U.S. v. Lomas

• Decision Date: 15 August 1983
• Docket Number: Nos. 81-1768,81-1788,s. 81-1768
• Citation: 706 F.2d 886
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Kenneth LOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter Kahn MARGOLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 886

706 F.2d 886

UNITED STATES of America, Plaintiff-Appellee, v. Robert Kenneth LOMAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Peter Kahn MARGOLIS, Defendant-Appellant.

Nos. 81-1768, 81-1788.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 8, 1982.

Decided April 12, 1983.

As Amended May 17 and Aug. 15, 1983.

Kenneth Bauman, Asst. U.S. Atty., Portland, Or., for the U.S.

Paul Denton, Denton & Thynne, Denver, Colo., and Marcus S. Topel, Topel & Goodman, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE, FARRIS, and NELSON, Circuit Judges.

FARRIS, Circuit Judge:

Peter Kahn Margolis and Robert Kenneth Lomas appeal their convictions under 21 U.S.C. Secs. 841(a)(1) and 846 for participation in a conspiracy to possess with intent to distribute cocaine. Both Margolis and Lomas made numerous pretrial motions, all of which were denied. Margolis and Lomas then agreed to submit to a bench trial on stipulated facts. In return, the government pledged to move for dismissal of two of the three counts in the indictment with which each was charged. The district court convicted both on the conspiracy count and sentenced each to six years imprisonment. They now appeal the denial of their motions which sought dismissal of the indictment, challenged the validity of their arrests, and requested the suppression of evidence obtained by federal agents while searching a hotel room registered in Margolis's name.

FACTS

Margolis and Lomas were arrested during the culmination of a police undercover operation led by Drug Enforcement Administration Special Agent E. Neil Van Horn. The investigation was initiated through Edward Cunningham, a Drug Enforcement Administration informant who stated that he had sources who could supply cocaine in South America and that he knew people who could distribute narcotics in the United States. In New York during September 1980 Cunningham introduced Van Horn to Robert Judge Billock, a cocaine distributor. The Drug Enforcement Administration's original plan was to cast Van Horn in the role of a broker who could arrange to purchase a large amount of cocaine in South America and who had access to buyers in the United States able to distribute the contraband. The scheme was designed to catch individuals on both the supply and distribution ends of the transaction.

Unfortunately for the success of the plan, Cunningham travelled to Brazil to deal on his own behalf. By the beginning of January 1981, Van Horn realized that the Drug Enforcement Administration had lost control of him. Billock travelled to Rio de Janeiro to arrange a purchase through Cunningham but left empty-handed. In order to salvage the distribution half of the operation, Van Horn placed a call to Billock and suggested that while he was still in Brazil he meet with Special Agent Edward Magno, who posed as a cocaine supplier. Upon Billock's return he and Van Horn discussed the possibility of obtaining a supply of cocaine through the undercover agent. ¹

Peter Hans Vandervoort, an acquaintance of both Cunningham and Billock, also became interested in this new source of supply. Vandervoort led the conspiracy which is the subject of the instant prosecution. In addition to Vandervoort the group consisted of Glen Satterfield, Robert David James, Fredrick Calvin Para, Craig Allan Para, Margolis, and Lomas. ²

After two January meetings, one of which was attended by Van Horn's purported supplier, and a series of phone conversations, Van Horn saw Vandervoort and Satterfield in San Jose, California, on March 2. Van Horn agreed to deliver ten kilograms of cocaine to Portland, Oregon, for a cash payment of $230,000 upon delivery and an additional installment of $130,000 within two weeks. They were to complete the transaction in a bank safe-deposit vault. The three men confirmed their plans at a On the morning of April 15 both Satterfield and Van Horn were in Portland. Satterfield called Van Horn and informed him that he was staying at the Coliseum Holiday Inn. They rode together to the First National Bank Tower in downtown Portland. Van Horn showed Satterfield two safe-deposit boxes containing ten kilograms of cocaine obtained from the Drug Enforcement Administration Laboratory. Satterfield took a two-gram sample for testing. Van Horn also gave him the keys to the safe-deposit boxes as a token of good faith. Vandervoort arrived that evening and checked into a room Van Horn had reserved for him at the Portland Motor Hotel adjacent to the First National Bank Tower.

March 21 meeting and set a tentative delivery date of April 15.

