U.S. v. Morales
| Decision Date | 06 April 1989 |
| Docket Number | No. 87-5561,87-5561 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo MORALES, Paul Kolb, Jorge Manzano, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benjamin S. Waxman, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., for Morales.
Louis M. Jepeway, Jr., Jepeway and Jepeway, P.A., Miami, Fla., for Kolb.
Joel Kaplan, Miami, Fla., for Manzano.
William T. Shockley, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT and EDMONDSON, Circuit Judges, and FLOYD R. GIBSON *, Senior Circuit Judge.
Appellants Jorge Manzano, Paul William Kolb, and Rodolfo Morales appeal their convictions, raising several issues which they argue warrant a reversal. The following issues are raised: 1) whether the district court erred in denying the appellants' various severance motions; 2) whether there was sufficient evidence to convict appellant Kolb; 3) whether the district court erred in denying appellant Manzano's motion to suppress evidence seized after a search of his apartment; and 4) whether remarks made by the district judge denied the appellants the effective assistance of counsel. For the following reasons we affirm the decision of the district court.
On March 12, 1987, Ramon de Saint Germain, a confidential Drug Enforcement Administration (DEA) informant, spoke to Jorge Manzano and told Manzano that he was interested in purchasing cocaine. The two men arranged a meeting at a Publix Food Store in Northwest Miami; the meeting was planned for 2:15 p.m. that same day. Manzano indicated that he had other business to transact at 2:30.
Germain arrived at the Publix Food Store between 2:00 and 2:10 p.m. When Manzano failed to show up, Germain used a pay phone to call Manzano's beeper. This call was made at 2:25 and Manzano arrived at the Publix within three minutes. Germain and Manzano then began negotiations for the sale of up to four kilos of cocaine. Germain indicated that he wanted to see a sample of at least one kilogram and he also wanted to know the price. Manzano told Germain that he lived in a nearby apartment and gave Germain the complete address. Manzano told Germain to come to the apartment at 6:00 p.m. and he would have at least one kilo of cocaine available there. Manzano then indicated that he had to go pay some Colombians for drugs in an unrelated transaction. At that time Paul Kolb pulled up in a red Ford Bronco. Manzano got into the Bronco and it left the area.
Germain called Manzano at 5:25 p.m. and told him that he could not make the 6:00 p.m. meeting. Thus, the two agreed to postpone the meeting until 7:00 p.m. Germain called Manzano again at 5:45 p.m. to confirm the 7:00 p.m. meeting. During this telephone conversation Germain also told Manzano that he needed three kilos of cocaine and Manzano agreed. At 5:55 p.m. Manzano called Germain and told him he had two kilos in the apartment but they were intended for another buyer. Manzano told Germain that he would be able to pick up Germain's merchandise in time for their 7:00 p.m. meeting. At 6:15 Manzano called Germain and told him that he had examined the cocaine and found that it was of poor quality. Manzano offered to sell this cocaine for $17,500 per kilo, but he also noted that he could get better stuff. Germain asked if he could take a look at the cocaine and Manzano agreed and told Germain to come on over.
At approximately 7:10 p.m. Germain arrived at Manzano's apartment where he was greeted by Michele Wagner. Wagner signalled Germain to enter the apartment. Once in the apartment Germain walked down a hallway to the master bedroom where Manzano was standing. Germain testified that Paul Kolb was in the apartment lying on a couch in the living room and also present in the apartment was Francisco Garcia who was in a second bedroom.
Germain then entered the bathroom of the master bedroom with Manzano. Manzano produced two packages of cocaine and Germain tested it. Germain agreed that the cocaine was of poor quality and he told Manzano that they could not do business. Manzano then told Germain that he could get three kilos of good stuff in an hour and a half. As Germain was in the hallway on his way out of the apartment he heard Manzano call out: (R 5-121). Wagner then whispered something to Manzano and he responded "he knows, he knows, he knows." (R 5-122). Kolb, who was still on the couch, smiled at Germain as Germain left the apartment. Germain also noticed that Garcia was still in the second bedroom.
