The opinion of the court was delivered by: DIAMOND
Defendant Rose Sampson has moved this court to confer judicial immunity on her husband and co-defendant, Harvey Keith Sampson. In connection with this motion, Rose Sampson has also filed a motion to sever. For the reasons that follow, we hold that this case is one where judicial immunity is particularly inappropriate, and we deny defendant's motions.
Rose and Harvey Sampson, along with three other co-defendants, are charged, inter alia, with conspiracy to distribute, possession with intent to distribute, and distribution of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. These charges arise out of an aborted cocaine transaction on January 31, 1987, prearranged by undercover Drug Enforcement Agents and concluded with the defendants' arrest. The court has conducted three hearings in this case: a hearing on the government's appeal from the magistrate's bail order, a bail revocation hearing for defendant Rose Sampson, and a suppression hearing. Drawing from these hearings, we will recount the evidence relevant to Rose Sampson's motion.
Eventually, Thomas disclosed that Fehir's source was driving to Pittsburgh from the South with the cocaine. On January 29, 1987, Thomas told the confidential informant that the source arrived with the cocaine only that night because the source experienced mechanical difficulties with the Volvo that he was driving and encountered delay in obtaining parts for the repair. On January 30, Thomas talked to Special Agent Schiraj and notified him that the deal would take place the next day, January 31.
On January 31, Special Agent Schiraj met with the approximately fifteen other agents and officers who would be involved in the surveillance and arrest. He informed them of the impending deal. They agreed to exchange information during the course of the day by radio and phone.
At 11:00 A.M. on January 31, officers surveying Monk's Auto Body Shop observed Harvey Sampson and Rose Sampson arrive there in a silver Volvo. A white Trans Am was parked in front of the shop. At 12:50 P.M., Harvey Sampson left in the silver Volvo, followed by Rose Sampson in the white Trans Am and James Fehir in a brown Capri. The Sampsons and Fehir soon separated.
During the course of the day, negotiations continued between the confidential informant and Bruce Thomas. Because Thomas had told Agent Schiraj that Fehir and his source did not want to meet with Shiraj, the informant was equipped with a transmitting device. Agents Brenda Clarke and John Guseman listened in the car to the transmission's emanating from the informant's transmitting device and broadcast their description of them to the other agents and officers. At 1:40 P.M. the informant met with Thomas and Fehir in a K-Mart parking lot in Moon Township, Pennsylvania. There, they gave the informant a small sample of cocaine. Fehir told the informant that he did not have the one-half kilogram at that time; he was to contact his source shortly to obtain it. According to Fehir's instructions, the informant should contact Fehir at home to receive further instructions on where and when the deal was to take place.
At 2:45 P.M., the Sampsons met with Fehir outside Pappan's restaurant in Rochester, Pennsylvania. Harvey Sampson left the Volvo and met with Fehir in Fehir's car, while Rose Sampson remained in the Trans Am. The Sampsons left the meeting in their two cars and together drove to various places in Rochester, stopping and meeting with several people.
At about 6:20 P.M., Harvey and Rose Sampson parked in front of the Kaufmann's Department Store in Beaver. Rose Sampson parked the Trans Am directly behind Harvey Sampson's Volvo. The Sampsons' eleven-year old daughter, Melissa, sat in the passenger seat of the Trans Am.
Agents in several cars observed the Sampsons through binoculars from approximately one hundred fifty yards away. Night had fallen. Harvey and Rose Sampson got out of their cars. Both walked to the trunk of the Volvo. Pennsylvania State Troopers Chiappini and Shoop saw Harvey Sampson take a white package from the trunk and hand it to Rose Sampson. The troopers radioed this information to the other surveillance cars. DEA Agent Scheid observed Harvey Sampson hand a gun to Rose Sampson while both stood at the Volvo's trunk. Agent Scheid had not seen the transfer of the white package. Some moments after Rose Sampson got back into the Trans Am, Harvey Sampson approached the driver's side of the Trans Am. Rose Sampson, who was in the driver's seat, handed him a gun through the window.
Harvey Sampson drove off in the Volvo to a Kentucky Fried Chicken parking lot, about two hundred yards away, where he met with Fehir and the confidential informant. They haggled over the details of the deal: the informant wanted to see the cocaine before paying, and the defendants demanded the money first. At some point, one of the defendants said to the informant, "It's in the Kaufmann's lot." Agent Clark heard this statement relayed by the informant's transmitter, and Clark told her partner John Guseman, who relayed it by radio to the other cars. Shortly thereafter, James Porter, the agent in charge, ordered the agents and officers to arrest the defendants. Harvey Sampson was arrested in the Kentucky Fried Chicken parking lot, ten feet from the Volvo. Almost simultaneously, other agents surrounded Rose Sampson's Trans Am. They took her and her daughter from the car. On the back floor, Special Agent Schiraj found a blue duffel bag containing a white powder wrapped in clear plastic. Though the white powder was not visible from outside the duffel bag, the duffel bag was unzipped. It opened at Agent Schiraj's touch, disclosing its contents. Other agents searched Rose Sampson and seized $24,000.00 in cash from her purse. Two guns were found in Harvey Sampson's Volvo.
Later that day, while in custody, Rose Sampson made several statements. She denied knowledge of the drug deal. She stated that she was in the Rochester, Pennsylvania, area to pick up her Trans Am, which had been repaired there. She acknowledged that the purse containing the $ 24,000.00 was hers and that she knew there was a lot of money in it, though she did not know how much. She said that the money belonged to her husband. Rose Sampson denied knowing what the blue duffel contained, and she said the bag was her husband's.
After the suppression hearing, counsel for Rose Sampson made a detailed proffer of what Harvey Sampson's testimony on Rose Sampson's behalf would be if the court immunized him. Harvey Sampson and his counsel were present in court during this proffer, and Rose Sampson's counsel conferred with ...