U.S. v. Veras
| Decision Date | 21 June 1995 |
| Docket Number | 94-2383,Nos. 92-3044,s. 92-3044 |
| Citation | 51 F.3d 1365 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dickson VERAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David S. Rosenbloom (argued), Barry Rand Elden, Asst. U.S. Attys., Ronald D. May, Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.
Edward X. Clinton, Sr. (argued), Chicago, IL, for defendant-appellant.
Before WOOD, Jr., COFFEY, and KANNE, Circuit Judges.
On January 23, 1992, Dickson Veras was convicted in a jury trial of conspiring to distribute ten kilograms of cocaine in violation of 21 U.S.C. Sec. 846, possessing ten kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and possessing a firearm in the course of a drug offense in violation of 18 U.S.C. Sec. 924(c). Three co-defendants, Alejandro Almonte, Arturo Fernandez, and Santiago Cuesta, were also indicted. Almonte and Fernandez pled guilty and were sentenced. On the government's motion, charges against Cuesta were dismissed. On April 30, 1992, the defendant was sentenced to twenty-five years imprisonment. Veras brings two appeals: the first of his conviction, and the second of the denial of his motion for a new trial based on information from the government following the trial. Because we find the district court was correct in denying both motions, we affirm.
In June 1991, Drug Enforcement Task Agents [DEA] began conducting surveillance on the house of Alejandro Almonte in Chicago, Illinois. Almonte was the initial target of the investigation that began as a result of information from a confidential informant who reported Almonte was receiving shipments of cocaine from New York. Between June 5 and June 10, DEA Task Force Agent Granias and other agents surveilled Almonte's home and various locations where he traveled. On June 11, Almonte suspected he was being watched. The agents determined that Almonte was conducting counter-surveillance and returned to Almonte's house to await his return.
Almonte returned around noon. A short time later, Almonte and Veras walked into Almonte's garage which opened onto an alley behind Almonte's home. Officer Granias and another DEA agent watched from the alley. A white Oldsmobile Delta '88 was backed part way out of the garage. Veras stood next to the vehicle holding a box and making motions with the box towards Fernandez, who was kneeling inside the car towards the back window. Fernandez appeared to be taking objects from the defendant and placing these objects in the back seat area. Granias could not see what the defendants were loading. Officer Granias went back to his car and followed Veras, Fernandez, and Cuesta, who left in the Oldsmobile. Almonte left in a blue van. Although Almonte had been the initial target of the investigation, the officers followed the Oldsmobile because of the previous loading they observed.
The defendants eventually stopped in the parking lot of a motel. After about a minute, Officer Granias approached the driver's side of the vehicle as Officer Hodge walked towards the passenger side. Veras was in the driver's seat with Fernandez sitting next to him and Cuesta in the back seat. As Officer Granias peered into the vehicle, he spotted the barrel of a revolver located by Fernandez's feet on the floor of the car. The officer alerted Officer Hodge that there was a gun and ordered the defendants out of the car. Officer Hodge then reached in and pulled a loaded .38 caliber Smith & Wesson revolver from the floor of the car.
Officer Granias and the other DEA agents proceeded to search Veras's car. Granias began to search the back seat area because of the loading he had observed earlier. Built into the deck between the back seat and the rear window was a covered compartment. Officer Granias went around to the trunk to see if he could tell how the compartment was constructed. In the meantime, another agent opened the compartment and found ten kilograms of cocaine. Veras was charged and convicted of conspiring and possessing cocaine with intent to distribute and possessing a firearm in connection with a drug offense. Veras now appeals his conviction.
As a part of the defendant's challenge to the court's denial of the motion to suppress Veras first argues he was denied his constitutional right to counsel at a critical stage. The defendant contends that as a result of this denial, evidence that may have been otherwise suppressed was not. The government counters by arguing that Veras was only unrepresented during a brief pretrial stage of the proceeding before any action of consequence happened in the case.
The time period in which Veras alleges he was unrepresented was between October 30, 1991, and December 3, 1991. Attorney Joseph Hartzler represented Veras until he left to accept a position in the United States Attorney's Office. Prior to withdrawing, Hartzler filed a motion to suppress evidence on Veras's behalf. On October 30, 1991, Hartzler filed a motion to withdraw as court-appointed counsel and to extend the time to file a reply to the government's response to the motion to suppress. The district court granted the extension. Hartzler prepared a reply brief before leaving, and John Cutrone, a federal public defender, filed that brief, but did not file his own appearance. On December 3, 1991, attorney Carlos Vasquez filed an appearance as counsel for the defendant. A status hearing was held and Vasquez appeared on behalf of the defendant. At the hearing, the court emphasized that none of the pretrial motions had been ruled upon. Vasquez requested a hearing on the previously filed motion to suppress. A schedule was set and counsel agreed to submit supplemental briefs. Counsel was given nine days to submit these additional briefs. Vasquez chose not to submit anything further. The district court denied the defendant's motion to suppress.
