U.S. v. Matias

• Decision Date: 05 January 1988
• Docket Number: Nos. 1381,1324,D,s. 1381
• Citation: 836 F.2d 744
• Parties: 24 Fed. R. Evid. Serv. 573 UNITED STATES of America, Appellee, v. Miguel MATIAS, Sr., Jose Caraballo, Miguel Matias, Jr., Frankie Matias, Luis Garcia, Defendants, Miguel Matias, Sr., and Jose Caraballo, Defendants-Appellants. ockets 87-1005, 87-1006.
• Court: U.S. Court of Appeals — Second Circuit

Page 744

836 F.2d 744

24 Fed. R. Evid. Serv. 573

UNITED STATES of America, Appellee, v. Miguel MATIAS, Sr., Jose Caraballo, Miguel Matias, Jr. Frankie Matias, Luis Garcia, Defendants Miguel Matias, Sr., and Jose Caraballo, Defendants-Appellants.

Nos. 1381, 1324, Dockets 87-1005, 87-1006.

United States Court of Appeals Second Circuit.

Argued Aug. 11, 1987.

Decided Jan. 5, 1988.

Maurice H. Sercarz, Sercarz, Schechter & Lopez, Brooklyn, N.Y., for defendant-appellant Miguel Matias, Sr.

Norman Corenthal, New York City, for defendant-appellant Jose Caraballo.

Emily Berger, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., David V. Kirby, Debra D. Newman, Asst. U.S. Attys., of counsel), for appellee.

Before WINTER and MAHONEY, Circuit Judges, and STEWART, ^* District Judge.

WINTER, Circuit Judge:

Miguel Matias, Sr. and Jose Caraballo were convicted after a jury trial before Judge Wexler of conspiracy to manufacture and to possess cocaine hydrochloride in violation of 21 U.S.C. Secs. 846, 841(a)(1) and 841(b)(1) (1982 & Supp. IV 1986), and possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1) and 18 U.S.C. Sec. 2 Because we find that only the claim concerning the jury charge on a defendant's motive to testify falsely has merit, we affirm as to the nontestifying defendant, Caraballo, and reverse and remand as to Matias.

(1982). ON APPEAL, THEY CHALLENGE THE ISSUANCE AND Execution of a search warrant, the trial court's rulings on the admission and exclusion of co-defendants' statements and jury instructions on conscious avoidance and a defendant's motive to testify falsely.

BACKGROUND

After conducting surveillance of a house and barn in Central Islip between October 25 and October 29, 1985, Drug Enforcement Administration ("DEA") agents obtained a telephonic search warrant for those premises from a magistrate. When the DEA agents executed the warrant on November 1, they found a complete cocaine processing laboratory and about ten kilograms of cocaine in the barn. Various narcotics-related paraphernalia, a key to the barn, receipts for building materials, ownership records for the premises and some photographs were taken from the house.

While at the house, agents arrested Miguel Matias, Jr. and Frank Matias, the sons of defendant Miguel Matias, Sr., the record owner of the premises. Miguel Matias, Sr. and Caraballo were arrested later the same day. The four arrestees and Caraballo's employer, Luis Garcia, were charged in the two-count superseding indictment with conspiracy to manufacture and possess cocaine and possession with intent to distribute cocaine.

Garcia pled guilty, and the four remaining defendants were tried before Judge Wexler and a jury. After Judge Wexler dismissed the charges against Miguel Matias, Jr. and Frank Matias on sufficiency grounds, the jury convicted Jose Caraballo and Miguel Matias, Sr. on both counts. Judge Wexler sentenced each to concurrent terms of six years for each count and a $100 special assessment, to be followed by five years special parole for the possession count.

The evidence against Matias, Sr. showed that he and his family were longtime friends of Luis Garcia, who was also their commercial tenant in Brooklyn. When Garcia was arrested on drug charges in 1984, the Matiases pledged two of their houses to secure his bail. Matias was the record owner of the land upon which the barn housing the cocaine laboratory had been recently built. He and his wife testified, however, that this land had been sold to Garcia. During the construction of the barn, Matias, Sr. had purchased the building materials, including the plywood used to make a wall concealing the drug laboratory. He also helped unload ether barrels delivered by Caraballo.

