United States v. Rosa

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: FRIENDLY and MANSFIELD, Circuit , and ZAMPANO
• Citation: United States v. Rosa, 493 F.2d 1191 (2nd Cir. 1974)
• Decision Date: 26 March 1974
• Docket Number: Docket 73-2324.,No. 687,687
• Parties: UNITED STATES of America, Appellee, v. Ralph ROSA, Defendant-Appellant.

493 F.2d 1191 (1974)

UNITED STATES of America, Appellee, v. Ralph ROSA, Defendant-Appellant.

No. 687, Docket 73-2324.

United States Court of Appeals, Second Circuit.

Argued January 18, 1974.

Decided March 26, 1974.

Richard A. Levy, New York City, for defendant-appellant.

Eugene F. Bannigan, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., John D. Gordan III, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before FRIENDLY and MANSFIELD, Circuit Judges, and ZAMPANO, District Judge.^*

MANSFIELD, Circuit Judge:

This appeal from a judgment of conviction entered after a jury trial before Judge Charles L. Brieant, Jr. in the Southern District of New York brings to us a narcotics case with a factual outline and charges familiar to all who regularly read these pages. Appellant Ralph Rosa and co-defendant Alphonso Beauchamp were convicted on a three-count indictment charging them with conspiring to distribute cocaine (21 U. S.C. § 846), possessing one-eighth of a kilogram of cocaine with intent to distribute (21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A)), and finally assaulting a federal agent (18 U.S.C. § 111). For the most part the evidence supporting these charges reveals what has become almost a stereotyped fact pattern. On an evening in February, 1973, William Simpson, a Special Agent of the Bureau of Narcotics and Dangerous Drugs, and Nat James, a government informant, met Rosa and Beauchamp at the latter's apartment for the closing of a narcotics sale. After some pleasantries Simpson quickly turned to business, asking Rosa if he had the cocaine. Rosa reported that he had only one-eighth of a kilogram, which was half of the agreed-upon amount, but that he could obtain it in 20 minutes. Brief negotiations over price followed, during which Rosa served as interpreter for Beauchamp, who spoke only Spanish. When Simpson and Beauchamp had finally agreed upon a price, Beauchamp left to pick up the remainder of the cocaine. Rosa, apparently a congenial host, offered Simpson and James some cocaine to taste while they awaited Beauchamp's return.

Upon Beauchamp's return Simpson weighed the cocaine, found to be 4 1/2 ounces, and announced that he was going to his car for the cash needed to complete the transaction. Once outside Simpson met his fellow agents and advised them that the cocaine was inside, but cautioned that one of the men might be armed. All agents then returned to the apartment. Simpson knocked on the door. Rosa partially opened the door and, upon seeing the other men in the corridor, attempted to close it, whereupon the agents forced their way into the apartment. A melee ensued, with Rosa and the agents later offering conflicting versions of what occurred. The agents maintain that they met stiff resistance from Rosa, who grabbed Agent White's gun, and from Beauchamp. Rosa alleges that the agents pummelled him and Beauchamp without justification. Uncontested is the fact that Beauchamp, during the first moments of the raid, was in the bathroom seeking to flush away the government's evidence, i. e., the cocaine. When subdued, Rosa was taken by Agents Grant and Sennett to their car for immediate interrogation. The agents hoped to learn the source of the cocaine. Agent Grant testified that he advised Rosa of his rights and that Rosa said, "Look, you got me, my friend flushed it." Because a crowd of spectators was gathering outside the apartment, the agents continued their interrogation of Rosa as they drove around the neighborhood. After approximately an hour of mobile interrogation, the agents delivered Rosa to the headquarters of the Narcotics Bureau. There Rosa, according to the agents' testimony, admitted to Agent White that he had directed Beauchamp to flush the cocaine down the toilet. Traces of cocaine were found around the toilet and in the toilet water.

As might be expected in a case such as this, where the incriminating evidence is strong, the first line of defense is the suppression hearing. It is also the first source of alleged error. Rosa sought to suppress all his post-arrest statements on the grounds that he had not been advised of his Miranda rights and that he had been coerced into making the statements. At the suppression hearing Agents Grant and White testified that they had each warned Rosa of his rights, which Rosa acknowledged that he understood by nodding his head. Agent Grant went on to explain that they had conducted an immediate interrogation in an effort to induce Rosa to cooperate with them and reveal the location of his supplier, and that they then continued the interrogation in the cruising car because a crowd gathered when it was stopped.

Rosa took the stand to testify that the agents did not give him the Miranda warnings before interrogating him; instead they beat him in the back of the car as, he asserts, they had done earlier in the apartment. On cross-examination it was revealed that Rosa had two prior narcotics convictions as well as a conviction for attempted armed robbery.

Following Rosa's testimony at the suppression hearing the judge and counsel for Rosa engaged in a colloquy that forms the basis for Rosa's first objection. In response to an admonition by counsel that the court should not assume that the "police do exactly what they say they do," the court said:

"No, but I have to evaluate the credibility of witnesses on the entire record including their demeanor and everything else and I tell you right now that I don\'t believe your client as to most of what he has testified to."

Rosa objects that the judge thus improperly made a premature ruling without having heard all the evidence on the suppression motion. We cannot agree that this comment made by the judge in medias res amounted to a ruling, premature or not. On the contrary, Judge Brieant specifically advised that he was not making any ruling and that he was not going to dispose of the motion until he had heard and considered the remaining evidence.¹ Nor do we think that the judge's comment meant that he had as a practical matter prejudged the issues on the suppression hearing or foreclosed objective and intelligent consideration of all of the evidence. To suggest that a judge must be precluded from reaching even tentative impressions of credibility until the final moment of judgment is unrealistic. Although we expect a judge to render his decision on the basis of all the evidence, it does not usually spring full blown from Zeus' head. It is an evolving process in which he must tentatively register, albeit to himself, the impressions he forms of witnesses at the time when they furnish their testimony. The mere articulation of one of these impressions does not constitute a prejudgment or "a closed mind on the merits." See United States v. Grinnell Corp., 384 U.S. 563, 580-583, 86 S.Ct. 1698, 16 L. Ed.2d 778 (1966).

Rosa claims another instance of error in the court's refusal to order...