U.S. v. Remigio

• Decision Date: 17 July 1985
• Docket Number: No. 84-1280,84-1280
• Citation: 767 F.2d 730
• Parties: 18 Fed. R. Evid. Serv. 1098 UNITED STATES of America, Plaintiff-Appellee, v. Patrick C. REMIGIO, a/k/a Joe Cuervo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 730

767 F.2d 730

18 Fed. R. Evid. Serv. 1098

UNITED STATES of America, Plaintiff-Appellee, v. Patrick C. REMIGIO, a/k/a Joe Cuervo, Defendant-Appellant.

No. 84-1280.

United States Court of Appeals,

Tenth Circuit.

July 17, 1985.

Fred A. Johnson, Wichita, Kan., for defendant-appellant.

Jackie N. Williams, Asst. U.S. Atty., Wichita, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., and Emily B. Metzger, Asst. U.S. Atty., Wichita, Kan., with him on brief), for plaintiff-appellee.

Before BARRETT and SETH, Circuit Judges, and SEAY, District Judge ^*.

SEAY, District Judge.

This appeal arises from verdicts finding the defendant-appellant, Patrick C. Remigio, guilty of unlawfully conspiring to manufacture methamphetamines, and unlawfully attempting to manufacture methamphetamines, both contrary to 21 U.S.C. Sec. 841(a)(1), and both in violation of 21 U.S.C. Sec. 846. Two co-defendants charged in the same indictment had earlier pled guilty to one or more counts, and do not join in this appeal.

Remigio's appeal alleges four separate errors: (1) the trial court overruled his motion to suppress; (2) the trial court overruled his motion for acquittal; (3) the trial court allowed into evidence extrajudicial statements of co-conspirators; and (4) the prosecutor commented on defendant's exercise of his right to remain silent at the time of his arrest. For the reasons set forth below, the Court finds appellant's claims are without merit, and the conviction should be affirmed.

In his first assignment of error, Remigio alleges the trial court erred in overruling his motion to suppress, 573 F.Supp. 998 (D.Kan.1983). Remigio's claim is based on his allegation that the officers, in the execution of a search warrant, failed to knock and announce prior to entering the residence, as is required by 18 U.S.C. Sec. 3109. ¹

The evidence surrounding the search and seizure episode was conflicting. After having heard all the evidence, during a hearing on the motion to suppress, the trial court found the facts to be as those herein recited.

Federal and State law enforcement agents had been investigating Remigio and the two co-defendants for five months prior to the search. On the day of the search, the agents had the residence of one of the co-defendants under surveillance. During the day, the agents observed the delivery to the house of a chemical critical to the manufacturing of methamphetamine. The agents later smelled the distinctive odor of ether, a result of the methamphetamine manufacturing process, emanating from the house. The agents obtained a federal search warrant later that evening. Shortly before midnight, the agents split into two teams, with half the agents proceeding to the front door of the residence, and the other half to the back door. As the lead agent for the back-door team was about to reach the rear door of the residence, the co-defendant Johnson opened the screened back door and peered out. The first agent immediately entered through the open door and subdued Johnson on the landing. Simultaneously, the other agents entered through the open door and proceeded through another open door into the kitchen, shouting "Police" and "FBI". The officers and agents did not announce their identity or purpose prior to entering the residence. The officials took the three defendants into custody and seized various chemicals, formulas, and chemical equipment.

Remigio disputes the facts as recited above, claiming that the interior door to the kitchen was closed. ² This Court, however, may not disturb the findings of fact rendered by the District Court unless it is convinced the findings are clearly erroneous. After carefully reviewing the record below in the light most favorable to the government, this Court cannot say that the District Court's findings were clearly erroneous. Accordingly, this Court must accept the findings as reported. United States v. Miles, 449 F.2d 1272, 1274 (10th Cir.1971); Arnold v. United States, 432 F.2d 871, 874 (10th Cir.1970); Todd v. United States, 362 F.2d 531, 532 (10th Cir.), cert. denied, 385 U.S. 994, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966), reh'g denied, 386 U.S. 929, 87 S.Ct. 877, 17 L.Ed.2d 803 (1967).

Having established the doors were open at the time the co-defendant was looking outside, the issue becomes whether the officials' entry into the house was unlawful because of their failure to announce their authority and purpose.

