United States v. Lozaw

• Decision Date: 11 June 1970
• Docket Number: Docket 33991.,No. 653,653
• Citation: 427 F.2d 911
• Parties: UNITED STATES of America, Appellee, v. Joel LOZAW, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

427 F.2d 911 (1970)

UNITED STATES of America, Appellee, v. Joel LOZAW, Appellant.

No. 653, Docket 33991.

United States Court of Appeals, Second Circuit.

Argued March 27, 1970.

Decided June 11, 1970.

Joel R. Brandes, Harold M. Weiner, Shapiro, Reibert & Brandes, New York City, for appellant.

Arthur J. Viviani, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern Dist. of New York, David A. Luttinger, Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, HAYS, Circuit Judge, and BLUMENFELD, District Judge.^*

BLUMENFELD, District Judge:

This is an appeal from a judgment of conviction by verdict of the jury upon a two-count indictment which charged the defendant and five others with violations of the federal narcotics law, 21 U. S.C. § 176a. One count charges the substantive offense of knowingly concealing marihuana; the other, conspiring to do the same. Four of appellant's co-defendants pleaded guilty to the conspiracy count¹ before trial. Only the appellant was tried to the jury. He was sentenced to the mandatory minimum term of five years imprisonment on each count, the sentences to run concurrently.

There are several grounds of appeal. First, appellant contends that the evidence seized at his apartment should be suppressed because (1) the search of his apartment was not incident to a lawful arrest and (2) even if the arrest was lawful, the search went beyond its permissible scope. Appellant's second assignment of error is that the evidence was insufficient to support the jury's verdict on the conspiracy count. Thirdly, Lozaw contends on several grounds that the charge was improper. Finally, he claims that the imposition of a sentence with no possibility of parole constituted cruel and unusual punishment in violation of the eighth amendment. We find no error, and affirm the judgment.

I. The Facts

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), as we are required to do, United States v. Andreadis, 366 F.2d 423, 428 (2d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967), the jury could have found the following facts. During the afternoon of July 24, 1968, a person not named introduced John B. Lepore, an agent of the federal Bureau of Narcotics, to defendant Octavio Mestre (also known as Toto) at the latter's apartment at 123 East 38th Street, New York City. Mestre gave the agent a phone number and spoke with him about the purchase of marihuana. On or about July 29, Lepore, acting as an undercover agent, called the number, but finding it was disconnected, went to Mestre's apartment accompanied by another agent, Frank Ioppolo. The agents met Mestre and set up an appointment for August 5th to buy marihuana. On that date they returned to the apartment, and met one Juan Bernal, who explained that Mestre was not there, but would be back soon. He gave the agents the unlisted telephone number of the apartment, and requested them to call later that evening.

Agent Lepore telephoned Mestre's apartment at about 10:00 p. m. Carlos Garcia, a youth subsequently identified as the third defendant, answered, saying that Mestre had arrived at the airport with the "stuff" and that Lepore should telephone again in a half hour. When Lepore telephoned again at about 10:30 p. m. Mestre himself answered. The two then arranged to meet later at Mestre's apartment between 2:00 and 6:00 a. m. of August 6, 1968. Mestre cautioned Agent Lepore not to arrive later than 6:00 a. m. since no marihuana would be left.

At approximately 2:00 a. m., Agents Lepore and Ioppolo arrived at Mestre's apartment and were admitted by the fourth defendant, Jose Miguel Ruiz. Mestre, accompanied by Bernal, arrived about a half hour later and said they had the marihuana. A price of $4800 was set for 28 kilograms. After Bernal made a phone call "to the village," he asked Agent Lepore to show him the money. Satisfied, Bernal, Mestre and the two agents drove to Greenwich Village, taking with them an empty suitcase furnished by Mestre for use in transporting the marihuana. They were followed by other agents of the federal Bureau of Narcotics, who were conducting surveillance.

They parked in front of an apartment house at 72 Barrow Street. Mestre, followed by surveilling Agent Dennis Raugh, carried the empty suitcase into the building and took the elevator to the fourth floor. Agent Raugh walked up the stairs to the fourth floor, and waited in the staircase. A few minutes later, Bernal also entered the building, and Agent Raugh saw him enter apartment 4Q. Shortly thereafter, Bernal and Mestre together emerged from apartment 4Q carrying the suitcase, which now appeared to be heavy. One of them (Agent Raugh could not tell which) said to someone remaining in the apartment, "We'll be back later for the rest of the stuff."

