U.S. v. Martinez-Zayas

• Decision Date: 31 August 1988
• Docket Number: Nos. 87-1749,87-1756 and 88-5143,MARTINEZ-ZAYAS,s. 87-1749
• Parties: UNITED STATES of America, Appellant in 87-1756 and Petitioner in 88-5143, v. Angelitaa/k/a "Carmen Lopez", Appellant in 87-1749 and Respondent in 88-5143, The Honorable Clarence C. Newcomer, Nominal Respondent in 88-5143.
• Court: U.S. Court of Appeals — Third Circuit

Page 122

857 F.2d 122

UNITED STATES of America, Appellant in 87-1756 and Petitioner in 88-5143, v. Angelita MARTINEZ-ZAYAS a/k/a "Carmen Lopez", Appellant in 87-1749 and Respondent in 88-5143 The Honorable Clarence C. Newcomer, Nominal Respondent in 88-5143.

Nos. 87-1749, 87-1756 and 88-5143.

United States Court of Appeals Third Circuit.

Argued July 13, 1988.

Decided Aug. 31, 1988.

Jeffrey L. Staniels (argued), Defender Association of Philadelphia, Federal Courts Div., Philadelphia, Pa., for appellant-cross-appellee, Angelita Martinez-Zayas.

Frederick G. Herold (argued), U.S. Atty. Office, Philadelphia, Pa., for appellee-cross-appellant, U.S.

Before SLOVITER, SCIRICA and WEIS, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

When it enacted the Anti-Drug Abuse Act of 1986, Congress provided that any person convicted of an offense under 21 U.S.C. Sec. 841(a) (1982) involving more than five kilograms of cocaine "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ..." without parole. See id. Sec. 841(b)(1)(A) (1986 Supp.). Cross-appellant Angelita Martinez-Zayas was convicted of possession with intent to distribute twelve kilograms of cocaine, a violation of Sec. 841(a). The district court determined that although Martinez-Zayas fell within the coverage of Sec. 841(b)(1)(A), "it is clear from the legislative record that Congress did not intend that someone in Ms. Martinez-Zayas' position receive a mandatory 10 year jail term sentence without parole," because she was a middle-level dealer, and not a " 'kingpin.' " J.A. at 36, 38-39. Therefore, the court imposed a five-year term of imprisonment without parole. Id. at 39 (citing Sec. 841(b)(1)(B)(ii)).

The government appeals, maintaining that the sentence violates the clear congressional mandate requiring mandatory ten-year prison terms for defendants convicted of offenses involving large quantities of illegal narcotics. Our review of the district court's interpretation of Sec. 841(b) is plenary, see Government of the Virgin Islands v. Douglas, 812 F.2d 822, 832 (3d Cir.1987); Chrysler Credit Corp. v. First Nat. Bank & Trust Co. of Washington, 746 F.2d 200, 202 (3d Cir.1984), and for reasons that follow, we will direct the district court to vacate its five-year sentence and to resentence Martinez-Zayas consistent with Sec. 841(b)(1)(A).

In her cross appeal, Martinez-Zayas contends the district court erred by not suppressing the cocaine seized during the government search. First, she claims the government improperly searched her purse when the search warrant authorized only a search of her house. Second, she contends that the warrant violated Fed.R.Crim.P. 41(a) because it was issued by a non-lawyer bail commissioner in Philadelphia Municipal Court, and not by a "federal magistrate or a judge of a state court of record...." Id.

For reasons that follow, we will affirm the district court on these issues. We hold that the warrant authorized government agents to search Martinez-Zayas' purse. In addition, we find that Martinez-Zayas failed to raise her Rule 41 claim before the district court. Even assuming the government violated Rule 41, its conduct did not rise to the level of plain error sufficient to justify suppression in this case. See Fed.R.Crim.P. 52.

I.

Martinez-Zayas was convicted of violating Sec. 841(a) (possession with intent to distribute cocaine) and 21 U.S.C. Sec. 856 (maintaining a building for purposes of storing a controlled substance) based on evidence seized pursuant to a joint undertaking of the federal Drug Enforcement Administration ("DEA") and the Philadelphia Police Department. On November 3, 1986, DEA Agent Richard Fekete learned from an informant that a large shipment of cocaine was scheduled for delivery by associates of Angel Hernandez, a suspected drug dealer, to 517 West Butler Street. Agent Fekete relayed this information to Philadelphia Police Officer Michael McCue. The two jointly drafted a search warrant, and McCue obtained authorization from a Philadelphia Municipal Court bail commissioner to execute the warrant. The warrant authorized a search of 517 Butler Street for cocaine, various other illegal drugs, and for "any proof of residency or occupancy and all fruits of the crime including narcotics proceeds and paraphernalia." J.A. 64.