The purpose of 18 U.S.C. Sec. 3109 is to restrict the authority of the government to intrude upon the privacy of its citizens, and to protect law enforcement officers who might be mistaken as unlawful intruders if they were to enter a residence unannounced. Miller v. United States, 357 U.S. 301, 306-08, 312 n. 12, 78 S.Ct. 1190, 1198 n. 12, 2 L.Ed.2d 1332 (1958).

The statute requires law enforcement officials to announce their authority and purpose, and to be denied admittance, before they break down the door of a house. Id. at 306, 78 S.Ct. at 1194. The United States Supreme Court, in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), found that the use of force was not an essential element of the statute, and ruled that unlatching a closed, unlocked door was an "unannounced intrusion" in violation of the statute. Id. at 590, 88 S.Ct. at 1758. Whether entry through an open door is an "unannounced intrusion" is another matter.

This Circuit has never addressed the issue of whether officials must comply with the knock and announce statute prior to entering through an open door. Other Circuits have addressed the issue, however, and the majority rule is that entry through an open door is not a "breaking" within the meaning of the federal knock and announce statute, 18 U.S.C. Sec. 3109. United States v. Lopez, 475 F.2d 537, 541 (7th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 89, 38 L.Ed.2d 74 (1973); United States v. Johns, 466 F.2d 1364, 1365 (5th Cir.1972); United States v. Conti, 361 F.2d 153, 157 (2d Cir.1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); Ng Pui Yu v. United States, 352 F.2d 626 632 (9th Cir.1965); United States v. Williams, 351 F.2d 475, 477 (6th Cir.1965), cert. denied, 383 U.S. 917, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966). Contra Hair v. United States, 289 F.2d 894, 895-96 (D.C.Cir.1961).

The facts of this case establish that a defendant was present at the door and that the door was open at the time the officials entered the house. The defendant observed the officials before they entered the house.

This Court is persuaded by the majority rule. We hold that government officials, armed with a warrant, entering a house through an open door and in the presence of a defendant, need not comply with the provisions of 18 U.S.C. Sec. 3109. Accordingly, the entry in this case was lawful, and the motion to suppress was properly denied.

In his second assignment of error, Remigio contends the trial court erred in overruling his motion for acquittal on Count II of the Indictment. That count charged an attempt to manufacture methamphetamines, rather than the substantive offense of manufacturing the controlled substance. Remigio argues that the government's evidence could only be construed as having established the substantive offense itself, rather than the attempt.

In order to be convicted of an attempt, the government must prove "an intent to engage in criminal conduct and the performance of acts which constitute a 'substantial step' towards the commission of the substantive offense." United States v. Manley, 632 F.2d 978, 987 (2nd Cir.1980), cert. denied, sub nom. Williams v. United States, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).

The record in the present case fully establishes the commission of the necessary elements of attempt by Remigio. That the government went beyond the proof required for an attempt, and established the substantive offense as well, is of no consequence. The crime of attempt is a lesser included offense of the substantive crime. United States v. Pino, 608 F.2d 1001, 1003-04 (4th Cir.1979); United States v. Marin, 513 F.2d 974, 976 (2d Cir.1975). Moreover, the "substantial step" element of an attempt may be as much as, or less than, the actual commission of the crime. See United States v. Manley, 632 F.2d at 987-88. Accordingly, the United States could have charged Remigio under either the attempt or the substantive crime of manufacturing methamphetamines. The government chose the attempt statute, and proof of the substantive crime at trial was proof of the lesser included offense of attempt. Therefore, the trial court was correct in denying Remigio's motion for acquittal.

Remigio next contends the trial court erred by admitting into evidence statements of co-conspirators who were not present at trial. Remigio argues that the evidence was allowed to be introduced without a prior prima facia showing that a conspiracy existed and that Remigio was a participant therein.

Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that statements offered against a party which are made by co-conspirators of a party during the course and in furtherance of the conspiracy, are not hearsay. The statements of a party's co-conspirator are admissible if the trial judge determines it is more likely than not that the conspiracy existed, that the declarant and defendant were members of the conspiracy, and that the statements were made in furtherance of the conspiracy. United States v. Andrews, 585 F.2d 961, 965 (10th Cir.1978). See United States v. Petersen, 611 F.2d 1313, 1327 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980).

The record below more than adequately supports the trial judge's decision to allow into evidence the co-conspirator's statements. The evidence, prior to the introduction of the statements, showed: (1) the co-defendants Johnson and Smith used aliases, obtained chemicals necessary to the manufacturing of...