U.S. v. Porter

• Decision Date: 06 August 1984
• Docket Number: Nos. 83-1791,s. 83-1791
• Citation: 764 F.2d 1
• Parties: UNITED STATES, Appellee, v. Paul C. PORTER, Defendant, Appellant. UNITED STATES, Appellee, v. Walter G. BAKER, Defendant, Appellant. UNITED STATES, Appellee, v. Frederick L. HEARN, Defendant, Appellant. UNITED STATES, Appellee, v. Larry RESERVITZ, Defendant, Appellant. to 83-1793 and 83-1806. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

764 F.2d 1

UNITED STATES, Appellee, v. Paul C. PORTER, Defendant, Appellant.

UNITED STATES, Appellee, v. Walter G. BAKER, Defendant, Appellant.

UNITED STATES, Appellee, v. Frederick L. HEARN, Defendant, Appellant.

UNITED STATES, Appellee, v. Larry RESERVITZ, Defendant, Appellant.

Nos. 83-1791 to 83-1793 and 83-1806.

United States Court of Appeals First Circuit.

Heard Aug. 6, 1984.

Decided May 14, 1985.

Morris M. Goldings, Boston, Mass., with whom Richard S. Jacobs, and Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for defendant, appellant Paul C. Porter.

Willie Davis, Boston, Mass., for defendant, appellant Larry Reservitz.

David E. Lewis, Boston, Mass., with whom Jeffrey Denner, Boston, Mass., was on brief, for defendant, appellant Walter Baker.

Paul V. Buckley, Boston, Mass., on brief, for defendant, appellant Frederick L. Hearn.

Sydney Hanlon, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, ^* District Judge.

PEREZ-GIMENEZ, District Judge.

Before us are the appeals of several defendants convicted by jury trial of participating in a conspiracy to possess with intent to distribute marijuana. Instead of writing separate opinions, we consolidate them and deal with all the claims raised by appellants in one opinion. We will first set forth the facts upon which many of the defendants' claims depend with a more detailed description of the facts, when necessary, as to each defendant. We then consider the claims raised by each defendant.

The Facts

In mid-October 1982, Ernesto Gonzalez, informant for the Washington, D.C., District Office of the Federal Drug Enforcement Administration (hereinafter referred to as DEA), called defendant-appellant Walter Baker to persuade him to purchase or find purchasers for approximately 10,000 pounds of marijuana. Between mid-October and mid-December numerous calls were made by Gonzalez to defendant Baker from the DEA Office. During the latter period, DEA Special Agents Andrew Sherbine and Michael Pavlick participated in some of the calls in their roles as drug dealers. Four of these joint calls were recorded by the agents and the recordings were introduced as exhibits at the trial. On December 16, 1982, DEA agents Pavlick and Sherbine arrived in Boston with the informant Ernesto Gonzalez. On that same day the informant introduced the two agents to defendant-appellant Baker. They posed as the leaders of a drug organization with access to approximately 10,000 pounds of marijuana secreted in the northern Virginia area and to whom Gonzalez owed a substantial sum of money for other drug related transactions.

Baker travelled to Norfolk, Virginia, to view the marijuana, which DEA agents had seized in a prior case. In February of 1983, Sherbine and Pavlick came to Boston with the bales of marijuana. Pavlick met with Baker at the Bostonian Hotel on February 23, 1983, where Baker informed him that he was going to meet with an expert in marijuana quality. Later, Baker was observed meeting with defendant-appellant Paul Porter. Porter accompanied Baker to the Bostonian Hotel. Agents Pavlick and Sherbine agreed that they would provide Baker with a sample of the marijuana. Pavlick and Sherbine, in a car containing one bale of marijuana, followed Porter and Baker to Water Street. Sherbine and Baker cut approximately eight ounces of marijuana out of the bale, and Baker took it back to Porter's car and handed it to him. Then, Porter drove the car with Baker to Raymond's Restaurant, in Brookline, where they met with defendant-appellant Larry Reservitz. The three got into Reservitz's car and travelled to Porter's office. Porter went inside and later they all went into Baker's apartment. Shortly before 9:00 P.M. they went to City Hall Plaza, in Boston. Reservitz got out of the car carrying a brown bag and went into Werner's Restaurant, on City Hall Plaza. In the restaurant he met defendant-appellant Frederick Hearn and left the brown bag with Hearn. A short time later Hearn left and put the bag in the trunk of his car. At approximately 9:30 P.M. Baker spoke to Pavlick and said that the samples had been given and that the transaction would occur the following day.

