U.S. v. Torres
| Decision Date | 17 July 1984 |
| Docket Number | D,Nos. 1032-1035 and 1038,s. 1032-1035 and 1038 |
| Citation | 740 F.2d 122 |
| Parties | 15 Fed. R. Evid. Serv. 2015 UNITED STATES of America, Appellee, v. Luis TORRES, a/k/a "Gustavo Vera", a/k/a "Guillermo Blandon", a/k/a "Jose Velez", Virginia Moran, Martha Guzman, Hernando Caro, Leocadio Caro, Defendants-Appellants. ockets 83-1436 to 83-1440. |
| Court | U.S. Court of Appeals — Second Circuit |
Carol B. Schachner, Asst. U.S. Atty., Raymond J. Dearie, U.S. Atty., D.N.Y., Allyne R. Ross, Asst. U.S. Atty., Brooklyn, N.Y., for appellee.
Lawrence M. Herrmann, New York City, for defendant-appellant Torres; Richard A. Greenberg, Coblence & Warner, New York City, of counsel.
Lewisohn, Eisenberger & Fuchs, New York City, for defendant-appellant Moran; Jeffrey L. Lewisohn, New York City, on brief.
Philip Katowitz, Brooklyn, N.Y., for defendant-appellant Guzman.
Steven H. Mosenson, Baden, Kramer & Huffman, New York City, for defendant-appellant Hernando Caro.
Bert H. Nisonoff, Forest Hills, N.Y., for defendant-appellant Leocadio Caro.
Before OAKES and VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge. *
Luis Torres (a/k/a "Gustavo Vera", a/k/a "Guillermo Blandon", a/k/a "Jose Velez"), Virginia Moran, Martha Guzman, Hernando Caro, and Leocadio Caro, the defendants, appeal from their convictions of violations of the narcotics laws, 574 F.Supp. 1429. By indictment filed June 2, 1983 the defendants, together with Edilma Perez a/k/a "Mima", were charged with one count of conspiracy to distribute cocaine and one count of possession with intent to distribute cocaine. Defendant Perez pled guilty to both counts of the indictment and has not appealed. Defendant Torres pled guilty to Count 2 of the indictment (possession with intent to distribute), his plea being conditioned on his right to appeal the denial of his motion to suppress. The remaining defendants went to trial and were convicted by a jury on both counts. All of the defendants have been incarcerated for varying terms. They now appeal. The facts may be briefly stated:
On May 23, 1983, members of Group IV of the New York Drug Enforcement Task Force ("Task Force") arranged for a confidential informant to telephone his supplier (who had supplied him with cocaine in the past) and to order 1/8 of a kilogram of cocaine. The informant telephoned his supplier, who agreed to deliver 1/8 of a kilogram to the informant later that day. The delivery was later rescheduled to take place at 6:00 p.m. on the next day, May 24, at 147th Street and Amsterdam Avenue in Manhattan. The informant described his supplier as a female Hispanic called "Mima" (subsequently identified as Perez) and gave her telephone number to Task Force agents. According to Telephone Company records, the number was listed to "Luisa Santiago", who resided at 92-16 Whitney Avenue, Apartment 110, Queens.
On May 24, at approximately 5:00 p.m., surveillance was established in the vicinity of 92-16 Whitney Avenue, Queens, and at Amsterdam Avenue and 147th Street in Manhattan. At approximately 6:10 p.m. an individual fitting Perez's description was seen leaving the Whitney Avenue address and entering a white Dodge Aspen. This information was relayed to the surveillance agents in Manhattan. At approximately 6:35 p.m. the Dodge Aspen was observed arriving at 147th Street and Amsterdam Avenue and Perez exited the car. She was joined by the informant and together they entered a social club on the corner. The Dodge Aspen departed. At about 7:10 p.m Perez and the informant left the club and, after a brief conversation, Perez hailed and entered a taxi cab. Surveillance agents followed the cab into Queens, at which point they stopped the taxi cab and placed Perez under arrest. A search of her person produced approximately 1/8 of a kilogram of over 90% pure cocaine wrapped in a yellow paper towel, and $2,551 in cash.
