Appendix — Franco-Gomez v. United States

APPENDIX “A”

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

No. 81-1349

UNITED STATES OF AMERICA, Appellee, vs. JESUS

ANTONIO TRUJILLO-GARCIA, Appellant.

No. 81-1447

UNITED STATES OF AMERICA, Appellee, vs. HOR-

ACIO RAUL ESTRADA-ELIAS, Appellant.

No. 81-1685

UNITED STATES OF AMERICA, Appellee, vs.

MIGUEL FRANCO-GOMEZ, Appellant.

DC No. CR 80-726

Appeal from the United States District Court for the

Southern Disteict of Coliteenia, Best B. Giliem,

District Judge, Presiding.

Argued and submitted July 9, 1982.

BEFORE: GOODWIN, NELSON, Circuit Judges, and

SMITH,* Dictrict Judge

“Honorable Russell Evans Smith, United States District Judge for

the District of Montana, sitting by designation.

Appendix “A” 2.

{FILED AUGUST 16, 1982]

Estrada-Elias appeals his sentence after a plea of guilty

to possession of cocaine with intent to distribute. Franco-

Gomez appeals his conviction by the court of conspiracy

to distribute cocaine and three counts of possession with

intent to distribute cocaine. Trujillo-Garcia appeals his

conviction by the court of conspiracy to distribute cocaine

and possession with intent to distribute cocaine and heroin.

We affirm the convictions of Estrada-Elias and Franco-

Gomez. We reverse the confiction of Trujillo-Garcia be-

cause the evidence against him was obtained in a search and

seizure which violated his Fourth Amendment rights.

FACTS

A DEA confidential informant contacted Estrada-Elias

to buy cocaine. Estrada-Elias was himself a former DEA

informant. On October 3, 1980, in the presence of the

informant, Estrada-Elias received a delivery of approxi-

mately one pound of cocaine from Franco-Gomez at

Estrada-Elias’ place of business. (Franco-Gomez was

followed and subsequently arrested on the freeway; his

car contained approximately | and % kilos of cocaine.)

Followed by DEA agents, Estrada-Elias took the pound

of cocaine in a brown paper bag to an apartment rented by

Trujillo-Garcia and Aguirre, another codefendant who was

acquitted. Estrada-Elias remained inside the apartment for

a few minutes, was seen holding a smaller package and

talking briefly with Trujillo-Garcia in the doorway, and

then proceeded to a rendezvous with the informant a few

blocks away, where he was arrested by Agent Gorman

Appendix “A”’ 3.

after he had sold an ounce of cocaine.

At approximately the same time, federal agents entered

the Trujillo-Garcia/Aguirre apartment without a warrant and

made a sweep through its rooms. They observed a quantity

of cocaine in a bow! in Aguirre’s bedroom. With this and

other information, the agents obtained a search warrant several

hours later which resulted in the seizure of approximately

kilo of cocaine, 4 ounces of heroin, and “drug paraphernalia”

(scales, blender, etc.). The only evidence found in Trujillo-

Garcia's bedroom was a residue of cocaine in the closet.

After Estrada-Elias was arrested, he told Agent Gorman

that he had delivered a pound of cocaine to Trujillo-Garcia

and that customers were coming to look at it. The parties

dispute whether these statements were known tb the agents

who made the warrantless entry of Trujillo-Garcia’s apartment.

Franco-Gomez stated that he and Estrada-Elias were

partners, and that at the time of his arrest he was on his way

to a meeting with Estrada-Elias to deliver the rest of the

cocaine.

ESTRADA-ELIAS’ ISSUES

A: ter several days of a court trial, Estrada-Elias pled

_ guilty to possession with intent to distribute. He had been

previously convicted of a federal narcotics offense. After

a sentencing hearing lasting several days, he was sentenced

to ten years with a special parole term of six years. (This

sentence is well within the maximum sentence under the

\ . Statute.)

He now asserts that the trial court erred in considering

hearsay supplied by a police officer concerning drug deal-

ings in San Jose that were unconnected with the transactions

Appendix “A” 4.

in issue in this case. Inasmuch as the sentencing judge

announced that he was paying no attention to this informa-

_ tion, thére is no ground for objection to the information

coming to the court’s attention.

Estrada-Elias makes another argument that he was

denied the effective assistance of counsel because his

attorney failed to present a defense of entrapment. Es-

trada-Elias contends that he became involved in the crim-

inal activities to which he ultimately pled guilty only

because he was trying to protect himself and his family

from the consequences of his former activities as a DEA

informant.

There was no evidence of entrapment sufficient to

require reasonably competent counsel to assert it as a

defense. Any such argument was appropriate only as a

plea for leniency in sentencing, and it was presented as

such. Estrada-Elias has failed to make a showing that he

did not receive reasonably competent and effective repre-

sentation. Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.

