U.S. v. Villabona-Garnica, VILLABONA-GARNIC

• Decision Date: 12 September 1995
• Docket Number: No. 93-4494,J,VILLABONA-GARNIC,93-4494
• Citation: 63 F.3d 1051
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Germanorge Enrique Munoz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1051

63 F.3d 1051

UNITED STATES of America, Plaintiff-Appellee, v. German VILLABONA-GARNICA, Jorge Enrique Munoz, Defendants-Appellants.

No. 93-4494.

United States Court of Appeals Eleventh Circuit.

Sept. 12, 1995.

Rehearing Denied Nov. 20, 1995.

Amanda Maxwell, Coconut Grove, FL and John Bergendahl, Miami, FL, for appellants.

Allyson Fritz, Asst. U.S. Atty., Jeanne M. Mullenhoff, Linda Collins Hertz, and Nina Mandel, Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and EDMONDSON, Circuit Judges, and EISELE ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Jorge Enrique Munoz and German Villabona-Garnica ("Villabona") appeal their convictions for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. We conclude that the district court rulings challenged by appellants were either correct or, at most, constitute harmless error; accordingly, we AFFIRM. ¹

I.

A.

In late May 1991, a customs agent conducting a routine inspection of a bonded Miami warehouse (containing items not yet admitted into the United States) noticed two electrical transformers awaiting customs clearance. The agent removed the top from one of the transformers and discovered that there was an eight- to twelve-inch shallow space inside. This was unusual, as the transformer normally would be filled with electrical coil. After lifting the transformer with a fork lift, the agent unscrewed the cover of the drain valve on the side of the transformer and removed the drain plug. Contrary to his expectations, however, no oil came out. His suspicions aroused, the agent then inserted a long, thin metal probe through the drain valve; upon removal, the probe tip was covered with cocaine powder. A similar examination of the second transformer also uncovered cocaine secreted inside.

A U.S. Customs/DEA task force then arranged for a controlled delivery of the transformers, returning them to the bonded warehouse to await the claimant. The transformers eventually were picked up by a legitimate delivery company and passed through two intermediate warehouses. While the operation was in progress, the task force agents were informed that the FBI had been independently investigating the transformer drug importation scheme with the aid of Juan Garcia, a confidential informant ("CI"). ² Garcia told the FBI that the transformers would be picked up at the second warehouse by appellants Munoz and Villabona and two other individuals, Fernando Sanchez-Borrero ("Sanchez") and Victor Julio Diaz. ³ At the predicted time, a truck matching Garcia's description arrived at the warehouse. Munoz was driving the truck; Villabona and Sanchez were passengers. Diaz followed in a car.

After the transformers were loaded into the truck, Munoz drove to the residential complex where he and Villabona lived and parked next to their apartment. The surveillance team followed. The four men then milled around the truck's open hood (although they did not appear to be doing any actual repairs), periodically entering and exiting the cargo compartment through the door in the rear of the cabin. After approximately one hour, Villabona emerged from the back of the truck and started handing out closed paint buckets to the others. The four suspects then carried the buckets from the truck into Munoz's and Villabona's apartment.

An unidentified Latino teenager also was seen briefly speaking to the four men. Whether this individual engaged in any other conduct that could have led the surveillance officers reasonably to believe that he was a fifth coconspirator is disputed by the parties. See Part I.B., infra.

In any event, after the four suspects left the apartment, they were allowed to drive about one-quarter to one-half mile away from the building before being arrested. Inspection of the cargo area of the truck revealed that both transformers had been opened and the nearly 110 pounds of cocaine had been removed. The agents then went to the apartment and knocked on the door. Nobody answered, and the agents broke in. Inside the empty apartment the agents found seven plastic paint buckets containing wrapped packages of cocaine.

B.

On August 2, 1991, Munoz and Villabona filed a motion to suppress the fruits of the warrantless search of their apartment. In its August 28 response to that motion, the government conceded that that search constituted a Fourth Amendment violation. Consequently, the sole issue at the first suppression hearing, in January 1992, was Villabona's standing to challenge the search. See generally Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). After the magistrate judge concluded that Villabona had standing, the government lodged no objections with the district court, and the district judge granted the motion to suppress.

