United States v. Bronzie L. Carter

566 F.2d 1265, 1978 U.S. App. LEXIS 12770

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 3, 1978
• Docket: 76-2325 and 77-5144
• Status: Published

Opinions

HILL, Circuit Judge:

After a jury trial, defendant Bronzie Carter was convicted of unlawfully distributing heroin in violation of 21 U.S.C. § 841(a)(1) and of conspiring to distribute heroin in violation of 21 U.S.C. § 846. By order of this Court, the defendant’s direct appeal from his convictions has been consolidated on this appeal with the defendant’s appeal from the district court’s denial of his motion for a new trial. The defendant challenges his convictions on several grounds. We hold that the defendant’s allegations of error are meritless, and we affirm.

During the summer and fall of 1975, Agents Goode and Kelsey of the Orlando, Florida, Police Department, working as an undercover team, investigated a three-tier heroin distribution chain. Defendant Carter sold heroin to Terri Ovitt, who then sold the heroin to Anthony Italiano. Goode and Kelsey developed evidence against the defendant and Italiano by making several purchases of heroin from Italiano. Italiano was arrested on the night of October 29, 1975, by agents of the United States Drug Enforcement Agency (DEA). On the same night, DEA agents and local law enforcement officers executed a search warrant at defendant Carter’s home and arrested him. During the hearing on the motion to suppress, the parties disputed several important facts concerning the execution of the search warrant. We state and apply the law to the facts as they were found by the district court after the suppression hearing because the district court’s findings of fact are supported by the record. United States v. Johnson, 327 U.S. 106, 111-12, 66 S.Ct. 464, 90 L.Ed. 562 (1946).

Approximately 16 law enforcement officers executed the search warrant for heroin at the defendant’s trailer home. DEA Agent Porter was the first officer to enter the trailer. As he and another officer drove to the trailer, they saw a man standing at the trailer door. The man jumped off the doorstep and ran away from the trailer when he saw the officers approach. Porter then ran toward the trailer and yelled, “Sheriff’s Department with a warrant,” when he was approximately 15 feet from the trailer. When Porter reached the trailer door, it was slightly ajar. Porter heard someone inside the trailer yell, “It’s the cops,” and he heard people inside the trailer running away from the door. Porter again announced that he had a warrant from the Sheriff’s Department, and he entered the trailer. Porter immediately proceeded to the trailer bathroom, where he found the defendant and another person emptying the contents of a clear plastic bag into the toilet. Porter arrested the defendant. After placing the other trailer occupants under control, Porter and some other officers completed their search of the trailer. Among the items they seized were a triple-beam balance, some glass jars containing lactose, and boxes of tinfoil. The officers also seized traces of heroin that were on the toilet and in the plastic bag the defendant had been emptying into the toilet.

The defendant argues that Agent Porter’s entry into the trailer violated 18 U.S.C. § 3109, which provides that an officer may break open a door of a house to execute a search warrant if “after notice of his authority and purpose, he is refused admittance . . .,” because Porter did not give the trailer occupants an opportunity either to open the door or to refuse admittance. The defendant further argues that § 3109 does not have an exigent circumstances exception and that, even if it does, Porter was not confronted with a situation justifying his failure to comply with the statute.

Although the Supreme Court has never expressly held that § 3109 has an exigent circumstances exception, the Court has strongly indicated that it would recognize such an exception on the appropriate fact situation:

Exceptions to any possible constitutional rule relating to announcement and entry have been recognized . . . and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification.

Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 1759, 20 L.Ed.2d 828 n. 8 (1968).

See also Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). This Court explicitly has held that compliance with § 3109 may be excused when exigent circumstances exist. United States v. Chapman, 384 F.Supp. 1232, 1236 (S.D.Fla. 1974), aff’d, 523 F.2d 1054 (5th Cir. 1975); United States v. Squella-Avendano, 447 F.2d 575, 584 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971); United States v. Garcia Mendez, 437 F.2d 85, 86 (5th Cir. 1971).

The defendant argues, however, that this Court should no longer recognize an exigent circumstances exception to § 3109 because Congress repealed the “no-knock” law, 21 U.S.C. § 879(b), which authorized a federal agent in certain situations to execute a search warrant for narcotics without announcing his authority or purpose, and because neither Congress nor the Supreme Court has since engrafted an exigent circumstances exception onto § 3109. We reject this argument. Although the common law exhibits a deep respect for the individual’s right to privacy in his home, the common law also permits certain intrusions upon this right. The legislative history accompanying the repeal of the “no-knock” law shows that Congress did not intend that repeal of the law eliminate the common law exceptions to § 3109. In addition to repealing the “no-knock” law, Congress made § 3109 applicable in the District of Columbia. The legislative history states:

It is the conferees’ intent that D.C. police be required to announce their authority and purpose in the same situations in which other Federal law enforcement officers are required to make such announcement. Conversely, they should be excused from compliance with the rule in those situations where other Federal law enforcement officers are excused.

