U.S. v. Tabares

• Decision Date: 13 September 1991
• Docket Number: Nos. 91-1273,91-1331,s. 91-1273
• Citation: 951 F.2d 405
• Parties: UNITED STATES, Appellee, v. Martha TABARES, Defendant, Appellant. UNITED STATES, Appellee, v. Ramiro RAMIREZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 405

951 F.2d 405

UNITED STATES, Appellee, v. Martha TABARES, Defendant, Appellant.

UNITED STATES, Appellee, v. Ramiro RAMIREZ, Defendant, Appellant.

Nos. 91-1273, 91-1331.

United States Court of Appeals First Circuit.

Heard Sept. 13, 1991.

Decided Nov. 14, 1991.

William J. Murphy, with whom Joseph A. Bevilacqua, Jr., was on brief for defendant, appellant Martha Tabares.

Konny Light Mitchell with whom K.L. Mitchell & Associates was on brief for defendant, appellant Ramiro Ramirez.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Kenneth P. Madden, Asst. U.S. Atty., were on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and LOUGHLIN, ^* Senior District Judge.

BREYER, Chief Judge.

On June 24, 1990, FBI agents found drugs, cash, and a drug ledger in an apartment that Martha Tabares and Ramiro Ramirez shared. Subsequently, a jury convicted Tabares of conspiring to possess cocaine. 21 U.S.C. § 846. The jury convicted Ramirez (1) of the same conspiracy; (2) of actually possessing the cocaine (with intent to distribute it), 21 U.S.C. § 841(a)(1), (b)(1)(B); and (3) of unlawfully possessing a gun. 18 U.S.C. § 922(g)(1), (5). The district court sentenced Tabares to a prison term of 78 months and Ramirez to a term of 324 months. Both appeal their convictions and sentences. We affirm the convictions and Tabares' sentence, but we require a two-level reduction in the Sentencing Guidelines basis for Ramirez's sentence.

I Background

In June 1990, FBI agent James Burkett provided a federal magistrate with a sworn statement that two confidential and reliable informants had told him that Martha Tabares and Ramiro Ramirez were "in the business of selling large quantities of cocaine." Burkett added that one of the informants, within the previous few days, had been inside Apartment 301 at 752 Branch Ave, Providence (an apartment that Tabares and Ramirez occupied) and had "observed cocaine" there. On the strength of the affidavit, the magistrate issued a warrant authorizing a search of that apartment for drugs and related papers, records and proceeds. The next night, FBI agents, along with state and local police, executed the warrant.

The agents waited outside the apartment building until nearly 3 a.m., when Tabares and Ramirez drove up together. The agents searched them, finding both a loaded gun and $1,070 cash in Ramirez's pockets. They then went up to the apartment, which consisted of a living/dining room, a kitchen, a bathroom, and two bedrooms, one of which was furnished for a baby. While Tabares and Ramirez sat at the dining room table, the agents searched the apartment. In the adult bedroom, they found men's clothing. They also found a nightstand that contained a bag of cocaine, $400 rolled up in a rubber band, and an additional $14,010 cash mixed together with photographs in various envelopes. They found another bag of cocaine in a dresser drawer, which also contained tax returns in Ramirez's name. The cocaine in the two bags amounted to 730 grams, diluted with cornstarch to a purity of 68 percent. A box of cornstarch sat on top of the nightstand.

In the kitchen, the agents found personal documents with Tabares' name on them. On top of the refrigerator, they found $550 cash and a spiral notebook with notations of various cocaine transactions at prices prevalent in the area during the preceding two months.

At trial, the government introduced evidence of the search, the items seized, utilities bills showing that the apartment was in Tabares' name, and testimony of the property manager that he had rented the apartment to Tabares, that both she and Ramirez appeared to live there, and that he had received rent payments at various times from both of them.

On the basis of this evidence, the jury convicted Ramirez of conspiracy, possession, and firearm charges. It acquitted Tabares of drug possession charges, but convicted her of the related conspiracy.

II The Convictions

The appellants challenge the validity of their conviction with a host of legal arguments. None of their arguments has merit, nor do any of them warrant lengthy discussion. We shall, therefore, indicate only briefly the nature of each argument and why we reject it.