Shortly after Germain left the apartment DEA surveillance agents observed Manzano, Kolb, and Wagner leave the apartment and enter a white Chevrolet Cavalier. Wagner was carrying a dark-colored shoulder bag and Kolb was carrying some type of attache case or gym bag. DEA agents followed the Cavalier and after only a short distance it became clear that its occupants were aware that they were being followed. The Cavalier then quickly entered a Mobil Station which was located about an eighth of a mile from the apartment building. The DEA agents arrested the occupants of the car. Kolb drove the car, Manzano was riding in the front passenger seat, and Wagner was in the right rear seat. The case, which Kolb was observed carrying earlier when he entered the car, was open on the rear seat. It contained a mobile telephone which was in the "on" position. The black shoulder bag which Wagner carried contained two packages of cocaine.
After placing the car's occupants under arrest, the DEA agent-in-charge directed other DEA agents to secure Manzano's apartment in order to prevent the destruction of evidence and additional cocaine which was believed to be in the apartment.
Five agents, accompanied by Germain, returned to the apartment. The agents positioned themselves around the apartment door and Germain knocked on the door. There was no immediate response and after a short time Germain knocked again while calling for "Pepe", Manzano's nickname. The door was unbolted by an occupant and when it was opened a few inches the DEA agents pushed the door completely open while announcing their identity. Agent Kobell entered the apartment and found himself face to face with Morales who was armed with a revolver. Morales raised the revolver shoulder height and pointed it directly at Agent Kobell. Kobell fired two shots at Morales who then retreated into the kitchen. At that point several shots were fired by other DEA agents providing cover for Agent Kobell who retreated out of the apartment. Approximately five minutes later Morales surrendered and was placed under arrest. Shortly after Morales surrendered, Garcia, who had been hiding in the bathtub during the exchange of gunfire, surrendered and was also placed under arrest. Morales sustained a single gunshot wound to the left cheek.
Metro-Dade police officers arrived and assumed control of the scene. The apartment was secured and a Metro-Dade police detective prepared a search warrant affidavit and a search warrant was later issued. A search of the apartment produced Morales's .45 caliber auto-loading handgun, a loaded .12 gauge shotgun which was purchased by Morales, four bottles of inositol powder, 1 twenty-three grams of a mixture of 3.1% pure cocaine hydrochloride and inositol, a Nexus speed balance scale, $5,490 in currency, a copy of the apartment lease naming Kolb and Manzano as its tenants, two rent receipts and a Florida Power and Light statement for the apartment all bearing Kolb's name, and a leather pouch containing Kolb's identification and a beeper.
On March 20, 1987, a grand jury indicted Manzano, Kolb, Morales, Wagner, and Garcia. Count I of the indictment charged Manzano, Kolb, and Morales with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982); Count II charged Manzano, Kolb, Morales, Wagner, and Garcia with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1982); Count III charged Manzano with resisting a DEA agent in violation of 18 U.S.C. Sec. 111 (1982); Count IV charged Morales with using a firearm in a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (Supp. IV 1986); and Count V charged Morales with assaulting a DEA agent with a deadly weapon in violation of 18 U.S.C. Sec. 111 (1982).
All five defendants were tried in a joint jury trial. During the trial defendant Wagner was granted a severance after a conflict of counsel issue arose. 2 The remaining defendants filed various pretrial motions including several motions to sever and motions to suppress physical evidence recovered from the apartment. The district court denied these pretrial motions. The government proceeded to present its case and after it rested the trial judge acquitted Morales on Counts II and IV, and Garcia was acquitted on Count II.
After Morales was acquitted of Count II, the only count in which he and the other defendants were charged jointly, all of the defendants renewed their motions to sever which were again denied by the trial court. The defendants facing drug charges requested a severance alleging misjoinder with Morales who was charged with assault on a DEA agent. Morales also sought a severance alleging misjoinder with the remaining defendants who were facing drug charges. All of the defendants alleged prejudice. The jury returned a guilty verdict against Manzano on Counts I and II, but found him not guilty on Count III. Kolb was found guilty on Counts I and II, and Morales was found guilty on Count V. This appeal followed.
Appellants argue that their joinder in a single indictment and their joint trial violated Federal Rules of Criminal Procedure 8(b) and 14. We consider these claims individually because they must...
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