U.S. v. Villegas

• Decision Date: 12 March 1991
• Docket Number: Nos. 23,24,D,s. 23
• Citation: 928 F.2d 512
• Parties: UNITED STATES of America, Appellee, v. Carlos VILLEGAS and Fernando Gonzalez, Defendants-Appellants. ockets 90-1130, 90-1131.
• Court: U.S. Court of Appeals — Second Circuit

Page 512

928 F.2d 512

UNITED STATES of America, Appellee, v. Carlos VILLEGAS and Fernando Gonzalez, Defendants-Appellants.

Nos. 23, 24, Dockets 90-1130, 90-1131.

United States Court of Appeals Second Circuit.

Argued Oct. 3, 1990.

Decided March 12, 1991.

Paul P. Rinaldo, Forest Hills, N.Y., for defendant-appellant Gonzalez.

William Mogulescu, New York City (Levinson, Mogulescu & Kaplan, New York City, of counsel), for defendant-appellant Villegas.

Eric Friedberg, Asst. U.S. Atty. E.D. New York (Andrew J. Maloney, U.S. Atty. E.D. of New York, Emily Berger, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge. ^*

MINER, Circuit Judge.

Defendants-Appellants Carlos Villegas and Fernando Gonzalez appeal from judgments of conviction entered against them on February 2, 1990, upon conditional pleas of guilty, in the United States District Court for the Eastern District of New York (Weinstein, J.). Both defendants were convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a). Judge Weinstein sentenced Villegas to a term of imprisonment of 63 months to be followed by a five-year term of supervised release, a $30,000 fine and a special assessment of $50. He sentenced Gonzalez to a term of imprisonment of 60 months to be followed by a five-year term of supervised release, a $30,000 fine and a special assessment of $50. By their conditional pleas, Villegas and Gonzalez reserved for review the rulings by the district court denying, after hearing, their motions to suppress. The motions challenged an investigative stop, a search and seizure and statements made to government agents.

Villegas and Gonzalez both claim that the district court erred in finding that the investigative stop by agents of the Drug Enforcement Administration was supported by reasonable suspicion. Villegas further contends that the district court erred in finding that he consented to a search of his shoulder bag and the two shoe boxes (one containing a pound of marijuana and one containing a kilogram of cocaine) found inside the bag. He asserts also that his statement to the agents should be suppressed as "fruit of the poisonous tree." Gonzalez contends that the district court erred in finding that he knowingly and intelligently waived his Miranda rights, which purportedly were read to him by his co-defendant, Villegas.

For the reasons that follow, we reject all the claims of error put forward by Villegas and Gonzalez and affirm the judgments of conviction.

BACKGROUND

Commencing in late December, 1988, Special Agents Barton and Conneely of the Drug Enforcement Administration ("DEA"), along with other DEA agents, maintained a surveillance of a suspected stash pad at 209-52 45th Drive in the Borough of Queens, New York City. A blanket covered the front window of the premises, little or no mail was delivered there, and electricity in the house apparently was acquired illegally. In early January, 1989, numerous persons were observed entering and leaving the premises at all hours, carrying large packages. During the same period, a convicted cocaine dealer was observed at the premises, and a search of trash discarded from the house revealed marijuana as well as what appeared to be money records and money wrappers.

On January 6, 1989, four days before a warrant to search the suspected stash pad was issued, defendant-appellant Gonzalez drove up to the premises in a mini-van owned by one Adriana Munoz. DEA computer files, checked soon after the van was spotted, revealed that Munoz was listed as a member of a cocaine distribution network based in Miami, Florida. Gonzalez appeared at the 45th Drive location only on one occasion after his January 6 visit there. On January 6, Gonzalez entered the house and remained there for about fifteen minutes. He next drove to 49-89 175th Place in Queens and entered the house at that location.

The DEA then took up surveillance of the 175th Place premises. That surveillance led Agent Conneely to follow Gonzalez on January 12, 1989 when Gonzalez, accompanied by an unknown woman, drove the van from 175th Place to Washington Heights in Manhattan. A large brown shopping bag was observed in the car. Along the way, Gonzalez stopped to make a telephone call at a gas station on Grand Central Parkway. Agent Conneely stopped his vehicle on the shoulder of the exit ramp leading from the gas station. Gonzalez slowly drove past Conneely's car and then sped up the Parkway and the Harlem River Drive at very high speeds. When Gonzalez arrived at 190th Street and St. Nicholas Avenue, he drove toward a parking spot, where he leaned out of the van window and talked to a man on the corner for about thirty seconds. He then drove slowly around the block a second time, ultimately arriving at the same parking spot he had approached previously. Gonzalez and the woman brought the package into one of the buildings, but nothing further was observed on that occasion.