Neither Margolis nor Lomas were known to the Drug Enforcement Administration at this time. Van Horn was aware of their involvement in the conspiracy only as unidentified buyers who would provide a portion of the $230,000 cash payment. On April 16 Margolis and Lomas flew together from Denver to San Francisco and then to Portland. At the airport Margolis rented a white Ford Mustang. That evening Lomas registered for two people at the Chumaree Rodeway Inn near the airport.

Van Horn had further dealings with Satterfield on April 16. In the evening Van Horn drove him to the Hilton Hotel in downtown Portland. Satterfield indicated that his associates wanted to conduct a melt-point test to determine the quality of the sample of cocaine Van Horn had given him. Satterfield called at about 9:00 P.M. and reported the group was pleased with the results. The transaction was to be consummated the next day.

On the morning of April 17 Lomas and Margolis moved to the Hilton. At approximately 5:00 P.M. that afternoon Van Horn picked up James and Satterfield at the Coliseum Holiday Inn and drove to the Hilton. While Van Horn's vehicle was parked outside the hotel, Craig Para approached the van and handed Van Horn an empty briefcase in which to carry the drugs after the sale. Para then walked to the rear of the van, returning shortly with another briefcase. The four men then proceeded to the First National Bank Tower.

Drug Enforcement Administration agents observing the activities at the Hilton noted that Para obtained the second briefcase from a white Mustang which had pulled up behind Van Horn's vehicle. The license plates were identical to those on the car rented by Margolis the preceding day. Two white males were inside. The Mustang followed the van as it left the Hilton.

Para and Satterfield accompanied Van Horn to a private room inside the safe-deposit vault where they exchanged the money for cocaine. The briefcase which Para had obtained from the white Mustang contained $100,000. Satterfield and Para were apprehended upon leaving the room. James was taken into custody in another part of the bank where he was acting as a lookout. Simultaneously, Vandervoort was arrested pursuant to a warrant at his hotel room.

Meanwhile, agents stationed around the bank focused upon two men, later identified as Margolis and Lomas. Inside the bank Van Horn communicated with his agents on the street and monitored their radio transmissions through a telephone link with the Drug Enforcement Administration's Portland Office. When the office advised Van Horn that his agents had identified the two occupants of the Mustang and that the surveillance team believed the two men were scouting the area for police, he ordered their arrest.

Shortly before 6:00 P.M. Agent Boggs approached Lomas, identified himself, and made the arrest. Lomas was handcuffed and placed in a police car. Boggs then joined another federal agent in a search for Margolis. Boggs found Margolis and engaged him in conversation while his colleague approached, gun drawn, from the rear. When the other agent arrived, Boggs identified himself as a federal narcotics officer and requested that Margolis accompany them across the street to the Portland Motor Inn to talk for a few minutes. As Agent Wilma was in charge of surveillance at the Hilton. He was informed that a warrant was being sought for Room 2214 but was ordered in the meantime to obtain the registration form for the room, to see who was occupying the room, and to secure the room if empty to prevent the destruction of evidence pending application for the search warrant. The registration form provided by the hotel management showed that the room was registered to "P. Margolis." Wilma did not recognize the name.

they walked Margolis identified himself and asked the officers to explain the problem. Boggs stated they were investigating the violation of federal narcotics laws and advised Margolis of his rights. In the parking area of the Portland Motor Inn Margolis made some exculpatory statements and again asked the agents to explain the situation. Boggs told him that it appeared that he and Lomas were involved in a drug transaction and formally placed Margolis under arrest. At that time Boggs's colleague again gave Margolis Miranda warnings. Boggs searched Margolis and found a receipt for Room 2214 at the Portland Hilton. Margolis also had the keys to the Mustang in his possession. While Boggs and the other agent transported him to the Drug Enforcement Administration office for processing, Margolis made inculpatory statements minimizing his role in the conspiracy. When they arrived, Margolis was advised of his rights a third time. He agreed to give a brief oral statement in which he admitted minor involvement in the transaction. He claimed he was promised expenses, several hundred dollars, and a "good time" for his effort. Margolis refused to prepare a written statement, claiming that to do so would endanger his life.

Between 7:25 and 8:00 P.M. Wilma, accompanied by a local deputy and a member of the Hilton security staff, knocked at the door of the hotel room. When he received no answer he used a passkey to enter. According to Wilma's testimony he and the deputy entered Room 2214 for the...