U.S. v. Hastamorir

• Decision Date: 01 September 1989
• Docket Number: No. 87-6100,87-6100
• Citation: 881 F.2d 1551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alirio HASTAMORIR, Hernan Lopez, Antonio Ledezma, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1551

881 F.2d 1551

UNITED STATES of America, Plaintiff-Appellee, v. Alirio HASTAMORIR, Hernan Lopez, Antonio Ledezma Defendants-Appellants.

No. 87-6100.

United States Court of Appeals Eleventh Circuit.

Sept. 1, 1989.

Milton E. Grusmark, North Miami, Fla., for Alirio Hastamorir.

Neil M. Nameroff, Miami, Fla., for Hernan Lopez.

Jerris Leonard, Washington, D.C., for Antonio Ledezma.

Linda Collins Hertz, Mayra Reyler Lichter, Sharon Kegerreis, Asst. U.S. Attys., Miami, Fla., for the U.S.

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

Before FAY and HATCHETT, Circuit Judges, and HOFFMAN ^*, District Judge.

HATCHETT, Circuit Judge.

In this multi-appellant cocaine conspiracy case, we reject numerous claims of error and affirm the district court's convictions and judgments.

FACTS

On April 8, 1987, United States Customs Service agents observed Alirio Hastamorir, Hernan Lopez, Antonio Ledezma; Clemente Vila, Guillermo Ramirez and Telmo Viloria conversing at the TGI Friday's (TGIF) restaurant, Aventura Mall, North Miami Beach, Florida. At approximately 6 p.m., Lopez, Vila, and Ramirez left TGIF. Lopez and Ramirez walked through the mall parking lot to a Chevrolet Celebrity station wagon and opened the rear hatch. Vila walked to a Nissan Sentra parked beside the station wagon and removed two heavy cardboard boxes from the trunk of the Sentra. He gave the cardboard boxes to Ramirez. Lopez and Ramirez removed brick-like packages from the cardboard boxes and placed them in a compartment beneath the floorboards in the cargo area of the station wagon.

After watching the transfer of the boxes, four Customs agents approached Lopez, Vila and Ramirez. Special Agent Woodrow Kirk asked Vila in Spanish and in English whether he had any involvement with the Celebrity station wagon or its cargo. Vila denied any knowledge of the station wagon or its cargo, but admitted ownership of the Sentra. Lopez and Ramirez also denied any knowledge of the station wagon or its cargo.

From an unopened box and the compartment in the cargo area of the station wagon, the agents seized approximately thirty kilogram-size packages of cocaine. Each kilogram package bore the marking "CEBU" on the outside wrapping. While searching the Sentra, the agents found two more kilograms of cocaine marked with the word "MOTORES," a firearm, and several documents. The agents arrested all three men. After waiving the right to remain silent, Lopez claimed that he arrived at the mall in a Cadillac Cimarron, that he knew Ramirez from Colombia, but that he could not remember how he had met Ramirez. Lopez also denied meeting anyone inside TGIF and claimed that he did not know Vila. Vila also waived the right to remain silent and reaffirmed his lack of knowledge concerning the two boxes discovered in the station wagon. Vila denied knowing Ramirez and Lopez. Ramirez declined to waive his constitutional rights.

Following these arrests and the seizure of the cocaine, Customs agents continued their surveillance of the Aventura Mall. At approximately 7:15 p.m., the agents observed Hastamorir, Ledezma, and Viloria leave TGIF's and get into a yellow Datsun 240Z. Ledezma sat in the driver's seat, Viloria in the passenger seat, and Hastamorir in the hatch area. Special Agents Kirk and Sauvage approached the Datsun in their automobile. After parking their automobile facing the Datsun, Agent Kirk approached the Datsun with his identification folder in one hand and his weapon in the other hand. He ordered Ledezma to stop the automobile. The automobile moved approximately eight feet and then stopped approximately seven feet from Agent Kirk. The agents immediately removed the three men from the automobile and handcuffed them. During this process, Agent Sauvage observed Hastamorir drop a piece of paper to the ground and kick it under the Datsun. The piece of paper contained, among other notations, the words "CEBU" and "MOTORES," a series of names, and telephone numbers for beepers. ¹ The agents placed Hastamorir, Ledezma, and Viloria under arrest and advised them of their rights.

