U.S. v. Gotay

• Citation: 844 F.2d 971
• Decision Date: 15 April 1988
• Docket Number: D,No. 788,788
• Parties: UNITED STATES of America, Appellee, v. Angelita GOTAY, a/k/a "Angie", Defendant-Appellant. ocket 87-1480.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 971

844 F.2d 971

UNITED STATES of America, Appellee, v. Angelita GOTAY, a/k/a "Angie", Defendant-Appellant.

No. 788, Docket 87-1480.

United States Court of Appeals, Second Circuit.

Argued Feb. 26, 1988.

Decided April 15, 1988.

James A. Cohen, New York City, Fordham University School of Law (Kevin Corriston, Bill Gianaris, Legal Interns, of counsel), for appellant.

Peter B. Sobol, New York City, Asst. U.S. Atty. for S.D. of New York (Rudolph W. Giuliani, U.S. Atty. for S.D. of New York, Celia Goldwag Barenholtz, Asst. U.S. Atty., of counsel), for appellee.

Before FEINBERG, Chief Judge, PRATT, Circuit Judge and GLASSER, District Judge. ^*

FEINBERG, Chief Judge:

Angelita Gotay appeals from a judgment of conviction on five felony drug counts in the United States District Court for the Southern District of New York, following a jury trial before Miriam Goldman Cedarbaum, J. On appeal, Gotay argues that her post-arrest statements to the police should have been suppressed because her request for counsel was ignored. She also claims that her statements were involuntary and that the evidence was insufficient to support conviction on two distribution counts. For the reasons stated below, we reverse the decision of the district court on those two counts and affirm on the other three.

I. Background

Viewing the evidence in the light most favorable to the government, as we must, we think that the jury could have found the following relevant facts.

On October 16, 1985, Drug Enforcement Administration (DEA) special agent Timothy Higgins drove to 880 Bryant Avenue in the Bronx, New York, with confidential informant Edward McCoy. McCoy met "Ralphie" outside and the two went into apartment 2A, Gotay's apartment. McCoy bought 55 envelopes of heroin from "Ralphie" and a "fat kid," neither of whom have been arrested. The envelopes were each stamped with a blue face, the logo of "Faces"-brand heroin.

On November 26, 1985, Higgins and McCoy returned to Gotay's apartment. Gotay opened the door, and said that Ralphie was not home and that Higgins and McCoy had come to the wrong apartment. The pair went down to the street, where they encountered Jose Aviles. Aviles told them "don't worry," explaining that Gotay was "being that way because she don't know." Aviles told Higgins that he worked for "Angie" and could get "Elegante" heroin from her right away. Aviles also introduced the pair to Pablo Marcano. Higgins gave Aviles $800, and Aviles instructed Marcano to "[g]o see Angie and get the heroin." Shortly thereafter, Marcano returned with a total of 4.08 grams of heroin in envelopes stamped with the word "Elegante" and a picture of a red hat.

On December 4, 1985, Higgins and several other law enforcement officers entered Gotay's apartment with a search warrant. Gotay and one of her daughters blocked the hallway in order to prevent the agents from reaching the bedroom, and Higgins forced Gotay to the floor. In the bedroom, Gotay's son, Paul Joseph Viera, was throwing cash and glassine envelopes of heroin out a window. The agents searched the apartment, which appeared to them "like a little heroin mill," and discovered approximately 121 glassine envelopes of heroin stamped with a blue face, 425 heroin envelopes stamped with a red hat and the word "Elegante," 213 cocaine capsules and $3,910 in cash. More cash and drugs were found below the bedroom window. During the search, two men who the drug agents said looked like drug addicts knocked on the door and asked for Gotay.

After the narcotics had been collected, Higgins read Gotay her Miranda rights. Higgins then said "Are you willing to help us? ... [I]f you can help us, we can try and help you. Are you willing to talk with us or do you want the lawyer." Gotay answered, "No, no, I am very afraid. I don't want to talk in front of these people." Gotay and the others arrested were then transported to DEA headquarters.

