filed: July 31, 1990; As Corrected October 31, 1990.
Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Crim. Nos. 88-00529-04/05.
Sloviter and Becker, Circuit Judges, and Lifland, District Judge.*fn*
This is an appeal by Jose Cruz and Julian Miguel Alverio from their convictions in the district court for the Eastern District of Pennsylvania for conspiracy to possess cocaine with intent to distribute, and conspiracy to distribute cocaine, 21 U.S.C. § 846. Cruz argues that the district court erred by denying his motion to suppress certain statements made after his arrest on the grounds that: (1) the law enforcement officers did not have probable cause to arrest him; and (2) his fifth amendment rights were violated. On the latter issue Cruz contends that the Miranda warnings he was given were inadequate and that he did not waive his right to remain silent. Additionally Cruz contends that the district court erred by allowing a United States Customs to testify about a conversation he overheard between two unidentified Hispanic women because: (1) it was unreliable (2) it was hearsay; (3) it was not relevant; and (4) it violated the defendants' sixth amendment confrontation clause rights. As will be seen, the resolution of this aspect of the appeal turns on whether the statement of the unidentified woman was admissible as a co-conspirator declaration. Alverio also submits that there was insufficient evidence to support his conviction, and that his sentence was excessive. For the reasons that follow, we will affirm.
The facts of the case, developed at the hearing on the defendants' motion to suppress evidence and at the trial, are largely undisputed and are as follows.
In November 1988, United States Customs Service Julio M. Velez was working on a joint investigation with United States Drug Enforcement Administration (DEA) Special Agent Frank Marrero into drug activity conducted by one Rene Guzman on the 3000 block of North Leithgow Street in Philadelphia. On Friday, November 18, Velez conducted surveillance in the vicinity of 3052 North Leithgow and on at least seven separate occasions observed individuals drive up to 3052 North Leithgow, enter the building, and then exit carrying brown paper or plastic bags. Based upon Velez's experience, he believed that the individuals entering and exiting the building were engaged in drug trafficking. On November 21, from 3:00 to 4:00 p.m., Velez again established surveillance in the vicinity of 3052 North Leithgow and observed at least ten cars pull up to 3052. An individual would exit 3052, approach the cars, receive currency from the people in the cars, re-enter 3052, and then return to the cars and hand the people in the cars a plastic bag with a white substance. During the surveillance, Velez observed Rene Guzman drive up to the area, enter 3052 North Leithgow, exit the building after a few minutes and enter 3054 North Leithgow, then return to 3052 with a package, and then return to 3054.
By November 18, 1988, Velez had determined that Guzman had a prior criminal record involving arrests and a conviction for drug trafficking. Velez had also learned that Guzman had purchased a grocery store at 5100 Whitaker Avenue, Philadelphia. On that date, Velez conducted surveillance at the grocery store, and noticed a vehicle parked in the carport which was registered to Rene Guzman, of 3054 North Leithgow. On November 21, 1988, at approximately 8:00 p.m., federal search warrants were executed at 3052, 3054 and 3056 North Leithgow Street.
At approximately 10:00 p.m. that evening, while the search was underway (a process that took several hours), Velez was standing around the corner from the scene of the search, with a group of neighbors, watching the police activity. At that time, Velez observed a young, Hispanic female running down the street. She spoke to another young, Hispanic female in Spanish, asking for a third woman. Velez overheard the first young female excitedly state that she wanted the keys to 5100, that the police had just raided Rene's house, and that they needed the keys to the store because there were "two things" (translation) in the store. Velez immediately left the area and contacted other police units by radio to dispatch vehicles and agents to 5100 Whitaker Avenue because he believed that evidence was going to be removed from the building. Velez then drove his own unmarked car to that address.
Shortly after Velez arrived at 5100 Whitaker Avenue, he observed a tan El Camino make a U-turn on Whitaker Avenue and park on the corner opposite the store. A Hispanic male, later identified as Cruz, exited the passenger side of the El Camino, walked over towards the store, put his hand into his pocket as if he were reaching for something, but "froze" when he observed Velez in the unmarked car. Velez circled the block to avoid suspicion. When he returned to the area, he observed Cruz looking in the window of the store. When the headlights of Velez's vehicle hit Cruz, Cruz walked away from the store and got back into the El Camino, which quickly departed the scene. Velez activated his portable red overhead light and siren, and a high-speed chase ensued. After approximately a mile, the El Camino was cut off by another vehicle driven by Customs Agent William Braker. Both Alverio, the driver of the El Camino, and Cruz were removed from the vehicle.
