U.S. v. Paradis

• Decision Date: 29 September 1986
• Docket Number: Nos. 85-1524,s. 85-1524
• Citation: 802 F.2d 553
• Parties: UNITED STATES of America, Appellee, v. Ronald PARADIS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Norman BELIVEAU, Defendant, Appellant. UNITED STATES of America, Appellee, v. Christine BELIVEAU, Defendant, Appellant. to 85-1526.
• Court: U.S. Court of Appeals — First Circuit

Page 553

802 F.2d 553

UNITED STATES of America, Appellee, v. Ronald PARADIS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Norman BELIVEAU, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Christine BELIVEAU, Defendant, Appellant.

Nos. 85-1524 to 85-1526.

United States Court of Appeals First Circuit.

Argued May 6, 1986.

Decided Sept. 29, 1986.

Juliane Balliro with whom Joseph J. Balliro and Balliro, Mondano & Balliro, Boston, Mass., was on brief for defendant, appellant Ronald Paradis.

Jean-Claude Sakellarios with whom Sakellarios & Associates, Manchester, N.H., was on brief, for defendant, appellant Norman Beliveau.

Paul W. Hodes with whom Hage & Hodes, Manchester, N.H., was on brief for defendant, appellant Christine Beliveau.

Douglas J. Miller, Asst. U.S. Atty., with whom Richard V. Wiebusch, U.S. Atty., Concord, N.H., was on brief for appellee.

Before BREYER and TORRUELLA, Circuit Judges, and MALETZ, ^* Senior Judge.

TORRUELLA, Circuit Judge.

Appellants Christine Beliveau, Ronald Paradis and Norman Beliveau were convicted after a joint jury trial in the United States District Court for the District of New Hampshire. Appellants challenge their convictions on several grounds. We find that none of these grounds warrants reversal and thus affirm the district court.

I. Appellant Paradis

Appellant was convicted of (1) possession of cocaine, in violation of 21 U.S.C. Sec. 844; (2) conspiracy to distribute and possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846; and (3) possession of cocaine with intent to distribute, distribution of cocaine, and aiding and abetting the possession of cocaine with intent to distribute and the distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. He was fined $5,000 and sentenced to a fifteen-year term of imprisonment and a ten-year special parole term.

1. Appellant first contends that the trial court erred in denying a motion for continuance of trial under the Speedy Trial Act (the Act), 18 U.S.C. Secs. 3161-3174. Paradis was arraigned on February 22, 1985. On March 6, 1985 arraignment counsel withdrew and trial counsel filed his appearance on Paradis' behalf. At the time, the district court set May 3, 1985 as the trial date. Subsequently, on March 14, 1985, the district court advanced the trial date to April 1, 1985. On March 18, 1985, appellant filed a Motion for Reconsideration, arguing the impossibility to adequately prepare for trial, but to no avail. The district court denied the continuance motion on March 27, 1985. Jury selection took place as scheduled on April 1, 1985 and trial began on April 8, 1985. Appellant claims that he was entitled to continuance under Section 3161(c)(2) of the Act.

Section 3161(c)(2) reads:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

Paradis argues that this 30-day period is extended by the periods of excludable delay "in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence," as provided in Section 3161(h) of the Act. He relies on the Senate Report on the 1979 Amendments to the Act, viz:

Prohibiting trial less than 30 days after the defendant appears in a position to begin preparing his defense more fully protects basic due process rights. It is the Committee's intent that the exclusions provided in section 3161(h) apply to the 30-day minimum to trial provision. Therefore, if an event occurs which would automatically exclude time under subsection (h), such as pretrial mental examination, that time is not only excluded from computing the time within which trial must occur prior to imposition of the dismissal sanctions, but time would also automatically be excluded in computing the 30-day minimum period of time, during which the judge could not schedule trial without the defendant's consent.

Sen.Rep. 212, 96th Cong., 1st Sess. (1979), p. 32. Paradis claims that he is entitled to a new trial because if the exclusions provided in section 3161(h) are applied to section 3162, the trial took place less than 30 days after the March 6, 1985 appearance, in violation of the Act.

