United States v. Dario Dicesare, United States of America v. Kathleen Flannery, United States of America v. Jose Marin

765 F.2d 890, 1985 U.S. App. LEXIS 20499
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 10, 1985
Docket84-5013, 84-5021 and 84-5056
StatusPublished
Cited by143 cases

This text of 765 F.2d 890 (United States v. Dario Dicesare, United States of America v. Kathleen Flannery, United States of America v. Jose Marin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dario Dicesare, United States of America v. Kathleen Flannery, United States of America v. Jose Marin, 765 F.2d 890, 1985 U.S. App. LEXIS 20499 (9th Cir. 1985).

Opinions

WALLACE, Circuit Judge:

DiCesare and Flannery appeal their convictions entered after conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Marin appeals his conviction after a jury trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm DiCesare’s conviction, but vacate Flannery’s conviction and remand for an evidentiary hearing. We vacate Marin’s conviction and remand for a new trial.

I

In January 1983, the government began investigating DiCesare after he and his wife insisted on depositing large amounts of cash in the First Los Angeles bank without filing the currency transaction reports required by 31 C.F.R. §§ 103.22, 103.25 (1984). On July 25, 1983, Glendale police seized approximately 33 pounds of cocaine at a hotel room in Glendale. DiCesare arrived at the hotel room and provided inconsistent explanations of his presence to the police. He was arrested, but later released.

A team of law enforcement officers from the United States Customs Service, and the Los Angeles and Glendale police departments began a surveillance of DiCesare. During late August, this surveillance revealed meetings and rendezvous between DiCesare and codefendant Marin under secretive and suspicious circumstances. The police observed DiCesare and Flannery drive in DiCesare’s automobile to the home of a suspected drug trafficker. Upon their return to Flannery’s apartment, DiCesare switched vehicles to Flannery’s BMW and returned to his apartment in Marina del Rey. Later, DiCesare placed a suitcase in the BMW’s trunk. The officers requested a narcotics canine, which “alerted” to the presence of narcotics in the trunk.

On the basis of these observations, Special Agent Rodriguez, a customs officer who had participated in the surveillance, obtained a search warrant for DiCesare’s and Flannery’s apartments from a Glendale municipal court judge. The search of DiCesare’s apartment revealed large quan[894]*894tities of cash, cocaine, other narcotics trafficking paraphernalia, and several envelopes containing large amounts of currency addressed to an attorney. The BMW also was searched, and the suitcase in the trunk contained six pounds of cocaine and a balance scale. Both DiCesare and Marin were arrested in DiCesare’s apartment. When the officers searched Flannery’s apartment, they found cocaine, paraphernalia and cocaine trafficking notations. Flan-nery also was arrested.

When Marin was arrested, he had a small child with him. The officers took custody of the child, and then drove to Marin’s apartment in an attempt to locate the child’s mother. Outside Marin’s apartment, the officers stopped Liguori, DiCe-sare’s secretary, and searched her purse. It contained an envelope addressed to the same attorney as the envelope containing currency that had been found in DiCesare’s apartment. The envelope found in Liguo-ri’s purse contained $9,700 in cash. The officers arrested Liguori. A later inventory search of the purse revealed cocaine and a rental receipt for Marin’s apartment.

At Marin’s apartment, the officers met several Spanish-speaking occupants. Although it is not clear whether the officers received permission to enter or whether the occupants understood why the officers were present, the officers entered the apartment with the avowed purpose of returning the child. Once in the apartment, the officers observed the following items in plain view: a utility bill with DiCesare’s name on it, a note pad containing figures that, in the officers’ opinions, were consistent with cocaine trafficking, and a large green suitcase. The officers first secured the apartment, and then requested a narcotics canine. When the dog arrived, it entered the apartment and alerted to the suitcase. Two hours after their initial entry, the officers decided to obtain a search warrant, and detained the occupants for several hours while awaiting the warrant. The search revealed $2,000 in cash next to an envelope addressed to the same attorney as the envelopes found in DiCesare’s apartment and Liguori’s purse. The search of the suitcase revealed no contraband.

DiCesare, his wife Beatrice, Flannery, Marin, and Liguori were indicted for a conspiracy in violation of 21 U.S.C. § 846 (count one: conspiracy to possess or distribute cocaine). In addition, Flannery and the DiCesares were indicted for the following violations: 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute) (count four: DiCesare and Flannery; count two: DiCesare alone); 18 U.S.C. § 924(c) (count three: carrying a firearm during a felony) (DiCesare alone); 26 U.S.C. § 5861(h) (count five: possessing a firearm with an obliterated serial number) (DiCe-sare alone); 18 U.S.C. § 371 and 31 U.S.C. §§ 5313, 5322 (count six: conspiracy of and a willful failure to report a domestic currency transaction) (both DiCesares). The firearm serial violation was later dismissed. Beatrice DiCesare entered a guilty plea, while Liguori’s charges were dismissed after she cooperated; neither is a party to this appeal. Both DiCesare and Flannery entered conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Pursuant to the plea agreement, counts two and three were dismissed against DiCesare at the time of sentencing, and count four was dismissed against Flannery. Marin entered a plea of not guilty, and was convicted by a jury on count one.

II

We first address the issues raised by DiCesare and Flannery, who joined in the motions of her co-defendants.

A.

DiCesare and Flannery contend that the district court erred by denying their motions for hearings required by Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks). There are five requirements for a sufficient motion for a Franks hearing: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were [895]*895deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983) (Kiser).

We review the denial of a Franks hearing de novo. See, e.g., United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985).

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Bluebook (online)
765 F.2d 890, 1985 U.S. App. LEXIS 20499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dario-dicesare-united-states-of-america-v-kathleen-ca9-1985.