The next day, February 24, Baker met with Pavlick a number of times. At one point Baker sent defendant David Goldenberg, who was acquitted at trial, to pick up a second sample.

The following morning Pavlick and Sherbine met with Baker and Reservitz. Baker told the agents that he had seen the $200,000 in cash which the group would provide as down payment. Reservitz told Pavlick to send the truck with marijuana to the Howard Johnson's on the Southeast Expressway. Reservitz, Baker, Pavlick and Sherbine, travelling in Reservitz's car, met the truck there and led it to Puritan Mall, in Dorchester.

At the Puritan Mall, Reservitz met with defendant Hobart Willis, who was acquitted at trial, and told Pavlick to go with Willis to see the money. Pavlick got into a car driven by Willis with Hearn as a passenger. Willis and Hearn then drove Pavlick a short distance away and parked next to Hearn's car. From the trunk of the car Hearn produced $200,000 in cash in two shopping bags. Pavlick gave the arrest signal and the agents put defendants Reservitz, Baker, Willis and Hearn under arrest. Porter and Goldenberg were arrested later on John Doe warrants.

Five of the defendants were indicted by a grand jury on March 9, 1983, on two counts. The first count charged all five with conspiracy to possess with intent to distribute more than 1,000 pounds of marijuana, in violation of 21 U.S.C. Secs. 846, 841(a)(1) and 841(b)(6). The second count charged Baker, Porter, and Reservitz with distribution of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). On March 16, the grand jury returned a superseding indictment adding defendant Goldenberg to the conspiracy count. The six defendants were tried together to a jury in the United States District Court. On September 2, 1983, the jury found Baker guilty as charged; Porter, Reservitz and Hearn were found guilty of the first count; and the jury acquitted Goldenberg and Willis.

1. Porter's Suppression Claim

On appeal, Porter challenges the denial of his motion to suppress certain post-arrest statements made to DEA agents.

On February 28, 1983, Special Agents Fencer, Pasquarello, and Martin, of the DEA, went to the business office of the defendant-appellant Paul C. Porter. Appellant, who was present at his office, was arrested by the agents. After informing appellant of his Miranda rights, the DEA agents transported him to the DEA headquarters at the JFK Building, in Boston. Agents then proceeded to strip-search appellant. He then was brought to a small interrogation room. He was again informed of his Miranda rights and asked if he would like to make a phone call. According to appellant, he made two phone calls, one to the information operator to get the number for his attorney, and one to the attorney's office. At the suppression hearing, the government and appellant entered into a stipulation, in lieu of the testimony of the attorney, that when he returned to his office that day he found a call slip from Paul Porter. After appellant made his phone calls, DEA Group Supervisor Garidotto entered the interrogation room. He asked the agents if appellant had been advised of his constitutional rights and if he understood his rights. They answered in the affirmative. Garidotto then asked appellant if he understood his rights, and he answered that he did. Supervisor Garidotto then asked if appellant knew why he was arrested and proceeded to interrogate him. Porter then made the inculpatory statements.

Appellant moved to suppress the post-arrest statement on the grounds that he "did not knowingly and intelligently waive his right to remain silent, his right to obtain advice of counsel prior to submitting to questioning, and his right to have an attorney present during questioning." After an evidentiary hearing, the trial court denied the motion because it found Porter's statement to be voluntary and intelligently made. Agent Fencer testified as to Porter's inculpatory statements at trial.

The issue before us is whether Porter's post-arrest statements were obtained in violation of his constitutional right to have counsel present during custodial interrogation. We find that Porter's incriminatory statements were obtained in violation of his constitutional rights, and we must therefore reverse the district court.

An accused person in custody has the absolute right to remain silent and to have an attorney present during any questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation unless he has been advised of his right to remain silent and to have an attorney present during questioning and he has voluntarily waived those rights. The Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 484-405, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981) that once an accused has invoked the right to counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police. Furthermore, "a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id., at 484, 101 S.Ct., at 1885.

Porter alleges that he asserted his right to counsel by making a telephone call to his attorney in the presence of DEA Agent Pasquarello and that having exercised his right to counsel, the custodial interrogation had to cease and could only resume at his own initiative. The government...