Even though they declined to waive their rights, Ledezma and Viloria inquired about the reasons for their arrest. A Customs agent explained that Lopez, Vila and Ramirez, the three men they had met at TGIF, had been arrested for narcotics violations. Upon hearing of the arrests, Ledezma and Viloria spontaneously announced that they did not know any of the men who had been arrested. They claimed they had just met Hastamorir who asked them for a ride to a section of Miami. Ledezma told Agent Kirk that he was with no one except Hastamorir and Viloria while at TGIF.

Hastamorir waived his constitutional rights and stated that he had arrived at the bar with Ledezma and Viloria, both of whom he had met that day, and had met no one else in the bar. Hastamorir admitted that he had dropped the piece of paper because he was worried about its discovery.

PROCEDURAL HISTORY

On April 16, 1987, a federal grand jury returned a four-count indictment charging Hastamorir, Lopez, Ledezma, Vila, Ramirez, and Viloria with conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count I), and possession with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count II). ²

A United States Magistrate held suppression hearings and recommended that the district court deny all motions to suppress evidence. The district court denied the motions to suppress.

On September 29, 1987, Hastamorir, Lopez, and Ledezma appeared before the district court for trial. Ledezma moved to exclude fingerprint evidence. The district court denied Ledezma's motion and commenced trial, after assuring that Ledezma would have the opportunity to conduct an independent examination of the evidence. The district court, however, granted Ledezma's motion for a severance midway through trial. Hastamorir and Lopez proceeded to trial and on September 30, 1987, the jury convicted them on Counts I and II of the indictment. Neither Hastamorir nor Lopez testified at trial.

On October 5, 1987, Ledezma's trial began. On October 6, 1987, the jury returned verdicts of guilty on Counts I and II of the indictment, but acquitted Ledezma on Count IV. The verdict form included the explanation, "constructive possession," which was written beside the verdict of guilty on Count II.

The district court sentenced Hastamorir, Lopez, and Ledezma to five years imprisonment for Count I and ten years for Count II, to run concurrently, followed by a five-year term of supervised release.

CONTENTIONS

Hastamorir contends that probable cause did not exist for his arrest and that the evidence is not sufficient to support his convictions.

Lopez contends that the search of the Celebrity station wagon was not supported by probable cause, that he did not abandon the automobile, and that he had standing to challenge the search.

Ledezma contends that insufficient evidence exists to support his convictions. He also contends that the district court erred in allowing the government to introduce evidence of latent fingerprints; erred in allowing the government to introduce statements he made which were not disclosed to him prior to trial; erred in failing to establish in the record whether the agents properly read to him his constitutional rights; erred in failing to compel the government to comply with the Brady rule ³ and divulge the identity of a confidential informant; erred in failing to instruct the jury on an entrapment defense; erred in defining "constructive possession" in the jury instruction; and erred in the manner in which it conducted a first jury poll and in its refusal to conduct a second jury poll upon request.

We address all of the above contentions.

DISCUSSION

Probable Cause for Hastamorir's Arrest

The district court determined that the discovery of the drug ledger in the vicinity of Hastamorir's feet established probable cause for his arrest. The district court also found that Hastamorir's handcuffing was a reasonable precautionary action designed to provide for the agents' safety. We must independently apply legal principles to the district court's findings of fact, unless those findings are clearly erroneous. United States v. Roy, 869 F.2d 1427, 1429 (11th Cir.1989); Adams v. Balkcom, 688 F.2d 734, 739 (11th Cir.1982). Absent clear error, we are bound by the district court's findings of fact at the suppression hearing. United States v. Roy, 869 F.2d at 1429; United States v. Newbern, 731 F.2d 744, 747 (11th Cir.1984).

Hastamorir argues that the facts of this case do not establish probable cause for his arrest because the only relevant fact known to the agents at the time of his arrest was that he had been in TGIF with five other men. He asserts that the ledger may not be considered because he dropped the ledger after his arrest, not before it. Hastamorir cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), and United States v. Rias, 524 F.2d 118 (5th Cir.1975), to argue that the armed stop of the automobile and his handcuffing constituted an arrest.

The government argues that under the totality of the circumstances, the customs officers had reasonable suspicion to make an investigatory stop and detain Hastamorir and the other passengers in the car.

We must determine "when" Hastamorir's arrest occurred. In determining "when" a person is arrested, we ask at what point, "in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave." United States v. Hammock, 860 F.2d 390, 393 (11th Cir.1988). Circumstances which indicate an arrest include: the blocking of an individual's path or the impeding of his progress; the display...