1978). ert. denied, 440 U.S. 974 (1979).

FRANCO-GOME7’S ISSUE

Franco-Gomez argues that he moved for severance

before trial, but his motion was not ruled on until after

trial. He contends that his right to cross-examination

was infringed by the introduction of statements by co-

defendant Estrada-Elias which incriminated him.

_ The government points out that the hearing in this

case was a combined motion hearing and court trial, and

that the court specifically refused to admit any hearsay

statements by Estrada-Elias against the other defendants.

Appendix. “A” 5.

The court stated upon finding Franco-Gomez guilty, “I

guess I haye granted a severance.” There was neither error

nor prejudice in this regard.

Franco-Gomez also argues that there was no evidence

that he knew Trujillo-Garcia or had been to his apartment,

and that he could not be convicted of aiding and abetting

Trujillo-Garcia’s possession with intent to distribute. He

contends that there was no showing that the cocaine found

in the dish in the-apartment had any connection with him,

and that he had already been convicted of conspiracy with

regard to that substance. ’

In reviewing the sufficiency of the evidence, this court

must view the evidence in the light most favorable to the _

government and draw all reasonable inferences supporting

the conviction; the verdict must be sustained if there is

substantial evidence to support it. Glasser v. United States,

315 U.S. 60,.80 (1942), In this case, the stipulation signed

by Franco-Gomez,and the observations of the agents clearly

link him to the cocaine found in the bedroom of the Tru-

jillo-Garcia apartment. It is not necessary that an aider-

abetter know all the. details of the crime or all the persons

perpetrating the crime. United States v. Barnett, 667 F.2d

835, 841 (9th Cir. 1982). There was sufficient evidence to .

_ support the verdict.

PrenepGomen else angen tit he wan dagied the

_ effective assistance of counsel because a codefendant,

Estrada-Elias, was a government informant during trial

at the same time that he was 8 part of the defense team.

However, he fails to support this conclusory allegation with

any proof that Estrada-Elias was acting as an informant at

the time of the sale of cocaine of at the time of trial, and

the record indicates otherwise. Moreover, the issue was not

Appendix “A” 6.

raised at trial, in spite of counsel's knowledge of Estrada-

Elias’ previous status as a DEA informant.

We affirm Franco-Gomez’s conviction. !

TRUJILLO-GARCIA'S ISSUES

Agents entered and “secured” Trujillo-Garcia's

apartment without a warrant at 3:10 p.m. A search

warrant was obtained more than four hours later. —

We note that the Supreme Court has recently re-'

emphasized the transcendent privacy interest in private

residences. Payton v. New York, 445 U.S. 573 (1980).

We start with the premise that “searches conducted

outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the

Fourth Amendment subject only to a few specifically

established and well-delineated exceptions.” Karz v.

United States, 389 U.S. 347 (1967). The government

here relies on the “exigent circumstances” exception.

See McDonald v. United S .tes, 335 U.S. 451 (1948).

When police officers, acting on probabie cause and in

good faith, reasonably believe from the totality of the

circumstances that (a) ~vidence or contraband will be

destroyed or (b) the nucure of the crime or character of

the suspect(s) pose a risk of danger to the arresting

officer(s) or third persons, we have held that exigent cir-

' Feanco-Gomez also attempts to challenge the search of Trujillo-

Garcia's apartment. He concedes that on the facts of this case

he lacks a legitimate expectation of privacy in Trujillo-Garcia's

apartment under federal law. Because we are bound by the decisions

of the Supreme Court, we do not address his arguments as to the

correctness of those decisions.

Appendix “A” 7.

cumstances justify a warrantless entry, search or seizure of

the premises. United States v. Kunkler, No. 80-1710 (9th

Cir. June 8, 1982); United States v..Gardner, 627 F.2d 906,

910-12 (9th Cir. 1980); United States v. Fulton, 549 F.24

1325, 1327 (9th Cir. 1977); United States v. McLaughlin,

$25 F.2d $17, 520-21 (9th Cir. 1975), cert. denied, 427

U.S. 904 (1976); United States v. Currza, 498 F.2d 30,

35-36¢9th'Cir. 1974),

, The burden is on the government to show the existence

of exigent circumstances by a preponderance of the evidence.

Vale v. Louisiana, 399 U.S. 30, 34 (1970), and United States

v. Matlock, 415 U.S. 164, 177-78, n. 14 (1074). Because the

: © government failed to meet its burden in this case, we reverse.”

