U.S. v. Spinosa

• Decision Date: 02 November 1992
• Docket Number: No. 91-2125,91-2125
• Citation: 982 F.2d 620
• Parties: 37 Fed. R. Evid. Serv. 829 UNITED STATES, Appellee, v. Vincent D. SPINOSA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 620

982 F.2d 620

37 Fed. R. Evid. Serv. 829

UNITED STATES, Appellee, v. Vincent D. SPINOSA, Defendant, Appellant.

No. 91-2125.

United States Court of Appeals First Circuit.

Heard Nov. 2, 1992.

Decided Dec. 15, 1992.

Charles W. Rankin, with whom Margaret H. Carter, and Rankin & Sultan, Boston, MA, were on brief for appellant.

Paula J. DeGiacomo, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

Vincent D. Spinosa was convicted by a Massachusetts federal jury of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Spinosa urges this court to reverse his conviction on the grounds that the trial court erred in: (1) denying Spinosa's motion for a hearing to suppress evidence under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) denying Spinosa's motion to exclude prior "bad acts" evidence; (3) admitting documentary and testimonial evidence concerning Spinosa's telephone records; and (4) denying Spinosa's motion for a "missing witness" instruction. We affirm.

I. Background

We begin with an overview of the facts of the case. ¹ In the six-month period between August 8, 1990 and January 28, 1991, Special Agent Damian "Pete" Farley conducted an undercover drug trafficking investigation in the Boston, Massachusetts area. Cole Porter, a government informant, introduced Farley to Jeffrey Katz as a drug dealer looking to buy cocaine. Farley made a preliminary purchase of four ounces of cocaine from Katz. Over the course of the following months, Farley entered negotiations with Spinosa and Jeffrey Katz for further cocaine purchases. Eighteen of Farley's secretly tape recorded telephone and face-to-face conversations with Spinosa and Katz were introduced into evidence at trial. Those recordings, along with the testimony of Farley and Katz, who cooperated with the government following his arrest, served as the backbone of the government's case against Spinosa.

In October, 1990, Spinosa told Farley that he had a cocaine supplier in New York and that he could get a kilo of cocaine to sell to Farley. Spinosa told Farley first in early November, and then again in December, that he was having trouble getting the cocaine as promised. Later in December, Spinosa told Katz that he could get the cocaine for Farley from a friend who had a New York connection.

On January 15, 1991, Spinosa called Katz and told him that another friend, Richard Kameese, had brought cocaine from New York and asked if Katz could pick it up. Before that deal could be completed, however, Kameese was hospitalized as a result of a drug overdose. Subsequently, Spinosa told Katz that he could get another kilogram of cocaine from Kameese's sources in New York. On January 24, Spinosa told Katz that he had received one kilogram of cocaine from New York and that it would take one day to make final arrangements for the deal with Farley. That day, Katz called Farley and told him that they were prepared to make the cocaine deal. After negotiating the price for one kilo at $30,000, they agreed to meet on January 28 in the parking lot of Friendly's Restaurant in Wareham.

On January 28, 1991, Katz called Farley and told him that he and Spinosa would meet Farley and Porter at Friendly's Restaurant. Spinosa and Katz "cut" the cocaine in Spinosa's bedroom by replacing eight ounces of cocaine with inositol. Katz observed Spinosa put the remaining eight ounces of cocaine above his ceiling. That afternoon, Spinosa drove Katz to Friendly's and helped check for police surveillance by driving up and down the lanes of the parking lot. At approximately 2:30 p.m., Katz entered Farley's car and showed him one kilogram of cocaine. Subsequently, inside the restaurant, both Spinosa and Katz were arrested by a team comprised of federal, state and local law enforcement officers. After his arrest, Katz told Drug Enforcement Administration agents that earlier that day he had seen approximately eight ounces of cocaine and marijuana in the ceiling of Spinosa's bedroom at 284 Hovendon Avenue in Brockton, Massachusetts.

II. Motion to Suppress Evidence

A. Facts.

On January 29, 1991, law enforcement officers appeared before a United States Magistrate to apply for a search warrant for Spinosa's residence at 284 Hovendon Avenue in Brockton, Massachusetts. The warrant application was supported by an affidavit provided by Drug Enforcement Administration (DEA) Special Agent Vincent Burch, which stated in pertinent part:

2. On or about August 8, 1990 Special Agent Damian Farley, acting in an undercover capacity, began negotiating with Jeffrey KATZ ... regarding the purchase of cocaine.