* * * * * *

[T]he conferees were concerned that retention of the [statutory] exception relating to entry by trick or stratagem could lead courts to conclude that no other exceptions are available in the District of Columbia. This was not the conferees’ intent. Conf.Rep. No. 1442, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 5974, 5977-78.

Therefore, this Court still recognizes an exigent circumstances exception to § 3109 despite repeal of the “no-knock” law.

We affirm the district court’s holding that Agent Porter’s failure to comply with the terms of § 3109 was justified by the exigencies of the situation. In determining the lawfulness of an entry and of the existence of probable cause, a court concerns itself only with what the officers had reason to believe at the time of their entry. Ker v. California, 374 U.S. 23, 40-41 n.12, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). In the case on appeal, Agent Porter had reason to believe that the person who ran from the trailer had detected the officers’ presence. When Porter reached the trailer, he heard someone inside the trailer announce the officers’ presence and the sound of people running away from the door where he stood. These facts justified Porter in being “virtually certain” that the persons inside the trailer knew Porter’s purpose and that making the statutorily prescribed announcement of authority and purpose would be a “useless gesture.” Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Chapman, 384 F.Supp. 1232 (S.D.Fla.1974), aff’d, 523 F.2d 1054 (5th Cir. 1975); United States v. Squella-Avendano, 447 F.2d 575 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.22d 369 (1971). Finally, Agent Porter was concerned about the possible destruction of evidence; heroin is a readily disposable item. Therefore, the execution of the search warrant was legal.

The defendant’s appeal from the denial of his motion for new trial raises a troublesome issue. The defendant alleges that his constitutional rights to due process and to a fair trial were violated by the Government’s alleged failure to reveal material impeachment evidence exclusively in its possession and by the Government’s failure to correct allegedly false testimony by Italiano, Agent Goode, and Agent Kelsey. The parties sharply dispute the facts that form the basis for the defendant’s argument. Therefore, this Court accepts the facts as found by the district court, because the district court’s findings were not “wholly unsupported by [the] evidence.” United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946).

Anthony Italiano, the person who sold heroin to Agents Goode and Kelsey of the Orlando, Florida, Police Department, testified as a prosecution witness at trial. Itali-ano was arrested the same night the defendant was arrested. After Italiano’s arrest, John LePore, supervisor for the Orlando DEA unit, advised Italiano that he was charged with seven counts of dispensing heroin and that each violation had a maximum penalty of 15 years. LePore also told Italiano that if he would cooperate with the DEA, including testifying concerning his heroin source, Italiano’s cooperation would be reported to the United States Attorney. Italiano subsequently entered into a plea agreement, by which he agreed to provide the Government with information concerning his heroin source. In December 1975, however, Italiano renounced the plea agreement. Assistant United States Attorney Thomas Mihok then told Italiano that Mi-hok would urge the trial court to impose the maximum sentence of incarceration if Itali-ano was convicted. Subsequent to the collapse of the plea agreement, Italiano was convicted on all seven counts against him.

During debriefings under the aborted plea agreement, Agent Kelsey had told Ita-liano that he would advise the trial court and the United States Attorney of Itali-ano’s cooperation if Italiano would testify at the Carter trial. Three days before the Carter trial, Agent Goode promised Italiano that Goode would inform Italiano’s sentencing judge of Italiano’s cooperation. The district court found that affirmative promises were not made to Italiano concerning protection for his family and for himself until after the conclusion of Italiano’s testimony in the Carter case. The court also found that, after Italiano’s arrest on October 29, 1975, he worked as a confidential informant for Goode to provide him with information on matters unrelated to the Carter case.

During the Carter trial, the defense counsel asked Italiano whether he had ever been offered anything in return for his testimony. Italiano responded that he had not. In response to further questioning by the defense counsel, however, Italiano testified that he had been convicted of selling heroin to Agents Goode and Kelsey and that he thought “it might go lighter on [him]” if he testified against Carter. Italiano further testified that neither Goode nor Kelsey promised him anything for testifying against Carter but that they had suggested to him that they would “help [him] out” if he did so. Agent Goode testified on cross-examination that he had never approached Italiano about a possible deal in exchange for his testimony and that Goode had never been with Kelsey when Kelsey had done so. Agent Kelsey testified on cross-examination that he had never made any “overtures” to Italiano about what Kelsey might be able to do for him if he testified against Carter.