At DEA headquarters, Agent John Tully again read Gotay her rights. She nodded her head several times during his reading and, at the end when Tully asked her whether she understood, said "Yes." Tully testified that she then "told me she couldn't afford a lawyer, that she was concerned about obtaining a lawyer." Tully responded with either "A court will appoint a lawyer" or with "the court will take care of that," and nothing else about counsel. "That's when I started asking her about the source of the heroin," he said. In response to questions, Gotay explained why she became a dealer, described her involvement in heroin dealing and offered to tell agents about other crack and heroin operations. For example, Tully testified that Gotay "generally described" her suppliers, who "came periodically to drop off narcotics and pick up money.... She said she took the narcotics, sold it and gave them what she owed for it." Higgins added that she stated "that the heroin, the Elegante heroin ... was coming from individuals downtown." Gotay spent the night in custody.

The next day, December 5, 1985, Assistant United States Attorney Sobol interviewed Gotay. He read Gotay her rights, which she said she understood. On direct examination by the government during the suppression hearing, Higgins, who was at the interview, testified that Gotay said she didn't need to speak to an attorney at that time and that she would need one assigned. However, on cross Higgins testified "I think she said she needed--she said she needed an attorney ... She said she needed an attorney, that she wanted one appointed." Gotay's testimony about this meeting is somewhat fragmented, perhaps because she testified in English in which she is not perfectly fluent and perhaps because, as she says, her recall was hampered by confusion and mental overload related to her arrest. Gotay testified that "I tell him [Sobol] I can't pay for a lawyer. He know I can't.... I said, when you have to go to court you need an attorney. How can anyone defend themselves? ... He ask me I need a lawyer. I think I tell him yes." In response to a question from Sobol, Gotay testified that she never said "I don't want to answer any more questions. I want a lawyer now." During the interview, Gotay expressed willingness to cooperate with the government, gave what the government calls "detailed pedigree information," and acknowledged that she had been dealing in heroin and cocaine. For example, Higgins testified that Gotay said "that she had been selling heroin and cocaine for a few months."

Later on December 5, Gotay appeared before Magistrate Leonard A. Bernikow, who appointed counsel and set bail.

During January 1986, Gotay met with Tully and Higgins several times and gave them information (some of it in writing) about other drug operations in the Hunt's Point area. She was paid $900 for expenses and information. We are told by the government that these meetings were held with the knowledge and consent of Gotay's lawyer, and Gotay does not contest the admissibility of these statements on appeal.

In September 1986, Gotay, Aviles, Marcano, Viera and others were indicted. Thereafter, Judge Cedarbaum held a pretrial suppression hearing focusing mainly on the admissibility of Gotay's December post-arrest statements. In June 1987, Judge Cedarbaum ruled from the bench that "[t]here is no evidence that the decision [to make statements] was the result of any physical or psychological coercion. Nor am I persuaded ... that Ms. Gotay made that decision without a full understanding of her constitutional rights both to remain silent and to seek legal assistance.... I am quite satisfied after listening to Ms. Gotay in English that she is, as she herself candidly admitted, familiar with the import of her Miranda rights and understood the warnings that were given to her." At defense counsel's request, the Court clarified its ruling a few days later, and stated that "I construed them [Gotay's comments about counsel] as not being requests for counsel.... I am satisfied that she understood how to ask for a lawyer if she wanted one, and I am satisfied when she wanted one and asked for one it was provided to her, that she understood that she had a right to do that."

Three of Gotay's co-defendants pled guilty, and Gotay and Viera went to trial in July 1987. As to Gotay, the judge dismissed a conspiracy count with the government's consent, and, at the close of the prosecution's case, granted a motion for acquittal on one of three distribution counts. The jury returned a guilty verdict against Gotay on the remaining two distribution counts relating to October 16 and November 26 and on three counts of possessing drugs on December 4 with intent to distribute (the possession counts).

In October 1987, Judge Cedarbaum sentenced Gotay to concurrent three-year terms of imprisonment, followed by three years of supervised release. Gotay is serving her sentence.

II. Admissibility of the December Post-Arrest Statements

The legal principles governing post-arrest questioning are well settled. Before a custodial interrogation, suspects must be informed of their rights to remain silent and to the presence of an attorney. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). These rights may be waived if the waiver is knowing, intelligent and voluntary, but if a suspect requests counsel, all interrogation must cease until an attorney is present, Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), and questioning may not be resumed without an attorney unless the defendant "(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984).

To trigger the protections of Edwards, the right to counsel must be "specifically invoked," 451 U.S. at 482, 101 S.Ct. at 1884, which may be accomplished by indicating "in any manner and at any stage of the process" that counsel...