Upon reaching the scene, federal agents and police saw Martinez-Zayas enter 517 Butler Street carrying a purse. After entering the house and producing the warrant, agents searched for other occupants and then asked Martinez-Zayas her name, where she was born and who resided in the house. She gave the name Angelita Martinez, said she had been born in Puerto Rico, but did not respond as to who resided in the house. Agent Fekete searched Martinez-Zayas' purse--located about four feet away from her--for identification. He found two identification cards and four plastic bags containing more than six grams of eighty-six percent pure cocaine, and arrested Martinez-Zayas.

Shortly thereafter, agents discovered large quantities of drug-cutting substances, "hundreds, if not thousands" of clear plastic bags, J.A. at 404-05, eight rolls of colored tape, ¹ and other drug paraphernalia in plain view in the basement. Agent Fekete also found more than twelve kilograms of eighty-six percent pure cocaine in a chamber carved out under the floor in a second-floor bedroom. In addition, agents seized documents in another bedroom identifying Martinez-Zayas as the owner of the premises, and other records indicating that Angel Hernandez was the father of her two children.

The district court denied a motion to suppress the twelve kilograms of cocaine, holding that the warrant was supported by probable cause under the standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See J.A. at 16. In denying the motion to suppress, the court noted that the warrant had been issued by a non-lawyer bail commissioner. Id. at 16-17 n. 1 ("Defendant seems to imply that because the warrant was issued by a bail commissioner and not a federal magistrate or state judge, the finding of probable cause must be subjected to some heightened scrutiny."); accord J.A. at 46 (Defendant's Motion to Suppress). Martinez-Zayas, however, never raised the possibility of a Rule 41 violation. The court simply observed that warrants issued by bail commissioners are not subject to heightened scrutiny because bail commissioners: (1) attend a training course; and (2) are qualified to make practical, non-technical probable cause determinations. J.A. at 17 n. 1.

Martinez-Zayas then filed a supplemental motion to suppress, contesting the search of her purse. After a suppression hearing, the court ruled:

I am ... satisfied that in finding this defendant inside under these circumstances ... [the government was] justified in searching through her pocketbook which was in her immediate vicinity. And under the outstanding law that this court is familiar with, they would have the right to check that pocketbook.

J.A. at 286-87.

At trial, the parties stipulated that the amount of cocaine seized from Martinez- Zayas' purse and from her house amounted to more than twelve kilograms. J.A. at 522-23. The jury convicted Martinez-Zayas of possession with intent to distribute cocaine, Sec. 841(a), and maintaining a building for the purpose of storing cocaine, Sec. 856. At sentencing, the district court ruled that Martinez-Zayas should not be subject to the ten-year mandatory minimum sentence for individuals convicted under Sec. 841(a), even though her case involved twelve kilograms of cocaine--more than twice the amount set forth as triggering the ten-year sentence. First, the court noted:

It is no secret ... that one reason that law enforcement officials pursued the defendant was to obtain defendant's cooperation in the ongoing investigation of the alleged drug dealings of Ms. Martinez-Zayas' boyfriend, Mr. Angel Hernandez. It is this man, which evidence indicates is the father of the defendant's children, that police believe to be a major cocaine distributor in Philadelphia.

J.A. at 29. The court also observed that Martinez-Zayas was a welfare recipient "who appears to subsist from hand to mouth," and that she had refused to plea bargain or to cooperate in the investigation of Hernandez. Id. at 30.

Acknowledging that Sec. 841(b)(1)(A) "simply requires 10 years of jail time for the conviction of possession in excess of 5 kilograms of cocaine," the court nevertheless concluded that the legislative history of Sec. 841(b) demonstrates a congressional desire to target only drug kingpins or masterminds. Martinez-Zayas, the court determined, fit neither description, and therefore was not covered by the ten-year provision. J.A. at 30, 35. Because Martinez-Zayas "did have a role in the [drug] distribution network," J.A. at 38, however, the court sentenced her under Sec. 841(b)(1)(B)(ii) as a "middle-level" drug dealer to the mandatory five-year prison term without parole.

II.

As a threshold matter, we must determine whether the district court's sentence in this case is an order subject to appellate review. If the order is not appealable our "inquiry is over," because we lack jurisdiction. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). The government asserts two bases enabling us to review Martinez-Zayas' sentence. First, it contends that this case is governed by 18 U.S.C. Sec. 3742(b)(1) (1986 Supp.), which expressly confers appellate jurisdiction over government appeals "if the sentence was imposed in violation of law." See Sec. 3742(b)(1). Second, the government maintains that if we hold Sec. 3742 inapplicable, we should grant its petition for a writ of mandamus. See United States v. Ferri, 686 F.2d 147, 152 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983).

The government's reliance...