. Atty., Michael Hursey, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for defendants-appellants.

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

Before RONEY, FAY and JOHNSON, Circuit Judges.

PER CURIAM:

Jose Celso Garcia and Michael Trupei have appealed their convictions, in the United States District Court for the Southern District of Florida, for possession with intent to distribute cocaine, in violation of 21 U.S.C.A. Sec. 841(a)(1), and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Sec. 846. We find no violations of the appellants' right to a speedy trial or their right to be free from illegal searches and seizures, nor do we believe that the district court admitted into evidence any improper testimony. We also conclude that sufficient evidence existed to support the jury's guilty verdicts. Therefore, we affirm the convictions.

On May 18, 1983, an informant introduced David Peterson, a Special Agent working undercover for the Drug Enforcement Agency (DEA), to Joseph Vukovic. Peterson told Vukovic that he was interested in buying four or five kilos of cocaine. Five days later Vukovic called Peterson and offered to introduce him to Michael Trupei; Peterson accepted the invitation and the three men met that day at Vukovic's ground level apartment in Broward County, Florida. Trupei told Peterson that he could supply forty to fifty kilos of cocaine, but that he preferred to sell one kilo at a time until a buyer proved trustworthy, and only then would Peterson be able to purchase the four to five kilos that he wanted. Peterson agreed to purchase one kilo for $55,000 if Trupei would allow him to sample the cocaine before the exchange. As he was leaving, Peterson asked how to contact Trupei in the future and was told by Trupei to contact him through Vukovic.

The next afternoon Trupei called to tell Peterson that he had a "picture," meaning a sample of cocaine, to show him. Peterson agreed to meet again at Vukovic's apartment and when he arrived Trupei handed him (in the presence of Vukovic) a small plastic envelope containing cocaine. Trupei then informed Peterson that his new supplier of cocaine would require Peterson to bring the $55,000 to an auto body shop in Miami. Peterson, knowing that his superiors would not approve such a transaction, objected both to the method and the amount of payment expected of him. He promised to contact Trupei later (again, through Vukovic) and left.

Vukovic called Peterson again on August 1 to say that Trupei could offer a kilo for less than $55,000, with payment to be made in Broward County rather than in Miami. Peterson sounded interested, so two days later Trupei called to ask Peterson to meet him at a restaurant at 2:00 p.m. There they agreed that Trupei would sell Peterson one kilo of cocaine (to be delivered from Miami by Jose Garcia) for $40,000, to be followed by larger sales in the future if the first transaction went well. Trupei asked that they close the deal at the Vukovic apartment. Peterson, after calling ahead to insure that Trupei was ready, came to the apartment at 3:15 p.m. on August 3 to make the exchange. Trupei, who was there with Jose Garcia and Leon Ziegler, asked Garcia to bring in the "stuff," meaning the cocaine. Garcia went outside, and removed a package containing the cocaine from the trunk of the car that he had driven to Vukovic's apartment, and went back inside. Garcia then helped Peterson open the package to test the cocaine, indicating to him that the cocaine was of high quality. After testing the sample, Peterson locked the package in his briefcase and left it on a table while he went out with Trupei to get the money. DEA agents arrested Trupei outside and apprehended Ziegler when he came out of the apartment five minutes later.

The agents waited another five minutes, then decided to enter the apartment before Garcia could escape or destroy the cocaine. They knocked on the door and identified themselves as federal agents; hearing shuffling noises inside that sounded to them as if Garcia was trying to escape, they broke inside to find Garcia hidden in a closet.

The grand jury indicted Garcia and Trupei on August 12, 1983 and on August 23 they were arraigned. These two defendants filed at least a dozen pretrial motions between the time of their arraignment and the impaneling of the jury on November 30, 1983.

Appellant Trupei challenges the judgment against him on four different grounds. Most notably, he claims that the trial judge should have excluded from evidence the cocaine seized at the time of the arrest because the agents seized it illegally. The government questions Trupei's standing to raise this issue because he did not have a legitimate expectation of privacy in Vukovic's apartment, primarily because he was not the owner or lessee. Of course, legal ownership is not a prerequisite for a legitimate expectation of privacy. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). On the other hand, mere presence in the apartment would not be enough to give Trupei standing, for the precedents binding on this court require that an occupant other than the owner or lessee of an apartment demonstrate a significant and current interest in the searched premises in order to establish an expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Sneed, 732 F.2d 886 (11th Cir.1984) (no expectation of privacy demonstrated when defendant only alleged that he was present on searched premises as a guest); United States v. Rackley, 724 F.2d 1463 (11th Cir.1984) (person lacked standing to contest search of garage even though he had stayed overnight in guest bedroom at an earlier date). The standing question is a close one here, because Trupei can show that he had more than a tenuous interest in the Vukovic apartment. He met three times there to discuss business and asked Peterson to contact him by calling there. On the day of the arrest, Trupei was in control of the premises. He had invited at least two of those present and he answered the phone when Peterson called that afternoon. He was present in the room with the cocaine moments before the search took place. ¹

Yet, these factors do not allow us to conclude that Vukovic's apartment was Trupei's place of business or temporary residence. He used it by appointment only and stored no personal belongings there. His contacts with the apartment, at least on the evidence appearing in the record, were not regular or personal enough to establish an expectation of privacy. Cf. United States v. Torres, 705 F.2d 1287 (11th Cir.) (per curiam), vacated, en banc consideration withdrawn pending remand to panel, 718 F.2d 998 (en banc) (per curiam) on remand 720 F.2d 1506 (1983); United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir.1981), modified, 664 F.2d 84, cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982).

Trupei also claims the agents searched the apartment in violation of the federal "knock-and-announce" statute. ² He concedes that the agents knocked and identified themselves, but objects to the fact that the agents did not announce their purpose in entering the apartment. This is, at most, a technical violation of the statute. See United States v. Cueto, 611 F.2d 1056, 1062 (5th Cir.1980) (suggesting that identification as FBI agents satisfies "letter and spirit" of statute). But even if the agents did not fully comply with the statute, exigent circumstances made full compliance unnecessary in this case. After Ziegler became suspicious and left the apartment, the agents could reasonably have believed that Garcia had dismantled the brief case and was able to wash the cocaine down the sink in the kitchen or bathroom if he were given any time alone. Garcia might have been armed, and the shuffling noises heard through the door suggested to the agents that he was trying to escape. The real possibility of injury escape or destruction of evidence placed the officers into exigent circumstances. United States v. Harris, 713 F.2d 623 (11th Cir.1983); United States v. Tolliver, 665 F.2d 1005 (11th Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). ³

Trupei's second objection derives from an alleged violation of his right to a speedy trial. Trupei was arrested on August 3, indicted on August 12, and arraigned on August 23. The jury was selected and impaneled on November 30. The Speedy Trial Act ⁴ requires that federal criminal trials take place within 70 days of the arraignment, not counting any delays of up to 30 days caused by the filing of a pretrial motion in the case. The appellant, in claiming a statutory violation, has neglected to consider all of the excludable days designated under the statute. Appellant Trupei does not mention his codefendant's motion to return property, filed August 16, or the thirty day period during which the magistrate took that motion under advisement. Nor does he mention the motion to suppress confessions, admissions and statements that was filed on October 6 and ruled upon by the magistrate on November 4. These and numerous other motions filed by the defendants (some of them duplicate motions) make it clear that the district court processed this case quickly and in compliance with the Speedy Trial Act. As for appellant's claim that his constitutional right to a speedy trial was violated, this Court's decision in United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982), cert....