The Sixth Amendment guarantees the right to counsel during all "critical stages of the prosecution." United States v. Wade, 388 U.S. 218, 238, 87 S.Ct. 1926, 1938, 18 L.Ed.2d 1149 (1967). In Wade, the Court noted that it was not enough for a defendant to allege the event was critical and may have led ultimately to his conviction; rather the defendant must prove that at the time it was conducted, the procedure was a "critical stage of the prosecution." Id. at 237, 87 S.Ct. at 1937. The right attaches upon the commencement of adversarial proceedings and applies to only the critical stages where "absence of defense counsel or lack of advice may derogate from the accused's right to a fair trial." United States v. Jackson, 886 F.2d 838, 843 (7th Cir.1989).
Veras alleges that the lack in his representation was during a critical period and consequently led to the district court's denial of his motion to suppress. After an examination of the record, it is clear Veras was not prejudiced by the withdrawal of his first attorney or the failure of his second attorney to file an appearance. Although the period involved may be deemed a "critical" stage of the proceeding, because there were no adverse consequences resulting, there is no error. During that time period, the district court had not ruled on any of the preliminary motions, and the defendant had not waived any of his rights. Hartzler, the first attorney, had prepared a reply brief for Veras which was filed by the public defender attorney. After the retained attorney appeared, the district court granted Vasquez an opportunity to file a supplemental brief. Vasquez did not do so or complain to the court that Veras had not previously been properly represented. Viewed against this background, it cannot be said Veras was denied the right of counsel during a time period in which any of his rights were substantially affected. Failure of the public defender to file an appearance did not, as a preliminary matter, result in the defendant not being represented. Veras had three attorneys to cover the questionable time period, Hartzler, Cutrone, and Vasquez. No breach in representation is apparent in the record. In any event, no harm resulted for which the defendant can now complain. 1
Veras contends that the district court erred in not granting him a full hearing on his motion to suppress. The defendant alleges the limited hearing that was granted denied him the opportunity to have certain factual issues determined prior to trial. Specifically, he alleges that whether the gun on the floor of the car was in a paper bag or not was an issue central to his case. Veras contends that if the gun was not in plain view, the subsequent search of the car would have been illegal under the Fourth Amendment.
Because the basis of the defendant's motion to suppress has changed and been renewed several times through the course of the proceedings, a summary review of the relevant facts is necessary. The defendant's original motion to suppress was filed in July 1991. The defendant did not mention the issue of whether the gun was in plain view, but argued that the observation of the gun in the car did not provide probable cause. The government responded that the search of the automobile was permitted without a warrant, both as a search incident to arrest and because there was probable cause to search the vehicle. The district court denied the defendant's motion to suppress on the grounds that the search was incident to a lawful arrest for which there was probable cause.
The day before jury selection began, the defendant alleged that the co-defendant, Fernandez, who had pled guilty, advised the government that the gun was in a paper bag at the time of the arrest. 2 The defendant sought to renew his motion to suppress and requested a full evidentiary hearing on whether the gun was in plain view. The...
To continue reading
Request your trial
-
Minnick v. Anderson
...sought to exclude the facts discovered after the trial, citing United States v. Dimas, 3 F.3d 1015 (7th Cir. 1993) and United States v. Veras, 51 F.3d 1365 (7th Cir.1995). 698 N.E.2d at 755. But the Indiana Supreme Court determined that to allow Minnick to exclude the evidence that he was, ......
-
State v. Youngblood
...our rules of evidence dealing with the admissibility of evidence of specific acts of a witness for impeachment purposes. U.S. v. Veras, 51 F.3d 1365, 1375 (7th Cir.1995); see also Rule 608(b) of the West Virginia Rules of Sadly, the Majority attempts no such determination prior to its vacat......
-
Biles v. United States, s. 11–CM–612
...have similarly assumed without deciding that such information can be favorable for Brady purposes. See, e.g., United States v. Veras, 51 F.3d 1365, 1375 (7th Cir.1995) (finding “no fault” with the district court's conclusion that “ ‘[b]ecause the suppressed evidence would not have affected ......
-
Watkins v. Miller
...does not resolve on the paper record. The state cannot suppress information that does not exist. 13. Similarly, in United States v. Veras, 51 F.3d 1365, 1375 (7th Cir.1995), the Seventh Circuit held that information of other conduct by the investigating police officer was not material under......
-
"the Judge Said, "son, What Is Your Alibi ...?" a Survey of Alaska Criminal Discovery Principles
...(affirming refusal to disclose correctional facility policies in a jailhouse assault on officer case). [308]See United States v. Veras, 51 F.3d 1365, 1374 (7th Cir. 1995) (holding that the defendant was entitled to disclosure of information that arresting police officer was being investigat......