U.S. v. Ramos
| Citation | 933 F.2d 968 |
| Decision Date | 18 June 1991 |
| Docket Number | No. 89-6267,89-6267 |
| Parties | 33 Fed. R. Evid. Serv. 370 UNITED STATES of America, Plaintiff-Appellee, v. Armando Balbino RAMOS, Evaristo Ramos, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benedict P. Kuehne, Benson B. Weintraub, Miami, Fla., for Armando Balbino Ramos.
Jon May, Miami, Fla., for Evaristo Ramos.
Dexter W. Lehtinen, U.S. Atty., Linda Collins Hertz, Asst. U.S. Atty., David Mandel, Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before HATCHETT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.
In this cocaine possession with intent to distribute case, we refuse to apply our en banc holding in United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989), retroactively and affirm the judgments and sentences.
On December 8, 1988, Drug Enforcement Agency (DEA) officials arrested Evaristo and Balbino Ramos after seizing several kilograms of cocaine, a cache of firearms, drug paraphernalia, and approximately $30,000 in cash from their house and from Balbino Ramos's automobile. Four versions of the facts surrounding the events at the house prior to the arrest exist due to the DEA agents' conflicting reports and testimony. We discuss all three versions because the issues presented for resolution arise out of this factual uncertainty.
The first version of the events at the house came from DEA Special Agent Keith Curtis who drafted the affidavit and Complaint presented to the United States Magistrate Judge. According to Curtis's affidavit, on December 7, 1988, a cooperating individual (CI) advised DEA agents that Evaristo and Balbino Ramos had showed her several kilograms of cocaine and had agreed to sell her a large quantity of cocaine. They stated they could conduct a transaction on the following day. On December 8, 1988, the CI went to the Ramoses' residence under DEA surveillance to Although Agent Curtis participated in events following the Ramoses' arrest, he did not see what occurred on the property prior to the arrest. Curtis based parts of his affidavit, the portions regarding what occurred on the property, on portions of conversations he overheard and on what he surmised.
conduct a fifteen-kilogram cocaine deal. Shortly after her arrival, she entered the house, exited five to ten minutes later, and advised the DEA agents that at least five kilograms of cocaine and an unknown amount of cash were in the house. Evaristo Ramos then drove to the house in a black Lincoln automobile and after observing the agents, ran into the house. The DEA agents pursued Evaristo Ramos into the house and discovered him in the bathtub attempting to flush approximately three kilograms of cocaine down the bathtub drain.
On December 16, 1988, Special Agent Bigoness testified before a federal grand jury in connection with the Ramoses' indictment. Like Curtis, Bigoness did not witness the events prior to the arrest because he was part of the DEA surveillance team outside the property. Thus, Bigoness based part of his grand jury testimony on Curtis's affidavit. According to Bigoness's testimony, the CI went inside the house to arrange the deal with the Ramoses and after purchasing approximately eight kilograms of cocaine, came outside and gave the agents a prearranged arrest signal. The agents then went inside the house, found Evaristo Ramos in the bathtub attempting to dispose of the cocaine, and arrested Evaristo and Balbino Ramos.
The grand jury indicted the Ramoses on charges of conspiracy to possess with the intent to distribute cocaine and possession with the intent to distribute cocaine, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). The Ramoses filed a motion to suppress the cocaine and money seized from their house arguing that the agents did not have a warrant, probable cause, or exigent circumstances to support the search of the house. In March, 1989, the district court conducted a suppression hearing during which Agent Kirkman testified. Kirkman is the only DEA agent who witnessed the events between Evaristo Ramos and the CI outside the house. According to Kirkman, he drove the CI to the Ramoses' house on December 8. The CI got out of the car and began walking toward the house, leaving Kirkman in the car. As the CI approached the house, Evaristo Ramos drove a black Lincoln Continental into the driveway behind Kirkman's car. Ramos got out of the car, walked past Kirkman sitting in his car, and met with the CI. After a few moments, Evaristo Ramos and the CI walked over to the carport where Ramos took a shopping bag from a Corvette. Ramos gave the bag to the CI who examined it and then signaled to Kirkman that the bag contained cocaine.
Agent Kirkman further testified that after receiving the prearranged arrest signal, he radioed the other DEA agents stationed outside the parameters of the Ramoses' property as Evaristo Ramos began moving rapidly toward the house. DEA agents responded to the call and followed Ramos into the house through the back door. They found Evaristo fully clothed in a bathtub attempting to force several kilograms of cocaine down the drain. The agents then conducted a sweep search of the house and seized additional cocaine, firearms, and approximately $15,000 in cash. The government's trial theory was the Kirkman version.
