U.S. v. Gonzalez

• Decision Date: 06 May 1977
• Docket Number: 694,D,Nos. 693,s. 693
• Citation: 555 F.2d 308
• Parties: UNITED STATES of America, Appellee, v. Jose GONZALEZ and Jose Vicente Costano, Defendants-Appellants. ockets 76-1523, 76-1524.
• Court: U.S. Court of Appeals — Second Circuit

Page 308

555 F.2d 308

UNITED STATES of America, Appellee, v. Jose GONZALEZ and Jose Vicente Costano, Defendants-Appellants.

Nos. 693, 694, Dockets 76-1523, 76-1524.

United States Court of Appeals Second Circuit.

Argued Jan. 26, 1977.

Decided May 6, 1977.

Lee J. Robbins, New York City (Fredric Lewis, New York City, of counsel), for defendant-appellant Gonzalez.

Stuart R. Shaw, New York City, for defendant-appellant Costano.

Nathaniel H. Akerman, Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., and Audrey Strauss, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before ANDERSON, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Jose Gonzalez and Jose Vicente Costano appeal from judgments of conviction entered on October 6, 1976, in the United States District Court for the Southern District of New York, after a trial before the Honorable Charles L. Brieant, Jr., United States District Judge, and a jury.

The indictment charged the two defendants in two counts with violations of the federal narcotics laws. ¹ The jury found each defendant guilty on both counts. ²

The jury could have found these facts.

On July 13, 1976, at 11:45 p. m. Jose Gonzalez entered the Hi-Hat Bar at 858 Eighth Avenue, in Manhattan and met with Louis Sorrentino. Shortly thereafter, Gonzalez left the bar and placed a phone call at a public telephone located at the corner of Eighth Avenue and West 52nd Street. Gonzalez said only one word into the phone and hung up the receiver. He then walked around the block and returned to the Hi-Hat Bar.

Approximately fifteen minutes after the telephone call, Jose Costano appeared on Eighth Avenue. Gonzalez waved him into the Hi-Hat Bar where both men had a brief discussion with Sorrentino. Following this meeting, Gonzalez and Costano went to the Iberia Restaurant at 250 West 47th Street where they remained for approximately 45 minutes. From the restaurant, Gonzalez and Costano went by taxi to an apartment building at 305 East 24th Street, where Gonzalez used a key to enter the building's rear door.

On the following evening, July 14, 1976, just before midnight, Gonzalez was in front of a coffee shop located on the corner of 52nd Street and Eighth Avenue. After a brief conversation with Sorrentino, Gonzalez repeated his pattern of conduct of the previous night. He placed a call from the public telephone located at the corner of Eighth Avenue and West 52nd Street, spoke briefly, hung up the receiver and walked round the block he had similarly circled the previous evening. He then returned to the Hi-Hat Bar, which he entered.

Approximately five minutes after Gonzalez had gone into the bar and fifteen minutes after the call had been placed by Gonzalez, Costano left a taxicab at the corner of West 51st Street and Eighth Avenue. As he left the cab he wrapped a magazine around a brown bag which he held in his hands. Jeffrey Hall, a Special Agent with the Drug Enforcement Administration, then approached Costano, displayed his Drug Enforcement credentials and said that he was a Federal Agent. At that point Costano shoved Agent Hall and ran. Costano was subdued and arrested by Agent Hall and several other Special Agents. The bag which Costano had concealed in the magazine under his arm contained nine ounces of cocaine.

To prevent Gonzalez from learning of Costano's arrest, Costano was immediately placed in a Drug Enforcement car and taken to another location where Agent Hall, speaking in Spanish, again identified himself as a Federal Agent, told him he was under arrest for violating the federal narcotics laws, advised him of his constitutional rights and proceeded to question him. Costano agreed to cooperate. When asked about the cocaine, Costano replied that a man, whom he had met a few days earlier in a bar and whose name he did not know, had given him the bag earlier that evening and had told him to deliver it to another man who would be waiting for him near the corner of 51st Street and Eighth Avenue. When asked whether the set of keys found in his pocket belonged to the man who gave him the cocaine, Costano answered in the affirmative. Costano admitted also that he was from Colombia and that he was in the United States illegally.

After Costano had been questioned, Agents Hall and Richard Crawford went to 305 East 24th Street and tested the keys. The agents found that one of these keys turned the lock for a mail box and that another key turned the lock for Apartment 19G where Gonzalez lived.