Caraballo was Luis Garcia's employee. On October 25, 1985, Caraballo went to a chemical warehouse in Westchester to pick up fifty-five-gallon drums of ether, a solvent used to manufacture cocaine. He then drove from the warehouse to Luis Garcia's home in Westbury, and from there to the barn in Islip. During the trip, he stopped and acted furtively as though he were trying to elude anyone who might be following him. The next day, Caraballo drove Matias, Sr. to a lumberyard where the latter purchased the plywood used to make the wall concealing the drug manufacturing laboratory. On the afternoon of October 29, Caraballo left the barn and drove to a Kentucky Fried Chicken restaurant to get lunch for several persons working at the barn. A heavy smell of ether emanated from the barn, and after lunch Caraballo drove to a drugstore and bought a solution labeled "for red and irritated eyes." Caraballo's eyes looked red, irritated and watery, a condition caused by exposure to ether. Later in the afternoon, Caraballo drove to the town dump and disposed of some garbage. Included were numerous bottles of Pine Sol, an empty bottle of inositol with a heavy smell of ether inside, and thirteen $100 money wrappers. Inositol is commonly used to "cut" cocaine, and Pine Sol, a deodorizer, was later found in the cocaine laboratory.

DISCUSSION

A. Search and Seizure Claims ¹

In applying for the telephonic warrant, the Assistant United States Attorney recited to the magistrate facts relayed by DEA Agent Daniel McCarthy. McCarthy was on the line and confirmed at the close of the AUSA's presentation that those facts were "truthful to the best of [his] knowledge and belief." However, neither the AUSA nor Agent McCarthy was placed under oath or otherwise formally sworn.

It is argued that the warrant was invalid as violative both of the fourth amendment's command that warrants be supported by "oath or affirmation" and Fed.R.Crim.P. 41(c)(2)(D)'s requirement that the magistrate "immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant." However, suppression in the instant case is not warranted because of the "good faith" exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). Because the failure to put the agent formally under oath was obviously an oversight, the agents' reliance on the facially valid warrant was clearly reasonable under the circumstances, and this claim must be rejected.

The search warrant issued by the magistrate on October 29, 1985 authorized the seizure of the following:

(a) quantities of cocaine base and cocaine base [sic] and cocaine hydrochloride;

(b) various powders and dilutents used to mix cocaine;

(c) various chemicals used in the cocaine conversion process, including ether, acetone and hydrochloride [sic] acid;

(d) various equipment used in the laboratory conversion of cocaine, including fans, suction pumps, ovens, hoses and large rubber garbage cans;

(e) various narcotics-related paraphernalia, including baggies, scales and other items used to test and package cocaine;

(g) [sic] currency and other valuables used to purchase cocaine and/or reflect the proceeds of sales of cocaine;

(f) [sic] books and other records containing the names, addresses and/or telephone numbers of narcotics purchasers and/or suppliers, prices and quantities of narcotics sold and/or purchased, and/or other cash transactions, which books and records would reveal the identities of confederates in narcotics trafficking as well as the extent of their involvement.

Matias, Sr. argues that the execution of the warrant degenerated into a general, exploratory search and, therefore, that the entire fruits of the search must be suppressed. Alternatively, he argues that even if there were no general unrestricted search, certain documents and photographs seized must be suppressed as outside the scope of the warrant.

A search must be confined to the terms and limitations of the warrant authorizing it. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394 n. 7, 91 S.Ct. 1999, 2004 n. 7, 29 L.Ed.2d 619 (1971). The Supreme Court has also stated that searches involving documents must be "conducted in a manner that minimizes unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976). However, when items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items, not invalidation of the entire search. Id.; United States v. Dunloy, 584 F.2d 6, 11 n. 4 (2d Cir.1978). Courts have also indicated that the drastic remedy of the suppression of all evidence seized is not justified unless those executing the warrant acted "in flagrant disregard" of the warrant's terms. United States v. Medlin However, we fail to perceive how these principles are implicated on the present record because there was no widespread seizure of items that were not within the scope of the warrant. The government did offer to return an eyeglass case and some other nondocumentary items, but the documents and photographs that are the foundation for the claim of an unconstitutional wholesale search were properly seized under the authority of the warrant.

798 F.2d 407, 411 (10th Cir.1986); United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir.1985); United States v. Lambert, 771 F.2d 83, 93 (6th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 598, 88 L.Ed.2d 577 (1985); Marvin v. United States, 732 F.2d 669, 674-75 (8th Cir.1984); United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Heldt, 668 F.2d 1238, 1259 (D.C.Cir.1981) (per curiam), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).

Paragraph (f) of the warrant authorized seizure of "books and records [that] would reveal the identities of confederates in narcotics trafficking as...