U.S. v. Korman
| Decision Date | 31 January 1980 |
| Docket Number | No. 79-5040,79-5040 |
| Citation | 614 F.2d 541 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ronald L. KORMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
N. C. Deday LaRene, Detroit, Mich., for defendant-appellant.
James K. Robinson, U. S. Atty., Christopher A. Andreoff, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before WEICK and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
This case involves the interception by Customs Inspectors at the Miami International Airport of a courier arriving from Bolivia, Santa Cruz, South America, carrying a yellow suitcase with a false bottom secreting 982 grams (2.2 pounds) of cocaine destined for delivery in Detroit to the buyer, and the legality of proceedings which followed.
Defendant-Appellant Korman was charged in three counts of an indictment with (1) conspiracy with intent to distribute and to distribute approximately 1000 grams (2.2 pounds) of cocaine, a Schedule II Narcotic Drug Controlled Substance in violation of 21 U.S.C. § 846, (2) possession with intent to distribute approximately 29.6 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute approximately 3.1 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).
The district court after conducting an evidentiary hearing denied Korman's motion to suppress evidence. Korman was then tried and convicted by a jury on all three counts of the indictment. He was sentenced to four years on each count to the custody of the Attorney General, the terms to be served concurrently.
On appeal to this court, Korman does not question the weight or sufficiency of the evidence supporting his conviction which was overwhelming. Instead, Korman asserts that the trial court erred in admitting evidence to the effect that after his arrest there was an alleged illegal entry into his residence which entry was for the purpose of securing the premises against destruction of evidence while the officers, after midnight, were engaged in obtaining a search warrant from a magistrate. During such entry to secure the premises, there was no seizure of any evidence by the officers.
Korman further complains that during the search of the residence authorized by the search warrant, a green ski jacket described in the affidavit for the warrant was seized, but inadvertently omitted from the warrant issued and was admitted into evidence. He also complains of error in the admission of testimony of the co-conspirators.
For the reasons hereinafter set forth, we find that no prejudicial error occurred in the proceedings and therefore affirm the judgment of conviction.
John Keith DeSmyter arranged for Jack Blanchard, the courier, to go to Bolivia and bring back to DeSmyter in Detroit a suitcase containing the narcotics. Blanchard was to receive $10,000 for his services.
In Bolivia, Blanchard met DeSmyter who handed to Blanchard a yellow suitcase containing the 982 grams of cocaine secreted in a false bottom in the suitcase and instructed Blanchard to take it to Detroit and contact Attorney Donald Turner in the event, he, DeSmyter, was not available.
When Blanchard arrived at the Miami International Airport he was arrested by Custom's Inspectors who discovered the 982 grams of cocaine in the false bottom of the suitcase he was carrying. Shortly after his arrest, Blanchard agreed to cooperate with the authorities in making the delivery of 29.6 grams of cocaine (replaced in the suitcase) in order to apprehend the purchaser who turned out to be Korman and other conspirators. An electronic device (beeper) was implanted in the suitcase.
After his arrival in Detroit, Blanchard made five or six monitored telephone calls to Attorney Turner. A synopsis of the telephone calls made on March 26, 1978 indicated that:
"A) Donald Turner knew Keith DeSmyter and DeSmyter was a friend and client of his.
B) Turner referred to the Holiday Inn that Blanchard was to stay at in Detroit. ("The one on Telegraph") (Corroborates Exhibit 4).
C) Jack Blanchard was a perfect stranger to Turner.
D) Turner advised Blanchard on some alternative motels close to the Holiday Inn he was to stay at and that if anyone called looking for Blanchard he would advise him.
E) Turner, based on the conversation, was advised by Blanchard that someone was to come to the hotel room and pick up a suitcase from Blanchard with "stuff" in it.
F) Turner advised Blanchard, "If you don't get a room at any of the places, call me back."
G) Turner informed Blanchard he doesn't know of a way to get in touch with DeSmyter.
H) Turner asks twice what kind of phone Blanchard was calling on.
I) Turner tells Blanchard that he introduced Keith DeSmyter the last time he was in town to a friend of his, and that "they got along pretty well together."