Continuing their surveillance of the 175th Place house, the DEA agents, on January 18, 1989 at about 3:00 P.M., observed Gonzalez, Villegas, a woman and two children depart from that location in the van. After dropping off the children and stopping at a drugstore, the remaining occupants of the van proceeded to 160th Street and Metcalf Avenue. After circling around the block and doubling back, the van came to a stop. Gonzalez and the woman left the van and entered a house, where they remained for about ten minutes before re-entering the vehicle. As observed by the agent following it, the van then proceeded to 158th Street and Northern Boulevard, where it circled around the block and doubled back, in a maneuver similar to the previous one, before stopping.

Gonzalez and Villegas then met with two men on the street. One of the men, who was wearing a long black jacket with white lettering on the back, spoke on the telephone located on the corner while Gonzalez and the other man waited. Meanwhile, Villegas walked half-way down the block to another telephone, holding a beeper in his hand. He there was observed making a series of what appeared to be beeper calls before walking back up the block for a brief meeting with Gonzalez and the two men. Villegas and Gonzalez then departed in the van, and the other two men left in a gray Caprice automobile. Agent Barton, who was maintaining surveillance from across the street, made a U-turn in his automobile in an attempt to follow the van. His turn apparently came too late, and he lost sight of the vehicle. Upon his return to the 175th Place house, Agent Barton Later that evening, the unidentified man in the long black coat who had been involved in the meeting earlier that day arrived at the 175th Place house in the gray Caprice. He entered the house and departed in very short order. About a half-hour later, a livery cab arrived at 175th Place and picked up Villegas and Gonzalez. Villegas was carrying a shoulder bag. They left the cab at the subway station at Main Street and Kissena Boulevard in Queens and proceeded into the station. Agent Barton, accompanied by Agents Haff and Falvey, followed. According to Barton's testimony at the suppression hearing, Gonzalez was observed speaking on the telephone in the station, holding a beeper in his hand. Villegas then took the telephone from Gonzalez, spoke into it for a while and then handed it back to Gonzalez, who finished the call. Villegas then made another call after looking at his beeper.

observed Gonzalez and Villegas walking from the parked van to the back door of the residence.

Agents Barton and Falvey then approached. Agent Barton testified that he intended ultimately to search the bag carried by Villegas, either by consent or by obtaining a search warrant. Barton identified himself as an officer and asked Villegas what was in the bag. According to Barton, Villegas handed him the bag and told him to look for himself. Barton unzipped the bag, saw two small shoe boxes inside and took out one of the boxes. He asked Villegas what was in the box, and the response was "personal things like deodorant and soap." Barton twice asked, and twice was granted, permission to open the box. He opened it and recovered a pound of marijuana, whereupon he handcuffed Villegas and then opened the second box, which contained a kilogram of cocaine. Gonzalez also was arrested when the drugs were found.

Outside the subway station, Agent Haff advised Villegas, in English, of his Miranda rights. Villegas, who is fluent in Spanish and English, said that he wanted to cooperate and to continue a cooperation agreement previously entered into with the office of the United States Attorney for the Southern District of New York. Both Villegas and Gonzalez were transported back to the 175th Place house, which, the agents learned, belonged to Gonzalez. At the house, Agent Haff read Villegas his Miranda rights a second time, in English. Haff attempted to read Gonzalez his Miranda rights from a Spanish language card, but Gonzalez appeared not to understand. Villegas then was asked to read the warnings to Gonzalez and agreed to do so. Agent Barton, who had some academic and practical training in Spanish, followed along as Villegas read to Gonzalez. Gonzalez answered "yes" to the questions on the card inquiring whether he understood and whether he wished to answer questions. He then was given the card to read, reviewed it briefly and nodded in the affirmative.

Gonzalez and Villegas then gave detailed responses to the agents' questions, with Villegas translating for Gonzalez. They said they were bringing the cocaine and marijuana to a customer of Villegas in Manhattan, and Gonzalez indicated that he had obtained the drugs from "Edison," the man in the long black coat observed during the surveillance. In an apparent effort to pursue the investigation, the agents asked Gonzalez to call Edison to come to his...