After Carter’s trial, Italiano gave a sworn statement to Carter’s attorney in which he asserted that he had testified against Carter because he had been coerced and threatened by the Government’s counsel and by DEA agents and because he had been offered inducements and lenient treatment in return for his testimony. Carter’s attorney then filed a motion for new trial in the district court. After the hearing on the motion, the district court found that the only promises Italiano had received before trial were that Agent Goode would advise Italiano’s sentencing judge of Italiano’s cooperation and that DEA Supervisor LePore would notify the Assistant United States Attorney of Italiano’s cooperation. The district court denied the defendant’s motion for new trial, holding that there was no reasonable likelihood that the jury verdict would have been affected by disclosure of the information that was the subject of the motion.

Examination of the entire line of Itali-ano’s cross-examination concerning his possible bias shows that Italiano apprised the jury that he expected to benefit by testifying against Carter. The Government argues that Goode’s and Kelsey’s testimonies also were truthful. The Government argues that Goode’s testimony was truthful because Italiano allegedly approached Goode, whereas the defense counsel only asked whether Goode had ever approached Italiano. Additionally, the Government argues that Goode’s promise to Italiano was not offered in exchange for Italiano’s testimony because Goode made this promise after Italiano already had agreed to testify and because Goode would have been morally obliged to inform Italiano’s sentencing judge about Italiano’s informant work regardless of whether Italiano testified voluntarily at the Carter trial. The Government argues that Kelsey’s trial testimony was truthful because Kelsey testified at the hearing on the motion for new trial that he interpreted the word “overture” in the defense counsel’s question to mean “undue pressure, coercion, harassment, promises, anything [he] couldn’t fulfill, or deceive [It-aliano] in any way.”

We do not determine whether Agent Goode’s and Agent Kelsey’s testimonies were perjurious or nonperjurious in the strict legal definition of perjury. The Government’s argument that Goode’s and Kelsey’s testimonies were truthful depends more upon criticism of the questions put to them than upon candor on the part of these witnesses. The Agents did not candidly respond to the defense counsel’s questions, and the prosecuting attorney did nothing to correct the Agents’ evasive testimonies. See Blankenship v. Estelle, 545 F.2d 510 (5th Cir. 1977); Dupart v. United States, 541 F.2d 1148 (5th Cir. 1976). Therefore, for purposes of this case, we review the Agents’ testimonies in light of the stringent standard stated in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Giglio, the Supreme Court held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s judgment. See also Napue v. Illinois, 360 U.S. 264, 79 , 3 L.Ed.2d 1217 (1959). Applying that standard, we affirm the district court’s holding. Although Agents Goode and Kelsey did not reveal that they had attempted to induce Italiano to testify against the defendant, Italiano himself apprised the jury that he expected to benefit by testifying and that Agents Goode and Kelsey had suggested to him that it would be in his best interest to do so. There was sufficient evidence at trial establishing the defendant’s guilt that this Court cannot conclude that more candid disclosure by witnesses Goode and Kelsey would have been reasonably likely to have affected the verdict. Italiano testified that he had direct dealings with the defendant in connection with the procurement of heroin. When testifying at the hearing on the defendant’s motion for new trial, Italiano did not refute any of his trial testimony concerning the defendant’s guilt. Italiano’s trial testimony was corroborated by the testimony of Terri Ovitt, who was shown by the evidence to be the middleman through whom the defendant distributed heroin to Italiano. Furthermore, Italiano’s and Ovitt’s testimonies were corroborated by surveillance agents and by the search of the defendant’s residence.

Finally, the testimony of the defendant’s trial counsel, Ed Leinster, at the hearing on the motion for new trial shows that from the time Italiano’s plea bargain collapsed until shortly before trial, Italiano kept Leinster informed about any and all “pressures” being exerted on Italiano to testify against Carter. Leinster testified that he had discussed with Italiano the plea negotiations between Italiano and the Government. Leinster also testified that he knew that Agents Goode and Kelsey were attempting to induce Italiano to testify by giving him general assurances that they would try to do something for him and by telling Italiano that they could make things easy or hard for him. During the Carter trial, Leinster examined the attorney who represented Italiano in the plea negotiations about the aborted plea bargain. On cross-examination, Leinster elicited from It-aliano that he expected to benefit by testifying. The jurors were made aware of any expectations on the part of Italiano which might have motivated him as a witness. We affirm the district court’s denial of the motion for new trial.

Although we affirm the district court’s holding, we condemn the Government’s use of misleading testimony. The due process clause of the fifth amendment mandates that each defendant shall receive a fair trial. Although the Government has an obligation to prosecute cases zealously, the Government’s primary obligation is to try each case fairly and with due regard for the accused’s rights. The witnesses yielded to a temptation to evade; the Government’s counsel ought not have done so.

