U.S. v. Howard, s. 8

• Decision Date: 31 March 1993
• Docket Number: Nos. 8,D,9 and 45,s. 8
• Citation: 998 F.2d 42
• Parties: UNITED STATES of America, Appellee, v. Lehman HOWARD, also known as Slim, Joseph Koontz, Defendants-Appellants. UNITED STATES of America, Appellee, v. Rafael SANTANA, Defendant-Appellant. ockets 91-1534, 91-1630CON and 91-1631.
• Court: U.S. Court of Appeals — Second Circuit

Page 42

998 F.2d 42

UNITED STATES of America, Appellee, v. Lehman HOWARD, also known as Slim, Joseph Koontz,

Defendants-Appellants.

UNITED STATES of America, Appellee, v. Rafael SANTANA, Defendant-Appellant.

Nos. 8, 9 and 45, Dockets 91-1534, 91-1630CON and 91-1631.

United States Court of Appeals Second Circuit.

Argued Sept. 14, 1992.

Decided March 31, 1993.

Anthony E. Kaplan, Asst. U.S. Atty., New Haven, CT (Albert S. Dabrowski, U.S. Atty., D. Conn., of counsel), for appellee.

Shelley R. Sadin, Bridgeport, CT (David P. Atkins, Zeldes, Needle & Cooper, P.C., of counsel), for defendant-appellant Joseph Koontz.

John T. Walkley, Trumbull, CT, for defendant-appellant Lehman Howard.

Diane Polan, New Haven, CT (Williams & Wise, of counsel), for defendant-appellant Rafael Santana.

Before: MINER, ALTIMARI and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendants-appellants Lehman Howard, Joseph Koontz and Rafael Santana were charged under a single indictment arising from their joint conspiracy to steal and later distribute a quantity of cocaine. Count one charged the three defendants with conspiring to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II) by possessing with intent to distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 846. Count two charged the three defendants with attempting to violate 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II) by possessing with intent to distribute five hundred grams or more of cocaine, in violation of 21 U.S.C. § 846. Count three charged the three defendants with using and carrying a firearm during and in relation to a narcotics trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1) and 2. Count four charged Santana alone with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Howard and Koontz were tried in a joint jury trial in the United States District Court for the District of Connecticut before Judge T.F. Gilroy Daly. Howard was convicted on the first three counts of the indictment. Judge Daly sentenced Howard to two concurrent terms of 262 months imprisonment on counts one and two and to a consecutive term of 60 months on count three, for a total of 322 months. The court also ordered a five year supervised release term, and imposed a special assessment of $150. Howard appeals his sentence only, contending that: (1) he was improperly sentenced twice for the same conduct, (2) imposition of his drug and firearms sentences consecutively, rather than concurrently, violated his rights under the Double Jeopardy Clause of the Fifth Amendment of the Constitution, and (3) the firearms statute improperly was applied to him.

Koontz was convicted on the first two counts of the indictment and acquitted on the third. Judge Daly sentenced Koontz to concurrent terms of 121 months on the two counts. The court also ordered a supervised release term of five years, and imposed a special assessment of $100. Koontz also challenges his sentence only, contending that: (1) the district court improperly applied the narcotics provisions of the Federal Sentencing Guidelines (the "Guidelines") in determining his sentence, and (2) the district court improperly applied the offense level provisions of the Guidelines in determining his sentence.

Santana, who had given a statement that was inadmissible against his co-conspirators, was tried separately. The jury found him guilty on all four counts of the indictment. Judge Daly sentenced Santana to three concurrent terms of 290 months on counts one, two and four followed by a consecutive sentence of 60 months on count three, for a total of 350 months. The court also ordered a term of five years supervised release, and imposed a special assessment of $200. Santana appeals from the judgment of conviction and his sentence, contending that: (1) the district court improperly denied him a hearing on his pre-trial motion to suppress evidence, (2) the district court incorrectly applied the armed career criminal statute, 18 U.S.C. § 924(e)(1), and (3) the guideline applicable to § 924(e)(1), U.S.S.G. § 4B1.4, does not comport with the intent of Congress, and was applied to him in violation of the Double Jeopardy Clause.

For the reasons given below, we affirm Santana's judgment of conviction and each defendant's sentence.

BACKGROUND

On December 27, 1990, Judge Daly authorized a wiretap upon the request of the Federal Bureau of Investigation ("FBI") and the New York City Police Department on a telephone in an apartment at 79 Alstrum Street in Hamden, Connecticut listed to Carol Webb, Santana's girlfriend. The purpose of the wiretap was to obtain evidence concerning the suspected involvement of Santana and others in a plan to commit murder. Through the wiretap, the government intercepted a number of incriminating conversations admitted into evidence at the trials of the defendants.

