U.S. v. Marszalkowski

• Decision Date: 01 March 1982
• Docket Number: Nos. 80-5597,80-5621,s. 80-5597
• Citation: 669 F.2d 655
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joanne MARSZALKOWSKI and Loran Bennett, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Jack BROCK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 655

669 F.2d 655

UNITED STATES of America, Plaintiff-Appellee, v. Joanne MARSZALKOWSKI and Loran Bennett, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Jack BROCK, Defendant-Appellee.

Nos. 80-5597, 80-5621.

United States Court of Appeals, Eleventh Circuit.

March 1, 1982.

A. Scott Miller, Asst. U. S. Atty., Linda Collins-Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellant.

Theodore Klein, Joseph H. Serota, Miami, Fla., for defendant-appellee.

Denis Dean, Dean & Hartman, P.A., Miami, Fla., for Marszalkowski.

Stephen H. Rosen, Thomas G. Murray, Miami, Fla., for Bennett.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY and FAY, Circuit Judges, and EDENFIELD ^*, District Judge.

FAY, Circuit Judge:

This opinion resolves two separate appeals involving a single group of defendants. In November of 1979, an undercover operation undertaken by the Drug Enforcement Administration (DEA) led to the arrests of five individuals, Loran Bennett, Stanford Mitchell, Jack Brock, Joanne Marszalkowski and Jorge Congote, on drug-related charges. Brock, who obtained a severance from his four co-defendants, convinced the trial judge that his arrest was illegal. The government presently appeals this ruling, along with the trial judge's concomitant suppression of evidence found in the initial search following the arrest. Our examination of the law prevailing in this circuit at the time of the incident in question leads us to reject the trial judge's assessment. We therefore find for the appellant, the United States of America, holding that evidence obtained during the initial search should not have been excluded.

In their separate appeal, convicted co-defendants Bennett and Marszalkowski present a laundry list of grounds for reversal. Neither, alas, has succeeded in cleansing on appeal what was found to be simply dirty linen at trial. We therefore affirm their convictions. Through the analysis that follows, we hope to iron out the legal creases in their argument. Here, first, are the steamy facts:

I.

On November 6, 1979, Alfred Moscowitz, a government informant, disclosed to DEA agents that Loran Bennett was known to him as a trafficker in "large quantities of cocaine." R. Vol. VIII at 128. At the agents' request, Moscowitz phoned Bennett and told him that he was in contact with prospective purchasers of cocaine. The following day, Moscowitz escorted DEA Agents Brown and Thompson to Bennett's place of business in Hialeah. Posing as traffickers in narcotics, the agents told Bennett they wished to buy "large quantities of cocaine." Bennett disclosed that he had an unlimited supply, available at a price of $54,000.00 per kilo. ¹ He assured the agents that he could supply them with four to five kilos monthly. He agreed to deliver one kilo the following day, and three additional kilos shortly thereafter. Bennett stated that "he and his people" had previously dealt in rock cocaine but had begun dealing in flaked cocaine, a purer form of the drug, which he found to be a "better commodity." The cocaine, he informed them, would be packaged in the shape of a football.

On November 8, the parties exchanged four telephone calls, during which Bennett disclosed that he had been successful in making contact with "his people." A major portion of the last telephone conversation, which occurred at 8:30 p. m. that day, was tape recorded; in it, Bennett assured the agents that all was ready as planned. Final arrangements were made to meet Bennett at the Ramada Inn, located at Milam Dairy Road and 72nd Avenue in Miami, for the delivery.

At 9:30 p. m., Bennett was observed driving his station wagon into the Ramada Inn parking lot accompanied by an individual later identified as Stanford Mitchell. Bennett parked the car, exited it and approached Agents Brown and Thompson, who were standing near the front entrance of the motel. After escorting Bennett to their car, the agents showed him $58,000.00 in cash. The three men returned to Bennett's vehicle; Mitchell remained in the front seat. Bennett reached into the station wagon and retrieved a brown paper bag from a box on the car's back seat. Inside the paper bag was a football-shaped package, wrapped in masking tape. It contained a white powder determined subsequently to contain 984 grams of 48% pure cocaine. As the four men walked back to the agent's car, Brown and Thompson identified themselves. They immediately arrested Bennett and Mitchell. Bennett was found to have an automatic pistol with a holster and slip, together with rounds of ammunition in the waistband of his trousers; Mitchell was carrying a revolver. In addition, Bennett had $1500.00 in his pocket which he stated his supplier had given him to use to find girls and to bring them back to the supplier's apartment for a party that night.