Citing this Court’s decision in United States v. Apollo, 476 F.2d 156 (5th Cir. 1973), the defendant next argues that the trial judge committed reversible error by failing to give a cautionary instruction to the jury that out-of-court statements made by a coconspirator are inadmissible against the defendant until the conspiracy is established by nonhearsay testimony. Specifically, the defendant objects to Agents Goode’s and Kelsey’s testimonies concerning out-of-court conversations they had with Italiano. Although the defense counsel objected to this testimony on the basis that it constituted hearsay, he did not request a limiting instruction either when the statements were admitted during trial or during the jury charge. Therefore, the trial court’s failure to give the limiting instruction sua sponte is reversible error only if it constitutes plain error affecting substantial rights. Fed.R.Crim.P. 52(b); United States v. Garcia, 531 F.2d 1303, 1307 (5th Cir.), cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976); United States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975).

In Apollo, the trial court refused to give a limiting instruction though the defense counsel promptly objected to the introduction of certain hearsay testimony without a proper cautionary instruction. This Court stated that the record in Apollo was “replete with . . . extra-judicial statements” and that the trial court permitted “a veritable flood” of hearsay testimony. 476 F.2d at 163. Although the trial court in Apollo did give an appropriate instruction in its jury charge, the court stated in the jury’s presence that “connection with conspiracy must of necessity be established by some hearsay in this kind of case.”

This Court has held that although Apollo may establish that a cautionary instruction must be given if properly requested, Apollo does not require an instruction when one is not requested unless manifest prejudice would result otherwise. United States v. Moore, 505 F.2d 620, 624 (5th Cir. 1974). Therefore, whether the holding in Apollo requires reversal in a particular case depends on the facts in that case. United States v. Jennings, 527 F.2d 862, 868 (5th Cir. 1976). During the trial of the case on appeal, the trial court specifically found that there was sufficient evidence that a conspiracy existed between the defendant and Italiano as of September 26, 1975. Therefore, the trial judge sustained the defendant’s hearsay objections as to out-of-court statements made by Italiano before that date but permitted testimony concerning Italiano’s out-of-court statements after that date.

We find that the existence of a heroin distribution conspiracy involving the defendant was established by nonhearsay evidence. Coconspirator Ovitt testified, for example, that she would call the defendant for heroin and that the heroin then would be left at her trailer. Italiano then would pick up the heroin and pay her, at which time she would call the defendant. The defendant then would come to Ovitt’s trailer to pick up the money. Therefore, the trial court did not commit plain error by failing to give a limiting instruction concerning the hearsay testimony.

The defendant’s remaining objections may be disposed of with little discussion. When the trial judge read count two of the indictment to the jury, he instructed them that he would not read overt acts one through ten because there was no evidence to support them. The defendant alleges that the trial court thereby committed a reversible error because it implied that there was evidence to support the other overt acts alleged in count two of the indictment. Because the defendant did not object to this instruction at trial, this Court will reverse the district court on the basis of this objection only if it constituted plain error affecting substantial rights. Fed.R.Crim.P. 52(b); United States v. Garcia, 531 F.2d 1303, 1307 (5th Cir.), cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976); United States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975). The Supreme Court and this Court have held that withdrawing from the jury’s consideration a part of the indictment unsupported by the evidence is permissible. United States v. Ballard, 322 U.S. 78, 90-91, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (Stone, C. J., dissenting); United States v. Musgrave, 483 F.2d 327, 338 (5th Cir. 1973); Overstreet v. United States, 321 F.2d 459, 461 (5th Cir. 1963); Wright, Federal Practice and Procedure § 127 (1969). In the case on appeal, the trial judge’s statement concerning overt acts one through ten did not prejudice the defendant. We hold that the trial judge’s statement did not constitute error, much less plain error.

The defendant next argues that the trial court committed reversible error when it gave the jury a supplemental charge commonly known as an Allen charge. This allegation of error is meritless, because the trial court’s charge was within the limits of United States v. Bailey, 468 F.2d 652 (1972), aff’d en banc, 480 F.2d 518 (5th Cir. 1973). United States v. Atkins, 528 F.2d 1352, 1359-60 (5th Cir. 1976).

Finally, the defendant argues that he was denied the effective assistance of counsel because his trial counsel did not request a jury instruction concerning the limited use of hearsay testimony in a conspiracy trial. In determining whether a defendant has been afforded the effective assistance of counsel, this Court applies the standard of “reasonably effective assistance.” Loftis v. Estelle, 515 F.2d 872, 875 (5th Cir. 1975); Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974). This standard does not require errorless counsel. MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). In the case on appeal, the defendant’s trial counsel satisfied this Court’s standard. Among other actions, he filed pretrial motions to dismiss, to suppress, and for a bill of particulars; he cross-examined coconspirators Ovitt and Italiano and elicited information concerning their possible bias in favor of the Government; and he made several objections to the use of hearsay testimony. Therefore, the mere failure of the defendant’s trial counsel to request limiting instructions on the use of a cocon-spirator’s out-of-court statements is insufficient on the facts of the case on appeal to support a charge of ineffective assistance.

AFFIRMED.