After Costano had been arrested, Gonzalez paced back and forth in front of the Hi-Hat Bar for over an hour and a half during which time he placed two calls on public telephones. When he realized Costano was not going to appear, Gonzalez took a cab to 305 East 24th Street. He went directly to Apartment 19G. Agents Hall and Crawford were waiting outside the apartment. When Gonzalez told them that he was, in fact, Jose Gonzalez, he was arrested. When asked about the keys which the agents had in their possession, Gonzalez said that he had lost them a week or two ago, and when asked where he had been that evening, Gonzalez said he had been at the movies.

Both Gonzalez and Costano were brought to the headquarters of the Drug Enforcement Administration for processing. At one point they were brought face to face. Each, out of the other's presence, denied knowing the other.

The next day, July 15th, Gonzalez and Costano were individually questioned at the United States Attorney's Office. Both defendants then admitted knowing each other. Gonzalez said that he had given Costano refuge for one night because he did not have anywhere to go. Costano stated that he had received the cocaine from a man named Johnny Ortiz whom he had met in a bar and who had asked him to deliver it to another man at 51st Street and Eighth Avenue. Gonzalez again claimed that he had been at the movies the previous evening. Although he could not remember the name of the movie, he described its theme as concerning the devil and the woman. Gonzalez also stated that he had never done any business with Costano and had never asked him to take a package for him.

At trial, Gonzalez did not present a case. Costano did not take the stand. ³

I.

Costano contends that his arrest was not based upon probable cause and that therefore the search incident thereto was invalid. Costano contends that since the informant had not previously given information sufficient to demonstrate his reliability, his information did not constitute probable cause to arrest Costano. He relies upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The District Judge, after a hearing, denied suppression.

The relevant facts are these. On July 13, 1976, Richard Crawford, a Special Agent, received a telephone call from a confidential informant, who told him that at approximately midnight a Colombian male, about 35 to 40 years old, medium build, would be at the Hi-Hat Bar on Eighth Avenue in New York City to meet with Louis Sorrentino to arrange for the purchase of one-quarter kilogram of cocaine. At a meeting shortly before midnight the informant confirmed that this meeting between the Colombian male and Sorrentino was still scheduled to take place.

At approximately 11:30 p. m. Agent Crawford and Agent Hall entered the Hi-Hat Bar and observed Sorrentino present in the bar. Ten minutes later a Latin male (later identified as the defendant Jose Gonzalez) matching the description given by the informant entered the bar and spoke to Sorrentino. After a five to ten minute conversation, Gonzalez left the bar followed by Agent Hall.

Agent Crawford then met with the informant in the men's room of the Hi-Hat Bar. The informant told Crawford that Gonzalez would be receiving a sample of cocaine from another Colombian male and that the sample would be given to Sorrentino.

After Gonzalez left the bar, he placed a call from a public telephone on the corner of 57th Street and Eighth Avenue, walked around the block and returned to the bar. The subsequent events of the evening, observed by the agents, have already been recounted.

When Gonzalez and Costano entered the Iberia Restaurant, Agent Crawford received a radio message that the informant had called his number at the Drug Enforcement Administration to say that he had the sample of cocaine given to Sorrentino. Agent Hall maintained surveillance at the Iberia Restaurant and Agents Crawford and Kelley left to meet the informant. The informant gave Agent Crawford a small plastic bag containing a small amount of cocaine, stating that this was the sample of cocaine that had been delivered to Gonzalez and that Gonzalez had given to Sorrentino. The informant also told the agents that at midnight of the next evening Sorrentino would receive delivery of a quarter kilogram of cocaine from Gonzalez at the Hi-Hat Bar. The informant said that this delivery would take place in the same way the sample had been delivered. Gonzalez would arrive at the Hi-Hat Bar and once it was apparent that the deal was set to take place, he would telephone his contact (Costano) who would make the delivery.

Agents Crawford and Kelley then rejoined Agent Hall outside the Iberia Restaurant and at approximately 1:45 a. m. Gonzalez and Costano left the restaurant. They took a cab to Second Avenue and East 25th Street and went into the rear entrance of 305 East 24th Street. The security man at that building told the agents that the only person who would have access to the rear door on East 25th Street was someone who lived in the building.

On July 14, 1976, at 11:15 p. m. Agent Crawford met with the informant who confirmed that the meeting between Sorrentino and Gonzalez was still scheduled to take place that night.

At approximately 11:45 Agent Crawford and other agents established surveillance at the Hi-Hat Bar. The...