Bennett and Mitchell were then taken to the DEA office in Miami, where Bennett agreed to call his source of supply, whom he identified as Jack Brock. During their conversation, Bennett assured Brock that all had gone well "on the first one" and that the customers were ready for "three more tomorrow." Brock said that he would try to obtain the additional three kilos of cocaine. He asked Bennett to keep the buyers in town and to come over to Brock's apartment for the party. After the phone call, Bennett led the agents to the area of an apartment in Hileah where Brock had delivered cocaine to him. He pointed out the apartment, from the outside, provided a physical description of Brock, and disclosed that a woman had been present in the apartment at the time Bennett received the drugs there. DEA agents were dispatched to maintain surveillance of the apartment. They observed two men entering and leaving the apartment carrying bags. After agents knocked at the apartment's front entrance, Brock responded, unexpectedly, by opening the kitchen door. As Brock stuck his head and torso out of the apartment, Agent Walde, who had been leaning against the kitchen entrance, fell in. The other agents followed him inside and revealed their identities. Having concluded that he fit Bennett's description of his supplier, they asked Brock to identify himself. He complied and was arrested at once. From the kitchen, the agents were able to observe resting on a coffee table in the living room area the residue of a white powder; a mirror on which was a formula for cocaine; various cutting instruments; and cash. Joanne Marszalkowski, who was found standing in the kitchen or hallway area, was immediately arrested. A protective sweep was then conducted to look for other persons, as a result of which a handgun; scale; vial of cocaine; and a plastic bag containing white powder were found in plain view. Two agents remained inside to secure the apartment, while the others left to procure a search warrant. A search warrant was obtained and executed fifteen hours later; the latter search yielded additional cocaine, methaqualone tablets and $10,500.00 in cash from a tall dresser in the bedroom containing women's clothing; a substance used to cut cocaine; and a .38 Smith & Wesson revolver along with additional cocaine from a nighttable next to the bed.

In June of 1980, a grand jury returned a six-count indictment charging Bennett, Mitchell, Brock, Marszalkowski and Congote with conspiracy to distribute cocaine (Count I); Bennett and Mitchell with possession of cocaine (Count II); Brock and Marszalkowski with distribution of cocaine (Count III) as well as with possession with intent to distribute cocaine and methaqualone tablets (Count IV); and Bennett and Brock with use of a communication facility to further a felony (Counts V and VI). Congote was severed and convicted; his conviction was affirmed in United States v. Congote, 656 F.2d 971 (5th Cir. 1981). Bennett's motion for severance was denied; he presently appeals the denial. During trial, the judge granted Brock's motion for severance as well as Marszalkowski's and Brock's motion to suppress evidence obtained following the initial entry of the apartment; however, he denied suppression of those items found during the subsequent search conducted pursuant to warrant. Mistrials were declared as to all counts against Mitchell and the conspiracy charge against Marszalkowski, after the jury was unable to reach verdicts regarding them.

II. Bennett's Challenge

A. Severance

Bennett complains that he was misjoined with his co-indictees on dual grounds: first, the charge of conspiracy in Count One was multiplicitous and second, once the conspiracy charges against Mitchell and Marszalkowski were dismissed, his severance was mandatory.

Federal Rule of Criminal Procedure 8(b) permits joinder of defendants in a single indictment where they are alleged to have participated in the same transaction or series of transactions. ² For purposes of appellate review, the facts recited in an indictment are deemed true unless joinder is based on prosecutorial bad faith or improper legal interpretation. See United States v. Levine, 546 F.2d 658, 663 (5th Cir. 1977); United States v. Nims, 524 F.2d 123, 126 (5th Cir.), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976).

While making no allegation of bad faith, Bennett does contend that the indictment improperly charged multiple conspiracies. Bennett likens his indictment to that in United States v. Whitehead, 539 F.2d 1023 (4th Cir. 1976), where the lone facts that the co-defendants Whitehead and Meredith lived in the same building and sold cocaine to the same buyer were insufficient grounds to support their joint indictment for distribution of the controlled substance. Although the two drug deals in Whitehead possessed the "common denominator" of defendant Jackson, who bought drugs from Whitehead in one deal and from Meredith in another, id. at 1025, no conspiracy was charged nor was any relationship whatsoever between Jackson and Meredith ever...