1. Appellant Tabares contends that Agent Burkett's affidavit supporting the search warrant failed to establish "probable cause" to believe the apartment contained cocaine, records, proceeds, and related items. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). She says that the informants were not shown to be reliable, that their information was stale, that neither they nor agent Burkett provided sufficiently specific supporting information, and that the warrant's description was too generally phrased. She adds that the agents seized photographs, not mentioned in the warrant.

The short, conclusive response to each of these claims is:

Reliability. The affidavit says

Source 1 has given information in the past which has led to several individuals being convicted in U.S. District Court in Rhode Island and Rhode Island Superior Court. I have never found Source 1's information to be false.

This statement sufficiently indicates reliability. United States v. Ciampa, 793 F.2d 19, 24 (1st Cir.1986).

Stale Information. According to the affidavit, Source 1 said that he had been inside the apartment and observed cocaine there "within the past ten days." The information therefore is not stale. Id. at 23-24 (one informant's information sufficient to establish probable cause even if other information "stale").

Detailed Information. Source 1 said he had observed the cocaine inside the apartment "in the possession of Ramiro Ramirez and his wife Martha Tabares" in the past ten days, and that he "knows from conversations with" them that "they are in the business of selling large quantities of cocaine." Agent Burkett said another confidential reliable source corroborated Source 1 on the latter point. Agent Burkett added that his considerable experience, including participation in fifty searches, led him to conclude that apartments of those selling drugs usually contain related records, proceeds, and indicia of occupancy.

Courts are to read affidavits such as this one in a "common-sense" manner. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. So read, the affidavit is more than sufficient to support the warrant. See Ciampa, 793 F.2d at 22-23; United States v. Asselin, 775 F.2d 445, 446 (1st Cir.1985). We add that the warrant itself is highly specific in its descriptions of what the agents were to seize:

cocaine; papers and records indicating ownership, tenancy, and/or control of Apt. 301, Bldg. 3, 752 Branch Ave., Providence, RI; records of controlled substance transactions; names, addresses, and telephone numbers of drug customers and suppliers; proceeds, including United States currency, from controlled substance tranactions [sic]; and safety deposit box keys.

Moreover, the agents' seizure of photographs in the cash-containing envelopes falls within the warrant's instruction to seize "records" that could indicate "ownership, tenancy, and/or control."

The search and the seizure were lawful.

2. Tabares argues that trying her together with Ramirez "prejudiced" her, primarily because the jury heard about Ramirez's possession of a gun, and the district court should therefore have severed her trial from his. See Fed.R.Crim.P. 14. However, the vast bulk of the evidence was admissible against both defendants; the basic conduct underlying the drug charges concerned both defendants; and the district court instructed the jury to consider the evidence against each defendant, and on each count, separately. See United States v. Cresta, 825 F.2d 538, 555 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). We can find no abuse of the district court's broad power to decide such matters. See United States v. Martinez, 922 F.2d 914, 922 (1st Cir.1991); United States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990).

3. Appellants argue that the evidence was insufficient to support a conviction for conspiracy and, in Ramirez's case, for possession. We simply disagree. As we have said, the building's property manager testified that both defendants appeared to live in the apartment, that both made rent payments at different times, and that the apartment was leased in Tabares' name. The two arrived back at the apartment together at 2:50 a.m. The agents found men's clothing in the bedroom, Ramirez's tax returns in the dresser drawer, bags of cocaine, cash, and cornstarch in the bedroom, and a drug ledger in the kitchen. This evidence, in our view, was more than adequate for the jury to conclude that Ramirez exercised "dominion and control" over the apartment, thereby possessing the drugs within it. United States v. Barnes, 890 F.2d 545, 549 (1st Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). And, it permits the jury to conclude that both defendants had agreed to help each other sell cocaine as well. See United States v. Arboleda, 929 F.2d 858, 870 (1st Cir.1991).

4. Ramirez objects to the introduction at his trial of testimony by an agent that, during the search of the apartment, Tabares

repeatedly said that, "Get out of my baby's room. There's nothing in there. Stay out of my baby's room." She must have said it about twenty times.

Ramirez complains that this is hearsay. Ramirez did not object to the introduction of this evidence against him at trial, however. And, hearsay, if no objection is raised, is admissible. United States v. Newton, 891 F.2d 944, 947-48 (1st Cir.1989).

5. Ramirez claims that he is entitled to a new trial because his counsel did not represent him effectively. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His only colorable claim in this respect concerns...