Even if we were to agree with appellant, he still would not be entitled to prevail. The sanction for failing to bring the defendant to trial as called for in the Act is dismissal of the indictment upon motion of the defendant. 18 U.S.C. Sec. 3162(a)(2). The defendant must make this motion prior to trial or the right to dismissal is waived. Id. It is undisputed that Paradis failed to move for dismissal under section 3162(a)(2). Thus, the defendant waived his right to the sanction of dismissal under the Act. See, e.g., United States v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th Cir.1985). ¹

2. Appellant next contends that the district court erred in denying a pretrial motion to suppress. Paradis was arrested at approximately 2:15 PM on February 7, 1985. The arresting officer himself admittedly lacked probable cause to arrest Paradis, and arrested appellant because a superior ordered him to do so. Subsequently, at 2:45 PM, Drug Enforcement Administration (DEA) agents arrested codefendants Norman and Christine Beliveau on their way home, shortly after they had met with an undercover DEA agent in a parking lot near Paradis' residence to tell him that Norman Beliveau had "the whole package with him." It was later determined that the "package" contained a plastic bag with approximately 8 ounces of cocaine, which Beliveau had bought with money the agent had given him. Upon receiving the money, Beliveau had gone to Paradis' residence and returned to the parking lot to deliver the cocaine. Paradis was arrested shortly after Beliveau's departure.

Appellant complains that only when the Beliveaus were arrested and the subsequent search revealed that the "package" contained cocaine, did the DEA have probable cause for his arrest. Since Paradis was arrested 30 minutes before the Beliveaus, and the arresting officer's knowledge of the facts did not justify a finding of probable cause, appellant argues that no probable cause existed for his arrest, and, therefore, that the district court erred in refusing to suppress (1) evidence seized from his person following the arrest, and (2) statements appellant made while in custody thereafter. We disagree.

For one thing, that the arresting officer may have lacked probable cause for the arrest of the suspect does not mean that the arrest is invalid for lack of probable cause. United States v. Rose, 731 F.2d 1337, 1342-43 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984). It is enough that the collective knowledge and information of all the officers involved establishes probable cause for the arrest. Id., quoting United States v. Rose, 541 F.2d 750, 756 (8th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1178, 51 L.Ed.2d 584 (1977). For another thing, the affidavit of DEA Resident Agent in Charge Al Keaney, submitted at the hearing on appellant's suppression motion, shows that the collective information of the officers involved in the surveillance of the cocaine transactions at issue justified a finding of probable cause for Paradis' arrest.

The affidavit states, among other things, that a confidential informant told DEA agents that Paradis had been trafficking in cocaine for an unspecified period of time. The informant had been instrumental in arranging undercover buys of controlled substances for the Manchester, N.H., Police Department and for the New Hampshire State Police. All information obtained by the informant had been accurate and corroborated by both the DEA and the local agencies involved. The affidavit asserts that the informant arranged on October 22, 1984 for a cocaine deal between agent Keaney and codefendant Norman Beliveau. Thus on October 23, 1984 Beliveau drove from his house to a house at RFD 2, Jaime Drive in Weare, N.H., back to his house and finally to a prearranged rendezvous area in the parking lot of the New Hampshire Employment Security Office, where he met agent Keaney and delivered two ounces of cocaine. At the time, Beliveau stated that he had gone to his source's residence to buy the cocaine. The house at RFD 2, Jaime Drive, was registered to Ronald Paradis.

Agent Keaney again met with Beliveau on February 7, 1985 and gave him $8,000 for the purchase of one half pound of cocaine. Surveillance showed that, as had occurred on October 23, 1984, Beliveau went to Paradis' house at RFD 2, where he waited for 10 minutes until a dark car arrived with a male later identified as Paradis. Paradis and Beliveau entered the house where they remained for approximately 30 minutes. Shortly after Beliveau's departure, Paradis was arrested upon leaving the house at approximately 2:15 PM.

The foregoing could have warranted " 'a man of reasonable caution in the belief that (Paradis)' had committed or was committing an offense," even before the Beliveaus' arrest. United States v. Baldacchino, 762 F.2d 170, 175 (1st Cir.1985); see also United States v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir.1984). Thus we agree with the district court that probable cause existed for Paradis' arrest.

3. A search incident to Paradis' arrest on February 7, 1985 failed to reveal Paradis' possession of the $8,000 that Special Agent Keaney had given Beliveau for the deal. Thus Keaney requested that a warrant be issued to search Paradis' house at RFD 2, Box 1, Jaime Drive. In support thereof he submitted the affidavit noted above. Ante, at 557-558. The district court issued the warrant, and the ensuing search turned up the $8,000 in official government funds earlier fronted to the Beliveaus. Also seized during the search were (1)...