U.S. v. Glinton

• Decision Date: 14 September 1998
• Docket Number: No. 93-4350,93-4350
• Citation: 154 F.3d 1245
• Parties: 12 Fla. L. Weekly Fed. C 61 UNITED STATES of America, Plaintiff-Appellee, v. Ronald GLINTON, Morris McFadden, Timothy Hatten, Lavon Heath, Albert Davis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1245

154 F.3d 1245

12 Fla. L. Weekly Fed. C 61

UNITED STATES of America, Plaintiff-Appellee, v. Ronald GLINTON, Morris McFadden, Timothy Hatten, Lavon Heath, Albert Davis, Defendants-Appellants.

No. 93-4350.

United States Court of Appeals Eleventh Circuit.

Sept. 14, 1998.

Ruben M. Garcia, Ft. Lauderdale, FL, for Glinton.

Robert E. Adler, Asst. Fed. Pub. Defender, Ft. Lauderdale, FL, for Quince.

Brenda G. Bryn, Asst. Fed. Pub. Defender, Miami, FL, for Heath.

Philip R. Horowitz, Miami, FL, for Davis.

Russell K. Rosenthal, Zaremba & Rosenthal, Miami, FL, for Lowe.

Tom Almon, Miami, FL, for McFadden.

Timothy Hatten, Beaumont, TX, pro se.

Andrew Grosso, Washington, DC, for Hatten.

Roberto Martinez, Carol Herman, U.S. Attys., Miami, FL, for Plaintiff-Appellee.

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

Before HATCHETT, Chief Judge, and RONEY and LAY ^*, Senior Circuit Judges.

LAY, Senior Circuit Judge:

Twenty defendants were indicted by a grand jury in Fort Lauderdale, Florida, in connection with the buying and selling of cocaine and the manufacturing of crack cocaine. After several defendants pled guilty, thirteen defendants proceeded to a joint trial in August 1992. Guilty charges were returned on various counts for five defendants: Ronald Glinton, Lavon Heath, Timothy Hatten, Albert Davis and Morris McFadden. The five defendants now bring this appeal. ¹

Background

In 1988, a joint state and federal task force began an undercover investigation into an alleged cocaine-trafficking organization run by Ronald Glinton. On April 17, 1990, Palm Beach County Circuit Judge Walter Colbath granted an application for a wiretap on the cellular phone of Jose Martin, who the task force suspected to be Glinton's cocaine supplier.

Six days later, police learned Martin had changed his cellular phone number. Assistant State Attorney Robert Shepherd telephoned Judge Colbath and told him of the change. The judge gave a verbal approval to change the wiretap to the new number. A written addendum to the original application was filed one day later on April 24, 1990.

On April 27, 1990, agents monitored several calls between Martin and his cocaine supplier, Reinaldo Acosta. Acosta told Martin he had six kilograms of cocaine available for a price of $23,500 per kilogram. Martin told Acosta he would need to check with his "associate" before confirming a sale. Martin then called Heath and asked whether he was ready to purchase six kilograms of cocaine. Heath indicated that he first needed to count his money.

Martin and Acosta met later that day at the residence of Acosta's brother, Carlos Acosta. Carlos Acosta's apartment, located on the same street as Heath's residence, was being watched by surveillance agents. Martin left Carlos Acosta's apartment carrying a blue bag, presumably containing cocaine, and drove to Heath's apartment. Heath paid Martin $144,000 for the cocaine. Martin placed the money in the bag and returned to give the money to Acosta. Carlos Acosta then left his apartment carrying the blue bag and drove away.

Agents made the decision to stop Carlos Acosta's car. After Acosta consented to a search, officers confiscated the bag containing the large amount of cash, but released Acosta in order to preserve the secrecy of the wiretap. At 8:05 p.m. the same evening, Martin called Reinaldo Acosta and learned Carlos had been stopped with the money. When Martin asked how this could have happened, Reinaldo said: "I think they were watching you two." See Heath Br.App. Agents later testified that this conversation raised the possibility that people inside Heath's apartment would be alerted to police surveillance, and that evidence might be destroyed.

Twenty-five minutes later, at 8:30 p.m., agents broke into Heath's apartment, finding cocaine, wrapping material, and crack cocaine "cooking" in the kitchen. Agents detained four men, including Heath. Ten minutes later, at 8:40 p.m., ASA Shepherd and Sheriff's Deputy Marcos Martinez went to the home of Palm Beach County Circuit Judge James Carlisle to obtain a warrant to search Heath's apartment.