Following her arrest, Perez was advised in Spanish of her Miranda rights. She waived her rights and consented to a search of her Whitney Avenue apartment. Detectives Martinez and Prakin accompanied her to 92-16 Whitney Avenue where she was taken to the Superintendent's apartment to verify that she resided in Apartment 110. The Superintendent confirmed that she did, and accompanied her and the detectives to the apartment, where the Superintendent knocked on the door. The door was partially opened by someone inside, whereupon Detective Prakin announced that it was the police. A woman inside the apartment (subsequently identified as defendant Virginia Moran) attempted to close the door but was prevented from doing so by Detective Prakin, who entered the apartment, followed shortly thereafter by Detective Martinez. As Detective Prakin entered, he observed an O'Haus triple-beam scale on top of a refrigerator in the kitchen. Detective Prakin walked down the hallway where he observed a second woman (subsequently identified as Martha Guzman) in the apartment. He also entered the larger of two bedrooms through an open door and observed a small amount of white powder on a dinner plate which had been placed on top of a pillow on the bed, two inches below a high-intensity light. Subsequent laboratory analysis of the powder revealed that it was approximately 40% pure cocaine. At this point, Detective Prakin arrested Moran and Guzman, and Detective Martinez gave them each their Miranda rights in Spanish, which they acknowledged. Perez signed a written consent to the search of the apartment. The search produced the following items:
In the smaller of the two bedrooms a white purse containing $1,585 in cash was found on the top shelf of a closet. On the floor of the same closet, the officers discovered another purse which contained two Colombian passports. Virginia Moran's picture appeared on both passports. One passport was in the name of "Virginia del Carmen Moran de Guzman" and had an expiration date of January 15, 1987; the other was in the name of an alias, "Mariela Restrepo de Velez", contained a visa in the name of "Mariela de Velez", and bore notations indicating that the user had most recently entered the United States on August 11, 1982. In the same room, a yellow kitchen cannister containing $2,084 in cash was found lying on the floor in front of another closet. An unsealed brown paper bag containing $1,203 in cash and over one-half kilogram of approximately 50% pure cocaine was also found on the floor.
During the search of the larger bedroom, various documents were found, including a slip of paper containing a handwritten telephone number, 218-3282, which turned out to be the telephone access number of a beeper later seized from the defendant Torres. The agents also found a small notebook containing handwritten notations on four of its pages. On one page, headed "M.V." a column of monetary figures ranging from 400 to over 5,000 appeared alongside a column of dates commencing with "November 9, 1982". Another page, headed "Marta", similarly listed a column of monetary figures ranging from 500 to 13,000 next to several dates in February and March of 1983. 1 Two other pages contained various names, telephone numbers and what appeared to be coded information.
While the search was continuing, at about 8:40 p.m. the apartment buzzer sounded and one of the detectives pressed a button inside the apartment which allowed entry into the building. Detective Prakin positioned himself by the front door, with gun drawn. A few minutes later, in response to a knock on the door, Detective Prakin opened the door and said, Two men (subsequently identified as defendants Hernando Caro and Leocadio Caro) were standing in front of the door, each holding a small leather handbag. The two men walked into the apartment, Leocadio first dropping a leather bag in the hallway. Detective Prakin retrieved the leather bag that Leocadio had dropped, opened it, and found inside three individually-wrapped plastic bags, each containing 1/8 of a kilogram of white powder which was subsequently analyzed and established to be 85% pure cocaine. Both the Caros were then placed under arrest.
Following their arrest, Detective Prakin examined the small leather bag which Hernando had brought into the apartment, which he thought might contain a weapon, and found approximately $200, a number of documents and papers, a car registration and insurance card, and several records of drug transactions which included entries "para Hernando" and "Leo". During the course of this search, the two Caros were given their Miranda rights in Spanish.
At about 9:35 p.m. the apartment buzzer again sounded and one of the detectives pushed the button permitting entry into the building. Following a knock on the front door, Detective Prakin opened the door and recognized the man before him as the person on whom he had served an arrest warrant in 1979 at the Metropolitan Correctional Center in New York City for firearms possession. The man, known to Detective Prakin as Gustavo Vera, was subsequently identified as the defendant Luis Torres. Detective Prakin also knew that Torres was a Colombian national who had been previously convicted of a federal narcotics violation. Detective Prakin pulled Torres into the apartment and, noticing a bulge in the chest pocket of his jacket, reached inside Torres' jacket and removed a brown paper bag containing white powder, which upon laboratory analysis was found to be approximately 61 grams of over 86% pure cocaine. He placed Torres under arrest. A search of Torres revealed a beeper with an access number 218-3282, the same number found on the slip of paper in the larger bedroom. This search also produced some car keys, and the detectives later located Torres' car double-parked directly in front of the apartment building. A search of the car revealed $4,000 in cash in a paper towel located under the driver's seat.
Defendants Moran, Guzman, and Hernando Caro each...
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