A warrantless entry cannot be justified solely because

the agents knew or suspected that there was contraband on

the-premises. United States v. Allard, 600 F.2d 1301, 1303-4

. (9th Cir. 1979). The agents who effected the warrantless

“entry testified that they did so to continue the investigation,

“to ensure the safety of themselves and bystanders, and to

preserve evidence. The government argues that Trujillo-

Garcia might somehow have learned of the arrests of Franco-

Gomez and Estrada-Elias and proceeded to destroy the

cocaine. However, the government fails to provide any

evidence to support this speculation. See United States v.

Allard, 600 F.2d at.1304, (officers had no facts upon which

to base a reasonable belief that the occupant.knew of his

accomplice’s arrest or-had been instructed to destroy the

2in reviewing the trial court's ruling on the motion to suppress, we

defer to the trial court's findings of historical fact, but we must

make an independent determination whether constitutional require-

ments have been met. Ker v, California, 374 U.S. 23, 34 (1963).

Appendix “A” 8.

contraband).

The government also argues that Estrada-Elias’ state-

ments after arrest provided a reasonable basis for concern

that customers might arrive or that Estrada-Elias’ failure to

reappear might alert Trujillo-Garcia and cause him to destroy

the cocaine. However, the government failed to show that

Estrada-Elias’ statements were made before the warrantless

entry or that they were known to the agents who made the |

entry (or to their superior who ordered it). The government

contends that knowledge of Estrada-Elias’ statements should

be imputed to the agents who entered Trujillo-Garcia’s

apartment because they were working as a team with the

agents who arrested Estrada-Elias. The district court apparent-

ly agreed with this interpretation of United States v. Bernard,

623 F.2d 551 (9th Cir. 1979), which held that for purposes

of determining probable cause to arrest, the arresting agent

could rely on the opinions of other agents in addition to his

personal knowledge. In Bernard, however, the other agent's

opinion was actually communicated to the agent who auth-

orized the arrest. In the case at bar, the government failed

to show such a communication between the agent who

arrested Estrada-Elias and the agents who entered Trujillo-

Garcia’s apartment without a warrant.

There was no evidence that Trujillo-Garcia was armed

or dangerous. No one had entered or left the apartment

before the agents entered. Cf. United States v. Curran,

498 F.2d 30, and United States v. McLaughlin, $25 F.2d

517. There was no immediate threat that Franco-Gomez

or Estrada-Elias would be able to telephone Trujillo-Garcia.

Cf United States v. Flickinger, $73 F.2d 1349 (9th Cir.),

cert. denied, 439 U.S. 836 (1978).

The circurnstances were not sufficiently exigent to

Appendix “A” 9.

justify a warrantless entry in this case. The evidence should

have been suppressed.? Because we cannot say that the ad-

mission of the evidence was harmles- deyond a reasonable

doubt, Chapman v. California, 386 U.S. 18 (1967), we reverse

the conviction of Trujillo-Garcia.4

The judgments against Estrada-Elias and Franco-Gomez

are affirmed. The judgment against Trujillo-Garcia is reversed.

3The subsequent issuance of a search warrant does not purge the

taint under United States v. Allard, 634 F.2d 1182, 1187

(9th Cir. 1980).

“Because we reverse on this ground, we do not reach the question of

the sufficiency of the evidence to sustain Tru;ille-Gescia's conviction.

County of Riverside

I, the undersigned, say: | »m and was at all times herein mentioned, a citizen

of the State of California, County of Riverside, empipyed in the County of

Riverside, over the_age of eighteen years and not a garty to the within action

or proceeding; that

My business address is 1340 West Sixth Street, Corona, California 91720, that

on OCTOBER 13, 1982, I served the within PETITION FOR WRIT OF CER-

TIORARA (Miguel Frenco-Gomez v. United States of America) on the following

named parties by depositing three copies thereof, enclosed in a sealed envelope

with postage thereon fully prepaid, in the United St: ies Post Office in the City

of Corona, California, addressed to mid parties at the addresses as follows:

SOLICITOR GENERAL OF THE UNITED STATES

U. S. Department of Justice

Washington, D. C. 20530

UNITED STATES ATTORNEY

FOR THE SOUTHER DISTRICT OF CALIFORNIA

940 Front Street

San Diego, California 92189

And, further, that I served the UNITED STATES COURT OF APPEALS for

the NINTH CIRCUIT a copy thereof at:

POST OFFICE BOX 547

SAN FRANCISCO, CALIFORNIA 94101

I declare under penalty of perjury that the foregoing is true and correct.

Executed on OCTOBER 13, 1982, at CORONA, CALIFORNIA.

D. A Standefer

41 COPIES FORWARDED TO THE U. S. SUPREME COURT, U. $.

SUPREME COURT BLDG., WASHINGTON, D.C. 20843

VIA EXPRESS MAIL

Dean-Standefer, 1340 W. a Sones 91720

(714) 734-0811