In the affidavit accompanying the warrant application, agents stated that the information leading to the entry of Heath's apartment came from "a past reliable confidential informant," and did not mention the wiretap of Martin's cellular phone. See Government's Exhibit S-4. Agents later testified this was done intentionally in order to protect the secrecy of the wiretap and continue the investigation. ASA Shepherd and Martinez said that they verbally advised Judge Carlisle that the past reliable confidential informant was actually an ongoing wiretap previously authorized by Judge Colbath. Judge Carlisle signed the warrant, and agents returned to search Heath's apartment. Heath and three other men subsequently were arrested.

Continuing to act on information from the wiretap of Martin's phone, the task force conducted surveillance on the home of Martin's associate, Rafael Ruano. On May 4, 1990, agents observed Timothy Hatten arrive at Ruano's apartment, meet with Martin, and leave fifteen minutes later carrying a red gym bag. Agents followed Hatten, and radioed instructions to two other officers who then stopped Hatten's car. Hatten refused to consent to a search. Task force agents arrived with a drug-sniffing dog, which walked around the car twice before scratching and biting at the driver-side door. Agents searched the car and found 279 grams of cocaine and a small amount of marijuana under the driver's seat.

Prior to the stop of Hatten's car, the task force had obtained a warrant from Judge Colbath to search Hatten's apartment. Once again, the affidavit in support of the search warrant stated it was "based on the information received from a past reliable CI [confidential informant]...." No mention was made of a wiretap. Inside Hatten's apartment, officers found packages of crack cocaine, bundles of $100 bills, a kilogram of cocaine and other evidence of drug trafficking. Hatten and his girlfriend, Linda Curry, were arrested.

The government contends Albert Davis introduced Martin to several buyers, including Heath, McFadden, and Glinton. Agents also observed Martin making direct sales of cocaine to Davis on April 20, 1990, and again on May 14, 1990. The task force operation ended on June 14, 1990, when agents arrested Glinton in his home with 502 grams of cocaine.

The Appeal

On appeal, four of the defendants assert there was a material variance between the indictment, charging a single conspiracy, and the government's proof of multiple conspiracies presented at trial. In addition, Heath challenges the legality of the wiretap under Florida state law as well as the search of his apartment on Fourth Amendment grounds. Heath also challenges an enhancement under the sentencing guidelines classifying him as a "manager." Hatten challenges the legality of the search of his automobile as well as his home. He also asserts denial of a fair trial and ineffective assistance of counsel because the trial judge failed to rule before trial on his motion to suppress evidence seized from his home. McFadden and Davis both challenge their sentences. In addition, Davis asserts there was insufficient evidence to sustain his conviction.

We find the district court erred in sentencing Heath by assessing a two-point upward adjustment under § 3B1.1 of the sentencing guidelines for serving in a managerial role. We therefore remand to the district court Heath's conviction for resentencing. We likewise remand Davis' sentence to the district court to determine whether an adjustment is warranted under Amendment 505 of the guidelines. See U.S.S.G.App. C. amend. 505 (1997). We otherwise find there exists no prejudicial error as to each of the defendants and affirm their convictions. ²

Conspiracy and Prejudicial Variance

The government charges that from June 1988 to May 1990, Martin, who testified for the prosecution after his guilty plea, sold large amounts of cocaine to each of the defendants. Much of the information obtained by the government was from a wiretap placed on Martin's cellular phone. Martin's cocaine supplier was Reinaldo Acosta. Martin was acquainted with Davis, who on separate occasions introduced Glinton, Heath, and McFadden to Martin. Martin had known Hatten since 1987. At one time, they had a fake business used to launder monies Martin made from drug sales.

Other than Davis' introduction of these defendants to Martin, there exists no evidence of any interconnection or cooperative activity between the defendants. Each of the defendants bought cocaine separately from Martin and sold crack through their own distribution chain in the West Palm Beach area.

Along with other counts, the government charged that the five defendants along with numerous co-defendants entered into two separate conspiracies. In Count 1, the government charged a conspiracy to manufacture and possess with intent to distribute crack cocaine, and under Count 2 a conspiracy to possess with intent to deliver cocaine and cocaine hydrochloride, both in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Little can be gained in further detailing the evidence produced in the defendants' lengthy trial. It is sufficient to note the evidence was overwhelming that each defendant purchased from Martin large amounts of cocaine, cooked it, and distributed it as crack. The fundamental issue on appeal is whether a joint trial under the allegations of a single conspiracy was justified.

The obvious advantage of a joint criminal trial of several defendants under a single conspiracy allegation is the avoidance of separate trials inuring to the benefit of the overall administration of justice. See United States v. Davenport, 935 F.2d 1223, 1236 (11th Cir.1991) (stating "Congress [has] recognized the utility of multi-defendant trials to effectuate the prompt efficient disposition of criminal...