3. On August 8, 1990, KATZ had delivered to Special Agent Farley approximately four ounces of cocaine in the parking lot outside of Matt Garrett's Restaurant in Brockton, Massachusetts. Special Agent Farley gave KATZ $4,800 in cash in exchange for the cocaine.

4. During the past several months since August 8, 1990, Special Agent Farley has met with and engaged in numerous telephone conversations with KATZ and Vincent SPINOSA ... concerning additional purchases of cocaine. Several of Special Agent Farley's discussions ... with KATZ and SPINOSA were tape recorded. During the course of these discussions, KATZ and SPINOSA indicated to Special Agent Farley that they were working together in the cocaine business.

5. On several occasions between August 8, 1990 and January 28, 1991, Special Agent Farley discussed with KATZ and Vincent SPINOSA arrangements for the purchase of kilogram quantities of cocaine by Special Agent Farley. On or about January 15, 1991, KATZ related to Special Agent Farley that he was in possession of or had access to one kilogram of cocaine and that KATZ and SPINOSA would meet Special Agent Farley and sell him the kilogram of cocaine for $30,000. Further, KATZ indicated that he would be with SPINOSA when he delivered the cocaine. They agreed that the meeting location would be at the Friendly's Restaurant in Wareham, Massachusetts.

6. On January 28, 1991, at approximately 2:30 p.m., DEA agents observed SPINOSA and KATZ in a burgundy (with black top) Ford Marquis in the vicinity of the Friendly's Restaurant in Wareham. A short time later, SPINOSA and KATZ drove and parked in the Friendly's Restaurant parking lot near Special Agent Farley. After entering the lot, KATZ got out of his vehicle carrying a brown paper bag and entered the vehicle occupied by Special Agent Farley. Once inside the vehicle, KATZ revealed to Special Agent Farley a one kilogram package containing a white powdery substance that later field tested positive for the presence of cocaine.

7. Special Agent Farley and KATZ then exited the vehicle and proceeded inside the Friendly's Restaurant. At this time, KATZ and SPINOSA were placed under arrest by DEA, Massachusetts State Police, Wareham, Massachusetts[ ] Police Department and the Brockton, Massachusetts[ ] Police Department.

8. Following his arrest on January, 28, 1991, KATZ stated to DEA agents that on January 28, 1991 he observed approximately eight ounces of cocaine and a quantity of marijuana in the ceiling of SPINOSA's bedroom at 284 Hovendon Avenue in Brockton, Massachusetts.

9. Based on the foregoing and my experience in conducting drug investigations in my opinion probable cause exists to believe that cocaine, marijuana, and drug ledgers, papers, notes, and other documents exist in the premises at 284 Hovendon Avenue in Brockton, Massachusetts.

(Emphasis added.) The magistrate issued the warrant, which was executed later that day. In the course of the search, DEA agents seized a triple beam balance scale, bindle papers, a piece of paper with Cole Porter's telephone number written on it and over $5,000. Spinosa moved to suppress this evidence on the grounds that: "(1) the search warrant was defective because the affidavit on which it was based did not establish probable cause for the search; and (2) the affidavit contains misrepresentations and omissions of material facts intentionally or recklessly made."

With respect to his first assertion, Spinosa claims that Katz's accusation was not sufficiently substantiated to establish probable cause and that Katz's statements should have been viewed merely as an attempt to curry favor with the government. For the purpose of analyzing whether sufficient cause existed, the trial judge disregarded that part of the fifth paragraph of Burch's affidavit which stated that: "On or about January 15, 1991, Katz related to Special Agent Farley that he was in possession of or had access to one kilogram of cocaine and that Katz and Spinosa would meet Special Agent Farley and sell him the kilogram of cocaine for $30,000." The court did so because, during the suppression hearing, the government conceded that the statement was inaccurate. In fact, the government admitted that it had learned this information from Porter, the informant working with Farley on his undercover operation, a few days after January 15.

The court further "revised" the affidavit to assume three things that were omitted from Burch's affidavit: (1) when Katz negotiated the deal with Farley, he said that Spinosa had nothing to do with the transaction; (2) Katz was a liar; and (3) Katz would do anything to avoid jail, including committing murder and fleeing. The first point was assumed because, in the course of a January 15 taped conversation with Farley concerning the negotiation of the drug deal, Katz uttered the phrase, "it's nothing to do with Vinny." The court assumed that Katz was a liar because of the incentive he had to shift responsibility to Spinosa after being arrested for making a hand-to-hand sale of one kilo of cocaine...