In September 1992, however, in response to Munoz's and Villabona's motion to suppress the fruits of the transformer search, the government moved for reconsideration of the previous order suppressing evidence from the apartment. The sole ground advanced by the government in support of this request was that "in the preparation for trial of Sanchez and Diaz in March of 1992, including the detailed debriefing of all of the surveillance agents, it became clear that the activities and location of the fifth male, who was never identified by name, contributed to the exigent circumstances supporting the search of the apartment."

It is undisputed, however, that in a written report submitted on the day of the arrest, June 22, 1991, Special Agent Robinson, one of the surveillance officers, noted that she saw five males around the truck as it was being unloaded, and that all "[f]ive males unloaded 7 plastic paint containers and other items ... from [the] truck" and walked "in and out" of the vicinity of Munoz's and Villabona's apartment. Two weeks later, another surveillance officer, Senior Special Agent Leon, similarly testified before the grand jury that there was a fifth male on the scene who was "going from the truck to the house and back and forth." The government's reconsideration request, however, neither addressed the reasons for its failure to follow up on this information until March 1992, nor explained why it subsequently waited until September 1992 to file the reconsideration motion.

The magistrate judge found that although the government's initial failure to present the fifth male/exigent circumstances argument was the result of simple negligence rather than strategic delay, reconsideration nevertheless was unwarranted. On the first day of trial, however, the district court declined to follow the magistrate judge's recommendation, granted the reconsideration motion, and conducted a second suppression hearing.

At the second hearing, two surveillance agents testified about the actions of the fifth man. FBI agent Vazquez initially asserted that the fifth man helped the other four carry the cocaine-filled buckets into the apartment, and that that man did not exit the apartment with the others. On cross-examination, however, the agent conceded that, early in the surveillance, the fifth man had walked toward Vazquez's vehicle, and, fearing that the man was engaging in counter-surveillance, Vazquez moved to another location, losing sight of the fifth man. Because this retreat took place well before the time that Villabona opened the back of the truck to unload the buckets, Vazquez admitted that he could not have personally observed the fifth man carry anything into the apartment. Vazquez further noted that after the arrest but before entry into the apartment, the agents attempted to locate the fifth male in the swimming pool area of the complex, but were unable to do so. ⁴

Agent Leon also testified that the fifth male carried buckets into the apartment; on cross-examination, however, this agent also admitted that he was not testifying from personal knowledge but was merely relaying other agents' purported observations, overheard on police radio during the surveillance.

In light of this testimony, the district court concluded that because the agents were unable to locate the fifth man and the other four had left the apartment without the cocaine, the officers reasonably could have believed that the fifth man was inside the apartment and that the cocaine was in immediate danger of being destroyed. The court therefore found that there were adequate exigent circumstances to justify warrantless entry into the apartment and denied the motion to suppress.

II.

Appellants mount a two-pronged challenge to the district court's order suppressing the evidence from the apartment. First, they contend that the district court erred in reconsidering, on the first day of trial, a suppression order issued one year earlier. Second, they contend that, in any event, there were no exigent circumstances justifying the warrantless search, and the trial court therefore erred on the merits of the suppression motion.

A.

This Circuit has held that when the government moves to reconsider a suppression motion previously granted, it must provide a justification for that motion. United States v. Thompson, 710 F.2d 1500, 1504 (11th Cir.1983) ("[B]y failing to raise [an] issue at [a] suppression hearing without offering any justification therefor, the government waive[s] its right to assert it in subsequent proceedings."), cert. denied, 464 U.S. 1050, 104 S.Ct. 730, 79 L.Ed.2d 190 (1984). However, in this case it is unnecessary to consider the government's justification because we find that even if there were error in admitting the evidence from the apartment, such error would be harmless, as the other evidence against the appellants was already overwhelming. See United States v. Clemons, 32 F.3d 1504, 1512 (11th Cir.1994) ("Even where an abuse of...