On the morning of January 2, 1991, Santana told Koontz on the telephone that he was "home trying to scheme on something." Koontz responded that he had learned that a Jamaican drug dealer in West Haven, Connecticut was "sittin[g] on" three kilograms of cocaine. Koontz also stated that one "Nate" knew the drug dealer's girlfriend, later identified as "Tutu," and that Tutu not only could tell Nate where the drug dealer lived, but also had a key to his apartment. Santana urged Koontz to "find that girl" and suggested that he and Koontz steal the cocaine.

Santana then called Howard and told him that there was "a hit for us." In later calls, Santana told Howard that he and Koontz were awaiting information about a Jamaican who had "three keys," and the two discussed obtaining weapons for the burglary.

On January 2, Koontz and Santana went over various plans for conducting the burglary, including one whereby they would use a copy of Tutu's key to gain access to the Jamaican drug dealer's apartment and feign a forced entry by breaking the lock. On January 5, after Koontz told Santana that he had obtained a copy of Tutu's key, Koontz expressed to Howard and Santana some doubts about whether the cocaine was in the apartment. Howard replied that the cocaine had "to be there." Santana also dismissed Koontz's doubts, stating: "we just go in and look. We find it, we got it, if it ain't, we out."

The defendants then agreed to go forward with the burglary that day following their earlier plan to use the key to gain entrance to the apartment, and then to make it look like a forced entry by damaging the lock and the windows. The three agreed that Santana would pick up Koontz at his house and that Santana would call Howard from there to let him know they were on their way to pick him up.

Aware of these intercepted conversations, FBI agents surveilled the Alstrum Street apartment on January 5. That afternoon, they saw Santana drive a red Nissan from his house to Koontz's apartment building on Mansfield Street in New Haven, Connecticut which he entered and later left with Koontz. The two then drove the car to Howard's residence on Highland Street in West Haven, Connecticut.

Agents subsequently followed the Nissan, now occupied by the three defendants, as it entered an apartment complex on Knox Street in West Haven, Connecticut. An agent then saw the car in a Knox Street parking lot, with Santana next to it and Koontz and Howard getting out of it. That agent radioed the Nissan's location to all involved and FBI and West Haven Police Department units converged on the scene.

Santana was stopped by West Haven Police officers and an FBI agent as he walked toward the entrance of 73 Knox Street, placed under arrest and searched. The officers found a loaded ammunition magazine in Santana's rear pocket and a nine-millimeter semi-automatic handgun in his front waistband. Later, the gun was test-fired and found operable. Howard and Koontz, who had been following Santana, were also stopped, searched and arrested by FBI agents. The agents recovered a plastic bag containing a screwdriver and a pair of pliers from Howard, and a single key from Koontz. The key was separate from a set of keys located in Koontz's jacket.

The agents and officers attempted to use the key to enter apartment 108 at 73 Knox Street, but the key did not turn in the cylinder. The agents and officers knocked on the door and were permitted to search, but found no contraband. After unsuccessfully trying the key in the other apartments on the first floor of 73 Knox Street, the agents and officers went to a neighboring building, 105 Knox Street, where they tried the key in the door lock to apartment A-8. The key worked and, after their knocks went unanswered, the officers entered the apartment. ¹

In apartment A-8 at 105 Knox Street, the agents and officers found a woman with an infant, as well as a floor safe. Pursuant to a state search warrant, the agents and officers later searched the apartment and opened the safe, but found no narcotics.

On January 5, 1991, Santana gave a post-arrest statement to the West Haven Police Department and, on the following day, he gave a statement to the New York City Police Department and New York County District Attorney's Office. In these statements, Santana confirmed and corroborated the government's wiretap and surveillance evidence regarding the defendants' conspiracy and attempt to acquire cocaine. He stated that, after hearing from Koontz that the drug dealer was not in the apartment, he picked up Koontz and the two went to a location in New Haven and got the key to the apartment. They picked up Howard and all three proceeded to the apartment complex in West Haven where they believed the cocaine was located. Although he was uncertain as to which building the cocaine was in, Koontz knew that the drugs were in apartment A-8. Santana stated that he intended to load the gun he was carrying in his waistband if the drug dealer was in the apartment, and that Howard planned to use his screwdriver to break the...