Because he was working undercover, Velez did not carry his Miranda warnings card, so, from memory, he advised both Cruz and Alverio (in Spanish) of their rights to remain silent and to have counsel present during questioning. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). He also advised them that the court would appoint counsel for them if necessary. Velez concluded his recitation of the Miranda warnings by stating that if the defendants decided to answer his questions without the presence of a lawyer, they had the right to do so. Velez then asked Alverio and Cruz if they understood their rights. Alverio and Cruz responded in the affirmative. Cruz then asked Velez in Spanish what was going on. Velez responded by asking Cruz where he was coming from, and Cruz stated that he was coming from a restaurant. Cruz also stated that he lived at 3056 North Leithgow Street. Agent Braker searched the car and found a small amount of marijuana in the console.
After hearing the testimony establishing these facts, the district court denied Cruz's motion to suppress the statements he made after his arrest. Cruz, who was particularly affected by the statement that he lived at 3056 North Leithgow Street because of the evidence that the address was a location for drug trafficking, argued that the statements should be suppressed for three reasons: first, because Velez did not have grounds to stop the El Camino or grounds to arrest him; second, because the Miranda warnings were inadequate; and third, because he did not waive his right to remain silent. The district court concluded that there were "adequate grounds for law enforcement officers to stop the El Camino," and that, once the car was stopped, in "all functional senses" Cruz was "under arrest." Although the court did not explicitly find that Velez had probable cause to arrest Cruz, such a finding appears to be implicit in its denial of Cruz's motion to suppress. The court expressly found that the Miranda warnings given to Cruz were adequate and that Cruz had then waived his fifth amendment rights.
At trial, Edwin Melendez Montes, who was a codefendant on the indictment and who had been convicted in a separate trial, was a witness for the government. Melendez testified that he knew Alverio when both lived in Puerto Rico, and that after he moved to Philadelphia in November 1988, he had a chance meeting with Alverio on the street. Melendez wrote his name, address and telephone number on a piece of paper and gave it to Alverio. Melendez again met with Alverio near Alverio's home sometime after the first meeting and asked him where he could obtain cocaine. Alverio took Melendez to 3052 North Leithgow Street and introduced him to Cruz. Cruz then sold a half gram of cocaine to Melendez for twenty-five dollars in Alverio's presence. Melendez later returned to 3052 North Leithgow and eventually began selling cocaine at that location. While selling cocaine at 3052 North Leithgow, he observed Cruz selling cocaine in front of the house.
On November 21, 1988, the date the search warrants were executed at 3052, 3054 and 3056 North Leithgow Street, Melendez was selling cocaine at 3052. Approximately half an hour before he was arrested as a result of the execution of the search warrants, Melendez saw Cruz talking to Sonia Guzman, Rene's wife, in front of 3054 North Leithgow Street, where Sonia lived. Alverio and Melendez were in front of 3052 while Cruz was speaking with Sonia in front of 3054. After Cruz spoke with Sonia, Cruz and Alverio departed the area together.
At 7:05 p.m. on November 21, 1988, before the execution of the search warrants, Philadelphia Police Officer Robert Clements made an undercover purchase of cocaine from Melendez and a Paul Rivera inside 3052 North Leithgow Street. Prior to entering the building, Clements observed Rivera exit 3056 North Leithgow Street. Clements followed Rivera inside 3052 and observed Rivera deliver a package of a number of smaller bags of cocaine to Melendez there.
As a result of the search, 3052 North Leithgow Street was found to be a distribution house for cocaine, and 3056 North Leithgow Street was determined to be a packaging house for cocaine. Melendez and Rivera were found hiding in the back of 3054 North Leithgow Street. Also found inside 3054 were Rene and Sonia Guzman, $12,729 in cash, and a radio to communicate with a radio found at 3052 North Leithgow Street. According to a ...