At the suppression hearing, the Ramoses called several witnesses, three of whom testified that they saw the CI exit a car on December 8, 1988, and meet with Evaristo Ramos. None of the Ramoses' witnesses, however, remembered seeing Agent Kirkman. The Ramoses also called Agent Curtis as a witness during the suppression hearing and questioned him at length about the circumstances surrounding his affidavit and its inaccuracies. Curtis admitted that he had based the inaccurate statements in his affidavit on portions of conversations he had overheard after the arrest. He further admitted that he had not spoken with Agent Kirkman, the only agent who actually witnessed the events prior to the Ramoses' arrest.
Evaristo Ramos's counsel also proffered his client's description of the events preceding the arrest. According to the proffer, Evaristo Ramos was leaving the vicinity of the house when he saw a car pull into the driveway. He turned in behind the car and an unknown woman exited the car. Upon reaching the woman to inquire about her identity, she informed him that she was a friend, that the police were coming, and that he should give her all the cocaine. Ramos then walked briskly toward the house, with the CI close behind him. According to Ramos's proffer, he did not hand the CI a bag taken from a Corvette in the carport, nor did he see the agents until he approached his brother's room after entering the house.
The district court accepted the Kirkman version of events at the house and found probable cause and sufficient exigent circumstances to support the warrantless search of the Ramoses' house. Thus, the court denied the Ramoses' motion to suppress the physical evidence seized from the house.
On June 16, 1989, the same grand jury that had returned the first indictment returned a superseding indictment against the Ramoses. The new indictment contained the original conspiracy to possess and possession with the intent to distribute cocaine charges, but added a third count charging the Ramoses with unlawful use of a telephone to facilitate a felony, in violation of 21 U.S.C. Sec. 843(b) and 18 U.S.C. Sec. 2. The jury convicted the Ramoses on all three counts, and the district court sentenced each of them to 240 months imprisonment as to Count I, 96 months imprisonment as to Count II, and 200 months imprisonment as to Count III, for a total of 20 years imprisonment each. Both Ramoses also received a sentence of ten years supervised release following their incarceration for Counts I and III, and one year for Count II.
The Ramoses contend that their convictions and sentences should be overturned because the district court: (1) improperly denied their motion to suppress; (2) made statements during the suppression hearing which indicated bias and unfairly permeated the entire trial; (3) improperly limited testimony of a defense witness during trial; and (4) failed to consider relevant polygraph evidence.
In response, the government contends that the Ramoses' sentences and convictions should be affirmed.
We consider the following issues: (1) whether the district court erred in denying the motion to suppress; (2) whether the district court's statement indicated a bias that affected its rulings; (3) whether the district court erred in excluding a defense witness's testimony; (4) whether the district court erred in excluding polygraph testimony; and (5) whether this court should recommend an investigation into the agents' conduct. 1
According to the Ramoses, the warrantless search and his arrest violated the fourth amendment because neither probable cause nor exigent circumstances existed.
The district court's denial of a motion to suppress is a mixed question of law and fact. United States v. Nixon, 918 F.2d 895, 902 (11th Cir.1990). The appellant must show that the district court's factual findings were clearly erroneous. See United States v. Newbern, 731 F.2d 744, 747 (11th Cir.1984). We then review the district court's application of law to those facts de novo. See Adams v. Balkcom, 688 F.2d 734, 739 (11th Cir.1982). We will construe the facts in the light most favorable to the government. United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir.1984).
Warrantless and nonconsensual entry into a suspect's house to make a felony arrest is prohibited under the fourth amendment, unless probable cause and exigent circumstances exist. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). "Probable cause...
To continue reading
Request your trial
-
United States v. Ruan, No. 17-12653
...the right to have "compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI ; see also United States v. Ramos , 933 F.2d 968, 974 (11th Cir. 1991) ("A criminal defendant's right to present witnesses in his own defense during a criminal trial lies at the core of the fi......
-
U.S. v. Patrick, 90-3178
...Morgan, 936 F.2d 1561, 1565 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992); United States v. Ramos, 933 F.2d 968, 972 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992); United States v. Register, 931 F.2d 308, 312 (5th......
-
U.S. v. Spears
...the district judge's factual findings deferentially, and conduct a de novo review of his legal conclusions. See United States v. Ramos, 933 F.2d 968, 972 (11th Cir.1991). See also McKinney, 919 F.2d at 412. The question in both cases, however, is the same: did probable cause exist. The Cour......
-
United States v. Tobin
...upon comments of the trial judge unless the comments are so prejudicial as to amount to denial of a fair trial,” United States v. Ramos, 933 F.2d 968, 973 (11th Cir.1991), and the appellant shows that the comment had “a clear effect on the jury.” United States v. Morales, 868 F.2d 1562, 157......