J) Blanchard advised Turner that he did business for Keith DeSmyter in Bolivia and that he was advised by DeSmyter that if he had any complications was to call Turner.
K) Turner stated that "certain people play with big things."
L) Turner also stated that the kind of things that Keith likes to play with are "airplanes or whatever."
M) Turner further advised Blanchard that "you're talking about a lot of money."
N) Turner also informed Blanchard that "people can . . . get hurt over" these things.
O) Turner told Keith DeSmyter that he did not want to know what was going on.
P) Turner acknowledged to Blanchard that another close friend of his was interested in meeting Keith DeSmyter and that DeSmyter had called him before he went to Bolivia.
Q) That Turner's close friend and Keith wanted to get together, "let's put it that way," and that this friend had passed up talking to some other friends.
R) Turner advised Blanchard that a friend of Keith's got busted at the Florida airport with "4 pounds of something." Blanchard advised Turner "he's the only one that came in."
S) Turner informed Blanchard that he will call this friend of his to see if he knows anything.
T) Turner advised Blanchard that if this friend had previously contacted Keith and that "if he wants to talk to you I'll tell him where you're at." "The guy is straight."
U) That Turner advised Blanchard that he called this guy that he apparently knew about "this" and he had talked to Keith "Before he left."
V) Turner described this man's physical appearance; that the guy will use a fictitious name "Sonny" and that he's been waiting and will come to your room." (Government's Brief pp. 6-8)
Shortly after these telephone calls were made by Blanchard to Turner, Sonny (Korman) arrived at the hotel room of Blanchard in Southfield, Michigan wearing the green ski jacket. Blanchard delivered the suitcase to Korman containing the beeper and 29.6 grams of cocaine secreted inside and the key for the suitcase. Korman left the hotel and met an unidentified male and proceeded to his 1978 Oldsmobile placing the suitcase in the trunk of the car. At the same time a 1978 Lincoln driven by the unidentified male followed Korman in what appeared to be counter-surveillance. The agents also followed Korman to his place of residence where at least three and possibly four automobiles including Korman's were parked in front of his house.
Korman then left his place of residence driving at a high rate of speed and was arrested by the agents about 400 feet away.
The district judge in finding an emergency and that exigent circumstances existed which permitted the securing of the premises in the manner which was done by the agents stated:
"Notwithstanding that, however, the court still finds that the agents were possessed of knowledge, and that we had the type of situation present here, the type of exigent circumstances, which allows the securing of premises in this manner as was done by the agents in this case.
The court will not repeat at length matters that we have gone over in this case earlier concerning the surveillance of the narcotics in question, the implanting of the electronic device in the suitcase, the substitution for the original product of some cocaine plus some neutral substance to simulate the cocaine. Those factors are all significant because of what they would reasonably leave the agents to conclude might be happening. As the surveillance was recounted again today, they were following the individual who ultimately turned out to be Defendant Korman in this matter both visually and also by the use of this electronic beeping device. In the course of that surveillance, they also observed another car, described as a Lincoln, which the agents in their opinion concluded was in proximity to the automobile being specifically surveilled for the express purpose of serving as a counter-surveillance vehicle. Upon ultimately following the beeper, after losing contact for awhile, to what they ultimately learned to be the Sherwood address in Huntington Woods of the defendant, they continued to surveil the house and observed, among other things, the presence of counting the defendant's car at least three automobiles and, depending upon which version you credit of the testimony given earlier today, possible four automobiles. Insofar as which version to credit is concerned, the court would have no reason to discredit the agent's version because Mrs. Korman's version is not really contrary thereto. It merely states that at an earlier point in time, she was aware of only two Cadillacs and one Oldsmobile being the latter being the car that her husband ultimately exited the premises in.
At or about one o'clock in the morning, the agents observed the Defendant Korman exit in a hurried manner, quickly get in his car and depart the scene. And at that time, the decision was made and, as defense counsel said, as far as he is concerned for the purposes of this motion anyway, legitimately, to arrest the defendant at that time. The defendant at the point was not cooperative with...
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