Bernal and Mestre returned to the automobile where Agents Lepore and Ioppolo were waiting. Lepore opened the suitcase to examine the contents. Bernal said, "Not here, not here * * *. We still have over a hundred pounds of grass up in that apartment and I don't want the area to be heated up." Recognizing the contents as marihuana (28 kilograms of it, according to subsequent analysis), Lepore placed Bernal and Mestre under arrest.

Agent Raugh returned to the car and told Agents Lepore and Ioppolo of his observations. The three agents, accompanied by other agents who had been participating in the surveillance, thereupon went with Bernal and Mestre to apartment 4Q and knocked. A voice from within asked, "Who's there?" and Mestre in compliance with instructions from the agents replied, "It's Toto." Lozaw opened the door. The agents identified themselves and placed him under arrest. A search of the apartment disclosed approximately 36 additional kilograms of marihuana. Some of it was in brick form wrapped in Spanish-language newspapers published in Colombia, South America, inside an open suitcase resting on top of the commode in the bathroom; some of it was loose in the bathtub; and the rest was contained in 30 to 35 paper bags full on the floor of the living room. Also in the apartment were two youths, the defendants Carlos Garcia and Jose Antonio Ruiz, whom the agents arrested. Lozaw was the lessee of apartment 4Q and had lived there 4½ years.

II. Legality of the Arrest

The defendant contends that his arrest without a warrant was illegal for lack of probable cause, and consequently that the search and seizure which ensued were unlawful, requiring suppression of the evidence thus obtained. The first question is whether or not the agents had reasonable grounds² to believe that Lozaw had violated or was violating the federal narcotics law. In Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 n. 3 (1959), the Supreme Court said: "`Probable cause' as used in the Fourth Amendment and `reasonable grounds' as used in 26 U.S.C. § 7607 are substantial equivalents of the same meaning." When the arrest was made, the agents were not acting on the basis of bare suspicion. From what they had observed and overheard they knew at first hand that a narcotics felony had been committed in the apartment a few moments before. See United States ex rel. McCullers v. McMann, 370 F.2d 757 (2d Cir. 1967); cf. Draper v. United States, supra, 358 U.S. at 313-14, 79 S.Ct. 329, 3 L.Ed.2d 327. There were reasonable grounds for the agents to think that more marihuana was being concealed in the apartment, that its transportation was being facilitated there, and that by 6:00 a. m. "no marihuana would be left." Even without Bernal's spontaneous protest when the suitcase was opened³ this is a much stronger case of reasonable grounds to arrest than in United States v. Thompson, 356 F.2d 216 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966) or United States v. Monticallos, 349 F.2d 80 (2d Cir. 1965). See United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965).

Lozaw's contention that the entry, although peaceable, was unlawful because the agents used Mestre to induce the appellant to open the door, is not sustainable in view of United States v. Williams, 219 F.Supp. 666 (S.D.N.Y. 1963), aff'd per curiam, 336 F.2d 183 (2d Cir.), cert. denied, 379 U.S. 857, 85 S.Ct. 112, 13 L.Ed.2d 60 (1964). See also, United States v. St. Clair, 240 F. Supp. 338, 340-41 (S.D.N.Y.1965). Nor does the fact that the agents did not know Lozaw's identity before the arrest invalidate it. United States v. Llanes, 398 F.2d 880, 883 (2d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969).

III. Legality of the Search

As the arrest was lawful, so was the search incident to it. Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The scope of the search was within permissible limits. This was not a case of a probing, exhaustive search of the rooms, although Lozaw was the lessee and controlled possession of the entire apartment. All of the marihuana seized was in plain sight as the agents arrested the other occupants who were possible confederates. This search took place prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which does not apply retrospectively. United States v. Mazzochi, 424 F.2d 49 (2d Cir. 1970); United States v. Bennett, 415 F. 2d 1113 (2d Cir. 1969). We are satisfied that there was no error in Judge Bonsal's denial of the pre-trial motion to suppress or in Judge Cooper's admission of the evidence gained through the search and seizure.

IV. Sufficiency of the Evidence

Considering the short history of the direct and rapid progress of a sizeable transaction for the purchase of a bulk quantity of marihuana which had been picked up at Lozaw's apartment by "Toto" and Bernal, Lozaw's presence in his own apartment only a few minutes later when he opened the door in response to Mestre's...